Ramkirat Munilal Goud vs The State Of Maharashtra Etc

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1954-1955 OF 2022

RAMKIRAT MUNILAL GOUD ...APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA ETC. ..RESPONDENT(S)

JUDGMENT

Mehta, J.

1. Heard.

2. The instant case is yet another classic example

of shabby and perfunctory investigation leading to

failure of the prosecution case involving a gruesome

Signature Not Verified Digitally signed by JAGDISH KUMAR Date: 2025.05.15 16:50:32 IST Reason: 1 incident of rape and murder of the budding life of a

tender young girl1 aged about 3 years and 9 months.

3. Despite the shabby investigation, the

overzealous approach of the Courts below, to impart

justice, in a sense that someone must be held

responsible for the crime, has led to the conviction of

the appellant herein2, who was a young man aged

about 25 years at the time of the incident and has

remained incarcerated for more than 12 years with

the Damocles sword of impending death penalty

hanging over his head for more than 6 years.

4. Succinctly stated, the facts relevant and

essential for disposal of the appeals may be noted

hereinbelow.

5. The complainant, Manoj Bhaskar Sadavarte

(PW-1)3 a painter by profession, used to reside at Old

1 Hereinafter, referred to as ‘child’ or ‘child victim’. 2 Hereinafter, referred to as ‘accused appellant’. 3 Hereinafter, referred to as ‘complainant’.

2 Criminal Appeal No(s). 1954-1955 of 2022 Waghbil Gaon, Banjari Chawl, Laxminagar, Thane(W)

along with his mother and daughter, i.e., the

deceased child victim. On 30th September, 2013, at

about 10:00 A.M., the complainant’s mother had

gone out of the house to fetch water. At about 10:30

A.M., the complainant left his house to attend to

some work. The child victim was alone in the house

when the complainant went out. She came out of the

house to play with the family pet dog. The

complainant returned home at about 10:45 A.M. and

noticed that his daughter and the pet dog were

nowhere to be seen. Initially, he assumed that his

child might have gone out in the vicinity to play with

the dog and, thus, he set out to look for her in areas

near his house. However, he could neither locate the

child victim nor the pet dog. When the complainant’s

mother came back to the house, he inquired about

the whereabouts of the child from her, but she too

3 Criminal Appeal No(s). 1954-1955 of 2022 was unaware about the same. Concerned about the

child’s well-being, he and his mother commenced a

frantic search for his daughter.

6. The complainant inquired from two persons

living in the neighbourhood, who told him that they

had seen the child playing with the dog. Thereafter,

he went to the watchmen chawl located near his

room, where several watchmen used to reside. The

pet dog was found in the chawl, but his child was

nowhere to be seen. The complainant got suspicious

that some unknown person/s might have kidnapped

his child. Accordingly, he proceeded to Police Station

Kasarvadavali, Thane and lodged a complaint

regarding his child, having gone missing. The police

registered an FIR, bearing Crime No. I-306 of 2013,

for the offence punishable under Section 363 of the

Indian Penal Code, 1860.4 Investigation was assigned

4 Hereinafter, referred to as ‘IPC’.

4 Criminal Appeal No(s). 1954-1955 of 2022 to the Assistant Police Inspector (API) Vikas Sarjerao

Lokre (PW-16)5 who prepared the spot panchnama6 of

the place of the incident on 1st October, 2013. The

panchnama records the place where the child victim

was last seen and the place from where she was

purportedly kidnapped. The panchnama also gives

out the names of the persons who had seen the child

and the dog on 30th September, 2013, in the

sequence enumerated below:-

Time Person Around 10:45 A.M. Premshankar Jayshankar Gupta Around 11:00 A.M. Raju Pukraj Choudhari (Owner of Ashapura Grocery Shop) Around 11:15 A.M. Jaybhim Channappa Kamble and some other people.

Around 12:00 P.M. Dipendrakumar Dhirendranath Shukla (PW-9) Around 12:15 P.M. Pradipkumar Ganesh Rawat (PW-14)

5 Hereinafter, referred to as ‘1st Investigating Officer (PW-16)’. 6 Exhibit No. 30. 5 Criminal Appeal No(s). 1954-1955 of 2022 The aforesaid panchnama was drawn up on 1st

October, 2013 between 07:30 A.M. to 08:45 A.M.

7. Vikas Sarjerao Lokre (PW-16), the 1st

Investigating Officer rounded up some 15 to 20

watchmen from the chawl and collected their

forensic/blood samples.

8. The dead body of the child victim was recovered

on 2nd October 2013, lying in a muddy water pond at

a distance of about one kilometer from the watchmen

chawl and the same was forwarded to Civil Hospital,

Thane, where the Medical Officer, Dr. Mahendra

Vithalrao Kendre (PW-10), examined the same and

found it to be in a highly decomposed condition.

Thus, the body was forwarded to the J.J. Hospital for

an autopsy as no forensic expert was available at the

Civil Hospital, Thane. At the J.J. Hospital, the dead

body of the child victim was subjected to post mortem

by a medical board, comprising of Dr. Sadanand

6 Criminal Appeal No(s). 1954-1955 of 2022 Sangram Bhise (PW-11), along with Dr. N.S. Jagtap

and Dr. G.D. Niturkar and the post mortem report7

was issued. The post mortem report refers to

numerous injuries on the external and internal

genitalia as well as the anus of the child victim. Few

contusions were also found over the skull of the child

victim. The brain had liquified and was in an

advanced stage of decomposition. The medical board

opined that the injuries, mentioned in Column No. 17

to 19 of the post mortem report, were ante mortem in

nature and the head injury was sufficient to cause

death in the ordinary course of nature.

9. On 3rd October, 2013, the investigation was

handed over to Deputy Superintendent of Police,

Mandar Vasant Dharmadhikari (PW-18).8

7 Exhibit No. 58. 8 Hereinafter, referred to as ‘2nd Investigating Officer (PW-18)’.

7 Criminal Appeal No(s). 1954-1955 of 2022

10. The accused appellant was arrested on 3rd

October 2013, vide arrest panchnama9 and he was

subjected to medical examination. The Medical

Officer (PW-10) of the Civil Hospital, Thane, found an

abrasion on the foreskin of the penis of the accused

appellant. The prosecution has tried to link the said

injury with the crime, claiming that the injury may

have been received when the accused appellant had

sexually assaulted the child victim.

11. On the pointing out of the accused appellant,

the Investigating Officer, Mandar Vasant

Dharmadhikari (PW-18) claims to have visited room

No. 2 (place of incident) and room No. 4 of the

watchmen chawl, in which the accused appellant

used to reside. A few articles were recovered and

seized from room No. 4, to be specific, the lungi,

baniyan, the watchman’s dress and the shoes of the

9 Exh. 82.

8 Criminal Appeal No(s). 1954-1955 of 2022 accused appellant. Blood stained soil and blood

stained stone slabs were recovered from room No. 2.

12. As per the prosecution case, the accused

appellant confessed before the Investigating Officer

(PW-18) that he had committed the crime with the

child victim in the said room. The lungi of the accused

appellant was allegedly blood-stained, and the shoes

had some soil/mud stuck in their sole. The

Investigating Officer (PW-18) also claims to have

collected blood samples of the accused appellant for

DNA profiling. The forensic science laboratory (FSL)

report10 concludes that the source of blood on the

lungi could not be identified. The DNA profiling tests,

conducted using the blood of the accused appellant

and the DNA samples collected from the child’s body,

did not lead to any conclusive opinion.

10 Exh. 99.

9 Criminal Appeal No(s). 1954-1955 of 2022

13. The prosecution’s case was entirely based on

three links of circumstantial evidence:

(i) Last seen together circumstance;

(ii) Extra-judicial confession; and

(iii) FSL report regarding the mud/soil found stuck

in the shoes of the accused appellant, matching

with the soil of the pond where the child

victim’s dead body was found.

14. The prosecution relied upon the evidence of

Dipendrakumar Dhirendranath Shukla (PW-9),

Pradipkumar Ganesh Rawat (PW-14) and Sanjay

Ganesh Rawat (PW-15) for proving the purported

theory of ‘last seen together’ and Anil Mahatam Singh

(PW-17), the Supervisor, under whom the accused

appellant was working, for proving the so called

extra-judicial confession made by the accused

appellant. The prosecution also relied upon the FSL

10 Criminal Appeal No(s). 1954-1955 of 2022 report11 as per which the soil/mud stuck in the sole

of the accused appellant’s shoes was opined to be

having characteristics as similar to the soil found

near the pond from where the child victim’s body was

recovered.

15. Learned Additional Sessions Judge, Thane12

found the prosecution evidence on the

aforementioned links of circumstantial evidence to be

reliable and credible and by placing reliance

thereupon, the trial Court convicted the accused

appellant for the offences punishable under Sections

302, 363, 376(2)(i) and 201 of the IPC and Sections 4

and 8 of the Protection of Children from Sexual

Offences Act, 2013, vide judgment dated 5th March,

2019 and sentenced him vide sentence order dated

8th March, 2019 in the terms indicated below: -

11 Exh. 105 12 Hereinafter, referred to as ‘trial Court’.

11

Criminal Appeal No(s). 1954-1955 of 2022 S. Section Sentence Awarded No.

1. 302 of the IPC Sentenced to be Hanged by Neck till Death.

2. 376(2)(i) of Sentenced to undergo Rigorous the IPC Imprisonment for Life which shall mean imprisonment for the remainder of his natural life and to pay a fine of Rs.5,000/- (Rupees Five Thousand Only). In case of default in payment of fine, he shall suffer Rigorous Imprisonment for one year.

3. 363 of the IPC Sentenced to undergo Rigorous Imprisonment of 5 years and to pay a fine of Rs.5,000/- (Rupees Five Thousand Only). In case of default in payment of fine, he shall suffer Rigorous Imprisonment for six months.

4. 201 of the IPC Rigorous Imprisonment of 3 years and to pay a fine of Rs.5,000/- (Rupees Five Thousand Only). In case of default in payment of fine, he shall suffer Rigorous Imprisonment for six months All the substantive sentences of imprisonment of the accused shall run concurrently. After realization of the fine amount, it shall be given to the parents of the deceased girl.

16. The appeal13 preferred by the accused appellant

and the reference14 forwarded by the trial Court, were

decided by the High Court of Judicature at Bombay15

vide judgment dated 25th November, 2021, whereby

13 Criminal Appeal No. 661 of 2019 14 Confirmation Case No. 1 of 2019 15 Hereinafter, referred to as ‘High Court’.

12 Criminal Appeal No(s). 1954-1955 of 2022 the conviction of the accused appellant and the death

sentence awarded to him have been confirmed and

the appeal preferred by the accused appellant has

been dismissed. The said judgment dated 25th

November, 2021, rendered by the High Court and

along with the judgment dated 5th March, 2019, and

the order of sentence dated 8th March, 2019,

rendered by the trial Court, are subject matter of

challenge in these appeals by special leave.

Submissions on behalf of accused appellant:

17. Mr. Raghenth Basant, learned senior counsel

representing the accused appellant, vehemently and

fervently contended that the prosecution has failed to

prove even one of the three projected incriminating

circumstances relied upon by it so as to bring home

the guilt of the accused appellant. The evidence of the

witnesses of the last seen circumstance is highly

vacillating and self-contradicting and perfunctory

13 Criminal Appeal No(s). 1954-1955 of 2022 and hence, the same deserves to be discarded in toto.

All these witnesses were fully aware about the

disappearance of the child victim on 30th September,

2013, itself when the police came to the area and

started making enquiries. However, none of them

stepped forward to inform the 1st Investigating Officer

(PW-16) that they had seen the child victim and the

accused appellant together. The statements under

Section 161 of the Code of Criminal Procedure,

197316 of these witnesses were recorded by the 2nd

Investigating Officer (PW-18) as late as on 3rd

October, 2013. As per learned senior counsel, the

conduct of the witnesses, in keeping silent and their

failure in making a timely disclosure to the 1st

Investigating Officer (PW-16) about having seen the

child victim in the company of the accused appellant

on the fateful day, i.e., 30th September, 2013, and

16 Hereinafter being referred to as the ‘CrPC’.

14 Criminal Appeal No(s). 1954-1955 of 2022 even after the dead body was recovered, i.e., on 2nd

October, 2013, makes their entire testimony doubtful

and unworthy of credence.

18. Learned senior counsel further submitted that,

if at all, the witnesses had seen the child victim in the

company of the accused appellant on the alleged day,

their natural reaction would have been to disclose the

said fact, that they had seen the accused appellant

along with the child victim, to the father of the girl

child who had initiated the search operations in the

afternoon of 30th September, 2013 itself and made

enquiries at the watchman chawl as well. He

submitted that investigation agency has resorted to

padding by creating the evidence of the witnesses of

last seen together theory.

19. Shri Basant, further, submitted that the

evidence of extra-judicial confession, sought to be

proved through Anil Mahatam Singh (PW-17), is also

15 Criminal Appeal No(s). 1954-1955 of 2022 unreliable and unworthy of credence. While deposing

on oath, the witness in his examination-in-chief, did

not pertinently state that the accused appellant had

made any extra-judicial confession in his presence. It

is only on the leading questions put by the Public

Prosecutor, during cross-examination, that the

witness tried to impute that the accused appellant

had admitted, in his presence, that he had made a

mistake.

20. As per Shri Basant, the evidence of extra-

judicial confession is even otherwise of very weak

nature and thus, the conviction cannot be solely

based on such evidence. In addition thereto, his

contention was that the version of the witness (PW-

17) regarding the so-called extra-judicial confession

made by the accused appellant, is very vague and

vacillating and hence, no reliance can be placed on

his testimony.

16 Criminal Appeal No(s). 1954-1955 of 2022

21. Learned senior counsel further submitted that,

admittedly, the 1st Investigating Officer (PW-16)

collected the forensic samples from numerous

watchmen living in the same chawl, where the

accused appellant was residing, however, the FSL

report pertaining to these samples never saw light of

the day. Hence, an adverse inference has to be drawn

that these reports were not favouring the

prosecution’s story, which is why the same was held

back from the Court.

22. Learned senior counsel further submitted that

the FSL report17 indicating a match between the

mud/soil found on the shoes of the accused

appellant, and the mud/soil found near the pond,

from where the dead body of the child victim was

recovered, is also vague and inconsequential. Firstly,

the very factum of recovery of the soiled shoes at the

17 Supra note 11.

17 Criminal Appeal No(s). 1954-1955 of 2022 instance of the accused appellant is dubitable. It is

impossible to believe that the accused appellant, who

was a free bird till 3rd October 2013, would

meticulously preserve the worthless incriminating

articles i.e., his shoes, lungi and the watchman

uniform, for the police to recover the same and

thereby, face the risk of being incriminated.

23. Secondly, Shri Basant submitted that the FSL

report depicting that the soil on the shoes was similar

to the mud/soil of the location from where the victim

child’s body was recovered is merely suggestive in

nature and not conclusive. He urged that, if at all, the

prosecution wanted to establish that the soil was

from the same source, then a more exhaustive

exercise was required to be conducted by collecting

soil samples from different surrounding locations

thereby, excluding the possibility of mud/soil found

on the shoes being from the locality where the

18 Criminal Appeal No(s). 1954-1955 of 2022 accused appellant resided. He submitted that the

prosecution was under a burden to establish that the

mud/soil of this kind was not to be found anywhere

else except in and around the pond, from where the

dead body of child victim was recovered. He thus

urged that unless the prosecution excluded this

possibility by adducing proper evidence, the FSL

report would remain vague and inconclusive.

24. Shri Basant concluded his submissions by

urging that the prosecution has miserably failed to

prove a complete and unbreached chain of

incriminating circumstances, by leading reliable

evidence, and hence, the accused appellant is

entitled to be acquitted by giving him the benefit of

doubt.

Submissions on behalf of the respondent State:

25. Per contra, Ms. Rukhmini Bobde, learned

standing counsel for the State of Maharashtra,

19 Criminal Appeal No(s). 1954-1955 of 2022 vehemently and fervently opposed the submissions

advanced by Shri Basant. She urged that the

prosecution has established the guilt of the accused

appellant by leading unimpeachable and complete

chain of circumstantial evidence in the form of

motive, last seen together circumstance, extra-

judicial confession and the scientific evidence in the

form of FSL report, which establishes that the shoes

of accused appellant recovered by the 2nd

Investigating Officer (PW-18) in furtherance of the

information provided by him under Section 27 of the

Indian Evidence Act, 1872, bore soil matching with

that of the pond where the dead body of the child

victim had been disposed of by the accused appellant

after committing the crime.

26. She urged that neither the witnesses of the

circumstance of last seen together and extra-judicial

confession had any animosity against the accused

20 Criminal Appeal No(s). 1954-1955 of 2022 appellant, nor the Investigating Officers bore any ill

will against the accused appellant so as to falsely

implicate him for the crime without any justification.

27. She further urged that the investigation was

conducted in a fair, transparent and unbiased

manner and without being influenced by any

extraneous consideration, the Investigating Officers,

being Vikas Sarjerao Lokre (PW-16) and Mandar

Vasant Dharmadhikari (PW-18), faithfully collected

unimpeachable incriminating evidence against the

accused appellant.

28. She concluded her submissions urging that the

finding of guilt of the accused appellant, as recorded

by the trial Court and affirmed by the High Court, are

based on unimpeachable and reliable circumstantial

evidence led by the prosecution which irrefutably

points to the guilt of the accused appellant and is

inconsistent with his innocence or the guilt of any

21 Criminal Appeal No(s). 1954-1955 of 2022 other person. Thus, this Court should be loath to

interfere with the concurrent findings of facts while

exercising jurisdiction under Article 136 of the

Constitution of India. She also urged that looking to

the heinous nature of the crime, the death sentence

awarded to the accused appellant is fit to be

confirmed.

29. She implored the Court to dismiss the appeals

and confirm the conviction and sentence awarded to

the accused appellant.

Discussion and Conclusion: -

30. We have given our thoughtful consideration to

the submissions advanced at the bar and have

meticulously perused the impugned judgments. We

have also carefully scanned and analysed the

evidence led by the prosecution in its endeavour to

bring home the charges against the accused

appellant.

22 Criminal Appeal No(s). 1954-1955 of 2022

31. Admittedly, the case of the prosecution is based

entirely on circumstantial evidence. The position of

law in a case based entirely on circumstantial

evidence, is well-settled by a catena of decisions of

this Court, wherein this Court has categorically held

that the prosecution has to prove the entire chain of

incriminating circumstances by adducing

unimpeachable evidence, which leads to only one

hypothesis that is consistent with the guilt of the

accused, inconsistent with his innocence or the guilt

of anyone else. The chain of circumstances sought to

be relied upon by the prosecution must be complete

in all aspects and must unerringly link the accused

with the crime. In case of any breach in the chain of

incriminating circumstances, the Court would be left

with no option but to acquit the accused by giving

him the benefit of doubt. The law with regard to

conviction based on circumstantial evidence has

23 Criminal Appeal No(s). 1954-1955 of 2022 been crystalized by this Court in the case of Sharad

Birdhichand Sharda v. State of Maharashtra18,

wherein it was held:

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made: [SCC para 19, p. 807]

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

18 (1984) 4 SCC 116.

24 Criminal Appeal No(s). 1954-1955 of 2022 (4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(Emphasis Supplied)

32. Having noted the principles governing a case

based purely on circumstantial evidence, we now

proceed to discuss the evidence led by the

prosecution in the present case in its endeavour, to

bring home the charges against the accused

appellant.

33. The theory set out by the prosecution in its case

is that the accused appellant had seen the child

victim alone, playing with her dog on the morning of

30th September, 2013. As there was no one else in the

vicinity, the accused appellant, driven by lust, took

advantage of the situation, kidnapped the child and

thereafter took her to room No. 2 of the watchmen

25 Criminal Appeal No(s). 1954-1955 of 2022 chawl where he subjected the child victim to forcible

sexual assault. In this process, the child tried to

resist and cried out for help, upon which the accused

appellant smashed the head of the child victim on the

floor tiles, leading to fractures on the skull of the

child and ultimately resulting in her death. For

establishing the guilt of the accused appellant, the

prosecution relied on three circumstances: -

i. Last seen together circumstance;

ii. Extra-judicial confession; and

iii. FSL report indicating presence of soil on the

shoes of the accused appellant which tallied

with the soil of the pond from where the dead

body of the child victim was found.

34. As has been noted above, the case was of a blind

murder. The allegations as set out in the complaint19

filed by the complainant (PW-1) indicate that the

19 Exh. 61.

26 Criminal Appeal No(s). 1954-1955 of 2022 complainant and his mother had gone out of the

house at 10:30 A.M. in relation to some work, leaving

the child victim alone in the house. The complainant

returned at about 10:45 A.M. and at that time,

neither the child nor the pet dog of the complainant

was present in the house. The complainant

immediately launched a search for the child, making

inquiries from his mother and the people in the

vicinity but to no avail.

35. Hence, what can be deduced from the version

set out in the complaint is that the child victim went

out of the house between 10:30 A.M. to 10:45 A.M.

and was not seen by the complainant thereafter. As

per the complaint, the complainant came back to the

house around 10:45 A.M., and could not find the

child, on which he started searching for her.

36. In this process, the complainant (PW-1) visited

the watchmen chawl, which is situated in close

27 Criminal Appeal No(s). 1954-1955 of 2022 vicinity to his house. He found his dog in the said

chawl, however, the child was nowhere to be seen.

Thus, presumably the child victim must have gone

missing within the small window of 10:30 A.M. and

10:45 A.M. It is undisputed that the child victim’s

body was recovered from a pond, which is around one

kilometer away from the purported place of the

incident, i.e., room No. 2 of the watchmen chawl, on

2nd October, 2013. We are of the prima facie opinion

that the case of the prosecution, particularly on the

aspect of time, manner and place of the incident is

doubtful.

37. It is admitted that the complainant had started

the search operations around 10:45 A.M. and had

also searched in and around the watchmen chawl. As

is borne out from the evidence available on record,

the area where the complainant resided is thickly

populated and inhabited by a large number of

28 Criminal Appeal No(s). 1954-1955 of 2022 persons who work as watchmen. The prosecution

claims that the incident took place in broad daylight

sometime after 10:30 A.M. Mainfestly thus, there was

hardly any possibility that the accused appellant

could have carried the child victim’s dead body to the

pond, which was located one kilometer away, without

being noticed. Hence, two possible scenarios arise: -

(i) That the incident did not take place in the chawl

as claimed by the prosecution; and/or

(ii) The incident did not take place at the time or in

the manner alleged by the prosecution.

38. Having noted this inherent improbability in the

prosecution case, we now proceed to discuss the

evidence of the material prosecution witnesses.

39. For the purpose of appreciating the

circumstance of last seen together, the relevant

witnesses are the complainant, i.e., Manoj Bhaskar

Sadavarte [(PW-1), father of the deceased child],

29 Criminal Appeal No(s). 1954-1955 of 2022 Dipendrakumar Dhirendranath Shukla (PW-9),

Pradipkumar Ganesh Rawat (PW-14) and Sanjay

Ganesh Rawat (PW-15).

40. The complainant, Manoj Bhaskar Sadavarte

(PW-1) virtually repeated the story as set out in the

complaint20. He tried to introduce an improvement

that on the same day, i.e., the day of the incident, at

about 2:00 P.M., he went to the watchmen chawl

while he was searching for his daughter and saw the

accused appellant standing behind his house and his

legs were soiled with mud. He was wearing lungi and

banyan. The witness enquired from the accused

appellant regarding his daughter (child victim), but

the accused appellant did not tell him anything.

41. In examination-in-chief, the witness stated that

on seeing the accused appellant with his legs soiled

with mud/soil, he started suspecting him. He

20 Supra note 19.

30 Criminal Appeal No(s). 1954-1955 of 2022 admitted having made inquiries from his neighbour,

Devidas Kale, shop owner Raju Pukraj Choudhari

and rickshaw driver Jaybhim Channappa Kamble

and other female members in the crowd. All these

witnesses stated that they had seen the little girl

playing with the dog. He proved the spot panchnama.

In the cross-examination, he admitted that the name

of the accused appellant as a suspect was not

mentioned in the complaint. He had gone to the

chawl three times on 30th September, 2013, and his

suspicion was on the accused appellant. He made the

following important admission in his cross-

examination: -

“On 03.10.2013 police recorded my supplementary statement in between 11.30 a.m. to 12.00 noon. Till that time nobody has stated that they had seen any person who took my daughter.”

42. Dipendrakumar Dhirendranath Shukla (PW-9)

deposed in his evidence that he was working as a

31 Criminal Appeal No(s). 1954-1955 of 2022 watchman and used to reside in a transit camp which

was in front of Unnati Woods. At a distance of about

2 to 3 lines from his house, some 15 to 20 watchmen

used to reside. The witness admitted that he did not

know the accused appellant by name but recognized

him by his face as he used to regularly pass through

the road in front of the witness’s house. The accused

appellant was also residing in the same chawl. The

witness stated that on 30th September, 2013, at

around 11:30 A.M. to 12:00 P.M., he was taking

lunch when he saw a small girl, aged about 2 ½ to 3

years, heading down the road with a dog. He could

see the child from the open gate of his house. At

about 01:00 P.M., the witness and his father came

back to the house for some work, and, at that time,

he noticed that the dog he had seen with the child

was wandering around on the road, but the child was

nowhere to be seen. The witness claims to have seen

32 Criminal Appeal No(s). 1954-1955 of 2022 the accused appellant coming from behind the

bushes at around the same point of time. He was

wearing a watchman’s uniform. The witness

thereafter went back to work. At about 04:00 P.M.,

when he came back to his house, he noticed that

people were searching for a small girl. He was shown

the photograph of the missing girl (child victim),

which he identified to be the same child whom he had

seen earlier in the afternoon. He further stated that

the body of the child victim was found in the pond on

2nd October, 2013, after which he narrated the entire

incident, witnessed by him, to the police.

43. In his cross-examination, the witness (PW-9)

admitted that on 30th September, 2013, the police

made inquiries from him in relation to the case, but

his statement was not recorded on that date. On 2nd

October 2013, the police again visited the crime

scene, but his statement was still not recorded. He

33 Criminal Appeal No(s). 1954-1955 of 2022 further stated that some 25 to 30 north Indian people

were residing in the transit camp and were working

as watchmen. The police summoned all these people

for the purposes of inquiry. The witness was

confronted with certain improvements vis-à-vis his

previous statement recorded under Section 161 of the

CrPC. However, these improvements are trivial and

inconsequential for our purpose. The witness denied

the suggestion given by the defence that he was

making a false deposition regarding having seen the

accused appellant coming from behind the bushes.

However, he admitted that the police did not call him

for the test identification of the accused appellant.

44. What is pertinent to note from the statement of

this witness is that he was aware on 30th September,

2013, itself that the child victim had gone missing

and people were searching for her. The police visited

the vicinity on 30th September, 2013; 1st October,

34 Criminal Appeal No(s). 1954-1955 of 2022 2013 and 2nd October, 2013 as well, but the witness

(PW-9) did not divulge the vital information to the

police that he had seen the child with the dog in the

vicinity of watchmen chawl and the accused

appellant coming out of the bushes. Apparently,

thus, the conduct of the witness in maintaining stoic

silence and not divulging to the police at the first

available opportunity that he had seen the child

victim in the afternoon of 30th September, 2013, or

that he had seen the accused appellant coming out

from the bushes makes his entire testimony doubtful.

45. As is borne out from the record, the statement

of this witness (PW-9) was recorded by the Mandar

Vasant Dharmadhikari (PW-18), the Investigating

Officer, under Section 161 of the CrPC on 3rd October,

2013. Hence, the conduct of the witness (PW-9), in

remaining indifferent and failing to disclose the vital

fact of having seen the accused appellant and the

35 Criminal Appeal No(s). 1954-1955 of 2022 child victim on 30th September, 2013, despite the

search operations being undertaken and the police

having visited the crime scene twice within his

knowledge. This vital omission on part of the witness

(PW-9) completely discredits his version and thus, we

conclude that Dipendrakumar Dhirendranath

Shukla (PW-9) is not a reliable witness.

46. Pradipkumar Ganesh Rawat (PW-14) stated, in

his evidence, that he was residing near the Unnati

Woods and used to work as a watchman. His duty

hours were between 08:00 A.M. to 08:00 P.M. He

used to go home to have lunch usually around 12.00

P.M. The witness (PW-14) claimed that he knew the

accused appellant from before because he too was

engaged as a watchman and was residing at a gap of

4 to 5 rooms from the room in which the witness

resided. He stated that the accused appellant went to

take lunch at about 12:00 P.M. on 30th September,

36 Criminal Appeal No(s). 1954-1955 of 2022 2013. The witness (PW-14) proceeded towards his

house for lunch at 12:10 P.M. He claims to have seen

the accused appellant standing with a small girl and

an English dog on the road, which was besides the

forest. At that time, the accused appellant was

wearing his watchman uniform. The witness did not

pay much heed to this event and proceeded to his

house for lunch. When he was returning at about

12:50 P.M., he noticed that the dog was tied to the

window of the room where Sanjay Ganesh Rawat

(PW-15) used to reside. On 2nd October, 2013, when

the witness was called to the police station, he came

to know that the dead body of the child victim had

been found in the pond. The police showed him the

photograph, and the witness identified it to be of the

same child who was with the accused appellant. The

witness claimed that he divulged to the police that he

had seen the child victim with the accused appellant

37 Criminal Appeal No(s). 1954-1955 of 2022 at about 12:40 P.M. on 30th September, 2013, upon

which the police recorded his statement. However, no

such statement of the witness is available on record

and rather, the evidence of 2nd Investigating Officer

(PW-18) is to the contrary.

47. In his cross-examination, the witness (PW-14)

stated that the pond from where the body of the child

victim was found is at a distance of about one

kilometer from his house. He came to know on 1st

October, 2013, that a girl was missing from the area.

The police called about 30 watchmen to the police

station for the purpose of inquiry, as suspects and he

was also one amongst them. The witness denied the

suggestion that his statement was not recorded on

2nd October, 2013. Immediately thereafter, he stated

that the police recorded his statement on the next

morning. A suggestion was given to the witness that

he was speaking a falsehood when he stated that he

38 Criminal Appeal No(s). 1954-1955 of 2022 had seen the dog tied to Sanjay Ganesh Rawat’s (PW-

15) room or that he had seen the accused appellant

along with the child victim and an English dog. He

denied the suggestion given by the defence, that the

police had threatened him and thus, he gave a

statement, incriminating the accused appellant.

48. At this stage, we may note that the statement of

this witness (PW-14) was recorded under Section 164

of the CrPC and was exhibited by the prosecution as

Ext. 94. It was inter alia noted in the said statement

that the accused appellant and his father left for

lunch at about 12:00 P.M., whereas he (the witness)

left for lunch at 12:10 P.M. While he was proceeding,

he saw the accused appellant standing on the road.

He had lunch at his room and left to report for duty

at about 12:40 P.M. At that time, he saw a dog tied to

the window of a room. He later learnt that the

accused appellant had tied the said dog there.

39 Criminal Appeal No(s). 1954-1955 of 2022 Subsequently, he also came to know that a 3-year-

old girl child was missing and that her dead body was

found near the chawl.

49. Apparently, thus, while testifying on oath, the

witness has made wholesale improvements from the

version as set out in his statement under Section 164

of the CrPC wherein he did not utter a word about

having seen the child victim on 30th September, 2013.

These improvements are most vital and have a direct

bearing on the credibility of the deposition of the

witness (PW-14). We are convinced that the witness

(PW-14) deliberately modulated and twisted the facts

in order to lend succour to the prosecution’s case

against the accused appellant. Thus, findings

recorded by the trial Court as well as the High Court

that the witness (PW-14) has given unimpeachable

testimony supporting circumstance of the last seen

together, are untenable and unsustainable on the

40 Criminal Appeal No(s). 1954-1955 of 2022 face of the record. For record, we may note that this

witness (PW-14) too, did not come forward to state

about the circumstance of last seen together to the

police officials who visited the crime scene on 30th

September, 2013; 1st October, 2013 and 2nd October,

2013. The witness has also made blatant

improvements from his earlier version recorded

under Section 164 of the CrPC, and hence, his

testimony cannot be relied upon so as to lend

credence to the last seen circumstance.

50. Sanjay Ganesh Rawat (PW-15) stated that he

was residing near the Unnati Wood Society in the

year 2013 and was working as a watchman in Phase

No. 1, Building No. 3. On the day of the incident, he

went home to take lunch at about 01:00 P.M. and saw

that a dog was tied to the window of his room. When

he came back after taking lunch, he saw a person

with long hair enquiring from the accused appellant

41 Criminal Appeal No(s). 1954-1955 of 2022 that “the dog is here, so where is the child?” The

accused appellant was wearing a lungi and baniyan

at that point in time.

51. We feel that the evidence of the witness (PW-15)

is neither here nor there because the witness does

not give any indication of having seen the accused

appellant with the child. The so-called person having

long hair was not pinpointed by the prosecution, and

hence, the testimony of this witness does not lend

any support to the prosecution case.

52. Vikas Sanjerao Lokre [(PW-16), 1st Investigating

Officer] was working as an Assistant Police Inspector

at the Police Station Kasarvadavali on 30th

September, 2013. He was assigned the investigation

of the present case on 30th September, 2013. The

witness (PW-16) stated that upon receiving the

investigation file, he visited the site and undertook a

search for the girl. He conducted intensive combing

42 Criminal Appeal No(s). 1954-1955 of 2022 operations throughout the area. On 1st October,

2013, he prepared the spot panchnama (search

panchnama). The said panchnama was exhibited by

the prosecution as Exh. 34 and it bears the

signatures of the witness (PW-16) and the

complainant (PW-1) in addition to the panchas. The

panchnama gives specific reference to the

complainant having made inquiries from

Premshankar Jayshankar Gupta at 10:45 A.M., Raju

Pukraj Choudhari at 11:00 A.M., Jaybhim

Channappa Kamble at 11:15 A.M. It also mentioned

in the panchnama that the complainant made

enquiries from Dipendrakumar Dhirendranath

Shukla (PW-9) and Pradipkumar Ganesh Rawat (PW-

14) as well. The panchnama specifically records that

all these persons had seen the child victim along with

the dog in a time bound sequence commencing from

10:45 A.M. onwards. However, there is no whisper in

43 Criminal Appeal No(s). 1954-1955 of 2022 the panchnama regarding any of the witnesses having

divulged that the child victim had been seen in the

company of the accused appellant. This is a

significant loophole and a grave shortcoming in the

prosecution case. It may be stated that the 1st

Investigating Officer (PW-16) did not make any effort

to make an enquiry from Premshankar Jayshankar

Gupta, Raju Pukraj Choudhari and Jaybhim

Channappa Kamble, either on 30th September 2013

or 1st October 2013. In the natural course of events,

these persons would have been the first in the line of

sight of the Investigating Officer (PW-16) to unfurl the

sequence of events and to take leads about the child

victim’s whereabouts. Had there been any sincerity

in the 1st Investigating Officer’s actions, he would

have immediately ventured to make a thorough

investigation into the persons whose names surfaced

in the panchnama without losing any time. However,

44 Criminal Appeal No(s). 1954-1955 of 2022 no such effort was made by the Investigating Officer

(PW-16).

53. The statements of Dipendrakumar

Dhirendranath Shukla (PW-9) and Pradipkumar

Ganesh Rawat (PW-14), the star prosecution

witnesses of the last seen circumstance, were

recorded by the 2nd Investigating Officer (PW-18) for

the first time as late as 3rd October 2013, as is borne

out from his deposition. Apparently, thus, till 3 rd

October 2013, there was not a shred of evidence on

the investigation file which could have incriminated

the accused appellant for the crime. In spite thereof,

the accused appellant was arrested in this case.

54. The investigation was handed over by Vikas

Sarjerao Lokre (PW-16) to Inspector Mandar Vasant

Dharmadhikari (PW-18), on 3rd October, 2013, who

continued the investigation thereafter. At the cost of

repetition, it may be noted that the 1st Investigating

45 Criminal Appeal No(s). 1954-1955 of 2022 Officer (PW-16), did not make any effort to record the

evidence of the most material prosecution witnesses,

namely, Dipendrakumar Dhirendranath Shukla (PW-

9) and Pradipkumar Ganesh Rawat (PW-14), who

later on vouched to the last seen circumstance as

projected by the prosecution. This omission is fatal to

the prosecution case, as it impinges on the credibility

of the witnesses’ version and also gives a clear

indication about flawed and tainted investigation.

55. It is only when Mandar Vasant Dharmadhikari

(PW-18, 2nd Investigating Officer), took over

investigation of the case on 3rd October, 2013, that

the statements of the witnesses of the last seen

circumstance were recorded for the first time. The

witness made the categorical admissions in his cross-

examination which are reproduced as under: -

“(9) In the spot panchanama at Exh.30 names of witnesses Dipendra Shukla and Pradeep Rawat are mentioned. I have not enquired with Shri Lokare

46 Criminal Appeal No(s). 1954-1955 of 2022 as to whether he recorded statements of both these witnesses and I have also not recorded statement of Shri Lokare to that respect. Prior to 03.10.2013 said witnesses never stated that they had seen the deceased girl with the accused. It is true to say that said both the witnesses are residing in the transit camp.”

56. Thus, we have no hesitation in holding that the

witnesses, namely, Dipendrakumar Dhirendranath

Shukla (PW-9) and Pradipkumar Ganesh Rawat (PW-

14), were created by the Investigating Officers, by way

of padding, because a case of sensational nature was

not being solved. Their evidence is totally false and

unworthy of credence. The witness Sanjay Ganesh

Rawat (PW-15) did not state in his testimony that he

had seen the child victim in the company of the

accused appellant, and hence, his evidence does not

give any support to the circumstance of last seen

together. Thus, we have no hesitation in holding that

the prosecution miserably failed to prove the

47 Criminal Appeal No(s). 1954-1955 of 2022 circumstance of last seen together by leading credible

evidence.

57. The second segment of circumstantial evidence

on which the prosecution heavily relied upon was

that of the extra-judicial confession allegedly made by

the accused appellant to Anil Mahatam Singh (PW-

17), who was the Supervisor under whom the

accused appellant was working. The witness (PW-17)

stated that he knew the accused appellant, who had

joined duty as a watchman about 6 to 7 days before

the incident. On 30th September 2013, a small girl

went missing. On that day, the accused appellant

was assigned work at Phase 2 Building No. 5 and had

reported for duty. The police came to the building for

the purpose of inquiry and took some watchmen from

there. On the next day, i.e., on 1st October 2013, he

went for a round but did not find the accused

appellant on duty. The accused appellant was

48 Criminal Appeal No(s). 1954-1955 of 2022 summoned through his father. The accused

appellant turned up at the project and, upon being

questioned by the witness about his absence from

duty, he claimed to be tensed up and stated that he

could not perform his duties and that he would be

going back to his village on the same day. The witness

(PW-17) was cross-examined by the Public

Prosecutor and while answering the leading

questions put to him, he admitted that he had stated

before the police that the accused appellant told him

that he could not work as he was tensed up and that

he had made a mistake. The witness (PW-17) also

agreed to the suggestion of the public prosecutor that

the accused appellant divulged before him that he

had been called by the police the day before and in

reference thereto, he had committed a mistake.

58. The significant fact which requires mention at

this stage is that the statement of Anil Mahatam

49 Criminal Appeal No(s). 1954-1955 of 2022 Singh (PW-17) recorded under Section 164 of the

CrPC, was proved at the instance of the prosecution

as Exh. 78, wherein the witness stated that on 1st

October, 2013, he did not see the accused appellant

while marking attendance. He then made inquiries

about the accused appellant’s absence and

summoned him to the circle.

59. When the witness asked the accused appellant

about his absence, the accused appellant replied that

he was tensed up. On hearing this, the witness told

the accused appellant that staying idle would not

help and that he should resume his duty to relieve

the tension. The accused appellant agreed and

complied with the suggestion and resumed his duty.

Thus, in the previous statement of the witness (PW-

17) recorded under Section 164 of the CrPC, there is

no reference to any extra-judicial confession having

been made by the accused appellant. Furthermore,

50 Criminal Appeal No(s). 1954-1955 of 2022 the statement of the said witness under Section 161

of the CrPC was recorded as late as on 12th October

2013, as stated by the Investigating Officer (PW-18).

60. Hence, the statement of the witness (PW-17) on

the aspect of extra-judicial confession is full of

improvements and contradictions and hence, it is

totally unreliable. If at all, the accused appellant had

made an extra-judicial confession before the witness

on 1st October, 2013, his immediate reaction would

have been to rush to the police and divulge this fact

to the Investigating Officer (PW-16). However, he

made no such effort whatsoever.

61. In this background, the evidence of PW-17

regarding the extra-judicial confession, [which is

otherwise also a very weak piece of evidence], is

totally unreliable and unacceptable and does not lend

succour to the prosecution case.

51 Criminal Appeal No(s). 1954-1955 of 2022

62. In a case based on circumstantial evidence, the

evidence of Investigating Officer/s is of utmost

importance. The Investigating Officer, Vikas Sarjerao

Lokre (PW-16) stated in his evidence as below: -

Examination in Chief of PW-16

“….Then we called the dog squad to take the search of the victim girl. We have taken the efforts but said girl was not traced out. Accordingly I have submitted the report. Now shown to me. It bears my signature as well as signature of the authority of Dog Squad. Contents are true and correct. It is at Exh.70. Then I have circulated the photograph of the victim girl to the various police stations for her search. Now that letter shown to me. It bears my signature. Contents are true and correct. It is at Exh.71. I have also forwarded the wireless message inter-state along with the detail description of the victim girl. Now that wireless message shown to me. It bears signature of Sr. PI Dharmadhakari. I know his signature. Contents are true and correct. It is at Exh.72. Then, I have recorded the statements of those witnesses who had lastly seen that girl. I have also recorded the statement of the mother of victim girl.

Then on 02.10.2013 when our police squad was taking the search of that girl we had found dead body of one small girl in the muddy pond near about 2.00 p.m. Then we called the person from Fire Brigade and removed that dead body out of the pond. I called two panch witnesses and prepared panchanama of that spot in their presence. That panchanama is at Exh.38. Now shown to me. It bears my signature, signatures of two panch

52 Criminal Appeal No(s). 1954-1955 of 2022 witnesses. Contents are true and correct.

Measurement of said pond is 25 X 15 ft. It was behind the Unnati Wood Society, in one field near one nala. There was cloth on the said dead body i.e. pink colour full sleeves T-shirt. On the distance of 20 ft. I have found the stamp-marks of the legs of dog from the said pond. I have seized the water of that pond and earth which was out of the pond. 1 sealed it with the signature of panch witnesses.

Then I have deposited said muddemal by preparing muddemal receipt with the muddemal clerk. Now that receipt shown to me. It bears my signature. Contents are true and correct. It is at Exh.73. Then I have prepared the inquest panchanama of the dead body in presence of two panch witnesses. That time complainant identified his daughter. That inquest panchanama is at Exh.47. Now shown to me. It bears my signature and signatures of two witnesses. Contents are true and correct. Then I have forwarded the said dead body for post- mortem at Civil Hospital, Thane. The said letter is now shown to me. It bears my signature. Contents are true and correct. It is at Exh.74. Then Civil Hospital referred the dead body to J.J. Hospital. Therefore, I have issued a letter to J.J. Hospital. Said letter is at Exh.56. It bears my signature. Contents are true and correct. Moreover, it also bears the acknowledgment of J.J. Hospital. Then I have also issued request letter to J.J. Hospital that while conducting the post-mortem it should be conduct under the photography and video shooting. The said letter is at Exh.57. It bears my signature. Contents are true and correct. Then doctor has issued Advance Cause of Death Certificate which mentioned the reason that death due to head injury with evidence of extensive genital injuries- unnatural. Then I have added sections in the present offence and accordingly issued letter to the concerned Court…..”

53 Criminal Appeal No(s). 1954-1955 of 2022 Cross-Examination of PW-16

On 01.10.2013 I have recorded the statements of witnesses Ganesh Dhaki, Jayashri Datar, Arti Navin Dhondi. It is true to say that they have not stated that they had seen the victim girl. There are five names comes in the panchanama at Exh.30, out of those on 01.10.2013 I have recorded the statement of one witness by name Premshankar Gupta. He has not stated that he had seen that girl along with accused. On 01.10.2013 I have also visited to the watchman chawl. I went there for only one time. Near about 30 to 40 watchmen were residing there. But on 01.10.2013 I have not recorded statement of single watchman.

When I visited to the house of complainant there was no dog. I have not prepared the panchanama of that female dog and also not obtained her photographs. Moreover, where I found the scratches of the nails of dog I have not obtained the photographs of that place and also not called expert to identify those scratches.

Alleged pond is on the open space and it is accessible for anybody. It is not true to say that dead body of the said girl was fully decomposed. It is true to say that where said dog was tied on the window of the room of watchman, I have not recorded statement of that watchman. I have recorded the statement of grandmother of deceased girl by name Mayavati Bhaskar Sadavarte on 01.10.2013. She has also stated that she has taken the search of their granddaughter in the watchman chaw]. But she has not expressed her doubt towards any watchman. I have not recorded the statement of any witness on 01.10.2013 stating that anybody had seen that girl along with accused. Virendrakumar Shukla and Pradeeikumar Rawat are residing in the transit chaw!. Ashapura Kirana Shop is on the

54 Criminal Appeal No(s). 1954-1955 of 2022 distance of 10 to 15 minutes from the alleged pond. Witness Pushkaran Chaudhary has stated that when he had seen that girl he told to her to go to her house. That time she proceeded towards her house. That time was of 11.00 a.m. It is not true to say that I am deposing false that Jaybhim Kamble had seen that girl along with dog at Manera Chawl. It is not true to say that I am deposing false that I had seen the scratches of dog's nails on the window where dog was tied. It is not true to say that I have not recorded the statements of witnesses as per their say. It is not true to say that I have not prepared panchanama at Exh.38 on the spot. It is not true to say that her father was not identified the dead body because her face was not identifiable. It is not true to say that I am deposing false that there was stamp-mark of that dog near the pond. It is not true to say that inquest panchanama was not prepared as per Exh.47. It is not true to say that I have not seized the clothes of that girl vide Exh.23 and not deposited muddemal in presence of panch. witnesses. It is not true to say that I have not taken the opinion of the doctor that why such genital injuries were caused to deceased girl. But to that respect no document is filed along with the charge-sheet.”

(Emphasis supplied)

63. The significant facts, which can be deduced from

the evidence of the Investigating Officer (PW-16), are

that he made fervent attempts to trace the child

victim on 30th September, 2013 and 1st October,

55 Criminal Appeal No(s). 1954-1955 of 2022 2013. In the spot panchnama21 prepared by the

witness on 1st October, 2013 between 7.30 A.M. to

8.45 A.M., there is a clear reference to the witnesses

of the last seen circumstance, but in spite thereof, the

officer made no effort whatsoever to record the

statements of those witnesses. This is grave infirmity

in the investigation which impinges on the credibility

of the Investigating Officer and the witnesses of the

last seen circumstance. The present case, being a

case of grave nature, it does not stand to reason that

in spite of the names of the witnesses of last seen

circumstance having been mentioned in the spot

panchnama prepared on 1st October, 2013, and

despite the fact that the witness (PW-16) was making

strenuous efforts to trace out the child victim from

30th September, 2013 and 1st October, 2013, none of

the witnesses claimed to have seen the child victim in

21 Supra note 6.

56 Criminal Appeal No(s). 1954-1955 of 2022 the company of the accused appellant were examined

by the Investigating Officer (PW-16). It is difficult, if

not impossible, to believe that even though fervent

efforts were going on to search for the missing child

in the colony, the witnesses who claimed to have seen

the child victim with the accused appellant would not

have stepped forward to give leads to the 1st

Investigating Officer (PW-16) at the earliest possible

opportunity. These significant omissions and

fundamental flaws in the investigation are sufficient

to satisfy us that the witnesses of the last seen

circumstance were created to add padding to the

prosecution case and as a matter of fact, none of

them had seen the accused appellant and the

deceased (child victim) together.

64. In the cross-examination of Mandar Vasant

Dharmadhikari [(PW-18), i.e., 2nd Investigating

Officer], the following significant facts were elicited: -

57

Criminal Appeal No(s). 1954-1955 of 2022 “In the spot panchanama at Exh.30 names of witnesses Dipendra Shukla and Pradeep Rawat are mentioned. I have not enquired with Shri Lokare as to whether he recorded statements of both these witnesses and I have also not recorded statement of Shri Lokare to that respect. Prior to 03.10.2013 said witnesses never stated that they had seen the deceased girl with the accused. It is true to say that said both the witnesses are residing in the transit camp. I have not prepared the panchanama of female dog and also not included her photograph in the documents. In the complaint at Exh. 20 no name of accused is mentioned. All the incidence spots are situated in the open space and anybody can access there.

There is a road connected to Unnati Society and peoples used that road. It is not true to say that there is no documentary evidence produced on record regarding the said chawl where accused was residing. Accused is residing in the present chawl, showing the said fact there is no documentary evidence on record. But it has come in the statements of witnesses. Complainant has not stated that whether any witness had seen the deceased girl with the accused. But he has stated it in supplementary statement.

In the present matter T.I. Parade was not conducted. It is true to say that during the investigation some witnesses were knowing to the accused and some witnesses were not knowing to him. When I have arrested the accused I have not examined his private part. It is not true to say that at the time of arrest there was no abrasion on the foreskin of accused. It is not true to say that to involve the accused in the present matter we made abrasion on his private part. It is mandatory that after the arrest of accused within 24 hours he has to forward for his medical examination. It is not true to say that I

58 Criminal Appeal No(s). 1954-1955 of 2022 have not forwarded him for examination immediately.” (Emphasis supplied)

65. Thus, the witness (PW-18) affirms the fact that

the witnesses of the last seen theory who were

residing in the transit camp did not step forward to

disclose to the police that they had seen the deceased

girl with the accused appellant. Neither of the two

Investigating Officers uttered a word regarding the

witness Anil Mahatam Singh (PW-17) coming forward

and disclosing that the accused appellant had made

an extra-judicial confession in his presence.

66. Thus, upon an overall appreciation of the

evidence of the two Investigating Officers and the

witnesses of the last seen theory and so also the sole

witness of extra-judicial confession, we are convinced

that the entire sequence of events narrated by these

witnesses is unreliable and unbelievable. It is clearly

a case of concocted depositions secured by the

59 Criminal Appeal No(s). 1954-1955 of 2022 prosecuting agency by way of padding so as to fasten

the guilt of this heinous crime, on the accused

appellant and thereby lay a claim to have solved the

case.

67. Deputy Superintendent of Police, Mandar

Vasant Dharmadhikari [(PW-18), 2nd Investigating

Officer], was assigned the investigation of the case on

3rd October, 2013. He visited the place of the incident

and claims to have recovered some blood stained soil

from the second room in the watchmen chawl. The

evidence of this witness (PW-18) does not indicate as

to how he reached the conclusion that the crime had

taken place in the said room. The accused appellant

was arrested on 3rd October, 2013. Till then, there

was no material on the investigation file so as to even

cast a minimal suspicion against the accused

appellant. The Investigating Officers did not even

possess the barest evidence which could have

60 Criminal Appeal No(s). 1954-1955 of 2022 pointed a finger of suspicion towards the accused

appellant. Thus, the very foundation for arresting the

appellant in this case is lacking. The witness (PW-18)

also collected forensic samples and recovered

allegedly incriminating materials in furtherance of

the information provided by the accused appellant.

He claims to have recovered a lungi, a baniyan, a pair

of shoes and the watchman uniform worn by the

accused appellant from his room. These recoveries

were effected on 8th October, 2013.

68. Both the Investigating Officers had made

extensive investigation in the entire area and this

definitely would have included the search of the room

of the accused appellant. At this stage, it is pertinent

to note that Vikas Sarjerao Lokre (PW-16) admitted

in his cross-examination that he had visited the

watchmen chawl on 1st October 2013. Hence, if at all,

these articles were lying in the room of the accused

61 Criminal Appeal No(s). 1954-1955 of 2022 appellant, they would not have escaped the notice of

the 1st Investigating Officer (PW-16). Clearly thus, the

factum of recovery of incriminating articles at the

instance of the accused appellant by the 2nd

Investigating Officer (PW-18) does not inspire

confidence.

69. In addition to the fact that none of the articles

recovered at the instance of the accused appellant

tested positive for the presence of the human blood

or semen, the fact remains that the accused

appellant could not be expected to preserve these

worthless incriminating articles for a period of three

days, during which he was a free bird, so as to

provide incriminating material against himself.

Thus, these recoveries, apart from being

inconsequential, are also doubtful.

62 Criminal Appeal No(s). 1954-1955 of 2022

70. The FSL report22 and the DNA Analysis Report23

did not result in any positive finding regarding the

presence of human blood or semen on the clothing

and other articles seized at the instance of the

accused appellant. The DNA analysis report

remained inconclusive does not implicate the

accused appellant. Neither the trial Court nor the

High Court placed reliance on these reports for

recording a finding against the accused appellant.

71. The only so-called incriminating scientific

report (Exh. 105) against the accused appellant was

pertaining to the comparison of the soil/mud on the

sole of the pair of shoes recovered at the instance of

the accused appellant and the specimen soil

recovered from the pond where the dead body of the

child victim was found. The said report was exhibited

22 Exh. 104.

23 Supra note 10.

63 Criminal Appeal No(s). 1954-1955 of 2022 as Ext. 105 and indicates that the soil sample

collected from the pair of shoes tallied with the soil

sample that was recovered from the pond in respects

of hue, physio-chemical characteristics and spectro-

chemical composition.

72. First of all, we may observe that there is no

evidence to show that the aforesaid observations

made by the expert in Ext. 105 are admissible ipso

facto under Section 293 of the CrPC which is

equivalent to Section 329 of the Bharatiya Nagarik

Suraksha Sanhita, 2023. It may be noted that the

expert who prepared the report was not examined by

the prosecution.

73. Furthermore, the findings in this report are

absolutely vague and inconclusive. If at all, the

prosecution desired to prove without any exception

that the soil found on the shoes of the accused

64 Criminal Appeal No(s). 1954-1955 of 2022 appellant was unexceptionally from the location from

where the dead body of the child victim was

recovered, then the Investigating Officer (PW-18)

should have collected soil samples from the other

places frequented by the accused appellant. Then

only the possibility of the soil not being from any

other place visited by the accused appellant could

have been excluded.

74. In any event, even if it is held that the soil/mud

found on the shoes of the accused appellant tallied

with the soil found in the pond, that would be just an

indication of the fact that the accused appellant may

have visited the area surrounding the pond at some

point of time. This, by itself, would not incriminate

the accused appellant in any manner.

75. Resultantly, we conclude: -

65

Criminal Appeal No(s). 1954-1955 of 2022

(i) that the evidence of the witnesses of last

seen circumstance is vacillating, shaky and

tainted with wholesale improvements, and

hence, unworthy of credence.

(ii) the conduct of the witnesses of the last seen

circumstance in failing to timely step

forward to make a disclosure to the

Investigating Officer (PW-16) that they had

seen the accused appellant and the

deceased child victim together on the date

of the incident in spite of the fact that the

police officers were regularly visiting Unnati

Woods area, right from late hours of 30th

September, 2013 onwards, clearly indicates

that these witnesses are untrustworthy and

were created by the investigation agency for

ulterior motive;

66 Criminal Appeal No(s). 1954-1955 of 2022

(iii) There was a clear reference to the witnesses

of last seen circumstance, namely the

complainant, i.e., Manoj Bhaskar Sadavarte

[(PW-1), father of the deceased child],

Dipendrakumar Dhirendranath Shukla

(PW-9), Pradipkumar Ganesh Rawat (PW-

14) and Sanjay Ganesh Rawat (PW-15) in

the spot panchnama (Exh. 34) which was

prepared by Vikas Sarjerao Lokre (PW-16,

i.e., Investigating Officer) on 1st October,

2013, at around 7.30 A.M. In spite thereof,

the 1st Investigating Officer (PW-16) made

no effort whatsoever to record the

statements of these witnesses at the earliest

available opportunity. Rather, the said

Investigating Officer did not record the

statements of these witnesses at all, and the

witnesses were examined for the first time

67 Criminal Appeal No(s). 1954-1955 of 2022 on 3rd October, 2013 by the 2nd

Investigating Officer, i.e., Shri Mandar

Vasant Dharmadhikari (PW-18). This

omission is vital and indicative of gross

negligence on the part of the Investigation

Officers.

(iv) The evidence of extra-judicial confession as

deposed by Anil Mahatam Singh (PW-17) is

also unacceptable because the said witness

too did not step forward to inform the police

regarding the fact of the so called extra-

judicial confession made by the accused

appellant before him, in spite of being aware

that the police was searching for the child.

(v) That the FSL report (Ext. 105) regarding the

similarity of soil samples is also

inconsequential for the reasons mentioned

supra.

68 Criminal Appeal No(s). 1954-1955 of 2022

(vi) The reports pertaining to the comparison of

the samples taken from the other watchmen

never saw the light of the day because

prosecution chose not to place the same on

record. Hence, it is clearly a case where the

prosecution has withheld important

evidence thereby, compelling the Court to

draw adverse inference against the

prosecution.

76. Thus, we are compelled to hold that flawed and

tainted investigation has eventually led to the failure

of the prosecution case involving the gruesome rape

and murder of a child at the tender age of 3 years and

9 months only. Despite there being hardly any

reliable evidence on the record of the case, the

accused appellant was convicted and sentenced by

the Courts below and has suffered incarceration for

almost 12 years of which 6 years were under the

69 Criminal Appeal No(s). 1954-1955 of 2022 Damocles sword of death penalty. The findings

recorded in the impugned judgments holding the

accused guilty of charges framed against him, are

based on conjectures and surmises and hence, both

the judgments and the order of sentence are

unsustainable on the face of record.

77. As an upshot of the above discussion, the

impugned judgment dated 25th November, 2021

passed by the High Court and judgment of conviction

dated 5th March, 2019, and the order of sentence

dated 8th March, 2019, passed by the trial Court, do

not stand to scrutiny and are hereby quashed and set

aside.

78. Resultantly, the appeals are allowed.

79. The appellant is acquitted of the charges. He is

in custody and shall be released forthwith, if not

required in any other case.

70 Criminal Appeal No(s). 1954-1955 of 2022

80. Pending application(s), if any, shall stand

disposed of.

….……………………J. (VIKRAM NATH)

….……………………J. (SANJAY KAROL)

...…………………….J. (SANDEEP MEHTA) NEW DELHI;

MAY 07, 2025.

71 Criminal Appeal No(s). 1954-1955 of 2022