JUDGMENT : BHARATI H. DANGRE, J. 1. An incident of rape and fatal assault that occurred in the National Capital on 16th December 2012 which involved a 23 year old physiotherapist intern, shocked the conscience of the whole nation. The incident generated widespread national and international coverage and was widely condemned both in India and abroad. There was unrest and public protest in the capital which was followed in several major cities in its own way. Social networking sites were put to use to raise a demand of strict law against rape. This resulted into constitution of a three Member Committee on 23rd December 2012 headed by the Former Chief Justice of the Supreme Court Justice J.S. Verma to recommend amendments to the Criminal Law so as to provide for speedy trial and enhance punishment for offence of sexual assault against woman. The said Committee submitted its report on 23rd January 2013. Sensing the urgency and to subdue the wide uproar amongst the general public, the Criminal Law (Amendment) Ordinance 2013 was promulgated on 3rd February 2013. This was followed by the Department-related Parliamentary Standing Committee on Home Affairs tabling its report recommending amendments to the criminal law. After obtaining the assent of the President on 2nd April 2013, the Criminal Law (Amendment Act) 2013 was brought into force, which sought to amend the Indian Penal Code, Code of Criminal Procedure 1973, the Indian Evidence Act, 1872, and also the Protection of Children from Sexual Offence Act, 2012. Barely could have the law makers given a sigh of relief by enacting a drastic law dealing with the offences against women and before the Court seized of the said trial, could deliver its verdict, in August 2013, a 22 year old photo journalist who was interning with an English Magazine in Mumbai was gang raped by five persons, including a juvenile when she had gone to the deserted Shakti Mills Compound in relation to an assignment. This incident brought in question the safety of women into city like Mumbai which, with its active night life was considered safe heaven for women. The Sessions Court in Delhi, delivered its verdict on 10th September 2013, convicting the perpetrators of the crime. Another incident in the financial capital of the country Mumbai, shocked the whole nation. This incident brought in question the safety of women into city like Mumbai which, with its active night life was considered safe heaven for women. The Sessions Court in Delhi, delivered its verdict on 10th September 2013, convicting the perpetrators of the crime. Another incident in the financial capital of the country Mumbai, shocked the whole nation. This time it was another young girl Esther aged 22 years who fell prey of the bestial proclivity at the hands of a man who ended her journey of life mercilessly for satisfying his lust. The series of incidents which came to highlight and several other incidents which are not even reported by the media or not even reported to the police have resulted in the entire womenfolk in the country posing a question of their safety and security. The entire womenfolk is heard raising an outcry and find themselves in a panic striken state of mind and expect the Executive Legislature and the Judiciary to restore their faith in the system. They echo the sentiments similar to what Madeleine Albright has once remarked : “It took me quite a long time to develop the voice and now that I have it, I am not going to be silent” 2. The prosecution case, as unfolded, discloses that Ms.Esther Anuhya, aged 23 years, on completion of her B.Tech Degree course, was recruited as a Software Engineer in TCS in Goregaon at Mumbai. The deceased was a resident of Machilipatnam, Andhra Pradesh and had completed her graduation from Kakinada. On acquiring a degree, she shifted to the city of Mumbai and was residing in YWCA Hostel for Women in Andheri. The deceased came to reside with her parents at Machilipatnam on account of the leave availed by her and she stayed there from 22nd December 2013 to 4th January 2014. Shri Singavarapa Surendra Prasad, PW No.26, the father of the deceased accompanied her to Vijaywada, nearest Railway station to Machilipatnam at about 5.00 a.m. on 4th January 2014, from where a train was available to Mumbai. Ms. Esther boarded LTT Express at Visakhapatnam which reaches Mumbai on the next day at 5.00 a.m. At 9.00 p.m., she had a telephonic conversation with her father and she informed her father that she had reached Solapur. The LTT Express was to reach Mumbai at 5.00 a.m. in the morning and accordingly reached the station. Ms. Esther boarded LTT Express at Visakhapatnam which reaches Mumbai on the next day at 5.00 a.m. At 9.00 p.m., she had a telephonic conversation with her father and she informed her father that she had reached Solapur. The LTT Express was to reach Mumbai at 5.00 a.m. in the morning and accordingly reached the station. PW No.26 – Singavarapa – attempted to contact her in the morning on her mobile phone to inquire whether she had reached safely, but the call was not answered and the mobile went on ringing. The father, thereafter, contacted the Hostel to inquire whether Esther had reached there but he received a reply in the negative. On 5th January 2014 itself, the father (PW 26) approached Vijaywada Railway Police Station and lodged a missing complaint. With the said missing complaint, the devastated father landed at Lokmanya Tilak Terminus Railway Station, Mumbai. He was informed by the railway police that the jurisdiction was that of Kurla Police Station and resultantly, he approached the Kurla Police Station. Then, began a frantic search of Esther and it continued till the date when it was revealed on the father that his daughter is no longer alive and this happened on 16th January 2014 when body of Esther was traced in the bushes on the Express Highway. The body was found in a burnt and decomposed condition but the father could identify Esther, his daughter by the ring in her finger and also from her belongings which were lying nearby. The area where the body was traced was falling in Kanjur Marg area and a complaint came to be lodged at Kanjur Marg police station alleging that Esther was murdered by some unknown person. The body was handed over to the grief-stricken father on 17th January 2014 after completion of the necessary formalities for the purpose of conduct of last ritual and the father carried it to Machilipatnam for performance of last rites. 3. On a complaint being lodged, the Investigating machinery was set into motion by the Kanjur Marg Police Station. The spot panchnama was drawn in presence of panch witnesses. 3. On a complaint being lodged, the Investigating machinery was set into motion by the Kanjur Marg Police Station. The spot panchnama was drawn in presence of panch witnesses. A broken wrist watch of Fast Track Company, knicker and a pad, one pink colour T-shirt of 'M' size, one scarf of slate colour with white dots, one mobile phone containing two sim cards, and a tuft of hair were found lying on the spot and all the said articles were seized by drawing a panchnama. The same were forwarded to the Forensic Laboratory. A map of the spot came to be drawn and it reveals that the said spot is at a distance of approximately 8.90 metres from the Service Road adjoining to the Eastern Express. The Forensic Personnels who reached the spot also collected the samples of soil, dry grass and oily grass at the place of incident. The photographer was also summoned who clicked the photographs of the spot along with the photographs of the body of the deceased. Inquest Panchnama was drawn in presence of panch witness and it divulged that the body was in a partly burnt condition and on the chest portion, there was a black brassiere which was also partly burnt. The portion of abdomen was completely burnt, whereas the private parts and adjoining parts were found to be partly burnt. The body was forwarded for post mortem to Sir J.J. Hospital and PW No.25 Dr. Gajanan Chavan conducted the post mortem and submitted a report and expressed the probable cause of death as “Blunt injuries over body and genital injuries” and reserved the final opinion, pending the Chemical Analysis of the samples. 4. The investigation was carried out initially by Kanjur Marg Police Station but it came to be transferred to the Crime Branch. PI Dattatraya Naikodi registered the FIR, and carried out further investigation in Crime No.6 of 2014 for the offence punishable under Sections 302 and 201 of the Indian Penal Code. Further investigation was carried out by PW No. 34 Nishikant Tungare, Sr. Police Inspector attached to Kanjur Marg Police Station. During the investigation, the CCTV footage from the Lokmanya Tilak Terminus was obtained with the assistance of PW No.33 Shri Vishal Patil who was on duty in RPF, since the security of LTT was under the Government Railway Force and RPF. Police Inspector attached to Kanjur Marg Police Station. During the investigation, the CCTV footage from the Lokmanya Tilak Terminus was obtained with the assistance of PW No.33 Shri Vishal Patil who was on duty in RPF, since the security of LTT was under the Government Railway Force and RPF. The necessary clippings/footage was collected from the 36 cameras installed at the LTT Railway Station. The CCTV footage revealed that Esther had walked out of the Railway station on 5th January along with one stranger who was walking along with her, carrying her trolley bag. The said CCTV footage was shown to the complainant i.e. father of the deceased on laptop at Machilipatnam on 3rd February 2014. The complainant identified his daughter who was going along with a trolley and while coming out, she was talking on mobile and one stranger was pulling her trolley bag. His statement came to be recorded. On the basis of the CCTV footage, an investigation team proceeded to carry out further investigation and made inquiries from the persons on the railway station and nearby spot on the Expressway where the body was found. Based on certain statements which came to be recorded, the Investigating Machinery succeeded in arresting one Chandrabhan Sanap as the person who was accompanying Esther on 5th January 2014 while coming out of Platform No.4 as seen in the CCTV footage. The accused Shri Chandrabhan Sanap came to be arrested vide Arrest Panchnama dated 2nd March 2014 and panch Salim Mushtaq Shaikh executed the said panchnama. The accused was taken into custody at Kanjur Marg Police Station and on physical search of the accused, one piece of paper was found in his back pocket of jeans pant and it was a writing of an Astrologer Rajabhau Aher from Nashik, Trimbakeshwar. It was in the form of a Kundli. Similarly, one Nokia Mobile was also found in another pocket of his jeans pant with one sim card which was seized. After the arrest of the accused, he made a statement of disclosure in presence of panch witness that he was ready to produce the motor cycle which was used by him to carry the deceased to the spot of crime. On such disclosure statement being made, the motor cycle came to be seized. After the arrest of the accused, he made a statement of disclosure in presence of panch witness that he was ready to produce the motor cycle which was used by him to carry the deceased to the spot of crime. On such disclosure statement being made, the motor cycle came to be seized. Further, the accused also made disclosure statement leading to seizure of bag and articles belonging to the deceased which came to be seized from two distinct places. The said articles were identified by the complainant as the one belonging to his daughter. On seizure, the said articles were forwarded for Chemical Analysis. The accused was also referred for medical examination and was examined by Dr.Kushal Tayde who opined that his genital organs are normal and that he was capable of performing a sexual act. On completion of the investigation, chargesheet was filed before the Addl. Metropolitan Magistrate, 37th Court, Mumbai on 26.5.2014. The case was committed to the Sessions Court and came to be registered as Sessions Case No.388 of 2014. The prosecution alleged that deceased Esther, resident of Vijaywada, working at TCS in Mumbai had boarded LTT Express at Vijaywada on 4th January 2014 to reach Mumbai. However, when she reached Mumbai, she was kidnapped by accused Chandrabhan Sanap who took her to the place of incident and after committing rape on her, committed her murder and in order to destroy the evidence, burned the body at a secluded place at a close distance on the Eastern Expressway. The accused was charged for abducting Esther on 5th January 2014 at 5.30 am from Lokmanya Tilak Terminus Station on the pretext of dropping her at the hostel and thereafter he made to sit her on his bike and took her to a lonely place behind the bushes on MumbaiThane Service Road and forcibly committed sexual intercourse with her. He was charged with Sections 364, 366, 376(2)(m), 376(A), 392 r/w Section 397, 302, and 201 of Indian Penal Code. He was also charged with offence punishable under Section 170 of the IPC since he pretended to hold office of Railway Security RPF and by assuming his character as such, refrained from paying Parking charges. He was also charged with Section 147 of the Railways Act, 1989 for committing an offence of trespass. He was also charged with offence punishable under Section 170 of the IPC since he pretended to hold office of Railway Security RPF and by assuming his character as such, refrained from paying Parking charges. He was also charged with Section 147 of the Railways Act, 1989 for committing an offence of trespass. The accused pleaded not guilty to all the said charges and thereafter, the prosecution proceeded to prove the charges against the accused by adducing evidence. The prosecution examined 39 witnesses. The statement of the accused under Section 313 of the Code of Criminal Procedure came to be recorded and the accused examined four witnesses in his defence. 5. On conclusion of the trial, the Sessions Court delivered its verdict on 27th October 2015 and 30th October 2015. The learned Addl. Sessions Judge convicted the accused for the offence punishable under Sections 302, 364, 366, 376(2)(m), 376A, 392 r/w Section 397 and 201 of the IPC. He was acquitted of the offences punishable under Section 170 of the IPC and Section 147 of the Indian Railways Act. For offence punishable under Section 302 of the IPC and the accused was ordered to be hanged by neck till he is dead. On conviction under Section 364, 366 and 376(2)(m), the accused was sentenced to suffer Rigorous Imprisonment for 10 years separately. On conviction under Section 376A, he is sentenced to suffer RI for Life, which shall mean the Imprisonment for remainder of his natural life. For offence punishable under Section 392 r/w Section 397, he is sentenced to suffer RI for 7 years. Further, for offence punishable under Section 201 of the IPC, he is sentenced to suffer RI for 7 years. All the substantive sentences of the Imprisonment of the accused are directed to run concurrently. The accused is directed to pay compensation of Rs.50,000/which is directed to be paid to the parents of the deceased provided they are ready to accept the same. While imposing the death sentence, the Addl. learned Sessions Judge has recorded that the accused has acted with extreme brutality and committed the offence in a preplanned and a diabolical manner. The accused is directed to pay compensation of Rs.50,000/which is directed to be paid to the parents of the deceased provided they are ready to accept the same. While imposing the death sentence, the Addl. learned Sessions Judge has recorded that the accused has acted with extreme brutality and committed the offence in a preplanned and a diabolical manner. The learned Sessions Judge has also observed that the Society’s abhorrence to the crime of rape and murder which had compelled the legislature to introduce death penalty itself proved that 'rarest of rare' case is implied in it when the offence of murder while committing rape is punishable with Death. The Lower Court has referred to the barbaric act of the accused by referring to the genital injuries and the head injuries which have been described as the cause of death associated with smoothering. By striking a balance between the aggravating and mitigating circumstances in favour and against the accused, the Sessions Judge concluded that the enormity of the crime which shocked the conscience of the Society and on drawing a balance sheet between the aggravating and mitigating circumstances after giving due weightage to both, the conduct of the accused clearly fell within the 'rarest of rare' act and in the backdrop of the gruesome, calculated and diabolic offence causing death of a helpless, young, and an innocent girl aged 23 years deserves only death penalty and has accordingly, imposed the same on the accused on his conviction under Section 302 of the IPC. 6. In view of Section 28(2) of the Code of Criminal Procedure, since the sentence of death was imposed, the matter has been made over for Confirmation to the High Court and it came to be registered as Confirmation Case No.3 of 2015. The Confirmation Case No.3 of 2015 which has been placed before the High Court came to be tagged by order dated 5th January 2016 with Criminal Appeal No.1111 of 2015 filed by the accused/appellant. By consent of the learned counsel for the accused as well as the learned Special Public Prosecutor, the matter was fixed for hearing on 3rd September 2018. Both the matters were taken up for final hearing on 11th October 2018 and accordingly, the accused was directed to be produced. We concluded the hearing of the matter on 1st November 2018 after conducting day to day hearing. Both the matters were taken up for final hearing on 11th October 2018 and accordingly, the accused was directed to be produced. We concluded the hearing of the matter on 1st November 2018 after conducting day to day hearing. In support of the confirmation case, we have heard Special Public Prosecutor Mr.Raja Thakare. In the said case, the accused is represented by Advocate Shri Nitin Pradhan along with Ms.Shubhada Khot. In Criminal Appeal No.1111 of 2015, Shri Nitin Pradhan appears for the appellant and the State is represented by Special Public Prosecutor Shri Thakare. We have heard both the matters on day-to-day basis and the accused was present in the Court on all the dates of hearing. 7. With the assistance of the learned Special Public Prosecutor Shri Thakare and Shri Pradhan learned counsel for the accused, we have scrutinized the entire record and the evidence brought on record by the prosecution and also the defence. The learned counsel Shri Pradhan appearing for the appellant would submit that the prosecution has not discharged its burden in proving the guilt of the accused beyond reasonable doubt when it was duty bound to establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must result into a chain of events which would lead to no conclusion other than the guilt of the accused. Shri Pradhan would submit that the circumstances cannot lead to other hypothesis and mere suspicion, however, grave it may be, cannot be a substitute for a proof and in the case based on circumstantial evidence, the Court must be extra cautious in relying on the evidence brought on record by the prosecution. Shri Pradhan would submit that in the present case, several links are missing and there is no proof of any motive, much less a strong motive attributed to the accused and in absence of such proof, the most vital requirement of law to prove a case of circumstantial evidence is nonexistence. Shri Pradhan would submit that in the present case, several links are missing and there is no proof of any motive, much less a strong motive attributed to the accused and in absence of such proof, the most vital requirement of law to prove a case of circumstantial evidence is nonexistence. Shri Pradhan submits that body of the deceased which was discovered, was in an advanced stage of decomposition and was beyond recognition and in this background, the prosecution has not made out a case of rape and in fact, no injuries to that effect could be discerned from the post mortem report and Shri Pradhan is very critical about the manner in which the prosecution has brought an improved version of its case through the doctor who conducted the post mortem by raising certain queries and in its response, then proceeded to foist a charge of rape on the accused. Shri Pradhan is also critical of the recovery of the articles of the deceased at the instance of the accused by effecting disclosure panchnama. Shri Pradhan would submit that there is no evidence brought on record by the prosecution establishing that the deceased was either abducted or kidnapped by the accused and then done to death by him as alleged after committing rape. The entire evidence, according to Shri Pradhan is a vast suspicion with no clinching material to establish any of the ingredients of the abduction, rape or murder by destroying the evidence. Shri Pradhan has also disputed the legality of the evidence brought on record in form of CCTV footage, which is the only genesis on the basis of which the prosecution is deriving an inference that the deceased was last seen in the company of the accused. Shri Pradhan is also critical of the said evidence brought on record without a certificate being issued under Section 65B of the Indian Evidence Act which mandates issuance of a certificate. Shri Pradhan also attacked the case of the prosecution and has submitted that the entire evidence adduced before the trial court by the prosecution through videoconferencing is in utter contrast to section 273 of the Code of Criminal Procedure. Shri Pradhan also attacked the case of the prosecution and has submitted that the entire evidence adduced before the trial court by the prosecution through videoconferencing is in utter contrast to section 273 of the Code of Criminal Procedure. The submission of Shri Pradhan is that the judgment passed by the trial Court fails to take into consideration the basic canons on the touch stone of which the circumstantial evidence has to be appreciated by the trial court and it has faulted in imposing the death sentence which do not meet the requirement of the 'rarest of rare' theory as propounded by the Hon'ble Apex Court nor does it derive a conclusion that imposition of any other sentence would have been inadequate. 8. As against this, Special Public Prosecutor Shri Thakare submits that the prosecution has successfully established the circumstances which pointed to the accused and the Special P.P would submit that it has not relied on a solitary circumstance but through the evidence brought on record, the prosecution has established a chain of circumstances which is aptly corroborated and led to an irresistible conclusion that it was only the accused who had committed the crime. Based on the evidence brought on record, in form of CCTV footage, Shri Thakare would submit that the last seen theory has been invoked by the prosecution and on account of the close proximity of the time between the event of the accused having been last seen in the company of the deceased and the factum of death and in such a situation the accused should explain how and in what circumstances he parted the company of the deceased. Shri Thakare would submit that no doubt the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless it is supported by other links in the chain of circumstances. Shri Thakare would rely on the evidence brought on record by the prosecution in form of the conduct of the accused on the previous night of the day of incident through witnesses who are otherwise completely innocuous and had narrated the events that took place in the normal circumstances. Shri Thakare would rely on the evidence brought on record by the prosecution in form of the conduct of the accused on the previous night of the day of incident through witnesses who are otherwise completely innocuous and had narrated the events that took place in the normal circumstances. His submission is that the subsequent conduct of the accused after commission of the crime has also been brought on record through evidence of the witnesses who had deposed about the acts of the accused in the normal course and Shri Thakare submits that the statements of these witnesses were recorded even before the Investigating Agency had zeroed down on the accused to be the person who was responsible for causing death of the accused. Shri Thakare would submit that the Sessions Court, by taking into consideration the totality of circumstances and the cumulative effect of the evidence brought on record has appreciated the same in light of the well settled norms of criminal jurisprudence and has arrived at a finding of guilt against the accused. As far as the imposition of death penalty is concerned, we would refer to his submission a while later when we come to the point of sentencing. 9. The case of the prosecution is based on circumstantial evidence and the prosecution has relied on 39 witnesses to establish its case apart from several documentary evidence. 10. The body of Esther was traced on 16.01.2014 and the prosecution places reliance on the spot panchnama proved by PW2 Bapu Adsul. The said panchnama is exhibited as Exhibit38. The spot panchnama reveals that the body of the deceased was found at a place located to the East of the Service Road of Eastern Express Highway at a distance of about 29 feet. The spot panchnama discloses that on the said place a space of 5 x 3 feet was in a burned condition and at a distance about 8 feet from the said place there is a space of 4 x 3 feet which is blackish in colour where the dead body was lying. The spot panchnama further reveals that on careful perusal of the spot, at the north of the said place, a Samsung Duos company mobile is lying at a distance of 5 feet. One rubber mobile cover dark blue in colour was also found lying on the spot. The spot panchnama further reveals that on careful perusal of the spot, at the north of the said place, a Samsung Duos company mobile is lying at a distance of 5 feet. One rubber mobile cover dark blue in colour was also found lying on the spot. On the spot one black gray colour scarf with white spots was also found which came to be seized. On the spot one pink colour T-shirt in partly burned condition with Msize also came to be seized from the spot. Further, at a distance of 2 feet from where the body was lying, one Fast track company watch with a black dial with broken belt was also lying on the spot. The spot panchnama further reveals that a purple colour doted knicker and white colour pad attached to the said knicker was also lying on the spot. All the said articles were seized from the said spot and came to be seized. The prosecution also relied on the Inquest Panchnama which was proved by PW6 Nirmala Kadu and was exhibited as Exhibit84. The Inquest panchnama discloses that the dead body of the deceased was partly burnt and blackened. It also mentions of long black hair of the deceased which were found in partly burnt condition, eyes were open and had blackened. The face was completely burnt and so also both the ears. Some portion of the body including the left hand was bereft of any skin and was exposed. The right hand was spread over and the second finger was bent and yellow metal ring was found in the middle figure. The chest portion was found to be completely burned and the black brassiere was attached to the body and the portion of abdomen was charred. The body of the deceased was sent for conduct of postmortem and Dr.Gajanan Chavan prosecution witness No.25 has carried out the postmortem and proved the postmortem report which is exhibited at Exhibit127. The postmortem report relied on by the prosecution also refers to black colour bra with avulsed hookmetallic. Rigor mortis was absent in the body and postmortem report makes mention to the following effect: “Variable mix pattern of decomposition seen. Facial skin burnt, blackish adherent to skull bone, Skin absent at some places of extremities and abdomen exposing bones and abdominal viscera at places. Ends of long bones are nibbled and exposed. Rigor mortis was absent in the body and postmortem report makes mention to the following effect: “Variable mix pattern of decomposition seen. Facial skin burnt, blackish adherent to skull bone, Skin absent at some places of extremities and abdomen exposing bones and abdominal viscera at places. Ends of long bones are nibbled and exposed. Natural separations seen at most of the joints without evidence of ante mortem fractures No Maggots”. As far as the column of surface wound and injuries the postmortem notes mention as under : 1. Contusion over LTLeft fronto temporal area 4 x 5 cm, blackish red colour.” 2. Contusion over lower lip right side against caninesblackish red in colour 2 x 2 cm. Both contusion confirmed by cut section. The postmortem makes note of decomposition seen in perI-cardium and heart. Abdomen is found to be absent. The opinion as to the probable cause of death has been cited as follows : “Blunt injuries over body and genital injuries seen. However, final opinion result, pending for CA of samples”. The final cause of death certificate came to be issued and exhibited at Exhibit128. The cause of death in the said certificate is described as follows : “Death due to Head injury with smothering associated with genital injuries.” 11. The prosecution has also relied on the response to the query raised by the Investigating Officer to the team of doctors who conducted the postmortem in regard to the injury in column No.15 which postmortem was described in the postmortem notes to the following effect. “15. injuries to external genitals. Indication of purginggenitals distorted due to decomposition, vaginal wall shows blackish reddish discoloration at posterior wall, confirmed by cut section” The query that was raised by the Senior Police Officer to the J.J. Hospital on 28.07.2014 raised the following doubts: “(i) What can cause the state of the organs mentioned in column no.15 (ii) In the state of organs in column no.15 whether can be caused by forcible insertion of anything in the vagina. (ii) Whether the state of organs as mentioned in column 15 is on account of decomposition.” The Medical Officer replied to the said query on 12.08.2014 by the following reply: (i) As to point no.1 the state of the organs can caused due to antemortem injuries to the private part and subsequently due to its decomposition. (ii) Whether the state of organs as mentioned in column 15 is on account of decomposition.” The Medical Officer replied to the said query on 12.08.2014 by the following reply: (i) As to point no.1 the state of the organs can caused due to antemortem injuries to the private part and subsequently due to its decomposition. (ii) As to point no.2 answer state of organs as mentioned in column 15 can caused on account insertion of anything into the vagina. (iii) As to point no.3 answer to point no.1 to be perused. 12. On the basis of the aforesaid documentary evidence the prosecution has established that the deceased whose body was found on the Service Road of the Eastern Expressway on 16.01.2014 was subjected to forcible sexual intercourse and thereafter was done to death by causing Head injury coupled with smothering. It is also the case of the prosecution that the death had occurred on account of the said Head injury with smothering associated with genital injuries and the prosecution attributed it to the accused and it is alleged that she was assaulted on her head resulting into the injury mentioned in column no.17 which was confirmed by cut section. It is also the case of the prosecution that the contusion over lower lip right side against the canines, which is reflected as blackish red in colour depicts the force applied. Further the prosecution also relies on the response to the query report to sustain the charge that the injuries to the genitals are antemortem and subsequently decomposed. The postmortem report had mentioned the same to be distorted due to decomposition. 13. The prosecution relies on oral testimony of witnesses to support its case based on circumstantial evidence. The case of the prosecution is unfolded by the complainant, the father of the deceased who is examined as PW no.26 i.e. Singavarapa. PW No.26 is resident of Nobel Colony, Machilipatnam, Andhra Pradesh. Deceased Esther, aged 23 years was his daughter. He has deposed before the Court that she had completed her BTech and she was a scholar academically and on acquiring the educational qualification, she immediately secured a job in TCS as a software engineer. In Mumbai, he had arranged for her stay in YWCA Hostel for Women at Andheri. Deceased Esther, aged 23 years was his daughter. He has deposed before the Court that she had completed her BTech and she was a scholar academically and on acquiring the educational qualification, she immediately secured a job in TCS as a software engineer. In Mumbai, he had arranged for her stay in YWCA Hostel for Women at Andheri. Shri Singavarapa deposed that whenever his daughter used to get leave, she used to come to stay in Machilipatnam and on 22nd December 2013, she came to reside with him and stayed till 4th January 2014. He further deposed that on 4th January 2014, he took her to Vijaywada which was the nearest railway station and from there, she boarded LTT Express which reaches Mumbai at 5.00 a.m. on the next day. He contacted her on her mobile phone at 9.00 p.m when he was informed by his daughter that she had reached Solapur and that she was going to sleep. He has further deposed that when he attempted to contact her in the morning, her mobile phone was ringing but nobody was responding. He, therefore, contacted the YWCA Hostel and it was reported that Esther did not report to the hostel. Thereafter, PW No.26 lodged a missing complaint with the Railway Police Station at Vijaywada and landed in Mumbai and approached the Kurla Police Station. He further deposed that he undertook search of his daughter and the police found the last signal of the location of her mobile at Bhandup and on further search on Express Highway, on 16th January 2014, the body of his daughter was found near Express Highway in the bushes. He recognised the body to be of his daughter from a finger ring in her finger. He has deposed that the condition of the body was very bad and beyond recognition. He lodged an FIR and took possession of the body for performance of last rites. He has further deposed that the Investigating team at Kanjur Marg contacted him and they inquired about the articles which his daughter was carrying, which he informed to be a trolley bag, laptop bag, one sack, one or two handbags and some other articles. He was also shown the CCTV footage on pendrive when he recognized his daughter entering the platform along with the trolley and a bag and sack on her back. He was also shown the CCTV footage on pendrive when he recognized his daughter entering the platform along with the trolley and a bag and sack on her back. In one footage, he recognized his daughter who was holding a mobile and one man was drawing her trolley. This witness has deposed that his daughter was wearing one wrist watch of Fast Track company when she left the house. PW No.26 also recognized a Yellow metal ring on her finger which was seized and marked as Article 27 and also the Fast Track wrist watch as well as her other belongings i.e. scarf, trolley bag, identity card, spectacles etc. The identity of the body found lying near Bhandup on the Express Highway was established by PW No.26 as to be of his daughter. However, in order to establish the identity of the body biologically, DNA Sampling was carried out. The prosecution has relied on the testimony of Shrikant Hanumant Lade PW No.28, Assistant Director FSL, Kalina. Shrikant Lade is a Post Graduate in BioChemistry and trained at Centre for DNA Finger Printing Diagnosis at Hyderabad. He had deposed that he had handled 2500 cases and had given evidence in 200 cases. In his deposition, he has given the details of the uniqueness of a body cell containing DNA and has deposed DNA technique is a very sensitive and stable technique. He deposed that from 15 intact cells, DNA profile is generated and the source of DNA is stated to be any type of body cell, blood, semen, saliva, hair with root without root, teeth, nails, dandruff, ear wax, muscle tissues and bone. He further deposed that on 18th January 2014, he received a letter from Kanjur Marg Police Station and received 2 sealed phials, one sealed test tube and three plastic containers in sealed condition. He further deposed that the description of articles in parcels was blood sample of Singaravapa, the father of the deceased. He was requested by the Investigating Agency to examine the vaginal swab, bone, teeth and nail of deceased as against the blood sample of the claimant i.e. Singavarapa (PW 26). He further deposed that he extracted DNA from the bone teeth and blood sample of Singavarappa and the DNA profiles were generated. After that, he prepared a report at Exhibit17. He was requested by the Investigating Agency to examine the vaginal swab, bone, teeth and nail of deceased as against the blood sample of the claimant i.e. Singavarapa (PW 26). He further deposed that he extracted DNA from the bone teeth and blood sample of Singavarappa and the DNA profiles were generated. After that, he prepared a report at Exhibit17. He further deposed that he had also obtained the articles in sealed parcel i.e Identity card, belt, spectacles, jeans pant, ladies half T-shirt, ladies top, kajal pencil and he had extracted DNA from sweat detected from Exhibit1 i.e. Identity card with belt and spectacles and the bone of deceased which was received at the time of earlier DNA sampling. He analysed the same with the Controlled DNA Profile of bone sample of the deceased and submitted his report at Exhibit-22. He opined that DNA profile of sweat detected on Identity card, belt and spectacles and DNA profile of bone teeth is identical and from one and the same source of female origin. Through this witness, the prosecution has therefore established that the body found on the Expressway on 16th January 2014 was of the daughter of PW no.26 and the articles which were seized during the course of investigation and claimed by the prosecution to be belonging to the deceased were proved to be matching with the DNA extracted from the bone of the deceased. 14. The deceased Esther who had boarded the train at Visakhapatnam, reached its destination at Mumbai with Esther but thereafter, her whereabouts were not known and she did not report to the Women's Hostel at Andheri where she was lodged. The Investigating Agency was therefore, focused on investigating as to how did this young girl who alighted the train at Lokmanya Tilak Terminus, reached the place where her body was traced i.e. on the Service road adjoining the Eastern Express Highway. The prosecution relied on the CCTV footage from the cameras which were installed on the Lokmanya Tilak Terminus to establish and prove that Esther had reached LTT. The Investigating Agency approached the RPF authorities since the security of the LTT was entrusted to the Government Railway Force and the RPF. For security purposes, the 36 CCTV cameras were installed on the railway station with its display being monitored in the CCTV control room. The Investigating Agency approached the RPF authorities since the security of the LTT was entrusted to the Government Railway Force and the RPF. For security purposes, the 36 CCTV cameras were installed on the railway station with its display being monitored in the CCTV control room. On requisite permission from the RPF, the Personnel from the Company who was maintaining CCTV cameras was instructed to provide the CCTV footage. The CCTV footage came to be transmitted to the pen drive and it was collected for the period from 4.00 a.m. to 7.00 a.m. on the date of incident i.e. 5th January 2014 when Esther deboarded the train at LTT which she had boarded at Visakhapatam. The CCTV footage was transmitted to the pen drive which came to be sealed after undergoing the entire requisite procedure on 18th January 2014 and Vishal Patil was examined by the prosecution as PW No.33. Further, Shri Pandey who was working in the CCTV Department in Central Railway is also examined as a PW No.31. The said witness has deposed before the Court that there are cameras installed on all the platforms of LTT and also in the rooms and there were two monitors, the first monitoring 20 cameras and another monitoring 16 cameras. He also deposed before the Court that the servers are kept in the control room and there is an automatic recording system in camera. He further deposed that there is Hard disk in the server and recording gets saved in the server. He further deposed that in one server, there is recording of 12 days and in another server, there is recording of one month and after the expiry of the said period, recordings are automatically deleted from the said servers. He also deposed that since there was some fault in the server, he visited the control room in the month of January and at that time, the Police Officers from Kanjur Marg Police Station sought for a footage and he informed that it could be done only with the permission of the RPF. He deposed that after obtaining the necessary permission, he had transmitted the footage of 5th January 2014 which was available on CCTV camera to the pen drive. The footage was played and verified and thereafter, the pen drives were sealed in presence of two panch witnesses. 15. He deposed that after obtaining the necessary permission, he had transmitted the footage of 5th January 2014 which was available on CCTV camera to the pen drive. The footage was played and verified and thereafter, the pen drives were sealed in presence of two panch witnesses. 15. The CCTV footage which was obtained with the permission of the RPF was shown to the father of the deceased PW 26 by visiting Machilipatnam on 3rd April 2014. The said footage which was carried in a pendrive was displayed on the laptop to him by PI attached to CID i.e. Ashok Dabhle who is examined by the Prosecution Witness No.29. PW no.29 deposed before the Court that when he visited Machilipatnam and showed the CCTV footage to the complainant, he identified his daughter while going with the trolley and while she was talking on mobile and one person was pulling her trolley. He further deposed that PW No.26 identified the trolley bag as belonging to his daughter and he also informed that he was aware of the articles in the said bag since he was present at the time when his daughter packed her bag. This version is corroborated by PW no.26 who deposed before the Court when he was shown the CCTV footage on pendrive and he saw his daughter entering the platform along with the trolley and a bag and sack on her back. The prosecution, therefore, established through the evidence of these witnesses that Esther had reached Mumbai by LTT Express and deboarded the train since the CCTV clippings recorded the images of Esther walking on the Railway Platform at 04.59.30 when she was seen pulling a trolley bag. However, the next footage of 05.06.45 is an image of one person wearing white T-shirt and blue jeans pulling the trolley bag and woman seen in the earlier footage following him talking on mobile phone. The CCTV footage which was recorded from 4.00 am to 7.00 am on 5th January 2014 is in form of different clips. 16. The prosecution has also examined the panch witness Girish Mishra who is examined as PW No.1 and who has proved the panchnama prepared while transmitting the data from the Control room to the pen drive. PW No.1 has deposed before the Court that an attempt was made to search the footage of 1 ½ hour as there were too many cameras. PW No.1 has deposed before the Court that an attempt was made to search the footage of 1 ½ hour as there were too many cameras. He further deposed that two pen drives of 64 GB were to be used to retrieve the data of 5th January 2014 from 4.00 am to 7.00 a.m. He further deposed that the pen drive was inserted in Digital Video Recorder (DVR) which was connected to 16 cameras on the said railway station and before the data was transmitted, it was ensured that the pen drive was blank. He then deposed that pen drive was removed from DVR and connected to the computer thereby properties of the pen drive of 425 files were copied in another pen drive and he signed the panchnama which was prepared by which pen drives were seized, sealed and stamped. The CCTV footage obtained by the Investigating Agency during the course of investigation and which was put before the trial Court through Prosecution Witness No.31 is the axis of the whole chain of circumstances relied upon by the prosecution. We requested the learned Special Public Prosecutor Shri Raja Thakare to play the CCTV footage before us so that we can appreciate the case of the prosecution. Accordingly, the pen drive which carried the CCTV footage was connected to the laptop during the course of hearing and we had an opportunity to examine the entire footage and the learned Special Public Prosecutor also supplied the still photographs of the relevant clippings on which the prosecution relies. A copy of pen drive was also supplied to Shri Pradhan, learned counsel for the accused. 17. On examination of the various clippings, both running and in form of still photographs, reveal the following details. 1. The first clip beginning time is 04:48:20 a.m., which is recorded in the camera installed on platform no.5 towards Kalyan side. In this clip, it is seen that one person is getting down from a stationary train wearing white t-shirt and blue jeans and having a bottle of cold drink in the hand. The clip is upto 04:49:06 a.m. This clipping will have to be appreciated in light of evidence of PW 18 who has identified the accused as the person who had purchased the bottle of Thums-Up from his stall. 2. The next clipping is of 5th Jan from platform no.5, starting time is 04:57:14. The clip is upto 04:49:06 a.m. This clipping will have to be appreciated in light of evidence of PW 18 who has identified the accused as the person who had purchased the bottle of Thums-Up from his stall. 2. The next clipping is of 5th Jan from platform no.5, starting time is 04:57:14. Here, a person in white t-shirt gets down from a railway boggie and sits near the pillar of the railway shade. He gets up at 04:58:30 and thereafter walks till 04:58:51. A screenshot is taken at 04:58:48 where the face of the accused is clearly visible. 3. Next footage is from the CCTV camera installed in Hall 2. The clipping starts at 04:59:30 which shows one lady going inside the waiting area pulling a trolley bag and having other bag on the shoulder (Although the features of the person are not identifiable). The clipping ends at 05:00:20. 4. This footage is from the camera installed in the hall and relevant time is 05:00:57 wherein a girl is seen pulling a trolley bag having other shoulder bag and wearing a scarf. The clipping is till 05:01:10. 5. There is one more clipping captured in the CCTV camera installed on platform no.5 towards CST showing same lady walking while pulling a trolley bag and having one more bag and purse on the shoulder. Both these clippings (4 and 5) make is clear that it is one and the same woman. 6. The next footage is of 05:06:45 when one person wearing white t-shirt and blue jeans is alighting from one of the boggies and walks on the platform. The screenshot is taken at 05:07:02 where the face is clear and the person is the same as in the earlier clippings. This is on platform no.5 towards CST. The clipping is upto 05:07:06. 7. The next clipping is on the CCTV camera installed on platform no.4. The relevant time is 05:10:52 when it is seen that the same man with the white t-shirt and blue jeans is pulling the trolley bag and the same woman which was seen in the earlier footages is walking along talking on mobile phone. JUDGMENT : BHARATI H. DANGRE, J. 1. An incident of rape and fatal assault that occurred in the National Capital on 16th December 2012 which involved a 23 year old physiotherapist intern, shocked the conscience of the whole nation. JUDGMENT : BHARATI H. DANGRE, J. 1. An incident of rape and fatal assault that occurred in the National Capital on 16th December 2012 which involved a 23 year old physiotherapist intern, shocked the conscience of the whole nation. The incident generated widespread national and international coverage and was widely condemned both in India and abroad. There was unrest and public protest in the capital which was followed in several major cities in its own way. Social networking sites were put to use to raise a demand of strict law against rape. This resulted into constitution of a three Member Committee on 23rd December 2012 headed by the Former Chief Justice of the Supreme Court Justice J.S. Verma to recommend amendments to the Criminal Law so as to provide for speedy trial and enhance punishment for offence of sexual assault against woman. The said Committee submitted its report on 23rd January 2013. Sensing the urgency and to subdue the wide uproar amongst the general public, the Criminal Law (Amendment) Ordinance 2013 was promulgated on 3rd February 2013. This was followed by the Department-related Parliamentary Standing Committee on Home Affairs tabling its report recommending amendments to the criminal law. After obtaining the assent of the President on 2nd April 2013, the Criminal Law (Amendment Act) 2013 was brought into force, which sought to amend the Indian Penal Code, Code of Criminal Procedure 1973, the Indian Evidence Act, 1872, and also the Protection of Children from Sexual Offence Act, 2012. Barely could have the law makers given a sigh of relief by enacting a drastic law dealing with the offences against women and before the Court seized of the said trial, could deliver its verdict, in August 2013, a 22 year old photo journalist who was interning with an English Magazine in Mumbai was gang raped by five persons, including a juvenile when she had gone to the deserted Shakti Mills Compound in relation to an assignment. This incident brought in question the safety of women into city like Mumbai which, with its active night life was considered safe heaven for women. The Sessions Court in Delhi, delivered its verdict on 10th September 2013, convicting the perpetrators of the crime. Another incident in the financial capital of the country Mumbai, shocked the whole nation. This incident brought in question the safety of women into city like Mumbai which, with its active night life was considered safe heaven for women. The Sessions Court in Delhi, delivered its verdict on 10th September 2013, convicting the perpetrators of the crime. Another incident in the financial capital of the country Mumbai, shocked the whole nation. This time it was another young girl Esther aged 22 years who fell prey of the bestial proclivity at the hands of a man who ended her journey of life mercilessly for satisfying his lust. The series of incidents which came to highlight and several other incidents which are not even reported by the media or not even reported to the police have resulted in the entire womenfolk in the country posing a question of their safety and security. The entire womenfolk is heard raising an outcry and find themselves in a panic striken state of mind and expect the Executive Legislature and the Judiciary to restore their faith in the system. They echo the sentiments similar to what Madeleine Albright has once remarked : “It took me quite a long time to develop the voice and now that I have it, I am not going to be silent” 2. The prosecution case, as unfolded, discloses that Ms.Esther Anuhya, aged 23 years, on completion of her B.Tech Degree course, was recruited as a Software Engineer in TCS in Goregaon at Mumbai. The deceased was a resident of Machilipatnam, Andhra Pradesh and had completed her graduation from Kakinada. On acquiring a degree, she shifted to the city of Mumbai and was residing in YWCA Hostel for Women in Andheri. The deceased came to reside with her parents at Machilipatnam on account of the leave availed by her and she stayed there from 22nd December 2013 to 4th January 2014. Shri Singavarapa Surendra Prasad, PW No.26, the father of the deceased accompanied her to Vijaywada, nearest Railway station to Machilipatnam at about 5.00 a.m. on 4th January 2014, from where a train was available to Mumbai. Ms. Esther boarded LTT Express at Visakhapatnam which reaches Mumbai on the next day at 5.00 a.m. At 9.00 p.m., she had a telephonic conversation with her father and she informed her father that she had reached Solapur. The LTT Express was to reach Mumbai at 5.00 a.m. in the morning and accordingly reached the station. Ms. Esther boarded LTT Express at Visakhapatnam which reaches Mumbai on the next day at 5.00 a.m. At 9.00 p.m., she had a telephonic conversation with her father and she informed her father that she had reached Solapur. The LTT Express was to reach Mumbai at 5.00 a.m. in the morning and accordingly reached the station. PW No.26 – Singavarapa – attempted to contact her in the morning on her mobile phone to inquire whether she had reached safely, but the call was not answered and the mobile went on ringing. The father, thereafter, contacted the Hostel to inquire whether Esther had reached there but he received a reply in the negative. On 5th January 2014 itself, the father (PW 26) approached Vijaywada Railway Police Station and lodged a missing complaint. With the said missing complaint, the devastated father landed at Lokmanya Tilak Terminus Railway Station, Mumbai. He was informed by the railway police that the jurisdiction was that of Kurla Police Station and resultantly, he approached the Kurla Police Station. Then, began a frantic search of Esther and it continued till the date when it was revealed on the father that his daughter is no longer alive and this happened on 16th January 2014 when body of Esther was traced in the bushes on the Express Highway. The body was found in a burnt and decomposed condition but the father could identify Esther, his daughter by the ring in her finger and also from her belongings which were lying nearby. The area where the body was traced was falling in Kanjur Marg area and a complaint came to be lodged at Kanjur Marg police station alleging that Esther was murdered by some unknown person. The body was handed over to the grief-stricken father on 17th January 2014 after completion of the necessary formalities for the purpose of conduct of last ritual and the father carried it to Machilipatnam for performance of last rites. 3. On a complaint being lodged, the Investigating machinery was set into motion by the Kanjur Marg Police Station. The spot panchnama was drawn in presence of panch witnesses. 3. On a complaint being lodged, the Investigating machinery was set into motion by the Kanjur Marg Police Station. The spot panchnama was drawn in presence of panch witnesses. A broken wrist watch of Fast Track Company, knicker and a pad, one pink colour T-shirt of 'M' size, one scarf of slate colour with white dots, one mobile phone containing two sim cards, and a tuft of hair were found lying on the spot and all the said articles were seized by drawing a panchnama. The same were forwarded to the Forensic Laboratory. A map of the spot came to be drawn and it reveals that the said spot is at a distance of approximately 8.90 metres from the Service Road adjoining to the Eastern Express. The Forensic Personnels who reached the spot also collected the samples of soil, dry grass and oily grass at the place of incident. The photographer was also summoned who clicked the photographs of the spot along with the photographs of the body of the deceased. Inquest Panchnama was drawn in presence of panch witness and it divulged that the body was in a partly burnt condition and on the chest portion, there was a black brassiere which was also partly burnt. The portion of abdomen was completely burnt, whereas the private parts and adjoining parts were found to be partly burnt. The body was forwarded for post mortem to Sir J.J. Hospital and PW No.25 Dr. Gajanan Chavan conducted the post mortem and submitted a report and expressed the probable cause of death as “Blunt injuries over body and genital injuries” and reserved the final opinion, pending the Chemical Analysis of the samples. 4. The investigation was carried out initially by Kanjur Marg Police Station but it came to be transferred to the Crime Branch. PI Dattatraya Naikodi registered the FIR, and carried out further investigation in Crime No.6 of 2014 for the offence punishable under Sections 302 and 201 of the Indian Penal Code. Further investigation was carried out by PW No. 34 Nishikant Tungare, Sr. Police Inspector attached to Kanjur Marg Police Station. During the investigation, the CCTV footage from the Lokmanya Tilak Terminus was obtained with the assistance of PW No.33 Shri Vishal Patil who was on duty in RPF, since the security of LTT was under the Government Railway Force and RPF. Police Inspector attached to Kanjur Marg Police Station. During the investigation, the CCTV footage from the Lokmanya Tilak Terminus was obtained with the assistance of PW No.33 Shri Vishal Patil who was on duty in RPF, since the security of LTT was under the Government Railway Force and RPF. The necessary clippings/footage was collected from the 36 cameras installed at the LTT Railway Station. The CCTV footage revealed that Esther had walked out of the Railway station on 5th January along with one stranger who was walking along with her, carrying her trolley bag. The said CCTV footage was shown to the complainant i.e. father of the deceased on laptop at Machilipatnam on 3rd February 2014. The complainant identified his daughter who was going along with a trolley and while coming out, she was talking on mobile and one stranger was pulling her trolley bag. His statement came to be recorded. On the basis of the CCTV footage, an investigation team proceeded to carry out further investigation and made inquiries from the persons on the railway station and nearby spot on the Expressway where the body was found. Based on certain statements which came to be recorded, the Investigating Machinery succeeded in arresting one Chandrabhan Sanap as the person who was accompanying Esther on 5th January 2014 while coming out of Platform No.4 as seen in the CCTV footage. The accused Shri Chandrabhan Sanap came to be arrested vide Arrest Panchnama dated 2nd March 2014 and panch Salim Mushtaq Shaikh executed the said panchnama. The accused was taken into custody at Kanjur Marg Police Station and on physical search of the accused, one piece of paper was found in his back pocket of jeans pant and it was a writing of an Astrologer Rajabhau Aher from Nashik, Trimbakeshwar. It was in the form of a Kundli. Similarly, one Nokia Mobile was also found in another pocket of his jeans pant with one sim card which was seized. After the arrest of the accused, he made a statement of disclosure in presence of panch witness that he was ready to produce the motor cycle which was used by him to carry the deceased to the spot of crime. On such disclosure statement being made, the motor cycle came to be seized. After the arrest of the accused, he made a statement of disclosure in presence of panch witness that he was ready to produce the motor cycle which was used by him to carry the deceased to the spot of crime. On such disclosure statement being made, the motor cycle came to be seized. Further, the accused also made disclosure statement leading to seizure of bag and articles belonging to the deceased which came to be seized from two distinct places. The said articles were identified by the complainant as the one belonging to his daughter. On seizure, the said articles were forwarded for Chemical Analysis. The accused was also referred for medical examination and was examined by Dr.Kushal Tayde who opined that his genital organs are normal and that he was capable of performing a sexual act. On completion of the investigation, chargesheet was filed before the Addl. Metropolitan Magistrate, 37th Court, Mumbai on 26.5.2014. The case was committed to the Sessions Court and came to be registered as Sessions Case No.388 of 2014. The prosecution alleged that deceased Esther, resident of Vijaywada, working at TCS in Mumbai had boarded LTT Express at Vijaywada on 4th January 2014 to reach Mumbai. However, when she reached Mumbai, she was kidnapped by accused Chandrabhan Sanap who took her to the place of incident and after committing rape on her, committed her murder and in order to destroy the evidence, burned the body at a secluded place at a close distance on the Eastern Expressway. The accused was charged for abducting Esther on 5th January 2014 at 5.30 am from Lokmanya Tilak Terminus Station on the pretext of dropping her at the hostel and thereafter he made to sit her on his bike and took her to a lonely place behind the bushes on MumbaiThane Service Road and forcibly committed sexual intercourse with her. He was charged with Sections 364, 366, 376(2)(m), 376(A), 392 r/w Section 397, 302, and 201 of Indian Penal Code. He was also charged with offence punishable under Section 170 of the IPC since he pretended to hold office of Railway Security RPF and by assuming his character as such, refrained from paying Parking charges. He was also charged with Section 147 of the Railways Act, 1989 for committing an offence of trespass. He was also charged with offence punishable under Section 170 of the IPC since he pretended to hold office of Railway Security RPF and by assuming his character as such, refrained from paying Parking charges. He was also charged with Section 147 of the Railways Act, 1989 for committing an offence of trespass. The accused pleaded not guilty to all the said charges and thereafter, the prosecution proceeded to prove the charges against the accused by adducing evidence. The prosecution examined 39 witnesses. The statement of the accused under Section 313 of the Code of Criminal Procedure came to be recorded and the accused examined four witnesses in his defence. 5. On conclusion of the trial, the Sessions Court delivered its verdict on 27th October 2015 and 30th October 2015. The learned Addl. Sessions Judge convicted the accused for the offence punishable under Sections 302, 364, 366, 376(2)(m), 376A, 392 r/w Section 397 and 201 of the IPC. He was acquitted of the offences punishable under Section 170 of the IPC and Section 147 of the Indian Railways Act. For offence punishable under Section 302 of the IPC and the accused was ordered to be hanged by neck till he is dead. On conviction under Section 364, 366 and 376(2)(m), the accused was sentenced to suffer Rigorous Imprisonment for 10 years separately. On conviction under Section 376A, he is sentenced to suffer RI for Life, which shall mean the Imprisonment for remainder of his natural life. For offence punishable under Section 392 r/w Section 397, he is sentenced to suffer RI for 7 years. Further, for offence punishable under Section 201 of the IPC, he is sentenced to suffer RI for 7 years. All the substantive sentences of the Imprisonment of the accused are directed to run concurrently. The accused is directed to pay compensation of Rs.50,000/which is directed to be paid to the parents of the deceased provided they are ready to accept the same. While imposing the death sentence, the Addl. learned Sessions Judge has recorded that the accused has acted with extreme brutality and committed the offence in a preplanned and a diabolical manner. The accused is directed to pay compensation of Rs.50,000/which is directed to be paid to the parents of the deceased provided they are ready to accept the same. While imposing the death sentence, the Addl. learned Sessions Judge has recorded that the accused has acted with extreme brutality and committed the offence in a preplanned and a diabolical manner. The learned Sessions Judge has also observed that the Society’s abhorrence to the crime of rape and murder which had compelled the legislature to introduce death penalty itself proved that 'rarest of rare' case is implied in it when the offence of murder while committing rape is punishable with Death. The Lower Court has referred to the barbaric act of the accused by referring to the genital injuries and the head injuries which have been described as the cause of death associated with smoothering. By striking a balance between the aggravating and mitigating circumstances in favour and against the accused, the Sessions Judge concluded that the enormity of the crime which shocked the conscience of the Society and on drawing a balance sheet between the aggravating and mitigating circumstances after giving due weightage to both, the conduct of the accused clearly fell within the 'rarest of rare' act and in the backdrop of the gruesome, calculated and diabolic offence causing death of a helpless, young, and an innocent girl aged 23 years deserves only death penalty and has accordingly, imposed the same on the accused on his conviction under Section 302 of the IPC. 6. In view of Section 28(2) of the Code of Criminal Procedure, since the sentence of death was imposed, the matter has been made over for Confirmation to the High Court and it came to be registered as Confirmation Case No.3 of 2015. The Confirmation Case No.3 of 2015 which has been placed before the High Court came to be tagged by order dated 5th January 2016 with Criminal Appeal No.1111 of 2015 filed by the accused/appellant. By consent of the learned counsel for the accused as well as the learned Special Public Prosecutor, the matter was fixed for hearing on 3rd September 2018. Both the matters were taken up for final hearing on 11th October 2018 and accordingly, the accused was directed to be produced. We concluded the hearing of the matter on 1st November 2018 after conducting day to day hearing. Both the matters were taken up for final hearing on 11th October 2018 and accordingly, the accused was directed to be produced. We concluded the hearing of the matter on 1st November 2018 after conducting day to day hearing. In support of the confirmation case, we have heard Special Public Prosecutor Mr.Raja Thakare. In the said case, the accused is represented by Advocate Shri Nitin Pradhan along with Ms.Shubhada Khot. In Criminal Appeal No.1111 of 2015, Shri Nitin Pradhan appears for the appellant and the State is represented by Special Public Prosecutor Shri Thakare. We have heard both the matters on day-to-day basis and the accused was present in the Court on all the dates of hearing. 7. With the assistance of the learned Special Public Prosecutor Shri Thakare and Shri Pradhan learned counsel for the accused, we have scrutinized the entire record and the evidence brought on record by the prosecution and also the defence. The learned counsel Shri Pradhan appearing for the appellant would submit that the prosecution has not discharged its burden in proving the guilt of the accused beyond reasonable doubt when it was duty bound to establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must result into a chain of events which would lead to no conclusion other than the guilt of the accused. Shri Pradhan would submit that the circumstances cannot lead to other hypothesis and mere suspicion, however, grave it may be, cannot be a substitute for a proof and in the case based on circumstantial evidence, the Court must be extra cautious in relying on the evidence brought on record by the prosecution. Shri Pradhan would submit that in the present case, several links are missing and there is no proof of any motive, much less a strong motive attributed to the accused and in absence of such proof, the most vital requirement of law to prove a case of circumstantial evidence is nonexistence. Shri Pradhan would submit that in the present case, several links are missing and there is no proof of any motive, much less a strong motive attributed to the accused and in absence of such proof, the most vital requirement of law to prove a case of circumstantial evidence is nonexistence. Shri Pradhan submits that body of the deceased which was discovered, was in an advanced stage of decomposition and was beyond recognition and in this background, the prosecution has not made out a case of rape and in fact, no injuries to that effect could be discerned from the post mortem report and Shri Pradhan is very critical about the manner in which the prosecution has brought an improved version of its case through the doctor who conducted the post mortem by raising certain queries and in its response, then proceeded to foist a charge of rape on the accused. Shri Pradhan is also critical of the recovery of the articles of the deceased at the instance of the accused by effecting disclosure panchnama. Shri Pradhan would submit that there is no evidence brought on record by the prosecution establishing that the deceased was either abducted or kidnapped by the accused and then done to death by him as alleged after committing rape. The entire evidence, according to Shri Pradhan is a vast suspicion with no clinching material to establish any of the ingredients of the abduction, rape or murder by destroying the evidence. Shri Pradhan has also disputed the legality of the evidence brought on record in form of CCTV footage, which is the only genesis on the basis of which the prosecution is deriving an inference that the deceased was last seen in the company of the accused. Shri Pradhan is also critical of the said evidence brought on record without a certificate being issued under Section 65B of the Indian Evidence Act which mandates issuance of a certificate. Shri Pradhan also attacked the case of the prosecution and has submitted that the entire evidence adduced before the trial court by the prosecution through videoconferencing is in utter contrast to section 273 of the Code of Criminal Procedure. Shri Pradhan also attacked the case of the prosecution and has submitted that the entire evidence adduced before the trial court by the prosecution through videoconferencing is in utter contrast to section 273 of the Code of Criminal Procedure. The submission of Shri Pradhan is that the judgment passed by the trial Court fails to take into consideration the basic canons on the touch stone of which the circumstantial evidence has to be appreciated by the trial court and it has faulted in imposing the death sentence which do not meet the requirement of the 'rarest of rare' theory as propounded by the Hon'ble Apex Court nor does it derive a conclusion that imposition of any other sentence would have been inadequate. 8. As against this, Special Public Prosecutor Shri Thakare submits that the prosecution has successfully established the circumstances which pointed to the accused and the Special P.P would submit that it has not relied on a solitary circumstance but through the evidence brought on record, the prosecution has established a chain of circumstances which is aptly corroborated and led to an irresistible conclusion that it was only the accused who had committed the crime. Based on the evidence brought on record, in form of CCTV footage, Shri Thakare would submit that the last seen theory has been invoked by the prosecution and on account of the close proximity of the time between the event of the accused having been last seen in the company of the deceased and the factum of death and in such a situation the accused should explain how and in what circumstances he parted the company of the deceased. Shri Thakare would submit that no doubt the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless it is supported by other links in the chain of circumstances. Shri Thakare would rely on the evidence brought on record by the prosecution in form of the conduct of the accused on the previous night of the day of incident through witnesses who are otherwise completely innocuous and had narrated the events that took place in the normal circumstances. Shri Thakare would rely on the evidence brought on record by the prosecution in form of the conduct of the accused on the previous night of the day of incident through witnesses who are otherwise completely innocuous and had narrated the events that took place in the normal circumstances. His submission is that the subsequent conduct of the accused after commission of the crime has also been brought on record through evidence of the witnesses who had deposed about the acts of the accused in the normal course and Shri Thakare submits that the statements of these witnesses were recorded even before the Investigating Agency had zeroed down on the accused to be the person who was responsible for causing death of the accused. Shri Thakare would submit that the Sessions Court, by taking into consideration the totality of circumstances and the cumulative effect of the evidence brought on record has appreciated the same in light of the well settled norms of criminal jurisprudence and has arrived at a finding of guilt against the accused. As far as the imposition of death penalty is concerned, we would refer to his submission a while later when we come to the point of sentencing. 9. The case of the prosecution is based on circumstantial evidence and the prosecution has relied on 39 witnesses to establish its case apart from several documentary evidence. 10. The body of Esther was traced on 16.01.2014 and the prosecution places reliance on the spot panchnama proved by PW2 Bapu Adsul. The said panchnama is exhibited as Exhibit38. The spot panchnama reveals that the body of the deceased was found at a place located to the East of the Service Road of Eastern Express Highway at a distance of about 29 feet. The spot panchnama discloses that on the said place a space of 5 x 3 feet was in a burned condition and at a distance about 8 feet from the said place there is a space of 4 x 3 feet which is blackish in colour where the dead body was lying. The spot panchnama further reveals that on careful perusal of the spot, at the north of the said place, a Samsung Duos company mobile is lying at a distance of 5 feet. One rubber mobile cover dark blue in colour was also found lying on the spot. The spot panchnama further reveals that on careful perusal of the spot, at the north of the said place, a Samsung Duos company mobile is lying at a distance of 5 feet. One rubber mobile cover dark blue in colour was also found lying on the spot. On the spot one black gray colour scarf with white spots was also found which came to be seized. On the spot one pink colour T-shirt in partly burned condition with Msize also came to be seized from the spot. Further, at a distance of 2 feet from where the body was lying, one Fast track company watch with a black dial with broken belt was also lying on the spot. The spot panchnama further reveals that a purple colour doted knicker and white colour pad attached to the said knicker was also lying on the spot. All the said articles were seized from the said spot and came to be seized. The prosecution also relied on the Inquest Panchnama which was proved by PW6 Nirmala Kadu and was exhibited as Exhibit84. The Inquest panchnama discloses that the dead body of the deceased was partly burnt and blackened. It also mentions of long black hair of the deceased which were found in partly burnt condition, eyes were open and had blackened. The face was completely burnt and so also both the ears. Some portion of the body including the left hand was bereft of any skin and was exposed. The right hand was spread over and the second finger was bent and yellow metal ring was found in the middle figure. The chest portion was found to be completely burned and the black brassiere was attached to the body and the portion of abdomen was charred. The body of the deceased was sent for conduct of postmortem and Dr.Gajanan Chavan prosecution witness No.25 has carried out the postmortem and proved the postmortem report which is exhibited at Exhibit127. The postmortem report relied on by the prosecution also refers to black colour bra with avulsed hookmetallic. Rigor mortis was absent in the body and postmortem report makes mention to the following effect: “Variable mix pattern of decomposition seen. Facial skin burnt, blackish adherent to skull bone, Skin absent at some places of extremities and abdomen exposing bones and abdominal viscera at places. Ends of long bones are nibbled and exposed. Rigor mortis was absent in the body and postmortem report makes mention to the following effect: “Variable mix pattern of decomposition seen. Facial skin burnt, blackish adherent to skull bone, Skin absent at some places of extremities and abdomen exposing bones and abdominal viscera at places. Ends of long bones are nibbled and exposed. Natural separations seen at most of the joints without evidence of ante mortem fractures No Maggots”. As far as the column of surface wound and injuries the postmortem notes mention as under : 1. Contusion over LTLeft fronto temporal area 4 x 5 cm, blackish red colour.” 2. Contusion over lower lip right side against caninesblackish red in colour 2 x 2 cm. Both contusion confirmed by cut section. The postmortem makes note of decomposition seen in perI-cardium and heart. Abdomen is found to be absent. The opinion as to the probable cause of death has been cited as follows : “Blunt injuries over body and genital injuries seen. However, final opinion result, pending for CA of samples”. The final cause of death certificate came to be issued and exhibited at Exhibit128. The cause of death in the said certificate is described as follows : “Death due to Head injury with smothering associated with genital injuries.” 11. The prosecution has also relied on the response to the query raised by the Investigating Officer to the team of doctors who conducted the postmortem in regard to the injury in column No.15 which postmortem was described in the postmortem notes to the following effect. “15. injuries to external genitals. Indication of purginggenitals distorted due to decomposition, vaginal wall shows blackish reddish discoloration at posterior wall, confirmed by cut section” The query that was raised by the Senior Police Officer to the J.J. Hospital on 28.07.2014 raised the following doubts: “(i) What can cause the state of the organs mentioned in column no.15 (ii) In the state of organs in column no.15 whether can be caused by forcible insertion of anything in the vagina. (ii) Whether the state of organs as mentioned in column 15 is on account of decomposition.” The Medical Officer replied to the said query on 12.08.2014 by the following reply: (i) As to point no.1 the state of the organs can caused due to antemortem injuries to the private part and subsequently due to its decomposition. (ii) Whether the state of organs as mentioned in column 15 is on account of decomposition.” The Medical Officer replied to the said query on 12.08.2014 by the following reply: (i) As to point no.1 the state of the organs can caused due to antemortem injuries to the private part and subsequently due to its decomposition. (ii) As to point no.2 answer state of organs as mentioned in column 15 can caused on account insertion of anything into the vagina. (iii) As to point no.3 answer to point no.1 to be perused. 12. On the basis of the aforesaid documentary evidence the prosecution has established that the deceased whose body was found on the Service Road of the Eastern Expressway on 16.01.2014 was subjected to forcible sexual intercourse and thereafter was done to death by causing Head injury coupled with smothering. It is also the case of the prosecution that the death had occurred on account of the said Head injury with smothering associated with genital injuries and the prosecution attributed it to the accused and it is alleged that she was assaulted on her head resulting into the injury mentioned in column no.17 which was confirmed by cut section. It is also the case of the prosecution that the contusion over lower lip right side against the canines, which is reflected as blackish red in colour depicts the force applied. Further the prosecution also relies on the response to the query report to sustain the charge that the injuries to the genitals are antemortem and subsequently decomposed. The postmortem report had mentioned the same to be distorted due to decomposition. 13. The prosecution relies on oral testimony of witnesses to support its case based on circumstantial evidence. The case of the prosecution is unfolded by the complainant, the father of the deceased who is examined as PW no.26 i.e. Singavarapa. PW No.26 is resident of Nobel Colony, Machilipatnam, Andhra Pradesh. Deceased Esther, aged 23 years was his daughter. He has deposed before the Court that she had completed her BTech and she was a scholar academically and on acquiring the educational qualification, she immediately secured a job in TCS as a software engineer. In Mumbai, he had arranged for her stay in YWCA Hostel for Women at Andheri. Deceased Esther, aged 23 years was his daughter. He has deposed before the Court that she had completed her BTech and she was a scholar academically and on acquiring the educational qualification, she immediately secured a job in TCS as a software engineer. In Mumbai, he had arranged for her stay in YWCA Hostel for Women at Andheri. Shri Singavarapa deposed that whenever his daughter used to get leave, she used to come to stay in Machilipatnam and on 22nd December 2013, she came to reside with him and stayed till 4th January 2014. He further deposed that on 4th January 2014, he took her to Vijaywada which was the nearest railway station and from there, she boarded LTT Express which reaches Mumbai at 5.00 a.m. on the next day. He contacted her on her mobile phone at 9.00 p.m when he was informed by his daughter that she had reached Solapur and that she was going to sleep. He has further deposed that when he attempted to contact her in the morning, her mobile phone was ringing but nobody was responding. He, therefore, contacted the YWCA Hostel and it was reported that Esther did not report to the hostel. Thereafter, PW No.26 lodged a missing complaint with the Railway Police Station at Vijaywada and landed in Mumbai and approached the Kurla Police Station. He further deposed that he undertook search of his daughter and the police found the last signal of the location of her mobile at Bhandup and on further search on Express Highway, on 16th January 2014, the body of his daughter was found near Express Highway in the bushes. He recognised the body to be of his daughter from a finger ring in her finger. He has deposed that the condition of the body was very bad and beyond recognition. He lodged an FIR and took possession of the body for performance of last rites. He has further deposed that the Investigating team at Kanjur Marg contacted him and they inquired about the articles which his daughter was carrying, which he informed to be a trolley bag, laptop bag, one sack, one or two handbags and some other articles. He was also shown the CCTV footage on pendrive when he recognized his daughter entering the platform along with the trolley and a bag and sack on her back. He was also shown the CCTV footage on pendrive when he recognized his daughter entering the platform along with the trolley and a bag and sack on her back. In one footage, he recognized his daughter who was holding a mobile and one man was drawing her trolley. This witness has deposed that his daughter was wearing one wrist watch of Fast Track company when she left the house. PW No.26 also recognized a Yellow metal ring on her finger which was seized and marked as Article 27 and also the Fast Track wrist watch as well as her other belongings i.e. scarf, trolley bag, identity card, spectacles etc. The identity of the body found lying near Bhandup on the Express Highway was established by PW No.26 as to be of his daughter. However, in order to establish the identity of the body biologically, DNA Sampling was carried out. The prosecution has relied on the testimony of Shrikant Hanumant Lade PW No.28, Assistant Director FSL, Kalina. Shrikant Lade is a Post Graduate in BioChemistry and trained at Centre for DNA Finger Printing Diagnosis at Hyderabad. He had deposed that he had handled 2500 cases and had given evidence in 200 cases. In his deposition, he has given the details of the uniqueness of a body cell containing DNA and has deposed DNA technique is a very sensitive and stable technique. He deposed that from 15 intact cells, DNA profile is generated and the source of DNA is stated to be any type of body cell, blood, semen, saliva, hair with root without root, teeth, nails, dandruff, ear wax, muscle tissues and bone. He further deposed that on 18th January 2014, he received a letter from Kanjur Marg Police Station and received 2 sealed phials, one sealed test tube and three plastic containers in sealed condition. He further deposed that the description of articles in parcels was blood sample of Singaravapa, the father of the deceased. He was requested by the Investigating Agency to examine the vaginal swab, bone, teeth and nail of deceased as against the blood sample of the claimant i.e. Singavarapa (PW 26). He further deposed that he extracted DNA from the bone teeth and blood sample of Singavarappa and the DNA profiles were generated. After that, he prepared a report at Exhibit17. He was requested by the Investigating Agency to examine the vaginal swab, bone, teeth and nail of deceased as against the blood sample of the claimant i.e. Singavarapa (PW 26). He further deposed that he extracted DNA from the bone teeth and blood sample of Singavarappa and the DNA profiles were generated. After that, he prepared a report at Exhibit17. He further deposed that he had also obtained the articles in sealed parcel i.e Identity card, belt, spectacles, jeans pant, ladies half T-shirt, ladies top, kajal pencil and he had extracted DNA from sweat detected from Exhibit1 i.e. Identity card with belt and spectacles and the bone of deceased which was received at the time of earlier DNA sampling. He analysed the same with the Controlled DNA Profile of bone sample of the deceased and submitted his report at Exhibit-22. He opined that DNA profile of sweat detected on Identity card, belt and spectacles and DNA profile of bone teeth is identical and from one and the same source of female origin. Through this witness, the prosecution has therefore established that the body found on the Expressway on 16th January 2014 was of the daughter of PW no.26 and the articles which were seized during the course of investigation and claimed by the prosecution to be belonging to the deceased were proved to be matching with the DNA extracted from the bone of the deceased. 14. The deceased Esther who had boarded the train at Visakhapatnam, reached its destination at Mumbai with Esther but thereafter, her whereabouts were not known and she did not report to the Women's Hostel at Andheri where she was lodged. The Investigating Agency was therefore, focused on investigating as to how did this young girl who alighted the train at Lokmanya Tilak Terminus, reached the place where her body was traced i.e. on the Service road adjoining the Eastern Express Highway. The prosecution relied on the CCTV footage from the cameras which were installed on the Lokmanya Tilak Terminus to establish and prove that Esther had reached LTT. The Investigating Agency approached the RPF authorities since the security of the LTT was entrusted to the Government Railway Force and the RPF. For security purposes, the 36 CCTV cameras were installed on the railway station with its display being monitored in the CCTV control room. The Investigating Agency approached the RPF authorities since the security of the LTT was entrusted to the Government Railway Force and the RPF. For security purposes, the 36 CCTV cameras were installed on the railway station with its display being monitored in the CCTV control room. On requisite permission from the RPF, the Personnel from the Company who was maintaining CCTV cameras was instructed to provide the CCTV footage. The CCTV footage came to be transmitted to the pen drive and it was collected for the period from 4.00 a.m. to 7.00 a.m. on the date of incident i.e. 5th January 2014 when Esther deboarded the train at LTT which she had boarded at Visakhapatam. The CCTV footage was transmitted to the pen drive which came to be sealed after undergoing the entire requisite procedure on 18th January 2014 and Vishal Patil was examined by the prosecution as PW No.33. Further, Shri Pandey who was working in the CCTV Department in Central Railway is also examined as a PW No.31. The said witness has deposed before the Court that there are cameras installed on all the platforms of LTT and also in the rooms and there were two monitors, the first monitoring 20 cameras and another monitoring 16 cameras. He also deposed before the Court that the servers are kept in the control room and there is an automatic recording system in camera. He further deposed that there is Hard disk in the server and recording gets saved in the server. He further deposed that in one server, there is recording of 12 days and in another server, there is recording of one month and after the expiry of the said period, recordings are automatically deleted from the said servers. He also deposed that since there was some fault in the server, he visited the control room in the month of January and at that time, the Police Officers from Kanjur Marg Police Station sought for a footage and he informed that it could be done only with the permission of the RPF. He deposed that after obtaining the necessary permission, he had transmitted the footage of 5th January 2014 which was available on CCTV camera to the pen drive. The footage was played and verified and thereafter, the pen drives were sealed in presence of two panch witnesses. 15. He deposed that after obtaining the necessary permission, he had transmitted the footage of 5th January 2014 which was available on CCTV camera to the pen drive. The footage was played and verified and thereafter, the pen drives were sealed in presence of two panch witnesses. 15. The CCTV footage which was obtained with the permission of the RPF was shown to the father of the deceased PW 26 by visiting Machilipatnam on 3rd April 2014. The said footage which was carried in a pendrive was displayed on the laptop to him by PI attached to CID i.e. Ashok Dabhle who is examined by the Prosecution Witness No.29. PW no.29 deposed before the Court that when he visited Machilipatnam and showed the CCTV footage to the complainant, he identified his daughter while going with the trolley and while she was talking on mobile and one person was pulling her trolley. He further deposed that PW No.26 identified the trolley bag as belonging to his daughter and he also informed that he was aware of the articles in the said bag since he was present at the time when his daughter packed her bag. This version is corroborated by PW no.26 who deposed before the Court when he was shown the CCTV footage on pendrive and he saw his daughter entering the platform along with the trolley and a bag and sack on her back. The prosecution, therefore, established through the evidence of these witnesses that Esther had reached Mumbai by LTT Express and deboarded the train since the CCTV clippings recorded the images of Esther walking on the Railway Platform at 04.59.30 when she was seen pulling a trolley bag. However, the next footage of 05.06.45 is an image of one person wearing white T-shirt and blue jeans pulling the trolley bag and woman seen in the earlier footage following him talking on mobile phone. The CCTV footage which was recorded from 4.00 am to 7.00 am on 5th January 2014 is in form of different clips. 16. The prosecution has also examined the panch witness Girish Mishra who is examined as PW No.1 and who has proved the panchnama prepared while transmitting the data from the Control room to the pen drive. PW No.1 has deposed before the Court that an attempt was made to search the footage of 1 ½ hour as there were too many cameras. PW No.1 has deposed before the Court that an attempt was made to search the footage of 1 ½ hour as there were too many cameras. He further deposed that two pen drives of 64 GB were to be used to retrieve the data of 5th January 2014 from 4.00 am to 7.00 a.m. He further deposed that the pen drive was inserted in Digital Video Recorder (DVR) which was connected to 16 cameras on the said railway station and before the data was transmitted, it was ensured that the pen drive was blank. He then deposed that pen drive was removed from DVR and connected to the computer thereby properties of the pen drive of 425 files were copied in another pen drive and he signed the panchnama which was prepared by which pen drives were seized, sealed and stamped. The CCTV footage obtained by the Investigating Agency during the course of investigation and which was put before the trial Court through Prosecution Witness No.31 is the axis of the whole chain of circumstances relied upon by the prosecution. We requested the learned Special Public Prosecutor Shri Raja Thakare to play the CCTV footage before us so that we can appreciate the case of the prosecution. Accordingly, the pen drive which carried the CCTV footage was connected to the laptop during the course of hearing and we had an opportunity to examine the entire footage and the learned Special Public Prosecutor also supplied the still photographs of the relevant clippings on which the prosecution relies. A copy of pen drive was also supplied to Shri Pradhan, learned counsel for the accused. 17. On examination of the various clippings, both running and in form of still photographs, reveal the following details. 1. The first clip beginning time is 04:48:20 a.m., which is recorded in the camera installed on platform no.5 towards Kalyan side. In this clip, it is seen that one person is getting down from a stationary train wearing white t-shirt and blue jeans and having a bottle of cold drink in the hand. The clip is upto 04:49:06 a.m. This clipping will have to be appreciated in light of evidence of PW 18 who has identified the accused as the person who had purchased the bottle of Thums-Up from his stall. 2. The next clipping is of 5th Jan from platform no.5, starting time is 04:57:14. The clip is upto 04:49:06 a.m. This clipping will have to be appreciated in light of evidence of PW 18 who has identified the accused as the person who had purchased the bottle of Thums-Up from his stall. 2. The next clipping is of 5th Jan from platform no.5, starting time is 04:57:14. Here, a person in white t-shirt gets down from a railway boggie and sits near the pillar of the railway shade. He gets up at 04:58:30 and thereafter walks till 04:58:51. A screenshot is taken at 04:58:48 where the face of the accused is clearly visible. 3. Next footage is from the CCTV camera installed in Hall 2. The clipping starts at 04:59:30 which shows one lady going inside the waiting area pulling a trolley bag and having other bag on the shoulder (Although the features of the person are not identifiable). The clipping ends at 05:00:20. 4. This footage is from the camera installed in the hall and relevant time is 05:00:57 wherein a girl is seen pulling a trolley bag having other shoulder bag and wearing a scarf. The clipping is till 05:01:10. 5. There is one more clipping captured in the CCTV camera installed on platform no.5 towards CST showing same lady walking while pulling a trolley bag and having one more bag and purse on the shoulder. Both these clippings (4 and 5) make is clear that it is one and the same woman. 6. The next footage is of 05:06:45 when one person wearing white t-shirt and blue jeans is alighting from one of the boggies and walks on the platform. The screenshot is taken at 05:07:02 where the face is clear and the person is the same as in the earlier clippings. This is on platform no.5 towards CST. The clipping is upto 05:07:06. 7. The next clipping is on the CCTV camera installed on platform no.4. The relevant time is 05:10:52 when it is seen that the same man with the white t-shirt and blue jeans is pulling the trolley bag and the same woman which was seen in the earlier footages is walking along talking on mobile phone. JUDGMENT : BHARATI H. DANGRE, J. 1. An incident of rape and fatal assault that occurred in the National Capital on 16th December 2012 which involved a 23 year old physiotherapist intern, shocked the conscience of the whole nation. JUDGMENT : BHARATI H. DANGRE, J. 1. An incident of rape and fatal assault that occurred in the National Capital on 16th December 2012 which involved a 23 year old physiotherapist intern, shocked the conscience of the whole nation. The incident generated widespread national and international coverage and was widely condemned both in India and abroad. There was unrest and public protest in the capital which was followed in several major cities in its own way. Social networking sites were put to use to raise a demand of strict law against rape. This resulted into constitution of a three Member Committee on 23rd December 2012 headed by the Former Chief Justice of the Supreme Court Justice J.S. Verma to recommend amendments to the Criminal Law so as to provide for speedy trial and enhance punishment for offence of sexual assault against woman. The said Committee submitted its report on 23rd January 2013. Sensing the urgency and to subdue the wide uproar amongst the general public, the Criminal Law (Amendment) Ordinance 2013 was promulgated on 3rd February 2013. This was followed by the Department-related Parliamentary Standing Committee on Home Affairs tabling its report recommending amendments to the criminal law. After obtaining the assent of the President on 2nd April 2013, the Criminal Law (Amendment Act) 2013 was brought into force, which sought to amend the Indian Penal Code, Code of Criminal Procedure 1973, the Indian Evidence Act, 1872, and also the Protection of Children from Sexual Offence Act, 2012. Barely could have the law makers given a sigh of relief by enacting a drastic law dealing with the offences against women and before the Court seized of the said trial, could deliver its verdict, in August 2013, a 22 year old photo journalist who was interning with an English Magazine in Mumbai was gang raped by five persons, including a juvenile when she had gone to the deserted Shakti Mills Compound in relation to an assignment. This incident brought in question the safety of women into city like Mumbai which, with its active night life was considered safe heaven for women. The Sessions Court in Delhi, delivered its verdict on 10th September 2013, convicting the perpetrators of the crime. Another incident in the financial capital of the country Mumbai, shocked the whole nation. This incident brought in question the safety of women into city like Mumbai which, with its active night life was considered safe heaven for women. The Sessions Court in Delhi, delivered its verdict on 10th September 2013, convicting the perpetrators of the crime. Another incident in the financial capital of the country Mumbai, shocked the whole nation. This time it was another young girl Esther aged 22 years who fell prey of the bestial proclivity at the hands of a man who ended her journey of life mercilessly for satisfying his lust. The series of incidents which came to highlight and several other incidents which are not even reported by the media or not even reported to the police have resulted in the entire womenfolk in the country posing a question of their safety and security. The entire womenfolk is heard raising an outcry and find themselves in a panic striken state of mind and expect the Executive Legislature and the Judiciary to restore their faith in the system. They echo the sentiments similar to what Madeleine Albright has once remarked : “It took me quite a long time to develop the voice and now that I have it, I am not going to be silent” 2. The prosecution case, as unfolded, discloses that Ms.Esther Anuhya, aged 23 years, on completion of her B.Tech Degree course, was recruited as a Software Engineer in TCS in Goregaon at Mumbai. The deceased was a resident of Machilipatnam, Andhra Pradesh and had completed her graduation from Kakinada. On acquiring a degree, she shifted to the city of Mumbai and was residing in YWCA Hostel for Women in Andheri. The deceased came to reside with her parents at Machilipatnam on account of the leave availed by her and she stayed there from 22nd December 2013 to 4th January 2014. Shri Singavarapa Surendra Prasad, PW No.26, the father of the deceased accompanied her to Vijaywada, nearest Railway station to Machilipatnam at about 5.00 a.m. on 4th January 2014, from where a train was available to Mumbai. Ms. Esther boarded LTT Express at Visakhapatnam which reaches Mumbai on the next day at 5.00 a.m. At 9.00 p.m., she had a telephonic conversation with her father and she informed her father that she had reached Solapur. The LTT Express was to reach Mumbai at 5.00 a.m. in the morning and accordingly reached the station. Ms. Esther boarded LTT Express at Visakhapatnam which reaches Mumbai on the next day at 5.00 a.m. At 9.00 p.m., she had a telephonic conversation with her father and she informed her father that she had reached Solapur. The LTT Express was to reach Mumbai at 5.00 a.m. in the morning and accordingly reached the station. PW No.26 – Singavarapa – attempted to contact her in the morning on her mobile phone to inquire whether she had reached safely, but the call was not answered and the mobile went on ringing. The father, thereafter, contacted the Hostel to inquire whether Esther had reached there but he received a reply in the negative. On 5th January 2014 itself, the father (PW 26) approached Vijaywada Railway Police Station and lodged a missing complaint. With the said missing complaint, the devastated father landed at Lokmanya Tilak Terminus Railway Station, Mumbai. He was informed by the railway police that the jurisdiction was that of Kurla Police Station and resultantly, he approached the Kurla Police Station. Then, began a frantic search of Esther and it continued till the date when it was revealed on the father that his daughter is no longer alive and this happened on 16th January 2014 when body of Esther was traced in the bushes on the Express Highway. The body was found in a burnt and decomposed condition but the father could identify Esther, his daughter by the ring in her finger and also from her belongings which were lying nearby. The area where the body was traced was falling in Kanjur Marg area and a complaint came to be lodged at Kanjur Marg police station alleging that Esther was murdered by some unknown person. The body was handed over to the grief-stricken father on 17th January 2014 after completion of the necessary formalities for the purpose of conduct of last ritual and the father carried it to Machilipatnam for performance of last rites. 3. On a complaint being lodged, the Investigating machinery was set into motion by the Kanjur Marg Police Station. The spot panchnama was drawn in presence of panch witnesses. 3. On a complaint being lodged, the Investigating machinery was set into motion by the Kanjur Marg Police Station. The spot panchnama was drawn in presence of panch witnesses. A broken wrist watch of Fast Track Company, knicker and a pad, one pink colour T-shirt of 'M' size, one scarf of slate colour with white dots, one mobile phone containing two sim cards, and a tuft of hair were found lying on the spot and all the said articles were seized by drawing a panchnama. The same were forwarded to the Forensic Laboratory. A map of the spot came to be drawn and it reveals that the said spot is at a distance of approximately 8.90 metres from the Service Road adjoining to the Eastern Express. The Forensic Personnels who reached the spot also collected the samples of soil, dry grass and oily grass at the place of incident. The photographer was also summoned who clicked the photographs of the spot along with the photographs of the body of the deceased. Inquest Panchnama was drawn in presence of panch witness and it divulged that the body was in a partly burnt condition and on the chest portion, there was a black brassiere which was also partly burnt. The portion of abdomen was completely burnt, whereas the private parts and adjoining parts were found to be partly burnt. The body was forwarded for post mortem to Sir J.J. Hospital and PW No.25 Dr. Gajanan Chavan conducted the post mortem and submitted a report and expressed the probable cause of death as “Blunt injuries over body and genital injuries” and reserved the final opinion, pending the Chemical Analysis of the samples. 4. The investigation was carried out initially by Kanjur Marg Police Station but it came to be transferred to the Crime Branch. PI Dattatraya Naikodi registered the FIR, and carried out further investigation in Crime No.6 of 2014 for the offence punishable under Sections 302 and 201 of the Indian Penal Code. Further investigation was carried out by PW No. 34 Nishikant Tungare, Sr. Police Inspector attached to Kanjur Marg Police Station. During the investigation, the CCTV footage from the Lokmanya Tilak Terminus was obtained with the assistance of PW No.33 Shri Vishal Patil who was on duty in RPF, since the security of LTT was under the Government Railway Force and RPF. Police Inspector attached to Kanjur Marg Police Station. During the investigation, the CCTV footage from the Lokmanya Tilak Terminus was obtained with the assistance of PW No.33 Shri Vishal Patil who was on duty in RPF, since the security of LTT was under the Government Railway Force and RPF. The necessary clippings/footage was collected from the 36 cameras installed at the LTT Railway Station. The CCTV footage revealed that Esther had walked out of the Railway station on 5th January along with one stranger who was walking along with her, carrying her trolley bag. The said CCTV footage was shown to the complainant i.e. father of the deceased on laptop at Machilipatnam on 3rd February 2014. The complainant identified his daughter who was going along with a trolley and while coming out, she was talking on mobile and one stranger was pulling her trolley bag. His statement came to be recorded. On the basis of the CCTV footage, an investigation team proceeded to carry out further investigation and made inquiries from the persons on the railway station and nearby spot on the Expressway where the body was found. Based on certain statements which came to be recorded, the Investigating Machinery succeeded in arresting one Chandrabhan Sanap as the person who was accompanying Esther on 5th January 2014 while coming out of Platform No.4 as seen in the CCTV footage. The accused Shri Chandrabhan Sanap came to be arrested vide Arrest Panchnama dated 2nd March 2014 and panch Salim Mushtaq Shaikh executed the said panchnama. The accused was taken into custody at Kanjur Marg Police Station and on physical search of the accused, one piece of paper was found in his back pocket of jeans pant and it was a writing of an Astrologer Rajabhau Aher from Nashik, Trimbakeshwar. It was in the form of a Kundli. Similarly, one Nokia Mobile was also found in another pocket of his jeans pant with one sim card which was seized. After the arrest of the accused, he made a statement of disclosure in presence of panch witness that he was ready to produce the motor cycle which was used by him to carry the deceased to the spot of crime. On such disclosure statement being made, the motor cycle came to be seized. After the arrest of the accused, he made a statement of disclosure in presence of panch witness that he was ready to produce the motor cycle which was used by him to carry the deceased to the spot of crime. On such disclosure statement being made, the motor cycle came to be seized. Further, the accused also made disclosure statement leading to seizure of bag and articles belonging to the deceased which came to be seized from two distinct places. The said articles were identified by the complainant as the one belonging to his daughter. On seizure, the said articles were forwarded for Chemical Analysis. The accused was also referred for medical examination and was examined by Dr.Kushal Tayde who opined that his genital organs are normal and that he was capable of performing a sexual act. On completion of the investigation, chargesheet was filed before the Addl. Metropolitan Magistrate, 37th Court, Mumbai on 26.5.2014. The case was committed to the Sessions Court and came to be registered as Sessions Case No.388 of 2014. The prosecution alleged that deceased Esther, resident of Vijaywada, working at TCS in Mumbai had boarded LTT Express at Vijaywada on 4th January 2014 to reach Mumbai. However, when she reached Mumbai, she was kidnapped by accused Chandrabhan Sanap who took her to the place of incident and after committing rape on her, committed her murder and in order to destroy the evidence, burned the body at a secluded place at a close distance on the Eastern Expressway. The accused was charged for abducting Esther on 5th January 2014 at 5.30 am from Lokmanya Tilak Terminus Station on the pretext of dropping her at the hostel and thereafter he made to sit her on his bike and took her to a lonely place behind the bushes on MumbaiThane Service Road and forcibly committed sexual intercourse with her. He was charged with Sections 364, 366, 376(2)(m), 376(A), 392 r/w Section 397, 302, and 201 of Indian Penal Code. He was also charged with offence punishable under Section 170 of the IPC since he pretended to hold office of Railway Security RPF and by assuming his character as such, refrained from paying Parking charges. He was also charged with Section 147 of the Railways Act, 1989 for committing an offence of trespass. He was also charged with offence punishable under Section 170 of the IPC since he pretended to hold office of Railway Security RPF and by assuming his character as such, refrained from paying Parking charges. He was also charged with Section 147 of the Railways Act, 1989 for committing an offence of trespass. The accused pleaded not guilty to all the said charges and thereafter, the prosecution proceeded to prove the charges against the accused by adducing evidence. The prosecution examined 39 witnesses. The statement of the accused under Section 313 of the Code of Criminal Procedure came to be recorded and the accused examined four witnesses in his defence. 5. On conclusion of the trial, the Sessions Court delivered its verdict on 27th October 2015 and 30th October 2015. The learned Addl. Sessions Judge convicted the accused for the offence punishable under Sections 302, 364, 366, 376(2)(m), 376A, 392 r/w Section 397 and 201 of the IPC. He was acquitted of the offences punishable under Section 170 of the IPC and Section 147 of the Indian Railways Act. For offence punishable under Section 302 of the IPC and the accused was ordered to be hanged by neck till he is dead. On conviction under Section 364, 366 and 376(2)(m), the accused was sentenced to suffer Rigorous Imprisonment for 10 years separately. On conviction under Section 376A, he is sentenced to suffer RI for Life, which shall mean the Imprisonment for remainder of his natural life. For offence punishable under Section 392 r/w Section 397, he is sentenced to suffer RI for 7 years. Further, for offence punishable under Section 201 of the IPC, he is sentenced to suffer RI for 7 years. All the substantive sentences of the Imprisonment of the accused are directed to run concurrently. The accused is directed to pay compensation of Rs.50,000/which is directed to be paid to the parents of the deceased provided they are ready to accept the same. While imposing the death sentence, the Addl. learned Sessions Judge has recorded that the accused has acted with extreme brutality and committed the offence in a preplanned and a diabolical manner. The accused is directed to pay compensation of Rs.50,000/which is directed to be paid to the parents of the deceased provided they are ready to accept the same. While imposing the death sentence, the Addl. learned Sessions Judge has recorded that the accused has acted with extreme brutality and committed the offence in a preplanned and a diabolical manner. The learned Sessions Judge has also observed that the Society’s abhorrence to the crime of rape and murder which had compelled the legislature to introduce death penalty itself proved that 'rarest of rare' case is implied in it when the offence of murder while committing rape is punishable with Death. The Lower Court has referred to the barbaric act of the accused by referring to the genital injuries and the head injuries which have been described as the cause of death associated with smoothering. By striking a balance between the aggravating and mitigating circumstances in favour and against the accused, the Sessions Judge concluded that the enormity of the crime which shocked the conscience of the Society and on drawing a balance sheet between the aggravating and mitigating circumstances after giving due weightage to both, the conduct of the accused clearly fell within the 'rarest of rare' act and in the backdrop of the gruesome, calculated and diabolic offence causing death of a helpless, young, and an innocent girl aged 23 years deserves only death penalty and has accordingly, imposed the same on the accused on his conviction under Section 302 of the IPC. 6. In view of Section 28(2) of the Code of Criminal Procedure, since the sentence of death was imposed, the matter has been made over for Confirmation to the High Court and it came to be registered as Confirmation Case No.3 of 2015. The Confirmation Case No.3 of 2015 which has been placed before the High Court came to be tagged by order dated 5th January 2016 with Criminal Appeal No.1111 of 2015 filed by the accused/appellant. By consent of the learned counsel for the accused as well as the learned Special Public Prosecutor, the matter was fixed for hearing on 3rd September 2018. Both the matters were taken up for final hearing on 11th October 2018 and accordingly, the accused was directed to be produced. We concluded the hearing of the matter on 1st November 2018 after conducting day to day hearing. Both the matters were taken up for final hearing on 11th October 2018 and accordingly, the accused was directed to be produced. We concluded the hearing of the matter on 1st November 2018 after conducting day to day hearing. In support of the confirmation case, we have heard Special Public Prosecutor Mr.Raja Thakare. In the said case, the accused is represented by Advocate Shri Nitin Pradhan along with Ms.Shubhada Khot. In Criminal Appeal No.1111 of 2015, Shri Nitin Pradhan appears for the appellant and the State is represented by Special Public Prosecutor Shri Thakare. We have heard both the matters on day-to-day basis and the accused was present in the Court on all the dates of hearing. 7. With the assistance of the learned Special Public Prosecutor Shri Thakare and Shri Pradhan learned counsel for the accused, we have scrutinized the entire record and the evidence brought on record by the prosecution and also the defence. The learned counsel Shri Pradhan appearing for the appellant would submit that the prosecution has not discharged its burden in proving the guilt of the accused beyond reasonable doubt when it was duty bound to establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must result into a chain of events which would lead to no conclusion other than the guilt of the accused. Shri Pradhan would submit that the circumstances cannot lead to other hypothesis and mere suspicion, however, grave it may be, cannot be a substitute for a proof and in the case based on circumstantial evidence, the Court must be extra cautious in relying on the evidence brought on record by the prosecution. Shri Pradhan would submit that in the present case, several links are missing and there is no proof of any motive, much less a strong motive attributed to the accused and in absence of such proof, the most vital requirement of law to prove a case of circumstantial evidence is nonexistence. Shri Pradhan would submit that in the present case, several links are missing and there is no proof of any motive, much less a strong motive attributed to the accused and in absence of such proof, the most vital requirement of law to prove a case of circumstantial evidence is nonexistence. Shri Pradhan submits that body of the deceased which was discovered, was in an advanced stage of decomposition and was beyond recognition and in this background, the prosecution has not made out a case of rape and in fact, no injuries to that effect could be discerned from the post mortem report and Shri Pradhan is very critical about the manner in which the prosecution has brought an improved version of its case through the doctor who conducted the post mortem by raising certain queries and in its response, then proceeded to foist a charge of rape on the accused. Shri Pradhan is also critical of the recovery of the articles of the deceased at the instance of the accused by effecting disclosure panchnama. Shri Pradhan would submit that there is no evidence brought on record by the prosecution establishing that the deceased was either abducted or kidnapped by the accused and then done to death by him as alleged after committing rape. The entire evidence, according to Shri Pradhan is a vast suspicion with no clinching material to establish any of the ingredients of the abduction, rape or murder by destroying the evidence. Shri Pradhan has also disputed the legality of the evidence brought on record in form of CCTV footage, which is the only genesis on the basis of which the prosecution is deriving an inference that the deceased was last seen in the company of the accused. Shri Pradhan is also critical of the said evidence brought on record without a certificate being issued under Section 65B of the Indian Evidence Act which mandates issuance of a certificate. Shri Pradhan also attacked the case of the prosecution and has submitted that the entire evidence adduced before the trial court by the prosecution through videoconferencing is in utter contrast to section 273 of the Code of Criminal Procedure. Shri Pradhan also attacked the case of the prosecution and has submitted that the entire evidence adduced before the trial court by the prosecution through videoconferencing is in utter contrast to section 273 of the Code of Criminal Procedure. The submission of Shri Pradhan is that the judgment passed by the trial Court fails to take into consideration the basic canons on the touch stone of which the circumstantial evidence has to be appreciated by the trial court and it has faulted in imposing the death sentence which do not meet the requirement of the 'rarest of rare' theory as propounded by the Hon'ble Apex Court nor does it derive a conclusion that imposition of any other sentence would have been inadequate. 8. As against this, Special Public Prosecutor Shri Thakare submits that the prosecution has successfully established the circumstances which pointed to the accused and the Special P.P would submit that it has not relied on a solitary circumstance but through the evidence brought on record, the prosecution has established a chain of circumstances which is aptly corroborated and led to an irresistible conclusion that it was only the accused who had committed the crime. Based on the evidence brought on record, in form of CCTV footage, Shri Thakare would submit that the last seen theory has been invoked by the prosecution and on account of the close proximity of the time between the event of the accused having been last seen in the company of the deceased and the factum of death and in such a situation the accused should explain how and in what circumstances he parted the company of the deceased. Shri Thakare would submit that no doubt the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless it is supported by other links in the chain of circumstances. Shri Thakare would rely on the evidence brought on record by the prosecution in form of the conduct of the accused on the previous night of the day of incident through witnesses who are otherwise completely innocuous and had narrated the events that took place in the normal circumstances. Shri Thakare would rely on the evidence brought on record by the prosecution in form of the conduct of the accused on the previous night of the day of incident through witnesses who are otherwise completely innocuous and had narrated the events that took place in the normal circumstances. His submission is that the subsequent conduct of the accused after commission of the crime has also been brought on record through evidence of the witnesses who had deposed about the acts of the accused in the normal course and Shri Thakare submits that the statements of these witnesses were recorded even before the Investigating Agency had zeroed down on the accused to be the person who was responsible for causing death of the accused. Shri Thakare would submit that the Sessions Court, by taking into consideration the totality of circumstances and the cumulative effect of the evidence brought on record has appreciated the same in light of the well settled norms of criminal jurisprudence and has arrived at a finding of guilt against the accused. As far as the imposition of death penalty is concerned, we would refer to his submission a while later when we come to the point of sentencing. 9. The case of the prosecution is based on circumstantial evidence and the prosecution has relied on 39 witnesses to establish its case apart from several documentary evidence. 10. The body of Esther was traced on 16.01.2014 and the prosecution places reliance on the spot panchnama proved by PW2 Bapu Adsul. The said panchnama is exhibited as Exhibit38. The spot panchnama reveals that the body of the deceased was found at a place located to the East of the Service Road of Eastern Express Highway at a distance of about 29 feet. The spot panchnama discloses that on the said place a space of 5 x 3 feet was in a burned condition and at a distance about 8 feet from the said place there is a space of 4 x 3 feet which is blackish in colour where the dead body was lying. The spot panchnama further reveals that on careful perusal of the spot, at the north of the said place, a Samsung Duos company mobile is lying at a distance of 5 feet. One rubber mobile cover dark blue in colour was also found lying on the spot. The spot panchnama further reveals that on careful perusal of the spot, at the north of the said place, a Samsung Duos company mobile is lying at a distance of 5 feet. One rubber mobile cover dark blue in colour was also found lying on the spot. On the spot one black gray colour scarf with white spots was also found which came to be seized. On the spot one pink colour T-shirt in partly burned condition with Msize also came to be seized from the spot. Further, at a distance of 2 feet from where the body was lying, one Fast track company watch with a black dial with broken belt was also lying on the spot. The spot panchnama further reveals that a purple colour doted knicker and white colour pad attached to the said knicker was also lying on the spot. All the said articles were seized from the said spot and came to be seized. The prosecution also relied on the Inquest Panchnama which was proved by PW6 Nirmala Kadu and was exhibited as Exhibit84. The Inquest panchnama discloses that the dead body of the deceased was partly burnt and blackened. It also mentions of long black hair of the deceased which were found in partly burnt condition, eyes were open and had blackened. The face was completely burnt and so also both the ears. Some portion of the body including the left hand was bereft of any skin and was exposed. The right hand was spread over and the second finger was bent and yellow metal ring was found in the middle figure. The chest portion was found to be completely burned and the black brassiere was attached to the body and the portion of abdomen was charred. The body of the deceased was sent for conduct of postmortem and Dr.Gajanan Chavan prosecution witness No.25 has carried out the postmortem and proved the postmortem report which is exhibited at Exhibit127. The postmortem report relied on by the prosecution also refers to black colour bra with avulsed hookmetallic. Rigor mortis was absent in the body and postmortem report makes mention to the following effect: “Variable mix pattern of decomposition seen. Facial skin burnt, blackish adherent to skull bone, Skin absent at some places of extremities and abdomen exposing bones and abdominal viscera at places. Ends of long bones are nibbled and exposed. Rigor mortis was absent in the body and postmortem report makes mention to the following effect: “Variable mix pattern of decomposition seen. Facial skin burnt, blackish adherent to skull bone, Skin absent at some places of extremities and abdomen exposing bones and abdominal viscera at places. Ends of long bones are nibbled and exposed. Natural separations seen at most of the joints without evidence of ante mortem fractures No Maggots”. As far as the column of surface wound and injuries the postmortem notes mention as under : 1. Contusion over LTLeft fronto temporal area 4 x 5 cm, blackish red colour.” 2. Contusion over lower lip right side against caninesblackish red in colour 2 x 2 cm. Both contusion confirmed by cut section. The postmortem makes note of decomposition seen in perI-cardium and heart. Abdomen is found to be absent. The opinion as to the probable cause of death has been cited as follows : “Blunt injuries over body and genital injuries seen. However, final opinion result, pending for CA of samples”. The final cause of death certificate came to be issued and exhibited at Exhibit128. The cause of death in the said certificate is described as follows : “Death due to Head injury with smothering associated with genital injuries.” 11. The prosecution has also relied on the response to the query raised by the Investigating Officer to the team of doctors who conducted the postmortem in regard to the injury in column No.15 which postmortem was described in the postmortem notes to the following effect. “15. injuries to external genitals. Indication of purginggenitals distorted due to decomposition, vaginal wall shows blackish reddish discoloration at posterior wall, confirmed by cut section” The query that was raised by the Senior Police Officer to the J.J. Hospital on 28.07.2014 raised the following doubts: “(i) What can cause the state of the organs mentioned in column no.15 (ii) In the state of organs in column no.15 whether can be caused by forcible insertion of anything in the vagina. (ii) Whether the state of organs as mentioned in column 15 is on account of decomposition.” The Medical Officer replied to the said query on 12.08.2014 by the following reply: (i) As to point no.1 the state of the organs can caused due to antemortem injuries to the private part and subsequently due to its decomposition. (ii) Whether the state of organs as mentioned in column 15 is on account of decomposition.” The Medical Officer replied to the said query on 12.08.2014 by the following reply: (i) As to point no.1 the state of the organs can caused due to antemortem injuries to the private part and subsequently due to its decomposition. (ii) As to point no.2 answer state of organs as mentioned in column 15 can caused on account insertion of anything into the vagina. (iii) As to point no.3 answer to point no.1 to be perused. 12. On the basis of the aforesaid documentary evidence the prosecution has established that the deceased whose body was found on the Service Road of the Eastern Expressway on 16.01.2014 was subjected to forcible sexual intercourse and thereafter was done to death by causing Head injury coupled with smothering. It is also the case of the prosecution that the death had occurred on account of the said Head injury with smothering associated with genital injuries and the prosecution attributed it to the accused and it is alleged that she was assaulted on her head resulting into the injury mentioned in column no.17 which was confirmed by cut section. It is also the case of the prosecution that the contusion over lower lip right side against the canines, which is reflected as blackish red in colour depicts the force applied. Further the prosecution also relies on the response to the query report to sustain the charge that the injuries to the genitals are antemortem and subsequently decomposed. The postmortem report had mentioned the same to be distorted due to decomposition. 13. The prosecution relies on oral testimony of witnesses to support its case based on circumstantial evidence. The case of the prosecution is unfolded by the complainant, the father of the deceased who is examined as PW no.26 i.e. Singavarapa. PW No.26 is resident of Nobel Colony, Machilipatnam, Andhra Pradesh. Deceased Esther, aged 23 years was his daughter. He has deposed before the Court that she had completed her BTech and she was a scholar academically and on acquiring the educational qualification, she immediately secured a job in TCS as a software engineer. In Mumbai, he had arranged for her stay in YWCA Hostel for Women at Andheri. Deceased Esther, aged 23 years was his daughter. He has deposed before the Court that she had completed her BTech and she was a scholar academically and on acquiring the educational qualification, she immediately secured a job in TCS as a software engineer. In Mumbai, he had arranged for her stay in YWCA Hostel for Women at Andheri. Shri Singavarapa deposed that whenever his daughter used to get leave, she used to come to stay in Machilipatnam and on 22nd December 2013, she came to reside with him and stayed till 4th January 2014. He further deposed that on 4th January 2014, he took her to Vijaywada which was the nearest railway station and from there, she boarded LTT Express which reaches Mumbai at 5.00 a.m. on the next day. He contacted her on her mobile phone at 9.00 p.m when he was informed by his daughter that she had reached Solapur and that she was going to sleep. He has further deposed that when he attempted to contact her in the morning, her mobile phone was ringing but nobody was responding. He, therefore, contacted the YWCA Hostel and it was reported that Esther did not report to the hostel. Thereafter, PW No.26 lodged a missing complaint with the Railway Police Station at Vijaywada and landed in Mumbai and approached the Kurla Police Station. He further deposed that he undertook search of his daughter and the police found the last signal of the location of her mobile at Bhandup and on further search on Express Highway, on 16th January 2014, the body of his daughter was found near Express Highway in the bushes. He recognised the body to be of his daughter from a finger ring in her finger. He has deposed that the condition of the body was very bad and beyond recognition. He lodged an FIR and took possession of the body for performance of last rites. He has further deposed that the Investigating team at Kanjur Marg contacted him and they inquired about the articles which his daughter was carrying, which he informed to be a trolley bag, laptop bag, one sack, one or two handbags and some other articles. He was also shown the CCTV footage on pendrive when he recognized his daughter entering the platform along with the trolley and a bag and sack on her back. He was also shown the CCTV footage on pendrive when he recognized his daughter entering the platform along with the trolley and a bag and sack on her back. In one footage, he recognized his daughter who was holding a mobile and one man was drawing her trolley. This witness has deposed that his daughter was wearing one wrist watch of Fast Track company when she left the house. PW No.26 also recognized a Yellow metal ring on her finger which was seized and marked as Article 27 and also the Fast Track wrist watch as well as her other belongings i.e. scarf, trolley bag, identity card, spectacles etc. The identity of the body found lying near Bhandup on the Express Highway was established by PW No.26 as to be of his daughter. However, in order to establish the identity of the body biologically, DNA Sampling was carried out. The prosecution has relied on the testimony of Shrikant Hanumant Lade PW No.28, Assistant Director FSL, Kalina. Shrikant Lade is a Post Graduate in BioChemistry and trained at Centre for DNA Finger Printing Diagnosis at Hyderabad. He had deposed that he had handled 2500 cases and had given evidence in 200 cases. In his deposition, he has given the details of the uniqueness of a body cell containing DNA and has deposed DNA technique is a very sensitive and stable technique. He deposed that from 15 intact cells, DNA profile is generated and the source of DNA is stated to be any type of body cell, blood, semen, saliva, hair with root without root, teeth, nails, dandruff, ear wax, muscle tissues and bone. He further deposed that on 18th January 2014, he received a letter from Kanjur Marg Police Station and received 2 sealed phials, one sealed test tube and three plastic containers in sealed condition. He further deposed that the description of articles in parcels was blood sample of Singaravapa, the father of the deceased. He was requested by the Investigating Agency to examine the vaginal swab, bone, teeth and nail of deceased as against the blood sample of the claimant i.e. Singavarapa (PW 26). He further deposed that he extracted DNA from the bone teeth and blood sample of Singavarappa and the DNA profiles were generated. After that, he prepared a report at Exhibit17. He was requested by the Investigating Agency to examine the vaginal swab, bone, teeth and nail of deceased as against the blood sample of the claimant i.e. Singavarapa (PW 26). He further deposed that he extracted DNA from the bone teeth and blood sample of Singavarappa and the DNA profiles were generated. After that, he prepared a report at Exhibit17. He further deposed that he had also obtained the articles in sealed parcel i.e Identity card, belt, spectacles, jeans pant, ladies half T-shirt, ladies top, kajal pencil and he had extracted DNA from sweat detected from Exhibit1 i.e. Identity card with belt and spectacles and the bone of deceased which was received at the time of earlier DNA sampling. He analysed the same with the Controlled DNA Profile of bone sample of the deceased and submitted his report at Exhibit-22. He opined that DNA profile of sweat detected on Identity card, belt and spectacles and DNA profile of bone teeth is identical and from one and the same source of female origin. Through this witness, the prosecution has therefore established that the body found on the Expressway on 16th January 2014 was of the daughter of PW no.26 and the articles which were seized during the course of investigation and claimed by the prosecution to be belonging to the deceased were proved to be matching with the DNA extracted from the bone of the deceased. 14. The deceased Esther who had boarded the train at Visakhapatnam, reached its destination at Mumbai with Esther but thereafter, her whereabouts were not known and she did not report to the Women's Hostel at Andheri where she was lodged. The Investigating Agency was therefore, focused on investigating as to how did this young girl who alighted the train at Lokmanya Tilak Terminus, reached the place where her body was traced i.e. on the Service road adjoining the Eastern Express Highway. The prosecution relied on the CCTV footage from the cameras which were installed on the Lokmanya Tilak Terminus to establish and prove that Esther had reached LTT. The Investigating Agency approached the RPF authorities since the security of the LTT was entrusted to the Government Railway Force and the RPF. For security purposes, the 36 CCTV cameras were installed on the railway station with its display being monitored in the CCTV control room. The Investigating Agency approached the RPF authorities since the security of the LTT was entrusted to the Government Railway Force and the RPF. For security purposes, the 36 CCTV cameras were installed on the railway station with its display being monitored in the CCTV control room. On requisite permission from the RPF, the Personnel from the Company who was maintaining CCTV cameras was instructed to provide the CCTV footage. The CCTV footage came to be transmitted to the pen drive and it was collected for the period from 4.00 a.m. to 7.00 a.m. on the date of incident i.e. 5th January 2014 when Esther deboarded the train at LTT which she had boarded at Visakhapatam. The CCTV footage was transmitted to the pen drive which came to be sealed after undergoing the entire requisite procedure on 18th January 2014 and Vishal Patil was examined by the prosecution as PW No.33. Further, Shri Pandey who was working in the CCTV Department in Central Railway is also examined as a PW No.31. The said witness has deposed before the Court that there are cameras installed on all the platforms of LTT and also in the rooms and there were two monitors, the first monitoring 20 cameras and another monitoring 16 cameras. He also deposed before the Court that the servers are kept in the control room and there is an automatic recording system in camera. He further deposed that there is Hard disk in the server and recording gets saved in the server. He further deposed that in one server, there is recording of 12 days and in another server, there is recording of one month and after the expiry of the said period, recordings are automatically deleted from the said servers. He also deposed that since there was some fault in the server, he visited the control room in the month of January and at that time, the Police Officers from Kanjur Marg Police Station sought for a footage and he informed that it could be done only with the permission of the RPF. He deposed that after obtaining the necessary permission, he had transmitted the footage of 5th January 2014 which was available on CCTV camera to the pen drive. The footage was played and verified and thereafter, the pen drives were sealed in presence of two panch witnesses. 15. He deposed that after obtaining the necessary permission, he had transmitted the footage of 5th January 2014 which was available on CCTV camera to the pen drive. The footage was played and verified and thereafter, the pen drives were sealed in presence of two panch witnesses. 15. The CCTV footage which was obtained with the permission of the RPF was shown to the father of the deceased PW 26 by visiting Machilipatnam on 3rd April 2014. The said footage which was carried in a pendrive was displayed on the laptop to him by PI attached to CID i.e. Ashok Dabhle who is examined by the Prosecution Witness No.29. PW no.29 deposed before the Court that when he visited Machilipatnam and showed the CCTV footage to the complainant, he identified his daughter while going with the trolley and while she was talking on mobile and one person was pulling her trolley. He further deposed that PW No.26 identified the trolley bag as belonging to his daughter and he also informed that he was aware of the articles in the said bag since he was present at the time when his daughter packed her bag. This version is corroborated by PW no.26 who deposed before the Court when he was shown the CCTV footage on pendrive and he saw his daughter entering the platform along with the trolley and a bag and sack on her back. The prosecution, therefore, established through the evidence of these witnesses that Esther had reached Mumbai by LTT Express and deboarded the train since the CCTV clippings recorded the images of Esther walking on the Railway Platform at 04.59.30 when she was seen pulling a trolley bag. However, the next footage of 05.06.45 is an image of one person wearing white T-shirt and blue jeans pulling the trolley bag and woman seen in the earlier footage following him talking on mobile phone. The CCTV footage which was recorded from 4.00 am to 7.00 am on 5th January 2014 is in form of different clips. 16. The prosecution has also examined the panch witness Girish Mishra who is examined as PW No.1 and who has proved the panchnama prepared while transmitting the data from the Control room to the pen drive. PW No.1 has deposed before the Court that an attempt was made to search the footage of 1 ½ hour as there were too many cameras. PW No.1 has deposed before the Court that an attempt was made to search the footage of 1 ½ hour as there were too many cameras. He further deposed that two pen drives of 64 GB were to be used to retrieve the data of 5th January 2014 from 4.00 am to 7.00 a.m. He further deposed that the pen drive was inserted in Digital Video Recorder (DVR) which was connected to 16 cameras on the said railway station and before the data was transmitted, it was ensured that the pen drive was blank. He then deposed that pen drive was removed from DVR and connected to the computer thereby properties of the pen drive of 425 files were copied in another pen drive and he signed the panchnama which was prepared by which pen drives were seized, sealed and stamped. The CCTV footage obtained by the Investigating Agency during the course of investigation and which was put before the trial Court through Prosecution Witness No.31 is the axis of the whole chain of circumstances relied upon by the prosecution. We requested the learned Special Public Prosecutor Shri Raja Thakare to play the CCTV footage before us so that we can appreciate the case of the prosecution. Accordingly, the pen drive which carried the CCTV footage was connected to the laptop during the course of hearing and we had an opportunity to examine the entire footage and the learned Special Public Prosecutor also supplied the still photographs of the relevant clippings on which the prosecution relies. A copy of pen drive was also supplied to Shri Pradhan, learned counsel for the accused. 17. On examination of the various clippings, both running and in form of still photographs, reveal the following details. 1. The first clip beginning time is 04:48:20 a.m., which is recorded in the camera installed on platform no.5 towards Kalyan side. In this clip, it is seen that one person is getting down from a stationary train wearing white t-shirt and blue jeans and having a bottle of cold drink in the hand. The clip is upto 04:49:06 a.m. This clipping will have to be appreciated in light of evidence of PW 18 who has identified the accused as the person who had purchased the bottle of Thums-Up from his stall. 2. The next clipping is of 5th Jan from platform no.5, starting time is 04:57:14. The clip is upto 04:49:06 a.m. This clipping will have to be appreciated in light of evidence of PW 18 who has identified the accused as the person who had purchased the bottle of Thums-Up from his stall. 2. The next clipping is of 5th Jan from platform no.5, starting time is 04:57:14. Here, a person in white t-shirt gets down from a railway boggie and sits near the pillar of the railway shade. He gets up at 04:58:30 and thereafter walks till 04:58:51. A screenshot is taken at 04:58:48 where the face of the accused is clearly visible. 3. Next footage is from the CCTV camera installed in Hall 2. The clipping starts at 04:59:30 which shows one lady going inside the waiting area pulling a trolley bag and having other bag on the shoulder (Although the features of the person are not identifiable). The clipping ends at 05:00:20. 4. This footage is from the camera installed in the hall and relevant time is 05:00:57 wherein a girl is seen pulling a trolley bag having other shoulder bag and wearing a scarf. The clipping is till 05:01:10. 5. There is one more clipping captured in the CCTV camera installed on platform no.5 towards CST showing same lady walking while pulling a trolley bag and having one more bag and purse on the shoulder. Both these clippings (4 and 5) make is clear that it is one and the same woman. 6. The next footage is of 05:06:45 when one person wearing white t-shirt and blue jeans is alighting from one of the boggies and walks on the platform. The screenshot is taken at 05:07:02 where the face is clear and the person is the same as in the earlier clippings. This is on platform no.5 towards CST. The clipping is upto 05:07:06. 7. The next clipping is on the CCTV camera installed on platform no.4. The relevant time is 05:10:52 when it is seen that the same man with the white t-shirt and blue jeans is pulling the trolley bag and the same woman which was seen in the earlier footages is walking along talking on mobile phone. JUDGMENT : BHARATI H. DANGRE, J. 1. An incident of rape and fatal assault that occurred in the National Capital on 16th December 2012 which involved a 23 year old physiotherapist intern, shocked the conscience of the whole nation. JUDGMENT : BHARATI H. DANGRE, J. 1. An incident of rape and fatal assault that occurred in the National Capital on 16th December 2012 which involved a 23 year old physiotherapist intern, shocked the conscience of the whole nation. The incident generated widespread national and international coverage and was widely condemned both in India and abroad. There was unrest and public protest in the capital which was followed in several major cities in its own way. Social networking sites were put to use to raise a demand of strict law against rape. This resulted into constitution of a three Member Committee on 23rd December 2012 headed by the Former Chief Justice of the Supreme Court Justice J.S. Verma to recommend amendments to the Criminal Law so as to provide for speedy trial and enhance punishment for offence of sexual assault against woman. The said Committee submitted its report on 23rd January 2013. Sensing the urgency and to subdue the wide uproar amongst the general public, the Criminal Law (Amendment) Ordinance 2013 was promulgated on 3rd February 2013. This was followed by the Department-related Parliamentary Standing Committee on Home Affairs tabling its report recommending amendments to the criminal law. After obtaining the assent of the President on 2nd April 2013, the Criminal Law (Amendment Act) 2013 was brought into force, which sought to amend the Indian Penal Code, Code of Criminal Procedure 1973, the Indian Evidence Act, 1872, and also the Protection of Children from Sexual Offence Act, 2012. Barely could have the law makers given a sigh of relief by enacting a drastic law dealing with the offences against women and before the Court seized of the said trial, could deliver its verdict, in August 2013, a 22 year old photo journalist who was interning with an English Magazine in Mumbai was gang raped by five persons, including a juvenile when she had gone to the deserted Shakti Mills Compound in relation to an assignment. This incident brought in question the safety of women into city like Mumbai which, with its active night life was considered safe heaven for women. The Sessions Court in Delhi, delivered its verdict on 10th September 2013, convicting the perpetrators of the crime. Another incident in the financial capital of the country Mumbai, shocked the whole nation. This incident brought in question the safety of women into city like Mumbai which, with its active night life was considered safe heaven for women. The Sessions Court in Delhi, delivered its verdict on 10th September 2013, convicting the perpetrators of the crime. Another incident in the financial capital of the country Mumbai, shocked the whole nation. This time it was another young girl Esther aged 22 years who fell prey of the bestial proclivity at the hands of a man who ended her journey of life mercilessly for satisfying his lust. The series of incidents which came to highlight and several other incidents which are not even reported by the media or not even reported to the police have resulted in the entire womenfolk in the country posing a question of their safety and security. The entire womenfolk is heard raising an outcry and find themselves in a panic striken state of mind and expect the Executive Legislature and the Judiciary to restore their faith in the system. They echo the sentiments similar to what Madeleine Albright has once remarked : “It took me quite a long time to develop the voice and now that I have it, I am not going to be silent” 2. The prosecution case, as unfolded, discloses that Ms.Esther Anuhya, aged 23 years, on completion of her B.Tech Degree course, was recruited as a Software Engineer in TCS in Goregaon at Mumbai. The deceased was a resident of Machilipatnam, Andhra Pradesh and had completed her graduation from Kakinada. On acquiring a degree, she shifted to the city of Mumbai and was residing in YWCA Hostel for Women in Andheri. The deceased came to reside with her parents at Machilipatnam on account of the leave availed by her and she stayed there from 22nd December 2013 to 4th January 2014. Shri Singavarapa Surendra Prasad, PW No.26, the father of the deceased accompanied her to Vijaywada, nearest Railway station to Machilipatnam at about 5.00 a.m. on 4th January 2014, from where a train was available to Mumbai. Ms. Esther boarded LTT Express at Visakhapatnam which reaches Mumbai on the next day at 5.00 a.m. At 9.00 p.m., she had a telephonic conversation with her father and she informed her father that she had reached Solapur. The LTT Express was to reach Mumbai at 5.00 a.m. in the morning and accordingly reached the station. Ms. Esther boarded LTT Express at Visakhapatnam which reaches Mumbai on the next day at 5.00 a.m. At 9.00 p.m., she had a telephonic conversation with her father and she informed her father that she had reached Solapur. The LTT Express was to reach Mumbai at 5.00 a.m. in the morning and accordingly reached the station. PW No.26 – Singavarapa – attempted to contact her in the morning on her mobile phone to inquire whether she had reached safely, but the call was not answered and the mobile went on ringing. The father, thereafter, contacted the Hostel to inquire whether Esther had reached there but he received a reply in the negative. On 5th January 2014 itself, the father (PW 26) approached Vijaywada Railway Police Station and lodged a missing complaint. With the said missing complaint, the devastated father landed at Lokmanya Tilak Terminus Railway Station, Mumbai. He was informed by the railway police that the jurisdiction was that of Kurla Police Station and resultantly, he approached the Kurla Police Station. Then, began a frantic search of Esther and it continued till the date when it was revealed on the father that his daughter is no longer alive and this happened on 16th January 2014 when body of Esther was traced in the bushes on the Express Highway. The body was found in a burnt and decomposed condition but the father could identify Esther, his daughter by the ring in her finger and also from her belongings which were lying nearby. The area where the body was traced was falling in Kanjur Marg area and a complaint came to be lodged at Kanjur Marg police station alleging that Esther was murdered by some unknown person. The body was handed over to the grief-stricken father on 17th January 2014 after completion of the necessary formalities for the purpose of conduct of last ritual and the father carried it to Machilipatnam for performance of last rites. 3. On a complaint being lodged, the Investigating machinery was set into motion by the Kanjur Marg Police Station. The spot panchnama was drawn in presence of panch witnesses. 3. On a complaint being lodged, the Investigating machinery was set into motion by the Kanjur Marg Police Station. The spot panchnama was drawn in presence of panch witnesses. A broken wrist watch of Fast Track Company, knicker and a pad, one pink colour T-shirt of 'M' size, one scarf of slate colour with white dots, one mobile phone containing two sim cards, and a tuft of hair were found lying on the spot and all the said articles were seized by drawing a panchnama. The same were forwarded to the Forensic Laboratory. A map of the spot came to be drawn and it reveals that the said spot is at a distance of approximately 8.90 metres from the Service Road adjoining to the Eastern Express. The Forensic Personnels who reached the spot also collected the samples of soil, dry grass and oily grass at the place of incident. The photographer was also summoned who clicked the photographs of the spot along with the photographs of the body of the deceased. Inquest Panchnama was drawn in presence of panch witness and it divulged that the body was in a partly burnt condition and on the chest portion, there was a black brassiere which was also partly burnt. The portion of abdomen was completely burnt, whereas the private parts and adjoining parts were found to be partly burnt. The body was forwarded for post mortem to Sir J.J. Hospital and PW No.25 Dr. Gajanan Chavan conducted the post mortem and submitted a report and expressed the probable cause of death as “Blunt injuries over body and genital injuries” and reserved the final opinion, pending the Chemical Analysis of the samples. 4. The investigation was carried out initially by Kanjur Marg Police Station but it came to be transferred to the Crime Branch. PI Dattatraya Naikodi registered the FIR, and carried out further investigation in Crime No.6 of 2014 for the offence punishable under Sections 302 and 201 of the Indian Penal Code. Further investigation was carried out by PW No. 34 Nishikant Tungare, Sr. Police Inspector attached to Kanjur Marg Police Station. During the investigation, the CCTV footage from the Lokmanya Tilak Terminus was obtained with the assistance of PW No.33 Shri Vishal Patil who was on duty in RPF, since the security of LTT was under the Government Railway Force and RPF. Police Inspector attached to Kanjur Marg Police Station. During the investigation, the CCTV footage from the Lokmanya Tilak Terminus was obtained with the assistance of PW No.33 Shri Vishal Patil who was on duty in RPF, since the security of LTT was under the Government Railway Force and RPF. The necessary clippings/footage was collected from the 36 cameras installed at the LTT Railway Station. The CCTV footage revealed that Esther had walked out of the Railway station on 5th January along with one stranger who was walking along with her, carrying her trolley bag. The said CCTV footage was shown to the complainant i.e. father of the deceased on laptop at Machilipatnam on 3rd February 2014. The complainant identified his daughter who was going along with a trolley and while coming out, she was talking on mobile and one stranger was pulling her trolley bag. His statement came to be recorded. On the basis of the CCTV footage, an investigation team proceeded to carry out further investigation and made inquiries from the persons on the railway station and nearby spot on the Expressway where the body was found. Based on certain statements which came to be recorded, the Investigating Machinery succeeded in arresting one Chandrabhan Sanap as the person who was accompanying Esther on 5th January 2014 while coming out of Platform No.4 as seen in the CCTV footage. The accused Shri Chandrabhan Sanap came to be arrested vide Arrest Panchnama dated 2nd March 2014 and panch Salim Mushtaq Shaikh executed the said panchnama. The accused was taken into custody at Kanjur Marg Police Station and on physical search of the accused, one piece of paper was found in his back pocket of jeans pant and it was a writing of an Astrologer Rajabhau Aher from Nashik, Trimbakeshwar. It was in the form of a Kundli. Similarly, one Nokia Mobile was also found in another pocket of his jeans pant with one sim card which was seized. After the arrest of the accused, he made a statement of disclosure in presence of panch witness that he was ready to produce the motor cycle which was used by him to carry the deceased to the spot of crime. On such disclosure statement being made, the motor cycle came to be seized. After the arrest of the accused, he made a statement of disclosure in presence of panch witness that he was ready to produce the motor cycle which was used by him to carry the deceased to the spot of crime. On such disclosure statement being made, the motor cycle came to be seized. Further, the accused also made disclosure statement leading to seizure of bag and articles belonging to the deceased which came to be seized from two distinct places. The said articles were identified by the complainant as the one belonging to his daughter. On seizure, the said articles were forwarded for Chemical Analysis. The accused was also referred for medical examination and was examined by Dr.Kushal Tayde who opined that his genital organs are normal and that he was capable of performing a sexual act. On completion of the investigation, chargesheet was filed before the Addl. Metropolitan Magistrate, 37th Court, Mumbai on 26.5.2014. The case was committed to the Sessions Court and came to be registered as Sessions Case No.388 of 2014. The prosecution alleged that deceased Esther, resident of Vijaywada, working at TCS in Mumbai had boarded LTT Express at Vijaywada on 4th January 2014 to reach Mumbai. However, when she reached Mumbai, she was kidnapped by accused Chandrabhan Sanap who took her to the place of incident and after committing rape on her, committed her murder and in order to destroy the evidence, burned the body at a secluded place at a close distance on the Eastern Expressway. The accused was charged for abducting Esther on 5th January 2014 at 5.30 am from Lokmanya Tilak Terminus Station on the pretext of dropping her at the hostel and thereafter he made to sit her on his bike and took her to a lonely place behind the bushes on MumbaiThane Service Road and forcibly committed sexual intercourse with her. He was charged with Sections 364, 366, 376(2)(m), 376(A), 392 r/w Section 397, 302, and 201 of Indian Penal Code. He was also charged with offence punishable under Section 170 of the IPC since he pretended to hold office of Railway Security RPF and by assuming his character as such, refrained from paying Parking charges. He was also charged with Section 147 of the Railways Act, 1989 for committing an offence of trespass. He was also charged with offence punishable under Section 170 of the IPC since he pretended to hold office of Railway Security RPF and by assuming his character as such, refrained from paying Parking charges. He was also charged with Section 147 of the Railways Act, 1989 for committing an offence of trespass. The accused pleaded not guilty to all the said charges and thereafter, the prosecution proceeded to prove the charges against the accused by adducing evidence. The prosecution examined 39 witnesses. The statement of the accused under Section 313 of the Code of Criminal Procedure came to be recorded and the accused examined four witnesses in his defence. 5. On conclusion of the trial, the Sessions Court delivered its verdict on 27th October 2015 and 30th October 2015. The learned Addl. Sessions Judge convicted the accused for the offence punishable under Sections 302, 364, 366, 376(2)(m), 376A, 392 r/w Section 397 and 201 of the IPC. He was acquitted of the offences punishable under Section 170 of the IPC and Section 147 of the Indian Railways Act. For offence punishable under Section 302 of the IPC and the accused was ordered to be hanged by neck till he is dead. On conviction under Section 364, 366 and 376(2)(m), the accused was sentenced to suffer Rigorous Imprisonment for 10 years separately. On conviction under Section 376A, he is sentenced to suffer RI for Life, which shall mean the Imprisonment for remainder of his natural life. For offence punishable under Section 392 r/w Section 397, he is sentenced to suffer RI for 7 years. Further, for offence punishable under Section 201 of the IPC, he is sentenced to suffer RI for 7 years. All the substantive sentences of the Imprisonment of the accused are directed to run concurrently. The accused is directed to pay compensation of Rs.50,000/which is directed to be paid to the parents of the deceased provided they are ready to accept the same. While imposing the death sentence, the Addl. learned Sessions Judge has recorded that the accused has acted with extreme brutality and committed the offence in a preplanned and a diabolical manner. The accused is directed to pay compensation of Rs.50,000/which is directed to be paid to the parents of the deceased provided they are ready to accept the same. While imposing the death sentence, the Addl. learned Sessions Judge has recorded that the accused has acted with extreme brutality and committed the offence in a preplanned and a diabolical manner. The learned Sessions Judge has also observed that the Society’s abhorrence to the crime of rape and murder which had compelled the legislature to introduce death penalty itself proved that 'rarest of rare' case is implied in it when the offence of murder while committing rape is punishable with Death. The Lower Court has referred to the barbaric act of the accused by referring to the genital injuries and the head injuries which have been described as the cause of death associated with smoothering. By striking a balance between the aggravating and mitigating circumstances in favour and against the accused, the Sessions Judge concluded that the enormity of the crime which shocked the conscience of the Society and on drawing a balance sheet between the aggravating and mitigating circumstances after giving due weightage to both, the conduct of the accused clearly fell within the 'rarest of rare' act and in the backdrop of the gruesome, calculated and diabolic offence causing death of a helpless, young, and an innocent girl aged 23 years deserves only death penalty and has accordingly, imposed the same on the accused on his conviction under Section 302 of the IPC. 6. In view of Section 28(2) of the Code of Criminal Procedure, since the sentence of death was imposed, the matter has been made over for Confirmation to the High Court and it came to be registered as Confirmation Case No.3 of 2015. The Confirmation Case No.3 of 2015 which has been placed before the High Court came to be tagged by order dated 5th January 2016 with Criminal Appeal No.1111 of 2015 filed by the accused/appellant. By consent of the learned counsel for the accused as well as the learned Special Public Prosecutor, the matter was fixed for hearing on 3rd September 2018. Both the matters were taken up for final hearing on 11th October 2018 and accordingly, the accused was directed to be produced. We concluded the hearing of the matter on 1st November 2018 after conducting day to day hearing. Both the matters were taken up for final hearing on 11th October 2018 and accordingly, the accused was directed to be produced. We concluded the hearing of the matter on 1st November 2018 after conducting day to day hearing. In support of the confirmation case, we have heard Special Public Prosecutor Mr.Raja Thakare. In the said case, the accused is represented by Advocate Shri Nitin Pradhan along with Ms.Shubhada Khot. In Criminal Appeal No.1111 of 2015, Shri Nitin Pradhan appears for the appellant and the State is represented by Special Public Prosecutor Shri Thakare. We have heard both the matters on day-to-day basis and the accused was present in the Court on all the dates of hearing. 7. With the assistance of the learned Special Public Prosecutor Shri Thakare and Shri Pradhan learned counsel for the accused, we have scrutinized the entire record and the evidence brought on record by the prosecution and also the defence. The learned counsel Shri Pradhan appearing for the appellant would submit that the prosecution has not discharged its burden in proving the guilt of the accused beyond reasonable doubt when it was duty bound to establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must result into a chain of events which would lead to no conclusion other than the guilt of the accused. Shri Pradhan would submit that the circumstances cannot lead to other hypothesis and mere suspicion, however, grave it may be, cannot be a substitute for a proof and in the case based on circumstantial evidence, the Court must be extra cautious in relying on the evidence brought on record by the prosecution. Shri Pradhan would submit that in the present case, several links are missing and there is no proof of any motive, much less a strong motive attributed to the accused and in absence of such proof, the most vital requirement of law to prove a case of circumstantial evidence is nonexistence. Shri Pradhan would submit that in the present case, several links are missing and there is no proof of any motive, much less a strong motive attributed to the accused and in absence of such proof, the most vital requirement of law to prove a case of circumstantial evidence is nonexistence. Shri Pradhan submits that body of the deceased which was discovered, was in an advanced stage of decomposition and was beyond recognition and in this background, the prosecution has not made out a case of rape and in fact, no injuries to that effect could be discerned from the post mortem report and Shri Pradhan is very critical about the manner in which the prosecution has brought an improved version of its case through the doctor who conducted the post mortem by raising certain queries and in its response, then proceeded to foist a charge of rape on the accused. Shri Pradhan is also critical of the recovery of the articles of the deceased at the instance of the accused by effecting disclosure panchnama. Shri Pradhan would submit that there is no evidence brought on record by the prosecution establishing that the deceased was either abducted or kidnapped by the accused and then done to death by him as alleged after committing rape. The entire evidence, according to Shri Pradhan is a vast suspicion with no clinching material to establish any of the ingredients of the abduction, rape or murder by destroying the evidence. Shri Pradhan has also disputed the legality of the evidence brought on record in form of CCTV footage, which is the only genesis on the basis of which the prosecution is deriving an inference that the deceased was last seen in the company of the accused. Shri Pradhan is also critical of the said evidence brought on record without a certificate being issued under Section 65B of the Indian Evidence Act which mandates issuance of a certificate. Shri Pradhan also attacked the case of the prosecution and has submitted that the entire evidence adduced before the trial court by the prosecution through videoconferencing is in utter contrast to section 273 of the Code of Criminal Procedure. Shri Pradhan also attacked the case of the prosecution and has submitted that the entire evidence adduced before the trial court by the prosecution through videoconferencing is in utter contrast to section 273 of the Code of Criminal Procedure. The submission of Shri Pradhan is that the judgment passed by the trial Court fails to take into consideration the basic canons on the touch stone of which the circumstantial evidence has to be appreciated by the trial court and it has faulted in imposing the death sentence which do not meet the requirement of the 'rarest of rare' theory as propounded by the Hon'ble Apex Court nor does it derive a conclusion that imposition of any other sentence would have been inadequate. 8. As against this, Special Public Prosecutor Shri Thakare submits that the prosecution has successfully established the circumstances which pointed to the accused and the Special P.P would submit that it has not relied on a solitary circumstance but through the evidence brought on record, the prosecution has established a chain of circumstances which is aptly corroborated and led to an irresistible conclusion that it was only the accused who had committed the crime. Based on the evidence brought on record, in form of CCTV footage, Shri Thakare would submit that the last seen theory has been invoked by the prosecution and on account of the close proximity of the time between the event of the accused having been last seen in the company of the deceased and the factum of death and in such a situation the accused should explain how and in what circumstances he parted the company of the deceased. Shri Thakare would submit that no doubt the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless it is supported by other links in the chain of circumstances. Shri Thakare would rely on the evidence brought on record by the prosecution in form of the conduct of the accused on the previous night of the day of incident through witnesses who are otherwise completely innocuous and had narrated the events that took place in the normal circumstances. Shri Thakare would rely on the evidence brought on record by the prosecution in form of the conduct of the accused on the previous night of the day of incident through witnesses who are otherwise completely innocuous and had narrated the events that took place in the normal circumstances. His submission is that the subsequent conduct of the accused after commission of the crime has also been brought on record through evidence of the witnesses who had deposed about the acts of the accused in the normal course and Shri Thakare submits that the statements of these witnesses were recorded even before the Investigating Agency had zeroed down on the accused to be the person who was responsible for causing death of the accused. Shri Thakare would submit that the Sessions Court, by taking into consideration the totality of circumstances and the cumulative effect of the evidence brought on record has appreciated the same in light of the well settled norms of criminal jurisprudence and has arrived at a finding of guilt against the accused. As far as the imposition of death penalty is concerned, we would refer to his submission a while later when we come to the point of sentencing. 9. The case of the prosecution is based on circumstantial evidence and the prosecution has relied on 39 witnesses to establish its case apart from several documentary evidence. 10. The body of Esther was traced on 16.01.2014 and the prosecution places reliance on the spot panchnama proved by PW2 Bapu Adsul. The said panchnama is exhibited as Exhibit38. The spot panchnama reveals that the body of the deceased was found at a place located to the East of the Service Road of Eastern Express Highway at a distance of about 29 feet. The spot panchnama discloses that on the said place a space of 5 x 3 feet was in a burned condition and at a distance about 8 feet from the said place there is a space of 4 x 3 feet which is blackish in colour where the dead body was lying. The spot panchnama further reveals that on careful perusal of the spot, at the north of the said place, a Samsung Duos company mobile is lying at a distance of 5 feet. One rubber mobile cover dark blue in colour was also found lying on the spot. The spot panchnama further reveals that on careful perusal of the spot, at the north of the said place, a Samsung Duos company mobile is lying at a distance of 5 feet. One rubber mobile cover dark blue in colour was also found lying on the spot. On the spot one black gray colour scarf with white spots was also found which came to be seized. On the spot one pink colour T-shirt in partly burned condition with Msize also came to be seized from the spot. Further, at a distance of 2 feet from where the body was lying, one Fast track company watch with a black dial with broken belt was also lying on the spot. The spot panchnama further reveals that a purple colour doted knicker and white colour pad attached to the said knicker was also lying on the spot. All the said articles were seized from the said spot and came to be seized. The prosecution also relied on the Inquest Panchnama which was proved by PW6 Nirmala Kadu and was exhibited as Exhibit84. The Inquest panchnama discloses that the dead body of the deceased was partly burnt and blackened. It also mentions of long black hair of the deceased which were found in partly burnt condition, eyes were open and had blackened. The face was completely burnt and so also both the ears. Some portion of the body including the left hand was bereft of any skin and was exposed. The right hand was spread over and the second finger was bent and yellow metal ring was found in the middle figure. The chest portion was found to be completely burned and the black brassiere was attached to the body and the portion of abdomen was charred. The body of the deceased was sent for conduct of postmortem and Dr.Gajanan Chavan prosecution witness No.25 has carried out the postmortem and proved the postmortem report which is exhibited at Exhibit127. The postmortem report relied on by the prosecution also refers to black colour bra with avulsed hookmetallic. Rigor mortis was absent in the body and postmortem report makes mention to the following effect: “Variable mix pattern of decomposition seen. Facial skin burnt, blackish adherent to skull bone, Skin absent at some places of extremities and abdomen exposing bones and abdominal viscera at places. Ends of long bones are nibbled and exposed. Rigor mortis was absent in the body and postmortem report makes mention to the following effect: “Variable mix pattern of decomposition seen. Facial skin burnt, blackish adherent to skull bone, Skin absent at some places of extremities and abdomen exposing bones and abdominal viscera at places. Ends of long bones are nibbled and exposed. Natural separations seen at most of the joints without evidence of ante mortem fractures No Maggots”. As far as the column of surface wound and injuries the postmortem notes mention as under : 1. Contusion over LTLeft fronto temporal area 4 x 5 cm, blackish red colour.” 2. Contusion over lower lip right side against caninesblackish red in colour 2 x 2 cm. Both contusion confirmed by cut section. The postmortem makes note of decomposition seen in perI-cardium and heart. Abdomen is found to be absent. The opinion as to the probable cause of death has been cited as follows : “Blunt injuries over body and genital injuries seen. However, final opinion result, pending for CA of samples”. The final cause of death certificate came to be issued and exhibited at Exhibit128. The cause of death in the said certificate is described as follows : “Death due to Head injury with smothering associated with genital injuries.” 11. The prosecution has also relied on the response to the query raised by the Investigating Officer to the team of doctors who conducted the postmortem in regard to the injury in column No.15 which postmortem was described in the postmortem notes to the following effect. “15. injuries to external genitals. Indication of purginggenitals distorted due to decomposition, vaginal wall shows blackish reddish discoloration at posterior wall, confirmed by cut section” The query that was raised by the Senior Police Officer to the J.J. Hospital on 28.07.2014 raised the following doubts: “(i) What can cause the state of the organs mentioned in column no.15 (ii) In the state of organs in column no.15 whether can be caused by forcible insertion of anything in the vagina. (ii) Whether the state of organs as mentioned in column 15 is on account of decomposition.” The Medical Officer replied to the said query on 12.08.2014 by the following reply: (i) As to point no.1 the state of the organs can caused due to antemortem injuries to the private part and subsequently due to its decomposition. (ii) Whether the state of organs as mentioned in column 15 is on account of decomposition.” The Medical Officer replied to the said query on 12.08.2014 by the following reply: (i) As to point no.1 the state of the organs can caused due to antemortem injuries to the private part and subsequently due to its decomposition. (ii) As to point no.2 answer state of organs as mentioned in column 15 can caused on account insertion of anything into the vagina. (iii) As to point no.3 answer to point no.1 to be perused. 12. On the basis of the aforesaid documentary evidence the prosecution has established that the deceased whose body was found on the Service Road of the Eastern Expressway on 16.01.2014 was subjected to forcible sexual intercourse and thereafter was done to death by causing Head injury coupled with smothering. It is also the case of the prosecution that the death had occurred on account of the said Head injury with smothering associated with genital injuries and the prosecution attributed it to the accused and it is alleged that she was assaulted on her head resulting into the injury mentioned in column no.17 which was confirmed by cut section. It is also the case of the prosecution that the contusion over lower lip right side against the canines, which is reflected as blackish red in colour depicts the force applied. Further the prosecution also relies on the response to the query report to sustain the charge that the injuries to the genitals are antemortem and subsequently decomposed. The postmortem report had mentioned the same to be distorted due to decomposition. 13. The prosecution relies on oral testimony of witnesses to support its case based on circumstantial evidence. The case of the prosecution is unfolded by the complainant, the father of the deceased who is examined as PW no.26 i.e. Singavarapa. PW No.26 is resident of Nobel Colony, Machilipatnam, Andhra Pradesh. Deceased Esther, aged 23 years was his daughter. He has deposed before the Court that she had completed her BTech and she was a scholar academically and on acquiring the educational qualification, she immediately secured a job in TCS as a software engineer. In Mumbai, he had arranged for her stay in YWCA Hostel for Women at Andheri. Deceased Esther, aged 23 years was his daughter. He has deposed before the Court that she had completed her BTech and she was a scholar academically and on acquiring the educational qualification, she immediately secured a job in TCS as a software engineer. In Mumbai, he had arranged for her stay in YWCA Hostel for Women at Andheri. Shri Singavarapa deposed that whenever his daughter used to get leave, she used to come to stay in Machilipatnam and on 22nd December 2013, she came to reside with him and stayed till 4th January 2014. He further deposed that on 4th January 2014, he took her to Vijaywada which was the nearest railway station and from there, she boarded LTT Express which reaches Mumbai at 5.00 a.m. on the next day. He contacted her on her mobile phone at 9.00 p.m when he was informed by his daughter that she had reached Solapur and that she was going to sleep. He has further deposed that when he attempted to contact her in the morning, her mobile phone was ringing but nobody was responding. He, therefore, contacted the YWCA Hostel and it was reported that Esther did not report to the hostel. Thereafter, PW No.26 lodged a missing complaint with the Railway Police Station at Vijaywada and landed in Mumbai and approached the Kurla Police Station. He further deposed that he undertook search of his daughter and the police found the last signal of the location of her mobile at Bhandup and on further search on Express Highway, on 16th January 2014, the body of his daughter was found near Express Highway in the bushes. He recognised the body to be of his daughter from a finger ring in her finger. He has deposed that the condition of the body was very bad and beyond recognition. He lodged an FIR and took possession of the body for performance of last rites. He has further deposed that the Investigating team at Kanjur Marg contacted him and they inquired about the articles which his daughter was carrying, which he informed to be a trolley bag, laptop bag, one sack, one or two handbags and some other articles. He was also shown the CCTV footage on pendrive when he recognized his daughter entering the platform along with the trolley and a bag and sack on her back. He was also shown the CCTV footage on pendrive when he recognized his daughter entering the platform along with the trolley and a bag and sack on her back. In one footage, he recognized his daughter who was holding a mobile and one man was drawing her trolley. This witness has deposed that his daughter was wearing one wrist watch of Fast Track company when she left the house. PW No.26 also recognized a Yellow metal ring on her finger which was seized and marked as Article 27 and also the Fast Track wrist watch as well as her other belongings i.e. scarf, trolley bag, identity card, spectacles etc. The identity of the body found lying near Bhandup on the Express Highway was established by PW No.26 as to be of his daughter. However, in order to establish the identity of the body biologically, DNA Sampling was carried out. The prosecution has relied on the testimony of Shrikant Hanumant Lade PW No.28, Assistant Director FSL, Kalina. Shrikant Lade is a Post Graduate in BioChemistry and trained at Centre for DNA Finger Printing Diagnosis at Hyderabad. He had deposed that he had handled 2500 cases and had given evidence in 200 cases. In his deposition, he has given the details of the uniqueness of a body cell containing DNA and has deposed DNA technique is a very sensitive and stable technique. He deposed that from 15 intact cells, DNA profile is generated and the source of DNA is stated to be any type of body cell, blood, semen, saliva, hair with root without root, teeth, nails, dandruff, ear wax, muscle tissues and bone. He further deposed that on 18th January 2014, he received a letter from Kanjur Marg Police Station and received 2 sealed phials, one sealed test tube and three plastic containers in sealed condition. He further deposed that the description of articles in parcels was blood sample of Singaravapa, the father of the deceased. He was requested by the Investigating Agency to examine the vaginal swab, bone, teeth and nail of deceased as against the blood sample of the claimant i.e. Singavarapa (PW 26). He further deposed that he extracted DNA from the bone teeth and blood sample of Singavarappa and the DNA profiles were generated. After that, he prepared a report at Exhibit17. He was requested by the Investigating Agency to examine the vaginal swab, bone, teeth and nail of deceased as against the blood sample of the claimant i.e. Singavarapa (PW 26). He further deposed that he extracted DNA from the bone teeth and blood sample of Singavarappa and the DNA profiles were generated. After that, he prepared a report at Exhibit17. He further deposed that he had also obtained the articles in sealed parcel i.e Identity card, belt, spectacles, jeans pant, ladies half T-shirt, ladies top, kajal pencil and he had extracted DNA from sweat detected from Exhibit1 i.e. Identity card with belt and spectacles and the bone of deceased which was received at the time of earlier DNA sampling. He analysed the same with the Controlled DNA Profile of bone sample of the deceased and submitted his report at Exhibit-22. He opined that DNA profile of sweat detected on Identity card, belt and spectacles and DNA profile of bone teeth is identical and from one and the same source of female origin. Through this witness, the prosecution has therefore established that the body found on the Expressway on 16th January 2014 was of the daughter of PW no.26 and the articles which were seized during the course of investigation and claimed by the prosecution to be belonging to the deceased were proved to be matching with the DNA extracted from the bone of the deceased. 14. The deceased Esther who had boarded the train at Visakhapatnam, reached its destination at Mumbai with Esther but thereafter, her whereabouts were not known and she did not report to the Women's Hostel at Andheri where she was lodged. The Investigating Agency was therefore, focused on investigating as to how did this young girl who alighted the train at Lokmanya Tilak Terminus, reached the place where her body was traced i.e. on the Service road adjoining the Eastern Express Highway. The prosecution relied on the CCTV footage from the cameras which were installed on the Lokmanya Tilak Terminus to establish and prove that Esther had reached LTT. The Investigating Agency approached the RPF authorities since the security of the LTT was entrusted to the Government Railway Force and the RPF. For security purposes, the 36 CCTV cameras were installed on the railway station with its display being monitored in the CCTV control room. The Investigating Agency approached the RPF authorities since the security of the LTT was entrusted to the Government Railway Force and the RPF. For security purposes, the 36 CCTV cameras were installed on the railway station with its display being monitored in the CCTV control room. On requisite permission from the RPF, the Personnel from the Company who was maintaining CCTV cameras was instructed to provide the CCTV footage. The CCTV footage came to be transmitted to the pen drive and it was collected for the period from 4.00 a.m. to 7.00 a.m. on the date of incident i.e. 5th January 2014 when Esther deboarded the train at LTT which she had boarded at Visakhapatam. The CCTV footage was transmitted to the pen drive which came to be sealed after undergoing the entire requisite procedure on 18th January 2014 and Vishal Patil was examined by the prosecution as PW No.33. Further, Shri Pandey who was working in the CCTV Department in Central Railway is also examined as a PW No.31. The said witness has deposed before the Court that there are cameras installed on all the platforms of LTT and also in the rooms and there were two monitors, the first monitoring 20 cameras and another monitoring 16 cameras. He also deposed before the Court that the servers are kept in the control room and there is an automatic recording system in camera. He further deposed that there is Hard disk in the server and recording gets saved in the server. He further deposed that in one server, there is recording of 12 days and in another server, there is recording of one month and after the expiry of the said period, recordings are automatically deleted from the said servers. He also deposed that since there was some fault in the server, he visited the control room in the month of January and at that time, the Police Officers from Kanjur Marg Police Station sought for a footage and he informed that it could be done only with the permission of the RPF. He deposed that after obtaining the necessary permission, he had transmitted the footage of 5th January 2014 which was available on CCTV camera to the pen drive. The footage was played and verified and thereafter, the pen drives were sealed in presence of two panch witnesses. 15. He deposed that after obtaining the necessary permission, he had transmitted the footage of 5th January 2014 which was available on CCTV camera to the pen drive. The footage was played and verified and thereafter, the pen drives were sealed in presence of two panch witnesses. 15. The CCTV footage which was obtained with the permission of the RPF was shown to the father of the deceased PW 26 by visiting Machilipatnam on 3rd April 2014. The said footage which was carried in a pendrive was displayed on the laptop to him by PI attached to CID i.e. Ashok Dabhle who is examined by the Prosecution Witness No.29. PW no.29 deposed before the Court that when he visited Machilipatnam and showed the CCTV footage to the complainant, he identified his daughter while going with the trolley and while she was talking on mobile and one person was pulling her trolley. He further deposed that PW No.26 identified the trolley bag as belonging to his daughter and he also informed that he was aware of the articles in the said bag since he was present at the time when his daughter packed her bag. This version is corroborated by PW no.26 who deposed before the Court when he was shown the CCTV footage on pendrive and he saw his daughter entering the platform along with the trolley and a bag and sack on her back. The prosecution, therefore, established through the evidence of these witnesses that Esther had reached Mumbai by LTT Express and deboarded the train since the CCTV clippings recorded the images of Esther walking on the Railway Platform at 04.59.30 when she was seen pulling a trolley bag. However, the next footage of 05.06.45 is an image of one person wearing white T-shirt and blue jeans pulling the trolley bag and woman seen in the earlier footage following him talking on mobile phone. The CCTV footage which was recorded from 4.00 am to 7.00 am on 5th January 2014 is in form of different clips. 16. The prosecution has also examined the panch witness Girish Mishra who is examined as PW No.1 and who has proved the panchnama prepared while transmitting the data from the Control room to the pen drive. PW No.1 has deposed before the Court that an attempt was made to search the footage of 1 ½ hour as there were too many cameras. PW No.1 has deposed before the Court that an attempt was made to search the footage of 1 ½ hour as there were too many cameras. He further deposed that two pen drives of 64 GB were to be used to retrieve the data of 5th January 2014 from 4.00 am to 7.00 a.m. He further deposed that the pen drive was inserted in Digital Video Recorder (DVR) which was connected to 16 cameras on the said railway station and before the data was transmitted, it was ensured that the pen drive was blank. He then deposed that pen drive was removed from DVR and connected to the computer thereby properties of the pen drive of 425 files were copied in another pen drive and he signed the panchnama which was prepared by which pen drives were seized, sealed and stamped. The CCTV footage obtained by the Investigating Agency during the course of investigation and which was put before the trial Court through Prosecution Witness No.31 is the axis of the whole chain of circumstances relied upon by the prosecution. We requested the learned Special Public Prosecutor Shri Raja Thakare to play the CCTV footage before us so that we can appreciate the case of the prosecution. Accordingly, the pen drive which carried the CCTV footage was connected to the laptop during the course of hearing and we had an opportunity to examine the entire footage and the learned Special Public Prosecutor also supplied the still photographs of the relevant clippings on which the prosecution relies. A copy of pen drive was also supplied to Shri Pradhan, learned counsel for the accused. 17. On examination of the various clippings, both running and in form of still photographs, reveal the following details. 1. The first clip beginning time is 04:48:20 a.m., which is recorded in the camera installed on platform no.5 towards Kalyan side. In this clip, it is seen that one person is getting down from a stationary train wearing white t-shirt and blue jeans and having a bottle of cold drink in the hand. The clip is upto 04:49:06 a.m. This clipping will have to be appreciated in light of evidence of PW 18 who has identified the accused as the person who had purchased the bottle of Thums-Up from his stall. 2. The next clipping is of 5th Jan from platform no.5, starting time is 04:57:14. The clip is upto 04:49:06 a.m. This clipping will have to be appreciated in light of evidence of PW 18 who has identified the accused as the person who had purchased the bottle of Thums-Up from his stall. 2. The next clipping is of 5th Jan from platform no.5, starting time is 04:57:14. Here, a person in white t-shirt gets down from a railway boggie and sits near the pillar of the railway shade. He gets up at 04:58:30 and thereafter walks till 04:58:51. A screenshot is taken at 04:58:48 where the face of the accused is clearly visible. 3. Next footage is from the CCTV camera installed in Hall 2. The clipping starts at 04:59:30 which shows one lady going inside the waiting area pulling a trolley bag and having other bag on the shoulder (Although the features of the person are not identifiable). The clipping ends at 05:00:20. 4. This footage is from the camera installed in the hall and relevant time is 05:00:57 wherein a girl is seen pulling a trolley bag having other shoulder bag and wearing a scarf. The clipping is till 05:01:10. 5. There is one more clipping captured in the CCTV camera installed on platform no.5 towards CST showing same lady walking while pulling a trolley bag and having one more bag and purse on the shoulder. Both these clippings (4 and 5) make is clear that it is one and the same woman. 6. The next footage is of 05:06:45 when one person wearing white t-shirt and blue jeans is alighting from one of the boggies and walks on the platform. The screenshot is taken at 05:07:02 where the face is clear and the person is the same as in the earlier clippings. This is on platform no.5 towards CST. The clipping is upto 05:07:06. 7. The next clipping is on the CCTV camera installed on platform no.4. The relevant time is 05:10:52 when it is seen that the same man with the white t-shirt and blue jeans is pulling the trolley bag and the same woman which was seen in the earlier footages is walking along talking on mobile phone.