The State Of Maharashtra vs Chandrabhan Sudam Sanap

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:55 ::: 2 CONF_CASE_3_15.doc

...

Mr. Raja Thakare, Special P.P. with Mrs.M.M. Deshmukh for applicant State in Confirmation Case No.3/15 and for respondent in Cr. Appeal No.1111 of 2015.

Mr.Nitin Pradhan i/b Ms.S.D. Khot, Aditya Lawari, Ms.Ameeta Kuttikrishnan and Karan Thorat for respondent in Confirmation Case No.3/2015 and for the appellant in Cr.Appeal No.1111 of 2015.

CORAM: RANJIT V. MORE & SMT. BHARATI H.DANGRE, JJ.

RESERVED ON : 1st NOVEMBER, 2018 PRONOUNCED ON : 20th DECEMBER, 2018

JUDGMENT (Per BHARATI H. DANGRE, J)

1 An incident of rape and fatal assault that occurred

in the National Capital on 16 th 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:55 ::: 3 CONF_CASE_3_15.doc

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 2 nd 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,

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 4 CONF_CASE_3_15.doc

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 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 5 CONF_CASE_3_15.doc

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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 6 CONF_CASE_3_15.doc

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. 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 7 CONF_CASE_3_15.doc

his daughter is no longer alive and this happened on 16 th

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-striken 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. 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 8 CONF_CASE_3_15.doc

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"

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 :::

9 CONF_CASE_3_15.doc

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. 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 10 CONF_CASE_3_15.doc

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 5 th 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 11 CONF_CASE_3_15.doc

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.

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, 37 th 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 12 CONF_CASE_3_15.doc

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 Mumbai-Thane 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.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 13 CONF_CASE_3_15.doc

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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 14 CONF_CASE_3_15.doc

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 pre-

planned 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 15 CONF_CASE_3_15.doc

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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 16 CONF_CASE_3_15.doc

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.

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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 17 CONF_CASE_3_15.doc

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

non-existence. 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 18 CONF_CASE_3_15.doc

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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 19 CONF_CASE_3_15.doc

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 video-conferencing 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 20 CONF_CASE_3_15.doc

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. His submission is

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 21 CONF_CASE_3_15.doc

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.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 22 CONF_CASE_3_15.doc

10 The body of Esther was traced on 16.01.2014 and

the prosecution places reliance on the spot panchnama proved

by PW-2 Bapu Adsul. The said panchnama is exhibited as

Exhibit-38. 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. 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 M-size 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 23 CONF_CASE_3_15.doc

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 PW-6 Nirmala

Kadu and was exhibited as Exhibit-84. 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 Exhibit-127. The postmortem

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:56 ::: 24 CONF_CASE_3_15.doc

report relied on by the prosecution also refers to black colour

bra with avulsed hook-metallic. 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 LT-Left fronto temporal area 4 x 5 cm, blackish red colour."

2. Contusion over lower lip right side against canines-

blackish red in colour 2 x 2 cm. Both contusion confirmed by cut section.

The postmortem makes note of decomposition seen

in pericardium 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".

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 25 CONF_CASE_3_15.doc

The final cause of death certificate came to be issued and

exhibited at Exhibit-128. 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 purging-genitals 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.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 26 CONF_CASE_3_15.doc

(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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 27 CONF_CASE_3_15.doc

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 ante-mortem 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 B-

Tech 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 28 CONF_CASE_3_15.doc

to come to stay in Machilipatnam and on 22 nd December 2013,

she came to reside with him and stayed till 4th January 2014.

He further deposed that on 4 th 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 29 CONF_CASE_3_15.doc

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

pen-drive 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.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 30 CONF_CASE_3_15.doc

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 Bio-Chemistry 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 31 CONF_CASE_3_15.doc

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 Exhibit-17. 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 Exhibit-1 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 16 th

January 2014 was of the daughter of PW no.26 and the articles

which were seized during the course of investigation and

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 32 CONF_CASE_3_15.doc

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. On requisite

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 33 CONF_CASE_3_15.doc

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. 5 th January 2014 when

Esther de-boarded 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 34 CONF_CASE_3_15.doc

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 5 th 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 3 rd April 2014. The said

footage which was carried in a pen-drive 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 35 CONF_CASE_3_15.doc

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 pen-drive 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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 36 CONF_CASE_3_15.doc

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. 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.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 37 CONF_CASE_3_15.doc

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

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 38 CONF_CASE_3_15.doc

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. 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.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 39 CONF_CASE_3_15.doc

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.

Screenshot is taken at 05:11:13 when the face of the person pulling the trolley bag can be clearly seen. Also the pink t-shirt worn by the woman is seen. It is upto 05:11:15.

18 Relying on the CCTV footage, the prosecution has

established that Esther reached Mumbai at approximately

4.59.30 a.m when she approached the waiting area pulling her

own trolley bag and having another bag on her shoulder. In

another clipping, she is walking while pulling her trolley bag

and one more bag and purse on her shoulder. The earlier

clippings recorded at 4.48.20 am discloses one person getting

down from a stationary train wearing white t-shirt and blue

jeans and having a bottle of cold-drink. The screen shots of the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 40 CONF_CASE_3_15.doc

said clipping clearly reveal that it is the accused who is present

before us. Another clipping captures the person in white t-shirt

walking on the railway platform and we had noticed that he

was walking in a shaky condition. A screen shot taken at

4.58.48 clearly focuses on the face and the said person in the

said screen shot in the accused who is present before us. In the

last footage recorded at 05.10.52, the accused in white t-shirt

and blue jeans is seen pulling the trolley bag and Esther who is

seen in the earlier footage is following him and she is talking on

her mobile phone. The pink t-shirt worn by the woman is

clearly seen. Thus, the prosecution with the help of CCTV

footage has established its case to the extent that Esther

reached the LTT and she exited the railway station along with

the accused. Shri Pradhan has alleged that the said evidence

led by the prosecution do not withstand the test of 'evidence' in

terms of the Evidence Act and we would be dealing with the

said submission a later.

19 In order to further corroborate the presence of

accused at LTT and to establish that the deceased accompanied

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 41 CONF_CASE_3_15.doc

him while leaving the Terminus, the prosecution has relied on

three witnesses. PW No.18 Shivkaran Chhotelal Patel who is

running a Canteen at Kurla Terminus Railway Station deposed

before the Court that 18th February 2014, the police came

inquiring to him as to whether any person had purchased cold-

drink or water from him on 5th January 2014. He stated before

the Court that it was not possible for him to exactly state if it is

so, since thousands of people come to him. However, he

further deposed that on 5th January 2014, one person had

approached him after opening the stall and purchased a

Thumbs-up for Rs.34/- and gave him currency note of Rs.100/-

and when he requested him to give change of Rs.4 and he

refused to hand over the change, in turn, this witness gave him

a chocolate. Then, the accused started abusing him and argued

with him for approximately 10 to 15 minutes and that is how

he remembered him. He also deposed that he was his first

customer and he had a mustache and his forehead was broad

and he was wearing white t-shirt and blue colour pant and one

key was hanging from his pocket. He also deposed that his

height was 5.5" and he was having a well built body and was of

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 42 CONF_CASE_3_15.doc

28 to 29 years of age. He further deposed that he can identify

the said person if shown to him. He also stated before the

Court that he was asked to attend the Arthur Road Jail for

Identification Parade of the accused and in the said Parade, he

identified the person who came to his shop on 5 th January

2014 and purchased cold-drink and abused him.

Another witness examined by the prosecution is

Shri Surendra Nair PW No.19, working as an A.C. Mechanic in

Central Railway who deposed that on 4 th January 2014, he was

on duty at Kurla Terminus and on the relevant date, he was on

stand-by duty. He further deposed that on that date, there was

no A.C. mechanic in Tulsi Express and was sent as A.C.

Mechanic in the said train which was to arrive at Kurla

Terminus at 4.30 a.m. He deposed that the said train arrived at

4.30 a.m and he was standing near the train for boarding it

along with two attendants since he was to enter the A.C.

Compartment before one hour of departure and switch on the

A.C. At that time, he was approached by one person informing

that he is from railway staff and he wanted to go by the train.

He also informed that he was a coolie and his services are

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 43 CONF_CASE_3_15.doc

confirmed as a gang-man. PW No.19 Surendra informed the

said person that he can go to the General coach and he went

there and came back informing that there was no place in the

general boggie and thereafter this witness told the said person

to go to sleeper coach since there was quota for Nashik

Manmad. PW No.19 deposed that the said person was having

Thumbs-up bottle in his hand and there was no luggage. He

also deposed that he was wearing white color t-shirt and jeans

pant and he was well built and not having hair from the front

side. On inquiry by the police, PW No.19 informed the police

about such a person with whom he had interacted and his

statement was recorded on 22nd January 2014. PW No.19 also

identified the accused during Identification Parade held on 25 th

January 2014 at Arthur Road Jail. This witness also identified

the accused on the screen of the Video Conference.

The third witness whom the prosecution has examined to

establish the presence of the accused on LTT platform along

with the deceased in the early hours of 5th January 2014 is PW

no.20 Ramesh Rathod. The said witness was engaged in the

job of Supervisor in the pre-paid taxi booth at Kurla Terminus

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 44 CONF_CASE_3_15.doc

railway station and the nature of his work is to look after the

workers and go to RTO for the said purpose. He deposed before

the Court that on 4th January 2014, he was on night duty and

his duty hours were from 9.00 pm to 9.00 am on 5 th January

2014. He further deposed that on 5th January 2014,

Visakhapatnam train came on platform at 5.00 am to 5.15 am

and he saw one lady going with one man who was having

trolley bag in his hand. PW 20 - Ramesh Rathod inquired from

him whether he required a taxi and he answered that he was

having vehicle. The witness gave the description of the said

person as having broad mustache and bald from front side and

wearing t-shirt and blue jeans pant and was of approximately

35 years. He deposed before the Court that the police were

making inquiries about the said incident regularly in regards to

one girl missing from the said railway station and when he

came to know about such an inquiry, he on his own went to

Crime Branch Ghatkopar on 20th March 2014 and he gave his

statement to the police that he saw the girl going with one

person. This witness was summoned for Test Identification

Parade on 25th March 2014 which was held in Arthur Road Jail

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 45 CONF_CASE_3_15.doc

and identified the accused person as the one who was with the

girl on 5th January 2014. The said witness also identified the

accused person on the Video Conferencing screen.

The CCTV footage which was obtained, during the

course of investigation, was also shown to one Hemant Dharma

Kohli examined as PW No.27 who was residing in the vicinity

where the accused was residing i.e. at Kanjur Marg. The said

witness deposed that he knew the accused Chandrabhan Sanap

and his family members since he was residing in the same area

where the witness was residing. When the CCTV footage was

shown to him, he identified the person in the footage walking

on the platform with one bottle of cold-drink in his hand. He

further deposed to the Court that he identified the said person

in another footage as Chandrabhan Sanap who was pulling the

trolley bag.

20 Thus, the prosecution with the assistance of the

aforesaid witnesses has established the presence of the accused

on the platform where the deceased terminated her journey

from Visakhapatam and the prosecution has established its case

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 46 CONF_CASE_3_15.doc

that the accused convinced the deceased to follow him or

assured her of reaching the destination at Andheri and as such,

the deceased handed over her trolley bag to the accused and

both of them were seen walking out of the railway station

between 5.10.52 a.m and 5.11.15.a.m.

21 Chandrabhan came to be arrested on 2nd March

2014 after his identity was established during the course of

investigation on the basis of the CCTV footage and the

statements recorded. The arrest of the accused was effected by

drawing an arrest panchnama at Kanjur Marg Police Station in

relation to C.R.No.06 of 2014 in presence of panch witness

Salim Mushtaq Shaikh who is examined as PW No.8. The arrest

panchnama was prepared after physical search of the accused

and on inquiry, the accused gave his address of Nashik and also

supplied another address of Building No.2, Door No.108, Karve

Marg, Kanjur Marg (West). On inquiry, in relation to the

accused person at his given address, the prosecution was able

to collect further evidence in relation to the past and post

incident conduct of the accused and which was brought before

the Court. PW No.12 is one Rajashree Shetty who was residing

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:57 ::: 47 CONF_CASE_3_15.doc

in MHADA building, Karve Nagar, Kanjur Marg and who was

knowing the accused Chandrabhan Sanap. The said witness

deposed before the Court that she knows one Nandkishore

Sahu (PW No.9) who is staying adjacent to her house and who

used to visit her for consuming liquor and on occasions,

accused who was also known as Choukya, also used to visit her

house. She deposed before the Court that on 4 th January 2014,

at about 10.30 p.m, Nandkishore Sahu came to her house with

liquor and when they were consuming liquor, Chandrabhan

Sanap also came there with a bottle of liquor and asked for

some snacks. However, since there was no food in her house,

he asked for a key of motorcycle of Nandkishore and took his

bike and Nandkishore waited for the accused to return with his

bike. This version is corroborated by Nandkishore Sahu who is

examined as PW no.9. The prosecution also relies heavily on

the said witness, as according to it, it is to this witness, the

accused had given an extra judicial confession about the

commission of crime. Nandkishore Sahu is the owner of

motorcycle bearing No.MH-03-AY-0241. In his deposition

before the Court, he recognized the accused produced by Video

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 48 CONF_CASE_3_15.doc

conferencing as Chandrabhan Sanap @ Choukya who was

residing behind his building. Nandkishore deposed that he

knew him as he was staying at Kanjur Marg and they used to

play cards. He deposed that on 4th January 2014, he visited

Rajashree who was staying in the chawl and doing the business

of selling liquor, where he consumed liquor till 11.30 p.m. He

stated that at about 11.30 p.m, Chowkya came there and sat for

consuming liquor and till 1.30 a.m, they were sitting there. PW

No.9 further deposed that the accused told that he was hungry

and asked for some eatables. However, there was nothing there

to eat and therefore, he asked for key of his motorcycle and the

accused took his bike and went away at 1.30 a.m. It is further

deposed by PW No.9 that he waited for 40 - 45 minutes, but he

did not return back and thereafter, he went to his house and

went to sleep.

PW no.9 further deposed that at 7.30 a.m, he

received a phone call from the accused and PW no.9 visited his

house where is mother and sister were present. He noticed one

hand bag and one trolley bag there and there was also one

white colour t-shirt stained with mud lying there. Thereafter,

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 49 CONF_CASE_3_15.doc

he came after wearing the clothes and when this witness asked

for the key of his motorcycle, the accused told him that as there

was no petrol and he had parked the vehicle at highway and he

asked him to accompany by taking some other vehicle. PW 9

Nandkishore further deposed that he asked for a motor bike

from Kadir Murgiwalla and on his splendor, the accused sat

behind him and told him that he would take him to the place

where the motorcycle was parked. On reaching the Service

road at Bhandup where the motorcycle was parked, but when

he attempted to start the motorcycle, he did not succeed as

there was no petrol. PW 9 deposed that thereafter the accused

went 100 ft away inside the bushes and he followed him. He

asked the accused what he was searching for. At that time, he

saw one girl was lying there and she was not alive and he

deposed that she was 23 - 24 years old. On seeing the body,

PW 9 was scared and he came back and the accused followed

him running. At this point of time, as per the version of PW

No.9, he has deposed to him that he had gone to Kurla

Terminus by taking his bike and one girl got down from the

train. He asked the girl where she wanted to go and when she

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 50 CONF_CASE_3_15.doc

informed him that she wanted to go to Andheri, he told that he

is also going to Andheri and he had taken her on the

motorcycle and brought her on the spot. He further told that

he had taken her in the bushes and thereafter he raped her and

when she started shouting, he pressed her mouth and

strangulated her by scarf and killed her. PW 9 further deposed

that he put petrol in the said motorcycle from another

motorcycle and reached home. PW 9 further deposed that he

was threatened by the accused not to report this incident to

anybody. As per the said witness, on 6th January 2014 and 7th

January 2014, the accused called him and threatened him, but

he refused to receive his calls as he was aware that the accused

is of quarrelsome nature and two more crimes were registered

against him. The witness deposed that on 15 th January 2014,

he did not receive the call of the accused and thereafter, he

proceeded to Nashik since his mother's health was not good.

He was called in the police station on 4th March 2014 and he

went to the Crime Branch office and got his statement recorded

on 6th March 2014. The prosecution has heavily relied on the

extra-judicial confession and which is clearly criticized by Shri

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 51 CONF_CASE_3_15.doc

Pradhan and the reliability of the prosecution on the said extra-

judicial confession would be dealt by us at a later point of time.

22 In order to further establish the link of the accused

to the crime in question, the prosecution has placed reliance on

testimony of witnesses who throws light on the subsequent

conduct of the accused after commission of the crime. PW

No.13 - Mohd. Usman Lalmiya Khan - who is the Secretary of

the building where the accused was residing deposed that he

knew Chandrabhan Sanap as he was staying in the area since

15 years in the MMRDA room. This witness also deposed that

he was aware that a case of theft is registered against the

accused. He further deposed that the accused was married for

three times and his first wife had expired and his second wife

had left him and he was residing with his third wife in the said

house. He deposed that on 5th January 2014 at 9.00 a.m, he

saw the accused going with his mother and at that time, the

accused was having one bag on his back and one trolley bag.

He further deposed that the police had recorded his statement

on 12th March 2014.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 52 CONF_CASE_3_15.doc

23 At the time of arrest of the accused by executing the

arrest panchnama on 2nd March 2014, the accused was

subjected to physical search. During the search, one xerox copy

of letter was found in his back pocket of jeans pant and on

further inquiry, it was found that it was a kundli prepared by

Jyotish Visarath Rajabhau Aher. The said kundli of the accused

was prepared on 6th January 2014. The Investigating Agency,

therefore, turned to Shri Rajabhau Aher and he was cited as a

witness by the prosecution and examined as PW No.17. Shri

Rajabhau Aher deposed before the Court that he was an

Astrologer and used to prepare Horoscope. He deposed that

on 5th January 2014, at about 2.00 p.m, he was approached by

Chandrabhan Sanap who was accompanied by one elderly lady.

The witness deposed that he was under pressure and he told

him that his stars are not good and therefore, he wants to show

his horoscope. Accordingly, the horoscope was prepared and

PW No.17 informed the accused that there are few faults in his

horoscope Kal Sarp Dosh and Ati Gandh dosh and he advised

him to perform Shanti Puja at Trimbakeshwar. The witness

deposed that he handed over to the accused the visiting card of

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 53 CONF_CASE_3_15.doc

one Prasad Shukla and asked him to approach him to perform

the puja. The witness has categorically deposed that after

discussing the horoscope, the accused asked him if any sin has

been committed by him against woman, whether the Puja could

rectify him. The said witness also identified the xerox copy of

the horoscope prepared by him and since the original of the

horoscope was with the accused.

In order to complete the chain of the conduct of the

accused, the prosecution has examined another witness who

has performed the Kal Sarp Puja as per advise of PW no.17.

The said witness is Prasad Sharadchandra Shukla and examined

as PW no.16 by the prosecution. The said witness deposed

before the Court that he was working as a Priest in

Trimbakeshwar temple and was performing the puja of Kal

Sarp Yog. He deposed that one Rajabhau Aher, an Astrologist

sends people to him for performance of puja. He further

deposed that on 5th January 2014, Chandrabhan Sanap visited

him on recommendation of Rajabhau Aher for performing puja

of Kal Sarp Yog and Ati Gandh Yog. The arrangements of stay

of the accused were made by PW no.16 at his home and he had

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 54 CONF_CASE_3_15.doc

also brought his horoscope. He accepted an amount of

Rs.3,000/- from the accused and performed puja on 6th January

2014 at 7.30 a.m which was completed at 11.45 a.m. The

witness deposed that the accused was accompanied by his

mother. The accused further deposed that he asked him a

specific query as to whether a sin committed towards a lady

could be cleared by performing this puja, to which the witness

replied that there is no relation between one's act and this Puja,

but because of this puja, problems are solved. The prosecution

has relied on the Register maintained by this witness and who

deposed before the Court that he used to maintain the register

and enter the name of the person, date and amount. The

extract of the said register mentioning the name of Sanap on

6th January 2014 in the handwriting of PW 16 is exhibited at

Exhibit-112. The said extract of the register was seized in

presence of panch witness Ashok Kumar Pandey who is

examined as PW no.15 by the prosecution. The aforesaid

witnesses have thus been relied upon by the prosecution to

establish the conduct of the accused post-commission of the

offence.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 55 CONF_CASE_3_15.doc

24 Another circumstance which the prosecution has

relied upon is the presence of the accused on the Eastern

Expressway on the early hours of 5th January 2014. The

prosecution has relied on the testimony of one Pralhad Kumar

Yadav examined as PW No.23 who happened to be strolling his

dog on the highway near Service road in the morning hours.

The said witness deposed before the Court that he was working

in a Salt Office which was located between Kanjur Marg and

Bhandup and he was staying in the office. He had further

deposed that in early morning, he used to take the dog

belonging to his owner for stroll on highway near service road.

On 19th January 2014, one constable approached the said

witness and took him to the police station for making certain

inquiries. He revealed to the police that he had seen one

person starting the bike near service road and when he inquired

from the said person whether his bike was not starting. The

witness deposed that when he saw the said person, he found

mud on his shoulder and he inquired whether he had a fall

which the person answered in the negative. He further

inquired whether he should assist him in starting the bike to

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 56 CONF_CASE_3_15.doc

which the person answered that there was no petrol in the tank.

The witness further deposed that there was one bag on his back

and one bag was kept on the petrol tank. Thereafter, he parked

the said bike and he started proceeding towards Vikhroli and

also pulled the trolley bag. The said witness has deposed that

the said person was walking in front of him and was wearing a

white colour t-shirt and blue colour jeans pant and his height

was 5.5" and complexion was of wheatish colour. This witness

further identified the accused to be the same person whom he

had spotted on 5th January 2014 on the Express Road by

identifying him in the Identification Parade held in Arthur Road

Jail on 25th January 2014. The said witness also identified the

accused present on the screen of the video conferencing and he

clarified that he is the same person, but at that time, he was not

having a beard and he was of a strong built. The prosecution

has relied upon this witness who happens to be a chance

witness and who deposed about the presence of the accused on

the service road on the Expressway at morning hours on 5 th

January 2014 i.e. the date on which Esther landed at Lokmanya

Tilak Terminus but was untraceable.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 57 CONF_CASE_3_15.doc

25 The prosecution brought on record the evidence in

form of the seizure of the belongings of the deceased which she

had carried at the time when she left her hometown to proceed

to her work place. The prosecution has examined PW-4 and

PW-5 who are the panch witness to the disclosure panchnama.

On a disclosure statement given by the accused, and when he

showed his willingness to produce the bag belonging to Esther,

a disclosure panchnama was executed on the arrest of the

accused on 03.03.2014. The accused made a statement that he

is ready to produce the bag which Esther was carrying and the

accused has taken the said bag to Nashik and handover to one

elderly lady. A memorandum statement of the accused was

recorded under a panchnama exhibited at Exhibit-44 and 44A

and PW-4 Abdul Satar Sayad Ali Shaikh has acted as a panch

witness on the said panchnama. The said disclosure

memorandum laid to recovery of one trolley bag of black colour

with words "Skybag" endorsed on it. The said bag was handed

over by the accused to one old lady in Nashik and this lady is

also examined by the prosecution as a witness named as

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 58 CONF_CASE_3_15.doc

Kamlabai Kisan Sanap who is examined as prosecution witness

No.24. The said witness corroborated the disclosure statement

leading to the discovery of the bag and depose before the Court

that she was doing labour work and on one day when she was

sitting near the public toilet, accused person, whom she

identified on the V.C. Screen came there and asked her if she

can accept the said bag. She further deposed that when she

asked the accused why he is giving the same, he informed that

his sister is no more and, therefore, he gives the black colour

bag of the wheels. She deposed there were clothes inside the

bag and she sold it and kept the bag at Misrawada in a room.

She handed over the bag to police when she was approached by

the police and identified the said bag of black colour when

shown to her at the time of deposition. Another circumstance

relied on by the prosecution is the recovery of the bag which

the deceased was carrying and the bag and its contents were

seized at the instance of the accused on a disclosure statement

being made by him and were seized from the sister's room of

the accused. PW-5 Pradeep Shirodkar acted as a panch witness

to the said disclosure panchnamma at Exhibit- 81 and 81A

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 59 CONF_CASE_3_15.doc

which led to seizer of certain articles belonging to deceased

namely:-

(i) An identification card of University College of Engineering (JNEU, Kakinada) bearing the deceased name;

(ii) An used black and blue framed spectacles with a broken glass;

(iii) An old jeans pant of blue colour;

(iv) An used ash gray colour half ladies T-Shirt and another black and pink hosiery ladies top.

(v) A light blue colour pant and one leggings of green colour.

(vi) One used eye pencil of Maybelline company.

The said articles came to be seized on executing a

seizure panchnama at the instance of the accused from Room

No.12 in Sai Building where the sister of the accused was

residing and running a mess. All the said articles were placed

in a plastic bag in the house belonging to the sister of the

accused and the articles came to be seized and marked as

Articles.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 60 CONF_CASE_3_15.doc

26 Out of the said articles the I-Card belonging to the

deceased Esther was forwarded for DNA Analysis in sealed

parcels. Prosecution witness No.28 Shrikant Hanumant Lade,

the Assistant Director in FSL Kalina Generated the DNA profile

from the sweat detected on one Exhibit-L on the I-card and

Exhibit-L-2 spectacles he compared the same with the bone

samples of the deceased. The prosecution has thus established

that the said articles which were seized at the instance of the

accused belonged to the deceased Esther and these articles i.e.

the identity card and the spectacles were identified by the

father of the deceased as belonging to Esther.

The prosecution has also examined PW-14 Satyawan

Gawade who has acted as a panch to the panchnama executed

for seizure of the brassiere which was found on the body of the

deceased at the time of the conduct of postmortem. The said

brassier came to be seized and the panchnama executed on

17.01.2014 records that belt and hook of the brassiere was

broken and it was having holes on it. The prosecution relied on

the said circumstance to strengthen its case that the deceased

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 61 CONF_CASE_3_15.doc

was subjected to forcible man handling and the broken hooks

and belt of the brassiere was indicative of the same.

27 The aforesaid evidence brought on record by the

prosecution establishes its case that Esther who was travelling

from Visakhapatnam to Mumbai did reach Mumbai by the LTT

Express Lokmanya Tilak Terminus express on the fateful day

and went missing and her body could be traced only on

16.01.2014. The deceased was last seen in the company of the

accused in the CCTV footage drawn from the cameras fitted on

the LTT terminus station and she has been identified by the

prosecution witness No.26 her father. The person whom she

was accompanying in the CCTV footage is identified by

prosecution witness No.27 Hemant Dharma Koli who was

staying in the area where the accused were residing. The

prosecution has also relied upon the testimony of PW-18, PW-

19, PW-20 and PW-21 who had identified the accused as the

same person who was present on the platform on Kurla

Terminus on 05.01.2014 and PW No.20 has been relied by the

prosecution to establish his case that the deceased along with

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 62 CONF_CASE_3_15.doc

accused left the LTT terminus on 05.01.2014. The prosecution

has also relied on the Test Identification Parade where all the

aforesaid witness have identified the accused as the person who

was present on the platform and whom the deceased had

accompanied when she exited the LTT terminus.

These aforesaid circumstances are relied upon by

the prosecution and which it has brought on record through

various witness. The investigating officers have been examined

in form of prosecution witness No.29, 30, 34, 35, 36, 37 and

38. The investigating officer has deposed before the Court

about the details of the investigation including the recording of

the various witnesses and forwarding of the material seized for

Chemical Analysis and also has thrown light on the seizer

traced to the disclosure statement of the accused. PW-39 is the

executive Magistrate who has conducted the postmortem

report and since the postmortem report in form of

memorandum panchnama of Identification Parade was also

accepted through PW-56 at Exhibit-163, this witness was made

available for cross-examination at the instance of the accused

and was extensively cross-examined.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 63 CONF_CASE_3_15.doc

28 In the backdrop of the aforesaid material brought on

record by the prosecution which we have carefully scrutinized,

we would proceed to deal with the arguments of the learned

counsel for the accused which came to be advanced by

Advocate Shri Pradhan. Learned counsel Shri Pradhan makes a

submission that the prosecution has failed to prove the guilt of

the accused beyond reasonable doubt by bringing on record

cogent and reliable evidence. He submits that the prosecution

case was based on circumstantial evidence, but according to

him, the events brought on record are bereft of any material

connecting the accused to the crime. Referring to the evidence

brought by the prosecution on record, Shri Pradhan vehemently

disputes the case of the prosecution that deceased was

subjected to sexual harassment and that she was raped. He

would invite our attention to the post-mortem report and also

the expert who has proved the said report in form of

Prosecution Witness No.6. By inviting our attention to the state

in which the body was found and which, according to Shri

Pradhan, was completely in a decomposed state and was

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 64 CONF_CASE_3_15.doc

charred beyond recognition. Shri Pradhan would submit that

injury to the private part which has been described to be the

cause of death in the final opinion submitted by the Doctor is

not an inference based on any material. Shri Pradhan would

place heavy reliance on the testimony of PW 6, the panch

witness to the Inquest Panchnama who had categorically stated

that the body was half burnt and that the chest portion was

completely burnt. According to him, the credibility of the said

witness is doubtful since she states that she did not remember

the material particulars.

Further, he also makes a reference to the testimony

of the Medical Officer of the J.J. Hospital who conducted the

post-mortem i.e. Dr. Gajanan Chavan. Shri Pradhan is heavily

critical about his response to the query raised by the

Investigating Officer and the submission of Shri Pradhan is that

initially the charge of Section 376 was not invoked and applied

against his client, but after the period of approximately 5

months, query was raised by the Investigating Officer on 28 th

July, 2014 which was responded to by doctor conducting the

post mortem. Learned counsel Shri Pradhan submit that the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 65 CONF_CASE_3_15.doc

accused was arrested in March but the query was raised only on

28th July 2014 which was replied on 12th August 2014. Shri

Pradhan would take us through the post-mortem notes and

submit that it does not disclose any discoloration and as far as

the injury on the private part is concerned, it is only reported

for the first time in response to the query report. Resultantly,

the order sheet on which Shri Pradhan would place a reliance

does not disclose an offence under Section 376 of the IPC.

According to Shri Pradhan, the charge was framed against the

accused only when the response to the query was received.

According to him, the expert opinion of the doctor defies the

logic and he would invite our attention to one document which

is in form of a letter addressed to the Director of Forensic

Science Laboratory where the blood of the father of the

deceased came to be forwarded to the Forensic Science

Laboratory and Shri Pradhan submits that the crime details in

the said letter refers to an offence being registered under

Section 302, 201 of the IPC and did not include Section 376. In

substratum, his submission is that the offence of rape is not at

all made out since the post mortem report by itself did not refer

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 66 CONF_CASE_3_15.doc

to any indications of rape but in column 15, it only mentioned

about the genitals being distorted due to decomposition and

which was short of the proof of sexual assault or rape.

29 Another submission of the learned counsel Shri

Pradhan is to the effect that the entire trial and conduct of

proceedings against the accused is vitiated on account of non-

compliance of a mandatory requirement contemplated under

Section 273 of the Code of Criminal Procedure. He submits

that in terms of Section 273 of the Code, all the evidence taken

in the course of the trial or other proceedings shall be taken in

the presence of the accused or when his personal attendance is

dispensed with in the presence of his pleader except as

otherwise expressly provided. The submission of Shri Pradhan

is that the said principle enumerated in the said section is to

safeguard the right of an accused to have a fair trial and he

would place reliance on the Report of 41st Law Commission of

India as regards Section 353 which is a reproduction of Section

273. Shri Pradhan would also place reliance on the judgment

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 67 CONF_CASE_3_15.doc

of Patna High Court in case of Bigan Singh Vs.King Emperor1

and also a judgment in case of Chhotey Lal and ors Vs. King

Emperor.2 He also placed reliance on a judgment of the Privy

Council in case of Basil Ranger Lawrence Vs. Emperor,3 where

the Privy Council concluded that the trial was vitiated on

account of the defect in the procedure. He would place reliance

on the following observation of the Privy Council which reads

thus :

"It is an essential principle of our criminal law that the trial of an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanor there may be special circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is invoidable, unless possibly the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence. The result is that sentence passed for felony in the absence of the accused is totally invalid. In the present case, a double error has been made."

30 Shri Pradhan has also placed reliance on the

judgment of the Bombay High Court in case of Baban s/o

Rakhmaji Bichkule Vs. State of Maharashtra, 41998 All M.R.

Cri.1533. Apart from the aforesaid judgments, Shri Pradhan 1 (1927) PATNA 691 2 AIR (1927) OUDH 353 3 AIR (1933) Privy Council 218 4 (1998) 5 Bom.C.R. 813

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 68 CONF_CASE_3_15.doc

has placed reliance on the judgment of the Hon'ble Apex Court

in case of State of Maharashtra Vs. Dr.Praful B.Desai,5.

The said judgment itself provides an answer to the

objection raised by the learned counsel Shri Pradhan. The

Hon'ble Apex Court has scrutinizing the judgment dated 23 rd

April 2001 delivered by Bombay High Court in Criminal Appeal

No.3193 of 1999 was dealing with an issue as to whether the

evidence recorded through video conferencing would meet the

mandate contemplated in Section 273 of the Code of Criminal

Procedure. The Hon'ble Apex Court in the said judgment has

categorically held that the recording of evidence by Video

Conferencing also satisfied the object of Section 273 viz. that

the evidence be recorded in presence of the accused. The

observation made by the Hon'ble Apex Court needs a

reproduction :

18. Thus the law is well settled. The doctrine "Contemporanea exposition est optima et fortissimm" has no application when interpreting a provision of an on-going statute/act like the Criminal Procedure Code.

19. At this stage we must deal with a submission made by Mr Sundaram. It was submitted that video-conferencing could not be allowed as the rights of an accused, under Article 21 of the

5 (2003) 4 SCC 601

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 :::

69 CONF_CASE_3_15.doc

Constitution of India, cannot be subjected to a procedure involving "virtual reality". Such an argument displays ignorance of the concept of virtual reality and also of video conferencing. Virtual reality is a state where one is made to feel, hear or imagine what does not really exists. In virtual reality one can be made to feel cold when one is sitting in a hot room, one can be made to hear the sound of ocean when one is sitting in the mountains, one can be made to imagine that he is taking part in a Grand Prix race whilst one is relaxing on one sofa etc. Video conferencing has nothing to do with virtual reality. Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place. To take an example today one does not need to go to South Africa to watch World Cup matches. One can watch the game, live as it is going on, on one's TV. If a person is sitting in the stadium and watching the match, the match is being played in his sight/presence and he/she is in the presence of the players. When a person is sitting in his drawing-room and watching the match on TV, it cannot be said that he is in presence of the players but at the same time, in a broad sense, it can be said that the match is being played in his presence. Both, the person sitting in the stadium and the person in the drawing-room, are watching what is actually happening as it is happening. This is not virtual reality, it is actual reality. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen. Except for touching, one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in presence of each other. The submissions of Respondents counsel are akin to an argument that a person seeing through binoculars or telescope is not actually seeing what is happening. It is akin to submitting that a person seen through binoculars or telescope is not in the "presence" of the person observing. Thus it is clear that so long as the Accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273, Criminal Procedure Code.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:58 ::: 70 CONF_CASE_3_15.doc

Recording of such evidence would be as per "procedure established by law".

20 Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanor. In fact the facility to play back would enable better observation of demeanor. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video conferencing has to be on some conditions.

31 No doubt under the Indian Legal System, the

evidence which is admissible and collected under the Indian

Evidence Act, and the Code of Criminal Procedure prescribes

the mechanism how such evidence collected could be brought

before the Court of Law. The judgment of the Apex Court in

case of State of Maharashtra Vs. Dr. Praful Desai (supra) can

be considered as a landmark specially in incorporating the use

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 71 CONF_CASE_3_15.doc

of modern technology and thereby make the criminal trials

more techno-savy and aimed at curbing the delays in conduct of

such trials. Since the said judgment recognizes video

conferencing as a mode for producing the evidence before the

Court where the witnesses may not be conveniently or

necessarily examined in the Court, and in the backdrop that

there has been a significant rise in the trend to resort to video

conferencing. In case of Amitabh Bagchi Vs. Ena Bagchi 6 the

Calcutta High court opined that a practical outlook ought to be

adopted by a Court in allowing electronic video conferencing as

it is a cost effective and facilitates the Court procedure and

avoids delay of justice. In the latest judgment in case of

Dr.Kunal Saha Vs. Dr. Sukumar Mukherjee, the Hon'ble Apex

Court went a step further and has ordered recording of

evidence of the following expert witnesses through internet

conferencing instead of video conferencing.

Thus, the Indian Legal System has now recognized

video conferencing as an extremely effective instrument to

collect evidence as it assists in curbing the unnecessary

6 AIR 2005 CAL 11

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 72 CONF_CASE_3_15.doc

attendance and also at times save the parties from the costs

borne on transportation and avoid other inconveniences that

may arise when a witness is unable to travel on account of his

pre-occupied schedule and specially the expert witnesses. This

advance facility of video conferencing has reduced the

evidential impediment and legal uncertainties surrendering the

use of Information Technology such as cost of procuring

equipments, other technological issues involving data

protection, filing of voluminous documents and the evidence

adduced in the absence of physical presence of the parties. The

facility of video conferencing has also given a new dimension of

internationally commissioned arbitration and brought

consistency in the proceedings established in the Indianised

form of arbitration.

32 The use of video conferencing is there to stay and

we do not feel that there is any infraction of the right of the

accused when the evidence is adduced through video

conferencing. In order to fall in tune with the law enunciated

by the Hon'ble Apex Court, the Code of Criminal Procedure

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 73 CONF_CASE_3_15.doc

itself came to be amended and a proviso came to be inserted by

in Section 275 with effect from 21st December 2009 which

pertains to "recording in warrant cases". The proviso added to

sub-section (1) of Section 275 reads thus :

"Provided that evidence of a witness under this sub-section may also be recorded by audio video electronic means in the presence of the Advocate of the person accused of the offence"

33 In light of the aforesaid judgment, we do not find

any substance in the submission advanced by Shri Pradhan, in

as much as we are also of the opinion that advancement of

Science and Technology must also benefit the procedural law

and the judgment relied upon by the learned counsel Shri

Pradhan are of a period when technology had not advanced so

much and it was not even contemplated at the relevant time

that a day would come when the evidence could be recorded

when the witnesses are miles away. The Indian Courts in the

last few decades have been pro-active in embracing the advance

technology and use of video conferencing for recording of

evidence is one such pioneer step. In light of aforesaid

developments, we do not find any flaw when the evidence in

the present trial was recorded through video conferencing.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 74 CONF_CASE_3_15.doc

34 Shri Pradhan also objects to the reliance of the

prosecution on the CCTV footage which is in the form of

electronic evidence and advances a submission that the Indian

Evidence Act, 1872 came to be amended by Act No.21 of 2000

where Section 65A and 65B came to be inserted as special

provisions of dealing evidence relating to electronic record. He

makes a categorical submission that the contents of the

electronic record can be proved only in accordance with the

provisions of Section 65B. He would place reliance on the

authoritative pronouncement of the Apex Court in case of

Anwar P.V. vs. P.K. Basheer7, where the Apex Court had

considered the electronic evidence and its evidentiary value.

The submission is that the said evidence is admissible strictly on

compliance of the condition stipulated in Section 65-B and

which includes a certificate as contemplated in clause (4) of

Section 65B. Thus, according to Shri Pradhan, such a

certificate issued by a competent person ensures its source and

authenticity which are the two hall marks pertaining to

electronic record, since electronic records are more susceptible 7 (2014) 10 SCC 473

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 75 CONF_CASE_3_15.doc

to tampering, alteration, transportation etc. Shri Pradhan

would submit that in the present case, the CCTV footage relied

upon by the prosecution to prove a circumstance that the

accused was present on the platform of Lokmanya Tilak

Terminus on the day when Esther arrived on LTT, cannot be

relied upon, in absence of any such certificate being produced

on record. Shri Pradhan would submit that the prosecution has

relied on the evidence of PW 33, an RPF Personnel from

Lokmanya Tilak Terminus and PW no.31, an employee of the

Central Government. It is only through this witness the

prosecution has relied on the footage dated 5th January 2014

which was available on the CCTV cameras and was handed

over to the Investigating Officer in a pen-drive and after

transmitting the data. According to Shri Pradhan, said

clippings are inadmissible in evidence in terms of Section 65B

of the Indian Evidence Act.

Per contra, the Special Public Prosecutor Shri

Thakare, apart from relying on the judgment of the Hon'ble

Apex Court in the case of Anwar P.V. vs. P.K. Basheer (supra)

has also placed reliance on a latest judgment delivered by the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 76 CONF_CASE_3_15.doc

Hon'ble Apex Court in case of Shafhi Mohd Vs. State of

Himachal Pradesh8. The submission of the Special P.P is to the

effect that the said certificate as contemplated under clause (4)

of Section 65B of the Evidence Act is not a pre-requisite for

considering it as an admissible evidence.

35 We have considered the arguments of both the

counsel on the said point and we delved into the issue. The

Information Technology Act, 2000 enacted by Parliament is a

legislation which provides legal recognition for transactions

carried by means of electronic data interchange and other

means of electronic communication which involves the use of

alternatives to paper base methods of communication and

storage of information to facilitate electronic filing of

documents with the Government agencies. The statements of

objects and reasons of the said enactment highlights the

background in which the said enactment was introduced, being

the new communication systems and digital technology which

have brought in dramatic changes, a revolution is occurring in

the way people transact business and correspondingly, there is 8 (2018) 2 SCC 801

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 77 CONF_CASE_3_15.doc

also a revolution in the manner in which such evidence is

tendered before the Court. A documentary evidence in form of

electronic record, therefore, had to find its way in the Indian

Evidence Act and an amendment was introduced to the said

Act, wherein Section 59 which deals with 'proof of facts by oral

evidence' came to be amended and the contents of documents

or electronic records were permitted to be proved by oral

evidence. Section 65A and 65B came to be introduced by

making a special provision for proving the contents of

electronic record in terms of Section 65B. The said section

which contains a non-obstante clause permitted any

information contained in an electronic record being printed on

a paper, stored, recorded or copied in optical or magnetic

media produced by a computer, deemed it to be a document if

the conditions stipulated in the section were satisfied in relation

to the information and computer in question and it held such

record being admissible in any proceedings, without proof or

production of the original, as evidence of any contents of the

original or of any fact stated therein of which direct evidence

would be admissible. The said section then stipulated the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 78 CONF_CASE_3_15.doc

conditions in respect of a computer so as to make the evidence

drawn from such a source admissible. The Hon'ble Apex Court

in case of Anwar P.V. vs. P.K. Basheer (supra) construed the

said provision and concluded that the Evidence Act do not

contemplate or permit the proof of the electronic record by oral

evidence if requirements under Section 65B of the Indian

Evidence Act are not complied with. After referring on the two

Judge Bench decision in case of State (NCT of Delhi) Vs.

Navjot Sandhu9 which had an occasion to consider an issue on

production of electronic record as evidence in form of print outs

of the computer records of the calls pertaining to the cell

phones, the three Judges Bench made following observations:

"The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65Adealing with the admissibility of electronic record. Sections 63and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be

9 (2005) 11 SCC 600

Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 :::

79 CONF_CASE_3_15.doc

overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

The proposition set out by the aforesaid judgment makes it

clear that an electronic record by way of secondary evidence

shall not be admitted by evidence unless the requirement of

section 65B are satisfied and in case of CD/VCD chips, the same

shall be accompanied by the certificate in terms of Section 65B

obtained at the time of taking the documents, without which

the secondary evidence pertaining to that technical record is

inadmissible. The said certificate contemplated under Section

65B is in terms of Sub-section (4) of Section 65 which reads

thus :

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 80 CONF_CASE_3_15.doc

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

What is thus contemplated is a certificate purported to be

signed by a person occupying a responsible official position in

relation to operation of the relevant device or management of

the relevant activities to certifying to the effect that he had

identified the electronic record containing the statements and

also certifying that the computer output containing the

information was produced by the computer during the period

over which the computer was used regularly to store or process

information for the purpose of any activities regularly carried

on and that the information derived was regularly fed into the

computer in the ordinary course of the activities. The

certificate should also contain a declaration to the effect that

the computer was operating properly or not, mentioning the

period during which it was out of operation. The said

certificate is, however, not produced by the witnesses who were

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 81 CONF_CASE_3_15.doc

relied by the prosecution and therefore, Shri Pradhan makes a

statement that the said evidence is not admissible. Our

attention was invited to the judgment in case of Shafi Ahmed

(supra). The Hon'ble Apex Court was called upon to deal with

an apprehension expressed on the question of applicability of

conditions under sub-section (4) of section 65B of the Evidence

Act to the effect that if a statement was given in evidence, a

certificate was required in terms of the said provision from a

person occupying a responsible position in relation to operation

of the device or management of the relevant activities. In this

backdrop, the Apex Court made the following observations.

11. Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. Primary evidence is the document produced before Court and the expression "document" is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

12 The term "electronic record" is defined in Section 2(t) of the Information Technology Act, 2000 as follows:

"Electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche."

13. Expression "data" is defined in Section 2(o) of the Information Technology Act as follows.

"Data" means a representation of information, knowledge,

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 82 CONF_CASE_3_15.doc

facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer."

14. The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.

15. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.

The Hon'ble Apex Court has, therefore, clarified the legal

position on the subject of admissibility of electronic evidence in

absence of the certificate contemplated under Section 65B(4) of

the Evidence Act being produced and has clarified that a party

who is not in possession of device from where the document is

produced, such party cannot be required to produce the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 83 CONF_CASE_3_15.doc

certificate under Section 65B(4) and the applicability of the

requirement of certificate being merely procedural can be

relaxed.

36 Though Shri Pradhan is extremely critical about the

reliance on the judgment in case of Shafhi Mohd (supra) and

which, according to him, is not sustainable in wake of the Three

Judge Bench decision in Anwar P.V. vs. P.K. Basheer (supra)

and he submits that the said judgment in case of Shafhi is a

mere clarification and does not amount to ratio and hence

cannot be relied upon. We are unable to accede to the

argument of Shri Pradhan to declare that the law laid down in

Shafhi Ahmed is per incuriam for, in our opinion, it is not upon

for us to access whether it is so since we are bound by the ratio

of the said judgment which gets clearly attracted in the facts of

the present case.

37 The witness examined by the prosecution on the

said point i.e. Prosecution Witness No.31 who was working in

the CCTV department of the Central Railway has deposed

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 84 CONF_CASE_3_15.doc

before the Court about the operation and the mechanism of

automatic recording system on the LTT Railway Station. He has

clearly deposed that there are two monitors covering 20 and 16

cameras respectively which are fixed on all the platforms and

inside the rooms. He has also deposed that there is a hard disk

in the server and recording is saved there and after expiry of

period of one month, in case of one server and 12 days in case

of another server, the recording is automatically deleted. The

said witness has deposed that the technique in the server is

under the control of the Central Railway. He had categorically

deposed that the footage was collected in January 2014 with

the permission of the RPF and which was transmitted to the

police officials from Kanjur Marg Police station in a pen drive.

The said evidence is corroborated by the testimony of PW no.33

who was on duty in RPF who was responsible for the security of

the Lokmanya Tilak Terminus and for ensuring the security, he

deposed before the Court that 36 CCTV cameras were installed

on railway station. The said witness also corroborated that the

display of the said cameras is in the CCTV control room and the

maintenance of CCTV cameras was given to a private company.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 85 CONF_CASE_3_15.doc

This witness has given the date on which the police had

approached the RPF and the said date is disclosed as '18 th

January 2014'. After obtaining the permission from the RPF,

instructions were given to Shri Pandey who was responsible for

maintenance of the CCTV cameras to give the footage to the

Investigating Officer. A specific question was put to this witness

as to whether there was any fault in the CCTV server during the

said period and he deposed that on 18th January 2014 there

was the fault and the server was not working on account of

fluctuation in electricity and therefore, Shri Pandey was called

for maintenance. The prosecution has also examined the panch

witness Shri Girish Mishra who is a signatory to the process of

transmission of data which is exhibited as Exhibit-36. The

panchnama gives a detail of the procedure that was adopted

and the witness has also deposed as to how the footage came to

be searched and the data came to be retrieved of the time slot

between 4.00 am to 7.00 am of 5th January 2014. Perusal of

the panchnama would disclose the detailed procedure that was

followed for transmitting the data in the pen drive, and it was

ensured that the said pen drive was blank, and thereafter, it

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 86 CONF_CASE_3_15.doc

also describe the folders that were retrieved from two DVRs i.e.

DVR1 and DVR2 and how it was downloaded and transmitted.

The entire procedure being enumerated in the panchnama, we

do not have any hesitation to hold that it was not susceptible

for any intervention as the cameras affixed on the LTT were

recording the events and storing it as a part of its regular

activity and it was being fed into the hard disk in the ordinary

course of the said activities. We have perused the cross-

examination of the said witnesses, which, in any way, do not

shake the credibility of the witnesses as far as the technical

procedure described by the said witnesses and the witnesses

had categorically admitted that the hard disk was never seized

by the police, but what was transmitted was the data from the

two DVRs. In such circumstances, we do not find merit in the

submission of Shri Pradhan that the electronic evidence relied

on by the prosecution do not stand the scrutiny of Section 65B

of the Evidence Act.

38 Shri Pradhan also makes a serious complaint that

the learned Sessions Judge has completely thrown to air the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 87 CONF_CASE_3_15.doc

procedure for conduct of a criminal trial. Shri Pradhan has

invited our attention to certain dates and specifically the

roznama dated 20th November 2014 when the accused was not

produced in person and when he was called on video

conferencing, it was informed by the jail authority that he was

suffering from Tuberculosis and is hospitalized and grievance is

that in his absence the trial was conducted. We have carefully

perused the roznama and we have noted that on occasions, the

accused was produced from Judicial Custody and whenever this

was not done, he was produced through video conferencing.

We have carefully perused the roznama of the

proceedings which forms part of the paper book. From the

perusal of the proceedings dated 13th November 2014, we have

noted that an application was filed by the Advocate for the

accused for adjourning the case till the accused gets proper

medical treatment. The learned Sessions Judge in this

backdrop observed that direction was already given for

administering proper medical treatment to the accused and he

was taken to Sir J.J. Hospital and therefore, there was no need

to adjourn the case. On an application filed for giving proper

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 88 CONF_CASE_3_15.doc

medical treatment, since the accused was suffering from fever,

cold, cough and body pain, directions were issued by the Court,

and he was taken to Sir J.J. Hospital and his blood sample was

also collected and it was suspected that he was suffering from

Tuberculosis. The Court therefore, gave directions to the

concerned Medical Officer to get him properly examined and

thereafter, he be treated further for the ailment. On the

subsequent date i.e. 14th November 2014, the accused was

produced from the jail and he complained about ill-health. On

20th November 2014, accused was not produced from Judicial

Custody but the witnesses were present. Application for

adjournment was filed on behalf of the accused. When he was

called on video conferencing, it was informed that he was

suffering from Tuberculosis and he was hospitalized. The

learned Addl. Sessions Judge record that the counsel for the

accused came at 12 noon and sought an adjournment and

subsequently moved an application for adjournment and he

stated before the Court that he would proceed with him only in

presence of the accused and he was not ready to proceed in his

absence. The witness also stated before the Court that

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 89 CONF_CASE_3_15.doc

somebody had approached him yesterday and even it was

informed by the police officials that the accused is trying to

approach the witnesses to tamper with the evidence. The

Court, therefore, issued directions after recording the statement

of witnesses that somebody had tried to approach him.

However, since the accused was not produced on that day,

either on video conferencing or through jail, the matter came to

be adjourned to 24th November 2014. It appears that on 24 th

November 2014, the accused was not present from Judicial

Custody since he was undergoing treatment and hospitalized,

but on the said date, when two witnesses i.e. PW No.8 and PW

No.9 were examined, the Advocate for the accused was present

and he cross-examined both the witnesses on the said date.

However, thereafter, on 3rd December 2014, the accused was

produced on video conferencing. On 10th December 2014, the

session judge received the medical report of the accused and an

adjournment was sought by the counsel for the accused as he

was not keeping well which came to be granted. The Court has

clearly noted in its next order dated 12th December 2014 passed

below Exhibit 94 on an application for meeting his father who

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 90 CONF_CASE_3_15.doc

was on death-bed. While rejecting the said application, the

learned Judge has observed that the accused is suffering from

Tuberculosis and is hospitalized in the jail and in such

circumstances, it is not advisable for him to mingle in general

public. When we have carefully gone through the record, we

have noted that barring two dates, i.e. 20th November 2014 and

24th November 2014, the accused was produced either from

video conferencing or from Judicial Custody and in his absence

since he was hospitalized, his counsel was present and had

willingly cross-examined the witnesses. In the backdrop of the

aforesaid facts, we do not find any merit in the submission of

Shri Pradhan that the proceedings against the accused are

vitiated on account of his non-production on certain dates.

Shri Pradhan also took an objection to the reliance

on the evidence of PW No.9 in form of extra-judicial confession.

He submits that it cannot form the basis of conviction and its

reliance is unsustainable. It is no doubt true that evidence in

form of extra-judicial confession is a weak piece of evidence

and the Court must ensure that it inspires confidence and it

necessarily needs a corroboration by other prosecution

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 ::: 91 CONF_CASE_3_15.doc

evidence. The extra-judicial confession withstand the scrutiny,

must be voluntary and inspiring confidence. The admissibility

and evidentiary value of such a confession is by this time well-

settled and the Hon'ble Apex Court in case of Sahadevan and

Another v. State of Tamil Nadu10, observed thus :

15.1 In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this Court stated the principle that

"10 An extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.

15.4 While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that :

"19 An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made".

The Court, further expressed the view that:

"19 such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to

10(2012) 6 SCC 403

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:05:59 :::

92 CONF_CASE_3_15.doc

indicate that he may have a motive of attributing an untruthful statement to the accused".

15.6 Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-

"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B. (2008) 15 SCC 449]"

The aforesaid proposition holds good till date and the Rule of

Prudence does not require that each and every circumstance

mentioned in the confession must be separately and

independently corroborated. In the present case, the

prosecution has relied on the testimony of PW 9, not in

isolation but his version is corroborated by independent

witnesses.

39 On careful analysis of the prosecution evidence

brought on record and on hearing the learned Special P.P, we

note that the case of the prosecution is based on circumstantial

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 93 CONF_CASE_3_15.doc

evidence and the onus to prove its case by leading cogent and

reliable evidence is on the prosecution. When the case of the

prosecution rest on circumstantial evidence and there is no

direct evidence in form of eye witnesses, it is the duty of the

Court to see that the circumstances which lead towards the

guilt of the accused are fully established and lead to a singular

conclusion of guilt of the accused. When any prosecution case

is based on circumstantial evidence, it must be borne in mind

that the circumstance from which the conclusion of guilt has to

be drawn should be fully established and it should be consistent

with only one hyphothesis i.e. the guilt of the accused. Each

circumstance should be conclusive and proved by the

prosecution. It is imperative for the prosecution to built up

chain of events so complete as not to leave any doubt in the

mind of the Court and each circumstance must point finger only

towards the guilt of the accused and the evidence should be led

to create an effect which excludes any possibility of accused

being innocent. In other words, the circumstances forming

chain of events should prove cumulatively the guilt of the

accused alone to the exclusion of others. Thus, the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 94 CONF_CASE_3_15.doc

circumstantial evidence is a closed and fine network of

incidents webbed together from which there is no escape. It

would be appropriate for us to refer to the observations of the

Hon'ble Apex Court in case of Sharad B. Sarda Vs. State of

Maharashtra11 which read as under :

152. Before discussing the cases relied upon by the High Court, we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence 24 Cri.Confirmation Case no.3.2013 alone. The most fundamental and basic decision of this Court is Hanumant V. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to date, for instance, the cases of Tufail (Alias) Simmi .v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J has laid down in Hanumant case:

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be roved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

11 1984 AIR 1622

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 :::

95 CONF_CASE_3_15.doc

153. A close analysis of this decision would show 25 Cri.Confirmation Case no.3.2013 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 vs. State of Maharashtra where the following observations were made:(SCC para 19, p. 807:SCC(Cri)p.1047).

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 26 Cri.Confirmation Case no.3.2013 nature and tendency, (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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 96 CONF_CASE_3_15.doc

The ratio emanating from said judgment has been consistently

followed by the Hon'ble Apex Court as well the High courts,

and has provided a guiding ratio while deciding cases which

hinges on circumstantial evidence.

40 In the backdrop of the said principle, we will have

to examine whether the prosecution has firstly proved the

incriminating circumstances against the accused and whether

the incriminating circumstance established by the prosecution

are so interwoven to each other that it points towards the guilt

of the accused and the chain of events in form of circumstances

brought on record by the prosecution leads to an irresistible

conclusion that it is only the accused who is responsible for

commission of the crime in question leading to the death of

Esther. From the evidence which we had referred to above, the

prosecution has proved the following circumstances :-

(i) The deceased Esther who was working with TCS Andheri, Mumbai and a resident of Vijaywada, Andhra Pradesh has boarded the train from Vijaywada to LTT, Kurla on 4 th January 2014.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 97 CONF_CASE_3_15.doc

(ii) Phone calls made by her father to Esther on 5 th January were not answered and she did not reach her hostel located in Andheri.

(iii) A partly burnt decomposed body was found on 16 th January 2014 near the service road of Eastern Express Highway near Kanjur Marg which came to be identified by PW no.26 as to be of his missing daughter Esther.

(iv) The post mortem report establish that the death of the deceased was homicidal and there was injury to her private parts, thereby establishing that she was raped.

(v) The Inquest Panchnama and Post Mortem report establish the the body was partly burnt and attempt was made to destroy the evidence by burning the body.

(vi) The accused consumed liquor at the residence of PW no.12 in the company of PW no.9 and then left his residence by a motorcycle belonging to PW No.9.

(vii) The CCTV footage collected from the LTT Railway station disclosed that the accused was loitering on the platform at 4:50 am

(viii) In the CCTV footage it is seen that the deceased had accompanied the accused while leaving LTT and she was last seen in the company of the accused in the footage.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 98 CONF_CASE_3_15.doc

(viii) The accused was seen near the spot on the Eastern Express Highway with the trolley bag and a bag pack belonging to the deceased.

(ix) The circumstance of the accused seen along with the trolley bag in the morning on the date of incident by PW 13 leaving the building.

(x) The subsequent conduct of the accused i.e. going to the Astrologer and performing a puja in order to wash off the sin committed on a woman and the entry in the register of PW 17 establishing that he has paid an amount of Rs.3,000/- for performing the said puja.

(xi) Articles 22, 23 and 24 belonging to the deceased were identified by PW No.26 came to be recovered at the instance of the accused along with her articles i.e. identity card, spectacles, her eye-liner, pencil and the DNA Test confirm that it belonged to the deceased.

(xii) The accused in his extra-judicial confession to PW 9 had disclosed that he had poured petrol on the dead body of Esther and set it on fire after committing rape and on killing her.

(xiii) The medical examination of the accused about his potency test and mental health.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 99 CONF_CASE_3_15.doc

41 The aforesaid circumstances and the chain of events

which has been brought by the prosecution on record has been

established by cogent and reliable evidence in form of oral and

documentary evidence. The above circumstances and the chain

of events is complete with regard to the commission of crime in

question leading to death of Esther. The cumulative effect of

the entire prosecution points unmistakable towards the guilt of

the accused.

42 The prosecution has also proved the circumstance of

the deceased last seen in the company of the accused. It has

relied upon the evidence in form of the CCTV footage and the

recording at the Kurla Terminus dated 5 th January 2014. The

prosecution witness no.26 - father of the deceased has

identified the deceased in the CCTV footage whereas PW 27

Hemant, a person staying in the area where the accused was

residing has identified the accused in the CCTV footage of the

platform to be the accused. The prosecution has relied on the

evidence of PW No.21 Ganesh Shetty working as Pay and Park

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 100 CONF_CASE_3_15.doc

Supervisor at Kurla Terminus who had seen the accused and

deceased leaving together on motorcycle on 5 th January 2014.

The said witness has also identified the accused during the Test

Identification Parade conducted in Arthur Road jail. Through

the said witness, the prosecution has established that the

deceased alighted at LTT in the morning hours on 5 th January

2014 and she left the railway station along with the accused on

his motorcycle. The prosecution has thus pressed into service

the last seen theory which comes into play where the deceased

is seen lastly in the company of the accused and where the time

gap between the point of time when the accused and the

deceased was last seen alive and when the deceased is found

dead, is so small that the possibility of any person other than

the accused being the author of the crime becomes impossible.

By invoking the said doctrine of last seen together, the burden

of proof then shifts to the accused requiring him to explain as to

how a live person became a deceased and at what point of time

did he part with the company of the deceased since they were

last seen together. In case of Trimukh Maroti Kirkan Vs.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 101 CONF_CASE_3_15.doc

State of Maharashtra12, the Hon'ble Apex Court observed

thus :

22 Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.

43 The doctrine of last seen together shifts the burden

of proof on the accused requiring him to explain how the

incident occurred. Failure on the part of the accused to furnish

any explanation in this regard would give rise to a very strong

presumption against him. Section 106 of the Indian Evidence

Act, 1872 mandates that any fact which is especially within the

knowledge of any person, then the burden of proving that fact

is upon him. Section 106 reads thus :

106. Burden of proving fact especially within knowledge.--

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 12 (2006) 10 SCC 681

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 102 CONF_CASE_3_15.doc

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him

The accused has failed to discharge the said burden. Further

when this circumstance relied on by the prosecution has been

put to the accused while being examined under Section 313 of

the Code of Criminal Procedure, except denial, he has not

offered any explanation. In Sunil Clifford Daniel Vs. State of

Punjab13 , the Hon'ble Apex Court has observed thus :

"It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, to decide as to whether or not, the chain of circumstances is complete."

In State of Maharashtra Vs. Suresh14, the Apex

Court has observed thus :

"when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false 13 (2012) 11 SCC 205 14 (2000) 1 SCC 471

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 :::

103 CONF_CASE_3_15.doc

answer can also be counted as providing "a missing link" for completing the chain.

When the prosecution has proved its case beyond

reasonable doubt and the accused has expected to furnish some

explanation to the incriminating circumstances which have

come in evidence and put to him. A false explanation may be

counted as providing a missing link for completing the chain of

circumstances and a non-explanation would also be taken as a

link for completing the chain of circumstances.

44 In Munish Mubar Vs. State of Haryana15, where

the Act was dealing with a case where the dead body of the

deceased, an NRI was found lying in a plot of land having

multiple injuries and the boarding card issued by the Jet

Airways and one blood stained hammer and a knife was found

near her body. The appellant who claimed to be arrested while

travelling in a Santro car and the Investigating Officer collected

the records related to parking of the said Santro car at the

relevant time from car parking stand of New Delhi Airport. The

appellant upon his arrest made a disclosure statement to the

15 (2012) 10 SCC 464

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 104 CONF_CASE_3_15.doc

police to show the place where he had disposed of the dead

body of "A" and recovered the articles belonging to and the

blood stained clothes of the deceased. The call record of the

appellant's telephone were also pressed into service to establish

that he was present in the vicinity of the place of occurrence.

The appellant failed to offer any explanation in respect of the

incriminating circumstance associated with him. The Apex

court then held that it was the duty of the appellant to furnish

some explanation in his statement under Section 313 of the

Code of Criminal Procedure and under what circumstances, his

car had been parked at Delhi Airport and it remained there for

three hours on the date of occurrence during exactly the time

period in which the deceased was to arrive and was then

allegedly done to death by the appellant. Appreciating the case

of the prosecution based on circumstantial evidence, when the

circumstances were fully established and found to be consistent

with the hypothesis regarding guilt of the accused, the Hon'ble

Apex Court dismissed the Appeal filed by the appellant on the

ground that the prosecution had proved its case beyond

reasonable doubt.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 105 CONF_CASE_3_15.doc

45 In the case in hand, prosecution has pressed into

service several circumstances, each being independent and

conclusive. Each of the circumstances relied on by the

prosecution being taken together form a chain of events leading

to the accused being the perpetrator of the crime and each and

every circumstance was put to the accused while being

examined under Section 313 of the Code. The accused has

answered every question put to him by asserting that he did not

know or that the circumstance put to him was false. On asked

as to why the witnesses are deposing against him, he responded

to Question no.378 by saying that on say of the police, the

witnesses had deposed against him.

The accused had relied on three witnesses as

defence witnesses. The first witness relied on by the

prosecution is one Abhijit Dattatraya Sathaye working as Senior

Assistant Editor with Mumbai Mirror. The said witness had

deposed that he had covered Esther Anuhya murder case from

the time of registration of the offence till the filing of the

charge-sheet. The extract of Mumbai Mirror has been exhibited

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 106 CONF_CASE_3_15.doc

as Article 40 which had published the photographs of the

accused along with a kundli. He deposed that he had obtained

the photograph of kundli from his friends and it came to be

published in the newspaper. The said Article 40 also

highlighted the criminal antecedents of the accused and which

described him as history-sheeter, being indulged into activity of

bag lifting in railway. The said witness being subjected to

cross-examination by the prosecutor admitted that the accused

was history sheeter and bag lifter in the railway and many cases

were registered against him in Gowandi, Nasik, Manmad and

Madhya Pradesh. Another witness which the accused has

examined is Defence Witness No.2 and is the senior crime

reporter in Mid Day Newspaper who had published the

photographs of the accused, victim and the witnesses. Article

41 which carried a news about the incident was also placed on

record during the said witness. Another reporter of Mid-Day

Sagar Rajput came to be examined as D W no.3 who had

published the photograph of the accused, parents and wife in

the newspaper dated 8th March 2014 and the name of the

accused was disclosed as Chandrabhan Sanap. The said cutting

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 107 CONF_CASE_3_15.doc

of newspaper is exhibited as Article 42. Another defence

witness examined by the accused is Vikas Phulkar working as

Nodal Officer in Vodafone Limited. He deposed that the Call

Details Record (CDR) of Phone No. 9833841248 in the name of

Nandkishore Sahu was given by him to the police and he has

given a certificate under Section 65B of Evidence Act. The said

witness has been cross-examined by the learned Prosecutor who

had deposed that from 12th February 2014 to 2nd March 2014,

there was no phone call or SMS delivered from the said mobile

and since the mobile was not active, it cannot be said whether

its location was Mumbai or out of Mumbai. However, it is

admitted by the witness that on 6th January 2014, Sahu

received phone call from Mobile No.7775853547 and two calls

were received on 8th December 2014 from the same number.

The cross examination of the defence witness only lead to the

conclusion that the said witnesses examined by the accused in

no way come to his rescue nor have they been able to demolish

the prosecution case based on circumstantial evidence. The

only attempt on the part of the accused was to establish

through the DW No.1 to DW No.3 is that the face of the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 108 CONF_CASE_3_15.doc

accused was known to the general public and it was all over

published in the newspaper and that is how Shri Pradhan

makes a feeble attempt to argue before us that the Test

Identification Parade conducted is faulty and cannot be relied

on by the prosecution.

46 The specific submission advanced by Shri Pradhan

is that the evidence of Prosecution Witness No.39 and the cross-

examination of this witness who conducted the Test

Identification Parade exposes the case of the prosecution. The

said witness who conducted the Test Identification Parade was

subjected to exhaustive cross-examination. He deposed before

the Court that he was conversant with the guidelines while

conducting the Test Identification Parade and accordingly, he

has mentioned the procedure followed by him in the

Memorandum. He had admitted that there was a lapse on his

part to mention in the panchnama that unauthorized persons

were not present at the time of Test Identification Parade. The

extensive cross-examination of the said witness do not yield any

benefit to the accused. Though certain procedural lacunae have

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 109 CONF_CASE_3_15.doc

been attempted to be drawn from the said witness, it does not

shatter the testimony of the said witness. In any contingency,

the law as regards the Test Identification Parade and the

reliance on such evidence is settled by now. Test Identification

Parade has been considered as merely a corroborative piece of

evidence and not substantive evidence. Even in absence of Test

Identification Parade, the convictions have been sustained and

when the witnesses have identified the accused before the

Court, it has been held that mere fact that no Test Identification

Parade was conducted, would not be a reason to discard the

evidence of the witnesses. The Hon'ble Apex Court in case of

Ashok Debbarma @ Achak Debbarma vs State Of Tripura 16

has observed thus :

17. Above-mentioned decisions would indicate that while the evidence of identification of an accused at a trial is admissible as substantive piece of evidence, would depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused.

47 In Malkhansingh and Ors. vs. State of

Madhya Pradesh17, this Court clarified that the Test

16 ( 2014 ) 4 SCC 747 17 AIR 2003 SC 2669

Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 :::

110 CONF_CASE_3_15.doc

Identification Parade is not a substantive piece of evidence and

to hold a Test Identification Parade is not even rule of law but a

rule of prudence so that the identification of the accused inside

the Court room at the trial can be safely relied upon. We are of

the view that if the witnesses are trustworthy and reliable, a

mere fact that no Test Identification Parade was conducted,

itself, would not be a reason for discarding the evidence of

those witnesses. Thus, when the witnesses examined by the

prosecution has identified the accused in the Court, an

irregularity of procedure as sought to be pointed out by Shri

Pradhan cannot be a ground to discard the substantial piece of

evidence in form of identification of the accused by the

witnesses in the Court. In any case, identification of an accused

in a Test Identification Parade is only a circumstance

corroborative of the identification of the accused in Court.

Further, such conduct of Test Identification Parade may lose its

worth if the witnesses either know the accused or if they have

been shown his photographs or if he has been exposed by the

media to the public. Holding a Test Identification Parade only

assist the Investigating Agency to ascertain whether the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 111 CONF_CASE_3_15.doc

investigation is being conducted in a proper manner and in a

proper direction.

48 The evidence brought on record by the prosecution

thus establishes its case beyond reasonable doubt. Though Mr.

Pradhan has invited our attention to the extensive cross-

examination to which the prosecution witnesses were subjected

to, he was not able to pinpoint from their cross-examination

that the credibility of these witnesses is doubtful and that they

are not trustworthy. The evidence adduced during the course

of trial needs to be appreciated cumulatively and in its correct

and true perspective. It is the duty of the Court to unravel the

truth and while appreciating the evidence its primary attempt

should be to sift the chaff from grain and to ascertain from the

evidence brought on record as to whether there is a ring of

truth in their testimony. Where the evidence brought on record

is consistent and corroborated by other piece of evidence, then,

there is no reason as to why version of prosecution case, as

unfolded, be not believed.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 112 CONF_CASE_3_15.doc

49 With the assistance of the learned counsel

appearing on both sides, our attention was painstakingly drawn

to the extensive and exhaustive cross-examination of all the

witnesses. We do not find nor has Mr. Pradhan been able to

convince us that testimony of the witnesses suffer from material

discrepancies and discrepancies are of such a nature that it will

materially affect the case of the prosecution itself.

When a witness is examined at length, it is but

natural that his testimony suffer from some discrepancies as he

may mis-out on some discrepant details but in such

circumstances, the Court appreciating evidence should keep in

mind that it is only when the discrepancies in evidence of

witness are so incompatible with the credibility of his version, it

is only then the Court would be justified in doubting his

evidence. Mr. Pradhan has not been successful in inviting our

attention to any major contradictions which would require our

attention and consideration.

We cannot refrain ourselves from taking note of

the fact that the prosecution witnesses have been made to

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 113 CONF_CASE_3_15.doc

undergo lengthy and pervasive cross-examinations, but at

occasions, the cross-examination was not as to the 'Relevant

Fact' which would test the credibility of the witness and we

would record only with displeasure that it was on issues which

were not relevant. We must note with great responsibility that

though burden of proof to prove the guilt of the accused lies on

the prosecution and in a case based on circumstantial evidence,

the prosecution is duty bound to prove the existence of each

fact independently and taken together which would lead to

chain of circumstances, through the prosecution witnesses who

would prove a particular fact and these prosecution witnesses

can be subjected to cross-examination. Section 137 of the

Indian Evidence Act, 1872 permits the cross-examination of a

witness by the adverse party who has been called and who has

deposed before the Court. However, the purpose of cross-

examination being to attack the credibility of witness who is

deposing before the Court and though at times its object is to

ascertain the truthfulness of these witnesses, it is also rule of

prudence and also contemplated under Section 149 of the

Indian Evidence Act, 1872 that witness should not be subjected

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 114 CONF_CASE_3_15.doc

to such questions unless the person asking it has reasonable

grounds for thinking that the imputation which it conveys is

well founded. The purpose of questions which may be lawfully

permitted in cross-examination and which are set out in section

146 of the Indian Evidence Act, 1872, are any questions which

tend to test his veracity, to discover who he is and what is his

position in life or to shake his credit by injuring his character.

The cross-examinations of the prosecution witnesses in the

present case have been carefully scrutinized by us and we have

noted that the trial Court has rightly appreciated the

testimonies of these witnesses. The Sessions Court, who is in

better position to appreciate the evidence since it is the only

Court which gets an opportunity to observe the demeanor of

the witness, has observed that though none of the witnesses

examined by the prosecution can be disbelieved and the

evidence of these witnesses was found to be trustworthy and

not affecting the prosecution case. In respect of some of the

witnesses, like PW-16 and PW-17, namely, the Astrologer and

Priest, learned Sessions Judge has noted that the evidence of

these witnesses does not create any incriminating fact in

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 115 CONF_CASE_3_15.doc

connection with the offence with which the accused is charged

and there is no reason for the police to fabricate such a piece of

evidence after going to such a far-off place to the scene of

offence and its occurrence. Panch-witnesses whose credibility

was attempted to be destroyed by subjecting them to serious

cross-examination, also did not result into any shadow being

cast on their credibility.

50 In the backdrop of the aforesaid facts when the

prosecution case is found to be not deficient in trust and a

minor discrepancies here and there would not belie the case of

the prosecution in its entirety. Even if there is some minor

discrepancies, they are not worthy attaching any significance.

If the major portion of the prosecution case is found to be

complying with the parameters of the burden or proof being

discharged by the prosecution, then we do not feel that there is

any scope for us to interfere with the finding recorded by

learned Sessions Judge after examining and scrutinizing the

evidence in totality and on consideration of the cumulative

effect. The attempt of Mr. Pradhan to read one line here and

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:00 ::: 116 CONF_CASE_3_15.doc

one line there from the cross-examination is not of any succor

to him to shake the trustworthiness of the prosecution case.

51 Mr. Pradhan has also faintly attempted to argue

before us that motive is not proved by the prosecution. We are

afraid that the said submission is to be referred to, only to be

rejected. It is settled position of law that in each and every case

it is not incumbent on the prosecution to prove the motive for

crime. The Hon'ble Apex Court in the case of Vijay Shankar v.

State of Haryana [(2015) 12 SCC 644] was pleased to

observe in paragraph 12 :

"In each and every case it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of the prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the Court to circumspect in the matter of assessment of evidence"

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 117 CONF_CASE_3_15.doc

Once we have concluded that prosecution on the

basis of the medical evidence brought on record has proved that

the deceased was subjected to rape and the accused was tried

for the offence punishable with rape, we do not think that the

motive of the accused in committing the crime needs to be

exclusively spelt out. It is obvious that the accused who after

drinking liqour was wandering the whole night and spotted on

the railway platform in the early hours and on seeing a young

lonely helpless woman, who easily fell prey to his concocted

story of offering to drive her to destination and who took her to

the secluded spot from where the body was recovered in a

highly decomposed state, we need not to find motive for

committing the crime with which the accused was charged.

52 Mr Pradhan was severally critical about the manner

in which the test identification memorandum was exhibited

during the course of trial. He submitted that the memorandum

of test identification parade is brought on record through PW

36, API attached to crime branch unit and this witnesses was

appointed as co-ordinating officer for conducting of the test

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 118 CONF_CASE_3_15.doc

identification parade which was conducted on 25th March 2014

in the Arthur Road Prison. Mr. Pradhan, submitted that the test

identification parade was carried out by Nayab Tahsildar V. J.

Kanekar and the memorandum discloses that one Sachin

Suresh Gaikwad and Kirit Joshi have acted as panch to the said

memorandum panchnama and have signed the same.

However, panchanma according to Mr. Pradhan is not signed

by PW-36 nor he is author of the document and therefore in

terms of the section 61 of the Indian Evidence Act, 1872 which

mandates that the contents of the documents may be proved

either by primary or secondary evidence, said memorandum

panchanama exhibited do not satisfy the test prescribed under

the Indian Evidence Act, 1872. In order to buttress his

submission, Mr Pradhan relied upon decision of the Apex Court

in Ramchandra Kapse vs. Haribansh Rambal Singh18 . We

have carefully perused the said judgment and we fail to

understand as to how this judgment assists the submission of

Mr. Pradhan. The said judgment is pronounced in the backdrop

of the Representation of Peoples Act, 1951 and what the

18[(1996) 1 SCC 206]

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 119 CONF_CASE_3_15.doc

Hon'ble Apex Court was dealing with was an issue arising out

of election petition and whether he was indulged in "corrupt

practices". We do not see any relation of the said judgment to

the facts in hand. However, the argument advanced by Mr.

Pradhan needs to be rejected in the backdrop of section 291A of

the Code of Criminal Procedure, 1973, which was inserted in

the Code by amendment with effect from 23 rd June 2006 and

which reads thus :

"Identification report of Magistrate Any document purporting to be a report of identification under the hand of an Executive Magistrate in respect of a person or property may be used as evidence in any inquiry, trial or other proceeding under this Code, although such Magistrate is not called as a witness:

Provided that where such report contains a statement of any suspect or witness to which the provisions of section 21, section 32, section 33, section 155 or section 157, as the case may be, of the Indian Evidence Act, 1872(1 of 1872), apply, such statement shall not be used under this Sub- Section except in accordance with the provisions of those sections.

The Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject matter of the said report."

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 120 CONF_CASE_3_15.doc

53 In the backdrop of the said provision, we do not

find any fault in the prosecution exhibiting the said

memorandum through one of the investigating officer. In any

contingency, Mr. V.J. Kanekar, the Resident Deputy Collector

who had conducted the test identification parade was brought

into witness box and since the document in the form of

memorandum panchanama was already exhibited, he was not

examined by the prosecution; but at the same time opportunity

was afforded to the accused to cross-examine him. In the cross-

examination, the witness has re-iterated the fact that he had

followed the procedure stated by him in the memorandum. He

has withstood the scrutiny on the manner in which the cross-

examination has been conducted and Mr. Pradhan has failed to

point out any legal infirmity in conducting of the test

identification parade which would nullify its effect.

54 It is not now strange to note that the crimes and

specially the crimes against the society are duly reported by the

print media as well as the electronic media. When such crimes

are reported, all the details of the investigation even when in

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 121 CONF_CASE_3_15.doc

progress is frequently reported including the photographs of the

suspect or the accused. Whenever a person is arrested as a

suspect and before he is converted to an accused, the media is

all out with the details of investigation and some times, at the

cost of investigation. However, there being no restraint on the

media publishing such stories sometimes out of public curiosity

and public interest involved, it is not uncommon to find

photographs of the suspect/accused being made known to the

public. In such circumstances, the Test Identification Parade

may lose its credibility and will have to be accepted in a

corroborative piece of evidence. Therefore, we do not find any

merit in the submission of Shri Pradhan.

55 On being satisfied with the case of the prosecution

which has established the factum of commission of the crime by

the accused, which involved extreme depravity and reflective of

unrestrained selfishness, which conserves the individual interest

and the ultimate tendency of the accused, we come to the issue

of imposition of death penalty on the accused. The learned

Addl. Sessions Judge has given due consideration to the cogent

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 122 CONF_CASE_3_15.doc

and reliable evidence brought on record and has arrived at an

inference that the crime in question was performed by the

accused with exceptional depravity and brutality. Before

awarding the death sentence, the learned Sessions Judge has

drawn a balance sheet of aggravating and mitigating

circumstances and examined the facts of the case so as to

record a finding whether the case falls within 'rarest of rare' and

whether it satisfies the test laid down by the Hon'ble Apex

Court almost four decades back in case of Bachan Singh Vs.

State of Punjab19. The learned Judge has taken into

consideration the mitigating circumstances put forth i.e. the

absence of direct evidence, accused being of young age,

absence of criminal antecedents, his diagnosis for Tuberculosis

and he being the sole earning member in the family on whom

his wife, children and old mother are dependent on. Another

mitigating circumstance in form of the subsequent conduct of

the accused while undergoing the sentence was also pressed

into service and it was attempted to canvass that there was no

complaint against him from the jail authorities during the

19 AIR 1980 SC 989

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 123 CONF_CASE_3_15.doc

period of under trial detention. The learned Judge has given

due consideration to the said mitigating circumstance as against

the aggravating circumstances which were noted to be as

follows:-

(a) Offence committed in a pre-planned and diabolical manner with exceptional brutality and depravity.

(b) Anti-social nature of the crime and

(c) the incident has caused a stir in the society and shocked its collective conscious.

By drawing a balance sheet between the aggravating and

mitigating circumstance, the learned Sessions Judge observed

that by taking into consideration the manner in which the

offence was executed, the enormity of the crime and the

collective conscious of the society being shocked, the balance-

sheet is drawn of mitigating and aggravating factors and even if

maximum weightage is given to the mitigating factors, the

aggravating factors far outweigh the balance. The Sessions

Judge has placed reliance on the observations of the Bombay

High Court in case of State of Maharashtra Vs. Haresh

Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 124 CONF_CASE_3_15.doc

Mohandas Rajput Criminal Appeal No.1020 of 2001 decided

on 11th January 2008 wherein the following observations were

made :

"Moreover, social impact of the crime, particularly where it relates to offences against women, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude of imposition of meager sentence or too sympathetic view may be counter productive in the long run and against social interest which needs to be cared for, protected and strengthened by string of deterrence inbuilt in the sentencing system:

"Sexual violence apart from being a dehumanizing act is also an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and leaves behind a traumatic experience. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The courts are, therefore, expected to try and decide cases of sexual crime against women with utmost sensitivity. A socially sensitized Judge is a better armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and complicated provisos."

"Once a person is convicted for an offence of rape, he should be treated with a heavy hand. An undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging potential criminals. The Society can no longer endure under such serious threats. Courts must hear the loud cry for justice by Society in cases of heinous crime of rape and impose

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 :::

125 CONF_CASE_3_15.doc

adequate sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court (Dinesh vs. State of Rajasthan MANU/SC/8078/2006 : 2006 CriLJ 1679)

56 The question, therefore, which we are called upon

to decide is whether the death sentence inflicted by the learned

Sessions Judge on the Appellant, needs to be confirmed or not.

The Constitution Bench of the Hon'ble Apex Court in case of

Bachan Singh Vs. State of Punjab (supra) was called upon to

decide the constitutionality of Section 302 of the IPC insofar as

it provides death sentence and also of Section 354(3) of the

Cr.P.C and the following observations needs a reproduction :

195. In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well-

recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By "well- recognised principles" the Court obviously meant the principles crystallized by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan - as we have discussed already - do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability: (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 126 CONF_CASE_3_15.doc

196. We will first notice some of the aggravating circumstances which. In the absence of any mitigating circumstances, have been regarded as an indication for imposition of the extreme penalty.

197. Pre-planned, calculated, cold blooded murder has always been regarded as one of an aggravated kind. In Jagmohan, it was reiterated by this Court that if a murder is "diabolically conceived and cruelly executed", it would justify the imposition of the death penalty on the murderer. The same principle was substantially reiterated by V.R. Krishna Iyer, J., speaking for the Bench, in Ediga Anamma, in these terms:

The weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence.

198. It may be noted that this indicator for imposing the death sentence was crystallized in that case after paying due regard to the shift in legislative policy embodied in Section 354(3) of the CrPC, 1973, although on the date of that decision (February 11, 1974), this provision had not come into force. In Paras Ham's case, also, to which a reference has been made earlier, it was emphatically stated that a person who in a fit of anti-social piety commits "bloodcurdling butchery" of his child, fully deserves to be punished with death. In Rajendra Prasad, however, the majority (of 2:1) has completely reversed the view that had been taken in Ediga Anamma regarding the application of Section 354(3) on this point. According to it, after the enactment of Section 354(3), 'murder most foul' is not the test. The shocking nature of the crime or the number of murders committed is also not the criterion. It was said that the focus has now completely shifted from the crime to the criminal. "Special reasons"

necessary for imposing death penalty "must relate not to the crime as such but to the criminal".

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 127 CONF_CASE_3_15.doc

199. With great respect, we find ourselves unable to agree to this enunciation. As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the 'man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist.

200. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v, Georgia, in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances":

Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if. the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 128 CONF_CASE_3_15.doc

discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.

201. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other,

204. Dr. Chitaley has suggested these mitigating factors:

Mitigating circumstances:- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 129 CONF_CASE_3_15.doc

207. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over- emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

57 The above aforesaid observations of the

Constitutional Bench of the Apex Court would reveal that in

finding out the presence or absence of special reasons, the

Court is duty bound to pay due regard to both the crime and

the criminal. Though it has been held that what is the relative

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:01 ::: 130 CONF_CASE_3_15.doc

weight given to the aggravating and mitigating factors would

depend on the facts and circumstances of each case. However,

in many cases, the extreme cruelty and the beastly manner in

which the crime is committed, is itself a demonstrated index of

the deprived character, then, the special reasons can

legitimately be said to exist. The Apex Court further in case of

Machhi Singh Vs. State of Punjab (supra) pondered upon the

imposition of death penalty and clarified the principle of 'rarest

of rare' as enunciated in Bachan Singh (supra). It made the

following observations:-

The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence-in-no-case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'Killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 :::

131 CONF_CASE_3_15.doc

community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

I Manner of Commission of Murder When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) When the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii)When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II Motive for Commission of murder When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (2) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland.

III Anti Social or Socially abhorrent nature of the crime

(a) When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of 'bride burning' and what are known as 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV Magnitude of Crime When the crime

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 132 CONF_CASE_3_15.doc

is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V Personality of Victim af murder When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's case:

(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.

(iii)Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

58 It is no doubt true that the question that is required

to be posed before imposing a death sentence is whether there

is something uncommon about the crime which renders a

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 133 CONF_CASE_3_15.doc

sentence of Imprisonment for Life inadequate and whether

there exists circumstances to impose a death sentence and there

is no alternative but to impose such a sentence. There cannot

be any quarrel about the fact that commission of crime in the

Society has a drastic and draconian effect on the members

living in the society. Rape has always been looked upon as a

crime to be ranked alongside murder in terms of seriousness

because of the violence and the violation it involves. The way

in which a Society protects its victims of crime is a barometer of

that society's standards of human dignity and decency. When a

woman in the society is raped, it is not only she who is

subjected to rape, but it is the tendency that is reflected to

overpower, to violate and to crash the dignity of the entire

woman creed in the society. In light of the various incidents of

rape which have been reported and taken cognizance of, the

unequivocal feeling generated from the law makers, the law

implementers and the law protectors is that the tendency of the

rapists should be given serious attention, before we lose our

female population to a group of persons who are lost of any

sympathy. The hands of all the above, either in form of law

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 134 CONF_CASE_3_15.doc

makers or law implementers are duty bound to expunge the

said crime from our society and this can happen only when we

deal with such a perpetrator of crime in most deterrent manner.

The ultimate aim of sentencing is not only to punish the wrong

doer but also to create a deterrent effect on others being

indulging into such an act. When the legislators have made

stiffer laws, none the less, it is the duty of the judiciary to

enforce them. The Hon'ble Apex Court in case of Purushottam

Dashrath Borate & Ors Vs. State of Maharashtra 20 has

observed to the following effect

"23 It is an established position that law regulates social interests and arbitrates conflicting claims and demands. Security of persons is a fundamental function of the State which can be achieved through instrumentality of criminal law. The society today has been infected with a lawlessness that has gravely undermined social order. Protection of society and stamping out criminal proclivity must be the object of law which may be achieved by imposing appropriate sentence".

Therefore, in this context, the vital function is that this Court is

required to discharge is to mould the system to meet this

challenge. The facts and given circumstances in each case, the

nature of the commission of the crime, the conduct of the

20 (2015) 6 SCC 652

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 135 CONF_CASE_3_15.doc

accused and all other attending circumstances are relevant facts

which would enter into the area of consideration.

59 We are dealing with an accused who has been

found guilty of rape and murdering a young woman of 22 years

and we have taken note of the abhorrent, grotesque and the

pervert manner in which her life has been taken away. The

entire conduct of the accused amounts to decadence and for a

small pleasure, a young woman who had just stepped into

womanhood has been done to death with extreme vileness.

The incident that occurred in the National Capital on 16th

January 2012 has brought about a change in the criminal law

itself and Section 376-A came to be inserted for providing

punishment for causing death. By the said amended section

whosoever committed an offence punishable under sub-section

(1) of sub-section (2) of Section 376 and in the course

commission, inflicts an injury which causes the death of the

woman or causes the woman to be in persistent vegetative

state, is liable to be punished with Rigorous Imprisonment

which shall not be less than 20 years but which may extend to

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 136 CONF_CASE_3_15.doc

Imprisonment for Life, which shall mean, Imprisonment for the

reminder of that person's natural life or with death.

60 With the paradigm shift in the policy of sentencing

for commission of an offence of rape and causing death of a

woman after committing rape and where the penalty of an

Imprisonment for a term of minimum 20 years is introduced,

the said offence of rape has to be tackled with great

seriousness.

When such cases are brought on trial, which had

shocked the collective conscious of the Society, the Society

expects the judiciary to deal with such offender sternly and at

that time, it may demand to inflict punishment no less than

death penalty irrespective of its personal opinion about the

desirability or otherwise of imposing death penalty. Though in

several terms, the Apex Curt has held that Life Imprisonment is

the rule and the death sentence to be imposed as the exception,

it has also carved out a category of 'rarest of rare' where the

Court may be justified in imposing a death penalty after

drawing a balance sheet of aggravating and mitigating

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 137 CONF_CASE_3_15.doc

circumstances and granting full weightage to the mitigating

circumstances before exercising the option of death sentence

While making such a decision, it is also expected to find out

whether there is something unknown about the crime

committed which justifies imposition of death penalty and that

no other penalty other than death penalty is adequate. In case

of Dhananjoy Chatterjee Vs. State of West Bengal21, the

Hon'ble Apex Court while dealing with a case of circumstantial

evidence conclusively establishing the guilt of the accused who

had committed rape and murder of a young girl of 18 years by

a security guard of a building, relying on the prosecution case,

has taken into consideration the rising crime rate particularly

violent crime against women had a re-look at the criminal

sentencing by the courts. The following observations are

relevant:

14. In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of 21 (1994) 2 SCC 220

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 :::

138 CONF_CASE_3_15.doc

course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.

15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.

61 In case of Laxman Naik vs. State of Orissa22, the

Hon'ble Supreme Court while dealing with a case based on

circumstantial evidence of rape and murder of a 7 year old girl

by her own uncle considered the circumstances and while

imposing the extreme penalty of death, made the following

observations :

22 1994 3 SCC 381

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 139 CONF_CASE_3_15.doc

"26 This brings us to the question of sentence to be imposed upon the appellant for the offences for which he has been found guilty by the two courts below as well as by us as discussed above. In this connection it may be pointed out that this Court in the case of Bachan Singh v. State of Punjab while discussing the sentencing policy, also laid down norms indicating the area of imposition of death penalty taking into consideration the aggravating and mitigating circumstances of the case and affirmed the view that the sentencing discretion is to be exercised judicially on well-recognized principles, after balancing all the aggravating and mitigating circumstances of the crime guided by the legislative policy discernible from the provisions contained in Sections 253(2) and 354(3) of the Code of Criminal Procedure. In other words, the extreme penalty can be inflicted only in gravest cases of the extreme culpability and in making choice of the sentence, in addition to the circumstances of the offender also.

Having regard to these principles with regard to the imposition of the extreme penalty it may be noticed that there are absolutely no mitigating circumstances in the present case.

62 In Molai & Anr Vs. State of Madhya Pradesh 23

while dealing with the submission of the learned counsel for the

appellant that it was not the case which did not fall into rarest

of rare category and death penalty was uncalled for, the Apex

Court observed thus :

23 AIR 2000 SC 177

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 140 CONF_CASE_3_15.doc

37 We have very carefully considered the contentions raised on behalf of the parties. We have also gone through various decisions of this Court relied upon by the parties in the courts below as well as before us and in our opinion the present case squarely falls in me category of one of the rarest of rare cases, and if this be so, the courts below have committed no error in awarding capital punishment to each of me accused. It cannot be overlooked that Naveen, a 16 year old girl, was preparing for her 10th examination at her house and suddenly both the accused took advantage of she being alone in the home and committed a most shameful act of rape.

The accused did not stop there but they strangulated her by using her under- garment and thereafter took her to die septic tank along with the cycle and caused injuries with a sharp edged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body. Learned counsel for the accused (appellants) could not point any mitigating circumstances from the record of me case to justify the reduction of sentence of either of the accused. In a case of this nature, in our considered view, the capital punishment to both the accused is the only proper punishment and we see no reason to take a different view than the one taken by the courts below.

63 In case of Haresh Mohandas Rajput Vs. State of

Maharashtra24, the Hon'ble Apex Court while dealing with the

situation where the death sentence is warranted, after referring

24 AIR 2011 SC 3681

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 141 CONF_CASE_3_15.doc

to the guidelines laid down in Bachan Singh (supra) and the

principles culled out in Machhi Singh (supra) opined to the

following effect :

19 In Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957, this Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community is so shocked that it will expect the holders of the judicial powers center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, such a penalty can be inflicted. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances.

20. "Rarest of the rare case" comes when a convict would be a menace and threat to the harmonious and peaceful co-existence of the society. The crime may be heinous or brutal but may not be in the category of "rarest of the rare case". There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious co-existence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society.

Where an accused does not act on any spur-of-the- moment provocation and indulges himself in a deliberately planned crime and meticulously

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 142 CONF_CASE_3_15.doc

executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fiber of the society, e.g. crime committed for power or political ambition or indulge in organized criminal activities, death sentence should be awarded. (See: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; Rabindra Kumar Pal alias Dara Singh v. Republic of India, (2011) 2 SCC 490; Surendra Koli v. State of UP & Ors., (2011) 4 SCC 80; Mohd. Mannan (supra); and Sudam @ Rahul Kaniram Jadhav v. State of Maharashtra, (2011) 7 SCC 125).

21. Thus, it is evident that for awarding the death sentence, there must be existence of aggravating circumstances and the consequential absence of mitigating circumstances. As to whether death sentence should be awarded, would depend upon the factual scenario of the case in hand.

64 In case of Rajendra Pralhadrao Wasnik Vs. State

of Maharashtra,25 the Hon'ble Apex Court was confronted with

a case of rape and murder of 3 year old girl child by a married

person aged 31 years by luring her on the pretext of buying

biscuits. While upholding the death sentence imposed by the

Court below in the backdrop of the circumstantial evidence

25 2012(4) SCC 37

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 143 CONF_CASE_3_15.doc

brought on record by the prosecution, Their Lordships analyzed

the principles laid down in the case of Bachan Singh (supra).

The following observations were drawn to justify the imposition

of sentence of death penalty :

35 It can hardly be even imagined that what torture and brutality the minor child must have faced during the course of commission of this crime.

All her private parts were swollen and bleeding. She was bleeding through her nose and mouth. The injuries, as described in EX.P17 (the post mortem report) shows the extent of brutal sexual urge of the accused, which targeted a minor child, who still had to see the world. He went to the extent of giving bites on her chest. The pain and agony that he must have caused to the deceased minor girl is beyond imagination and is the limit of viciousness.

37 When the Court draws a balance-sheet of the aggravating and mitigating circumstances, for the purposes of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evident from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused.

65 The Division Bench of this Court in case of State of

Maharashtra Vs. Rakesh Manohar Kamble26 while hearing

the death confirmation Appeal of an accused who was found

26 (2014) All MR (Cri) 2043

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 144 CONF_CASE_3_15.doc

guilty of the charge of rape and murder of a young girl, by

relying upon the judgment of the Hon'ble Apex Court in case of

Dhananjoy Chatterjee Vs. State of West Bengal (supra), Molai

& Anr Vs. State of Madhya Pradesh27 and Rajendra

Pralhadrao Wasnik Vs. State of Maharashtra 28, while

confirming the death penalty has observed thus :-

93 Now, let us consider the mitigating circumstances.

i) Insofar as the first mitigating circumstance i.e. mental and emotional disturbance or extreme provocation is concerned, it is not available to the accused. In the present case, it is not the case of the accused that they were under mental and emotional disturbance or there was provocation by the deceased.

ii) As laid down in various cases, the age of the accused is a relevant consideration but not a determinative factor by itself. As a matter of fact, the Apex Court in the case of Dhananjoy Chatterjee itself has found that though the accused was of a young age, the said cannot be said to be a mitigating circumstance in his favour.

iii) From the material on record which has come on record it can be seen that both the accused have been on earlier occasion convicted for the offences punishable under Sections 380, 454, 457, 392 of the Indian Penal Code and under MCOC ACT. We, therefore, find that the chance of the accused in not indulging in the commission of the crime and they

27 AIR 2000 SC 177 28 (2012) 4 SCC 37

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 :::

145 CONF_CASE_3_15.doc

being reformed and rehabilitated is not available in the present case.

iv) It is not the case of the accused that they were mentally defective and defect impaired their capacity to appreciate the circumstances of their criminal conduct.

v) It is not the case of the accused that there are other circumstances which in normal course of life would render the act committed by the accused as morally justified.

vi) From the perusal of the evidence on record, it also cannot be said that the act was not committed in pre-ordained manner and death has resulted in the commission of another crime.

vii) It is also not the case that it is unsafe to rely upon the testimony of sole eye witness.

In that view of the matter, we find that there are no mitigating circumstances in the present case, which would come to the rescue of the present appellants.

94. However, in view of the Judgment of the Apex Court in the case of Shankar Kisanrao Khade (supra) that even if both the tests are satisfied, still the Court will have to apply finally the rarest of the rare case test. The Apex Court in various cases has found that the rarest of rare test depends upon the perception of the society that is "society-centric" and not "Judge-centric" that is, whether the society will approve the awarding of death sentence to certain types of crimes or not.

95. In the case of Machhi Singh's case the Apex Court has observed that the court has to consider whether the collective conscience is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 146 CONF_CASE_3_15.doc

retaining death penalty. As such, while deciding the present case, we will have to keep ourself aloof from our personal opinion as regarding the desirability or otherwise of retaining death penalty. What is required by us, is to decide as to whether in the perception of the society at large, the present case is a case which can be considered as rarest of rare case warranting death sentence.

96. At this stage, it will be appropriate to refer to the quotation of Lord Denning which has been quoted by the Apex Court in the case of Depak Rai vs. State of Bihar (supra), which is as under: ........ the punishment is the way in which society expresses its denunciation of wrongdoing; and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive and nothing else....The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not.

66 In light of the aforesaid dictum following from the

catena of judgments, where the higher Courts had an

opportunity to ponder over the imposition of death penalty, it

had applied the crime test and the criminal test and held that

"motivation of the perpetrator, vulnerability of the victim,

enormity of the crime, the execution thereof are factors which

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 147 CONF_CASE_3_15.doc

normally weigh with the court in awarding the death sentence

terming it as the rarest of the rare cases. In some cases, capital

punishments was awarded on the basis of crime test even if the

criminal test was not satisfied and in some cases, capital

punishment was awarded both on crime test and criminal test,

whereas in other category of cases, the capital punishment was

awarded both on crime test, criminal test and rarest of rare test.

(R-R test). In some cases, capital punishment was awarded by

applying the balancing test i.e. by balancing the mitigating and

aggravating circumstances.

67 The imposition of death penalty has been a subject

matter of severe criticism mainly of it being violative of human

rights and its irreversibility. Though the constitutionality of it

has been upheld in India, it is often clamped by those who do

not find favour with it as being reflection of uncivilized polity

and on the count that 'an eye for an eye' has become an ancient

appeal. The Law Commission in its 31st Report had

recommended for its retention and was of the view that India

cannot afford to experiment with its abolition. It looked at it as

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 148 CONF_CASE_3_15.doc

a potential deterrent. However, the recent 262 nd Report of the

Law Commission has taken a different view and made its

recommendation to the following effect.

7.2.1 The Commission recommends that measures suggested in para 7.1.3 above, which include provisions for police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.

7.2.2 The march of our own jurisprudence--from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to rarest of rare cases - shows the direction in which we have to head. Informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions between the state and the individual, prevailing standards of constitutional morality and human dignity, the Commission feels that time has come for India to move towards abolition of the death penalty.

7.2.3 Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.

7.2.4 The Commission accordingly recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 149 CONF_CASE_3_15.doc

The report also highlights the fact that the capital punishment has failed to achieve its deterrent effect.

68 It is no doubt true that while examining the

Constitutional validity in the year 1980 in case of Bachan

Singh (supra), the Hon'ble Supreme Court articulated the

theory of 'rarest of rare' and emphasized on the fact that Judges

should not be blood thirsty and a proposition evolved was that

it should impose capital punishment only when no other

punishment in the opinion of the Judges is adequate. Those

who favour imposition of death penalty by strictly going by the

guidelines issued in case of Bachan Singh (supra) would argue

that imposition of death penalty would not be termed as

arbitrary because in any case, it is imposed by following due

process of law and as the factors culled out in the authoritative

pronouncement of the Hon'ble Apex Court, it is to be imposed

in the backdrop of the abhorrence of the crime, when it shocks

the conscience of the Society and the Judges too. Article 21

which guarantees a right to life and liberty prescribes that no

person should be deprived of his life and liberty, except in

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 150 CONF_CASE_3_15.doc

accordance with the procedure established by law. The Code of

Criminal Procedure which sets out the procedure for subjecting

the accused to a trial and prescribes for his journey from a

suspect to an accused, and an accused to a convict, contains

sufficient safeguards in itself. Section 354(3) of the Code of

Criminal Procedure makes it imperative for the Court when it

awards the sentence of death to record special reasons for

imposition of such a sentence. Further, Section 366 contains a

provision for confirmation of such a sentence of death by the

High Court and in this process, the High Court is expected to

arrive at its independent decision, after appreciating the

evidence on the quantum of the sentence imposed by the

Sessions Court. In form of these aforesaid safeguards and after

assessing the culpability of the accused, the recording of special

reasons while imposing a sentence of death, ensures the

compliance of Article 21 of the Constitution.

69 We have heard the appeal and closed it for

judgment. During the intervening period, the Hon'ble Apex

court has delivered verdict in a couple of cases in relation to

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:02 ::: 151 CONF_CASE_3_15.doc

the imposition of capital punishment. We have taken note of

the judgment of the Hon'ble Apex Court delivered on 28th

November 2018 in case of Chhannu Lal Verma Vs. The State

of Chhattisgarh29, wherein His Lordship Justice Kurien Joseph

in light of the latest report of the Law Commission has ordered

to commute death sentence of a life convict to Imprisonment

and explicitly opined that the imposition of death penalty calls

for a review and due emphasis has to be given before driving a

person to death to ascertain whether the person is capable of

reformation and rehabilitation and whether he would be a

threat to Society or whether not granting death penalty would

send a wrong message to the Society. The following observation

of Their Lordship needs a reproduction :-

15. The appeal has been pending before this Court for the past four years. Since the Appellant has been in jail, we wanted to know whether there was any attempt on his part for reformation. The superintendent of the jail has given a certificate that his conduct in jail has been good. Thus, there is a clear indication that despite having lost all hope, yet no frustration has set on the Appellant. On the contrary, there was a conscious effort on his part to lead a good life for the remaining period. A convict is sent to jail with the hope and expectation that he would make amends and get reformed. That there is 29 MANU/SC/1352/2018

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 :::

152 CONF_CASE_3_15.doc

such a positive change on a death row convict, in our view, should also weigh with the Court while taking a decision as to whether the alternative option is unquestionably foreclosed. As held by the Constitution Bench in Bachan Singh (supra) it was the duty of the State to prove by evidence that the convict cannot be reformed or rehabilitated. That information not having been furnished by the State at the relevant time, the information now furnished by the State becomes all the more relevant. The standard set by the 'rarest of rare' test in Bachan Singh (supra) is a high standard. The conduct of the convict in prison cannot be lost sight of. The fact that the prisoner has displayed good behaviour in prison certainly goes on to show that he is not beyond reform.

16. In the matter of probability and possibility of reform of a criminal, we do not find that a proper psychological/psychiatric evaluation is done.

Without the assistance of such a psychological/psychiatric assessment and evaluation it would not be proper to hold that there is no possibility or probability of reform. The State has to bear in mind this important aspect while proving by evidence that the convict cannot be reformed or rehabilitated

70 Further, a Three Judges Bench in Sukhlal Vs.

State of Madhya Pradesh30 on 20th November 2018

commuted the death sentence of a convict and reduced it to

18 years with the following observations : 30 Cr.Appeal No.1563-1564/18

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 153 CONF_CASE_3_15.doc

"However, insofar as award of death penalty by the Sessions Court, which has been upheld by the High Court is concerned, we are of the opinion that the High Court has erroneously affirmed death penalty without correctly applying the law laid down by this Court in Bachan Singh (supra). Time and again, this Court has categorically held that Life Imprisonment is the rule and death penalty is the exception and even when the crime is heinous or brutal, it may not still fall under the category of rarest of rare. The decision to impose the highest punishment of death sentence in this case does not fulfil the test of "rarest of rare case where the alternative option is unquestionably foreclosed".

Bachan Singh (supra) in no unequivocal terms sets out that death penalty shall be awarded only in the rarest of rare cases where Life Imprisonment shall be wholly inadequate or futile owing to the nature of the crime and the circumstances relating to the criminal. Whether the person is capable of reformation and rehabilitation should also be taken into consideration while imposing death penalty.

In view of the above, while upholding the conviction of the appellant awarded by the Sessions Court, and confirmed by the High Court, we commute the death sentence to that of Life Imprisonment with a cap of 18 years."

It is to be noted that following the said judgment, Three Judges

of the Hon'ble Apex Court on December 12, 2018 considered

the review petition in case of Rajendra Wasnik (supra) who

was also sentenced to death and the Hon'ble Apex Court in its

earlier judgment has upheld the imposition of the death

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 154 CONF_CASE_3_15.doc

sentence. The Review Petition was taken up in light of the

Constitution Bench Judgment of the Court in case of Mohd Arif

@ Ashfaq Vs. Registrar, Supreme Court of India 31 the Review

Petition filed by Rajendra Wasnik was taken up for

consideration after a gap of more than 3 ½ years. After taking

the review of the various authoritative pronouncements

imposing death penalty and also taking note of the judgment in

case of Chhannu Lal Verma Vs. The State of Chhattisgarh

(supra), the Hon'ble Apex Court again emphasized on

reformation, rehabilitation and re-integration of the convict

into the Society and the following observation needs a

reproduction :

47. Consideration of the reformation, rehabilitation and re-integration of the convict into society cannot be over-emphasized. Until Bachan Singh, the emphasis given by the courts was primarily on the nature of the crime, its brutality and severity.

Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Bariyar and in Sangeet v. State of Haryana32 where there is a tendency to give primacy to the crime

31 (2014) 9 SCC 737 32 (2013) 2 SCC 452

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 155 CONF_CASE_3_15.doc

and consider the criminal in a somewhat secondary manner.

As observed in Sangeet "In the sentencing process, both the crime and the criminal are equally important." Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social re-integration of the convict into society.

Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social re-integration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.

71 We have also taken note of the judgment in a

Review Petition in case of M.A. Antony @ Antappan Vs. State

of Kerala33 where the Hon'ble Apex Court by taking into

consideration the socio-economic factors leading to the crime

has commuted the death sentence with the following

observations :

33 (Rev.Pet No.245/10 in Cr.Appeal 811/09 of Supreme Court dt.12/12/2018

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 156 CONF_CASE_3_15.doc

28. On an overall consideration of the facts of the case from the point of view of the crime and the criminal, we are of opinion that even though the case may be one of circumstantial evidence, it is now well settled that that by itself is not enough to convert a sentence of death into a sentence of imprisonment for life. We have held so in Rajendra Pralhadrao Wasnik and do not feel the necessity of repeating what has already been said.

29. We are also of opinion that all the courts including this Court overlooked consideration of the probability of reform or rehabilitation and social reintegration of the appellant into society. There is no meaningful discussion on why, if at all, the appellant could not be reformed or rehabilitated.

30. The Trial Court was in error proceeding on the basis, while awarding a sentence of death to the appellant by observing that he was a hardened criminal. There is no such evidence on material or on record.

31. The socio-economic condition of the appellant was a significant factor that ought to have been taken into consideration by the Trial Court as well the High Court while considering the punishment to be given to the appellant. While the socio-economic condition of a convict is not a factor for disproving his guilt, it is a factor that must be taken into consideration for the purposes of awarding an appropriate sentence to a convict.

33. In view of the above discussion, the death sentence awarded to the appellant is converted into a sentence of imprisonment for life.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 157 CONF_CASE_3_15.doc

72 All murders are cruel but the cruelty may vary in

its degree of culpability and it is only when the culpability

assumes proportion of extreme depravity that constitute the

special reasons for inflicting a death penalty, and it can be

justiciably imposed. In Bachan Singh (supra), the Hon'ble

Apex Court while interpreting Section 354(3) and 235(2) of the

Code of Criminal Procedure, it elaborated two aspects i.e. the

death which is an extreme penalty be inflicted only in gravest

cases of extreme culpability and secondly in making the choice

of sentence due regard must be paid to the circumstances of the

offender also. Further, in case of Machi Singh (supra),

elaborate guidelines came to be issued regarding the test of

'rarest of rare' to be applied and the two principles culled out

from the said judgment makes it imperative to find answers to

two questions (a) Is there something uncommon about the

crime which renders sentence to Imprisonment for life,

inadequate? (b) Are the circumstances of the crime such that

there is no alternative but to impose death sentence even after

awarding maximum weightage to the mitigating circumstances

which speak in favour of the offenders.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 158 CONF_CASE_3_15.doc

73 Drawing the balance sheet in the present case, we

have taken note of the following circumstances which would be

considered as aggravating circumstances :

(i) the offence relates to commission of heinous crime of rape and murder by an accused who has substantial history of indulging into offences of theft;

(ii) The offence of murder was committed for a petty achievement of satisfying the lust of the accused;

(iii)The offence was committed in a barbaric manner with no regard to life of a person and mercilessly the evidence was attempted to be destroyed;

(iv)The victim was an innocent helpless young woman and accompanied the accused who promised her to be dropped at her destination;

(v) The murder is committed for motive which evidences total depravity, meanness and is committed without any provocation;

(vi) Crime is committed so brutally that it shocks the conscience of the society and also the judicial conscience.

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 159 CONF_CASE_3_15.doc

74 The mitigating circumstances which can be culled

out in favour of the accused are:

(i) Young age of the accused and no previous criminal antecedents being brought on record;

(ii) The chances of accused not indulging in commission of such type of crime again and probability of he being reformed and rehabilitated;

(iii) That the crime committed was not in a pre-ordained manner and there was no motive to commit the said crime;

(iv) The case is based totally on circumstantial evidence and the prosecution has failed to conclusively prove that the accused was only responsible for commission of the crime

(v) Ill-health of the accused since he was treated for Tuberculosis while undergoing the sentence.

75 We have given our due consideration to the

aggravating and the mitigating factors which would be

attracted in the present case in light of the Constitution Bench

judgment. The basic aim of a modern welfare State is to

provide a safe and secured environment to its citizens so that

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 160 CONF_CASE_3_15.doc

they can grow and also lead to nation's growth. The civilization

of a particular society is measured in terms of how woman in

the said society are treated and dealt with. The recent

developments in the few years have given rise to a feeling of

uncertainty and fear in the mind of woman folk in this country

where women are worshipped in form of goddess. The women

in this country may not demand they be worshipped in the

modern days scenario but they would surely expect to breathe

freely and feel safe and comfortable in and outside their

houses. Women in this country after a long journey are lead on

the path of empowerment and it is the bounden duty of the

State to empower them by assuring their safety and security.

The Law came to be strengthened to deal with the physical

assault on women by carrying out the amendments in form of

the Criminal Amendment Act 2013 so that the perpetrators of

crime against women are dealt sternly and with iron hand.

Offence of rape which affects the dignity of woman and when a

woman is ravished or undergoes any sexual assault on her

dignity, it not only causes physical harm but carries with it a

deep sense of some deathless shame, and this was the focal

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 161 CONF_CASE_3_15.doc

point in introducing the said amendment. It is then duty cast on

the judiciary of this country to do justice according to law.

76 Sentencing policy of any Modern Welfare State

should be aimed at imposing appropriate sentence and its

object being kept in mind i.e. the protection of the Society and

weeding out the criminal proclivity. Friedmann in his "Law in

changing society" stated that "State of Criminal Law continues

to be a decisive reflection of social consciousness of society".

The law accordingly, is expected to adopt a collective

conscience mechanism and at the same time, it should achieve

the deterrent effect. In Mahesh Vs. State of Madhya

Pradesh,34 the Apex Court while refusing to reduce the death

sentence imposed on the convict observed to the following

effect :

"It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon."

34 1987 (2) SCR 710

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 162 CONF_CASE_3_15.doc

77 In State of Madhya Pradesh Vs. Munna Choubey

and Anr35 the Hon'ble Apex Court made the following

observations: -

"The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious

35 (2005) 2 SCC 710

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 163 CONF_CASE_3_15.doc

crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences."

78 Reformative theory is recognized as one of the

leading theory for imposition of penalty but we are of the

specific opinion that undue stress on the same would defeat the

basic tenets of imposition of penalty in cases where the crime

committed obnoxiously shocks the collective conscience of the

society. Public abhorrence of the crime need a reflection

through Court's verdict and though the imposition of penalty

should not be judge-centric, but at the same time, it cannot

afford to ignore the collective social conscience. The judiciary

cannot be expected to be a mute spectator in the entire scenario

when neither a young girl child of two years or a woman of 70

years feel safe in this country. We cannot shut our eyes to the

cases reported day-in and day-out about such young girls and

women being raped and victimized. The deterrence by

enhancing the sentence for rape has witnessed another angle

where a person causes death of a woman and Criminal Law

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 164 CONF_CASE_3_15.doc

(Amendment) Act of 2013 has introduced Section 376-A and

has imposed penalty of Rigorous Imprisonment for a term

which shall not be less than 20 years but which may extend to

Imprisonment for life where a person commits an offence

punishable under sub-section (1) or sub-section (2) of Section

376 and in the course of such commission, inflicts an injury

which causes the death of a woman. It is time for the judiciary

to impose appropriate sentence which is proportionate to the

crime committed and even by applying the theory of 'crime and

criminal', the Court is expected to take into consideration the

social interest and the consciousness of the Society for award of

appropriate sentence. The discretion vested in the court to

impose a death sentence is well guided by the principles

evolved by catena of judicial decisions and by balancing the

aggravating and mitigating circumstances. The Court is

expected to administer the criminal judicial system which

would provide an effective and meaningful life to a girl child

and the women in this country. We also cannot be unmindful

of the fact that when we talk of the right of the accused, it is

equally important for us to take into consideration the

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 165 CONF_CASE_3_15.doc

expectation of the family of the victim. Crime against women

which are on the rise need to be tackled on all fronts in a

manner which should respond to the Society's cry for justice

against such criminals. Esther was done to death by the

accused for no-fault of her own, except for a reason that she is

a woman and she fell prey to the sinister design of accused to

fulfil his lust. The said attitude of the accused, according to us,

deserves a death sentence.

79 We have taken note of the mitigating

circumstances and also applied our mind as to whether there is

any possibility of reformation of the accused. The accused is

now 33 years of age and at the time of commission of offence,

he was aged approximately 29 years. It has been brought on

record that he is married three times since his first wife has

died and second one has deserted him and he is living with his

third wife. He is capable of understanding the consequences of

his act and cannot claim the benefit of being in his adulthood,

but he is a mature adult. We have noticed that there is no

remorse on his part. It has also been brought on record that he

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:03 ::: 166 CONF_CASE_3_15.doc

had a previous history of being involved in activities prohibited

by law and he was involved in petty cases of theft. As against

this, the manner of commission of crime by him and causing

death of the deceased is extremely shocking. Merely because

his behaviour as an under trial prisoner is good and

satisfactory, can be no ground to absolve him of the most

gruesome and cruel act which he has indulged into. Such a

person would surely remain a menace to the Society and in this

backdrop, we are of the firm view that there are no extraneous

mitigating circumstances available on record which may justify

imposition of sentence less than a death sentence which the

learned Sessions Court has imposed.

We record that the case of the appellant deserves

to be falling in the category of 'Rarest of Rare' and it also

amounts to devastation of social trust, shocks the social

conscience and calls for an extreme penalty of capital

punishment.

80 In view of the aforesaid discussion, we uphold the

order of conviction and sentence as recorded by the learned

Tilak

::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:04 ::: 167 CONF_CASE_3_15.doc

Addl. Sessions Judge and confirm the death sentence awarded

to the appellant/accused.

81 In view of the judgment and order passed in the

above Confirmation Case No.3 of 2015, the Criminal Appeal

No.1111 of 2015 filed by he appellant/accused deserves a

dismissal and is accordingly dismissed.

(SMT. BHARATI H. DANGRE, J.) (RANJIT V. MORE, J)

Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:04 :::