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(1)(Sessions Case No.284/2008)Received on : 08042008 Registered on : 08042008 Decided on : 20032012 Duration Y M D 3 11 12 Exhibit No. 229.IN THE COURT OF SESSIONS JUDGE, PUNE, AT PUNE(Presided over by A. M. Badar, Sessions Judge, Pune) SESSIONS CASE No. 284/2008STATE OF MAHARASHTRA (Through Talegaon Dabhade Police Station, District Pune). .. Versus 1. Purushottam Dashrath Borate, Age: 26 Years, Occup. Car driver, 2. Prad
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(1) (Sessions Case No.284/2008)
Received on : 08042008Registered on : 08042008Decided on : 20032012Duration Y M D
3 11 12
Exhibit No. 229.
IN THE COURT OF SESSIONS JUDGE, PUNE, AT PUNE
(Presided over by A. M. Badar, Sessions Judge, Pune)
SESSIONS CASE No. 284/2008
STATE OF MAHARASHTRA (Through Talegaon Dabhade Police Station,District Pune). .. Complainant
Versus
1. Purushottam Dashrath Borate,Age: 26 Years, Occup. Car driver,
2. Pradeep Yashwant Kokade,Age: 20 Years, Occup. Painter,
Both R/o. Sainagar, Gajanan Society,Gahunje, Taluka Maval,District Pune. .. Accused
Appearances:1) Mr. Ujjwal Nikam, Special Public Prosecutor for the State. 2) Mr. A. R. Patil, Advocate for the accused.
Charge for the offences p unishable u/s. 120B, 364, 376(2)(g), 302, 404 R/w Sec. 34 of the Indian Penal Code.
(2) (Sessions Case No.284/2008)
JUDGMENT(Delivered on this 20th day of March, 2012)
Accused sitting in the dock are taking trial for the offences
punishable under Sections 120B, 364 R/w 120B, 376(2)(g) R/w 120B,
and 302 R/w 120B and 404 R/w 120B of the Indian Penal Code and in
the alternative for the offences punishable under Sections 364 R/w 34,
302 R/w 34, 376(2)(g) and 404 R/w 34 of the Indian Penal Code, with
an accusation that on or about 1112007, they conspired to do an
illegal act of abducting Jyotikumari Ramanand Chaudhary, for
committing her murder after commission of gang rape on her and
thereafter dishonestly misappropriating her belongings.
2] Facts leading to the prosecution of accused projected from
the police report can be summarised thus :
Jyotikumari Ramananand Chaudhary (since deceased) was
serving as an Associate with Wipro Business Process Outsourcing
Company at Hinjwadi, Pune. She was residing with her brotherinlaw
Gaursundar Prasad (P.W.12), sister Sudhakumari (P.W.13) and their 7
months old son Kartik in that flat at Panchwati, Pashan area of Pune
city. Jyotikumari used to go to her office at Wipro Co. by the cab hired
by the said Company. The cab used to pick her up from residence for
going to office and used to drop her at her residence after her duty
hours. As per rule of the Company, if first pick up was of a female
employee, then the driver of the cab was duty bound to take security
guard of the Company with him for such pick up. Work at Wipro
Company was used to be done in shift. At the relevant time, Jyotikumari
was having night shift and her working hours were 1100 p.m. to 900
a.m.. Jyotikumari Chaudhary was using mobile phone bearing No.
(3) (Sessions Case No.284/2008)
9960621120 which was in the name of her sister Sudhakumari.
3] On 1112007 at about 1015 p.m., as usual Jyotikumari
got missed call from the driver of the cab for her pick up. She then
called the driver and told him to come for taking her to the work place.
Then Jyotikumari alongwith her brotherinlaw Gaursundar Prasad and
nephew Kartik come down from their flat. Indica car bearing
registration No. MH14/AH4560 which was given cab No. 535 driven
by accused No.1 Purushottam Borate came to pick up Jyotikumari.
Accused No. 2 Pradeep Kokade was sitting on the rear seat behind the
driver. Jyotikumari talked with her brotherinlaw Gaursundar for some
time when that cab was waiting. Then Jyotikumari went for going to
Wipro Company by that cab. During her journey in that cab,
Jyotikumari received calls on her mobile phone from her friend Jeevan
Jyoti Baral (P.W.14) R/o. Bangalore and she was throughout talking
with him. Jeevan Baral heard Jyotikumari asking driver Purushottam as
to where he was taking the vehicle, why the car was stopped in a jungle
and what he was doing. The phone call of Jeevan Baral made to
Jyotikumari was abruptly disconnected and his subsequent attempt to
talk with her by making call proved futile as Jyotikumari's mobile phone
was found to be switched off.
4] According to the prosecution case, under the guise of
taking Jyotikumari to her work place, i.e. Wipro Company; in pursuant
to the criminal conspiracy hatched by accused persons, she was
abducted and taken to a secluded field within jurisdiction of village
Gahunje, Taluka Maval, District Pune. Accused persons then committed
gang rape on her and thereafter murdered her by strangulating her by
(4) (Sessions Case No.284/2008)
means of her Odhani, smashing her head by hitting stone and slashing
her wrist by the blade. Accused persons then took away her gold finger
ring, ear rings, wrist watch, mobile phone, cash amounting to Rs.330/
and purse.
5] By leaving the dead body of Jyotikumari Chaudhary at the
field of Kisan Bodke where the incident took place, accused then went
to house of Sagar Bidkar (P.W.11) coworker of Jyotikumari for picking
him up and dropping him to his employer – Wipro Company. They took
Sagar Bidkar at 0045 a.m. of 2112007 by telling him that the delay
was due to punctured tyre and other employees of the Company are not
coming for work. On request of accused Purushottam, Sagar Bidkar
even wrote on pick up sheet that the cab was late due to tyre failure.
6] In the morning hours at about 715 a.m. of 2112007,
Pankaj Laxman Bodke, resident of Gahunje was proceeding towards his
field. At that time, he saw dead body of unknown female on boundary
of field of Kisan Bodke. He, therefore, informed this fact to Hiraman
Bodke (P.W.1), Police Patil of village Gahunje. Hiraman Bodke then
visited the spot and after verifying the dead body, went to Police
Station, Talegaon Dabhade and lodged FIR (Exhibit 21) on 2112007
itself mentioning that dead body of unknown female with head injury,
abrasion on neck and slashed right wrist is found at the field of Kisan
Bodke. This FIR resulted in registration of Crime No.167/2007 and
wheels of investigation were set in motion. Ranjan Kadam (P.W. 23) PSI
of Talegaon Dabhade Police Station, then visited the spot on 2112007
itself. Inquest notes were taken on inspecting dead body of that
unknown female which later on came to be identified as that of
(5) (Sessions Case No.284/2008)
Jyotikumari Chaudhary. The dead body was then dispatched for
postmortem examination. Spot panchnama was prepared in presence of
panch witnesses on 2112007 itself. Blood stained stone, pair of ladies
sandal, blood stained blade, soil mixed with blood and simple soil came
to be seized from the spot of the incident. After postmortem
examination of dead body, clothes found on dead body, viz. yellow
coloured Kurta, saffron coloured Salwar, brassier, petticoat and knicker
came to be seized.
7] In the meanwhile, on 2112007, when Gaursundar was at
garage for repairing car, his wife Sudhakumari informed him that
Jyotikumari has not returned from work and her mobile phone is
switched off. At about 1200 noon, Sudhakumari again called
Gaursundar and informed him that Jyotikumari did not return from
office. Gaursundar then returned to his home. As Jeevan Baral had
earlier contacted Sudhakumari on telephone for making inquiry of
Jyotikumari, he made telephone call to Jeevan Baral who at the
relevant time residing at Bangalore. During their conversation, Jeevan
Baral narrated conversation of Jyotikumari while her journey in the cab
with accused No.1 Purushottam Borate, which he heard during
telephone talk with Jyotikumari. Grasping seriousness of the situation,
Gaursundar and his wife Sudhakumari went to Chatushringi Police
Station on 2112007 itself and lodged report informing the fact that
Jyotikumari is missing from 1112007.
8] On 3112007, Gaursundar and Sudhakumari were
informed by police that dead body of unknown female is found within
jurisdiction of Talegaon Dabhade Police Station. Hence, Gaursundar and
(6) (Sessions Case No.284/2008)
Sudhakumari went to Police Station, Talegaon Dabhade and showed
photograph of Jyotikumari to Rajendra Patil, (P.W. 27) Police Inspector
of the said Police Station. He also showed photograph of the deceased
female to them. Gaursundar and Sudhakumari identified that
photograph to be of Jyotikumari Chaudhary. Clothes found on dead
body of Jyotikumari were shown to Gaursundar and Sudhakumari.
They both identified the clothes and sandals as belonging to
Jyotikumari. At the morgue of the Sassoon Hospital, Pune, both these
witnesses identified the dead body as that of Jyotikumari Chaudhary.
9] On 3112007, both accused persons came to be arrested by
Chatushringi Police Station. Indica car involved in the crime alongwith
pick up and drop sheets found in it came to be seized. Confessional
statement of accused Purushottam Borate made on 3112007 has
resulted in recovery of wrist watch, finger ring and sim card from his
house. These articles were identified to be belonging to Jyotikumari by
Gaursundar and Sudhakumari. Similarly, confessional statement of
accused Pradeep Kokade made on 3112007 has resulted in recovery of
ear rings and Nokia handset of Jyotikumari from his house. Further
investigation was thereafter conducted by Rajendra Patil of Talegaon
Dabhade Police Station. Confessional statement of accused Purushottam
Borate made on 4112007 has resulted in recovery of Odhani of
Jyotikumari Chaudhary. The Investigating Officer then collected report
of postmortem examination of dead body of Jyotikumari Chaudhary.
Statement of witnesses came to be recorded. Seized articles were sent
for chemical analysis. Forensic examination of Indica car was also done.
Test identification parade of both accused was conducted through
Tahsildar of Vadgaon Maval. Call detail record of the mobile in
(7) (Sessions Case No.284/2008)
possession of Jyotikumari Chaudhary came to be collected. On
completion of routine investigation, chargesheet for the offences
punishable under Sections 302, 376(2)(g), 364 and 404 R/w Sec. 34 of
the Indian Penal Code came to be filed in the Court of J.M.F.C, Vadgaon
Maval.
10] As the offences punishable under section 302 and 376(2)
(g) of the Indian Penal Code are exclusively triable by the Court of
Sessions, the learned J.M.F.C, was pleased to commit the case to the
Court of Sessions for trial of accused persons.
11] Charge for the offences punishable under Sections 120B,
364 R/w 120B, 376(2)(g) R/w 120B, 302 R/w 120B and 404 R/w Sec.
120B of the Indian Penal Code and in the alternative, under Sections
302 R/w 34 and 404 R/w 34 of the Indian Penal Code were framed and
explained to accused persons by my learned predecessor. They abjured
the guilt and claimed trial.
12] In order to bring home the guilt to the accused, prosecution
has examined in all 29 witnesses. Informant Hiraman Bhikoba Bodke,
Police Patil of village Gahunje is examined as P. W. 1 at Exhibit 20.
Exhibit 21 is FIR lodged by him on 2112007. Santosh Mohan Botre,
a panch witness of inquest notes is examined as P.W.2 at Exhibit 23.
Exhibit 24 are the inquest notes. Raju Dnyandeo Tikhe, a panch witness
of spot panchnama is examined as P. W. 3 at Exhibit 40. Exhibit 41 is the
spotcumseizure panchnama of the articles found on the spot recorded
on 2112007. Hanumant Gulab Chavan, a panch witness of seizure of
Indica car and documents found therein is examined as P. W. 4
(8) (Sessions Case No.284/2008)
at Exhibit 42. Exhibit 43 is that seizure panchnama dated 3112007.
Shahaji Babanrao Ghojage, a panch witness of seizure panchnama of
articles, i.e. clothes and sandals of the deceased made after being shown
to relatives of Jyotikumari; is examined as P. W. 5 at Exhibit 44.
Exhibit 45 is the seizure panchnama of those articles. Sunil Arjun
Bodke, a panch witness of seizure of clothes from the dead body of
Jyotikumari is examined as P. W. 6 at Exhibit 46. Exhibit 47 is that
seizure panchnama of clothes of the deceased. Vijay Gulabrao Shirke,
a panch witness of confessional statement and resultant recovery at the
instance of both the accused is examined as P. W. 7 at Exhibit 49.
Exhibit 50 and 50/A are the memorandum statement of accused
Purushottam Borate and resultant recovery panchnama of wrist watch,
finger ring and mobile sim card. Exhibit 51 and 51/A are memorandum
of accused Pradeep Kokade and resultant recovery panchnama of ear
rings and mobile phone of Jyotikumari. Pankaj Laxman Bodke, who
saw dead body of Jyotikumari is examined as P. W. 8 at Exhibit 52.
Bashir Dastagir Shaikh is examined as P. W. 9 at Exhibit 63. He saw
accused Purushopttam Borate taking accused Pradeep Kokade with him
in Indica car at about 8 to 830 p.m. on 1112007. Hiraman Baban
Bhandare, owner of Indica car is examined as P. W.10 at Exhibit 64.
Exhibit 67, 68 and 69 are pick up/drop sheets/Roster of Wipro
Company. Sagar Manoj Bidkar, coemployee of Jyotikumari is examined
as P. W. 11 at Exhibit 75. Gaursundar Abhayshankar Prasad is examined
as P. W. 12 at Exhibit 78. Missing report lodged by him is at Exhibit 80
and occurrence report registered by Chatushringi Police Station on the
basis of this report is at Exhibit 79. Sudhakumari Gaursundar is
examined as P. W. 13 at Exhibit 85. Exchange note of mobile handset
which was in possession of Jyotikumari is at Exhibit 87. Exhibit 88 is
(9) (Sessions Case No.284/2008)
the office copy of Subscribers Enrollment Form of Bharati Airtel Limited.
Exhibit 90 is call detail record of mobile phone bearing No.
9960621120 which was in possession of Jyotikumari. Exhibit 91 is
receipt of wrist watch of Jyotikumari. Jeevanjyoti Anandchandra Baral
is examined as P. W. 14 at Exhibit 94. Ankush Kisan Tumkar a panch
witness to confessional statement of accused Purhsottam Borate made
on 4112007 which resulted in recovery of Odhani is examined as
P. W.15 at Exhibit 95. Exhibit 96 is confessional statement of accused
Purushottam Borate and Exhibit 96/A is resultant recovery panchnama
of Odhani. Autopsy Surgeon Dr. Madhav Adelu Waghmare, Medical
Officer of Primary Health Centre, Talegaon Dabhade is examined as
P. W. 16 at Exhibit 97. Exhibit 98 is postmortem report. Amol
Ramchandra Mugade, Security Supervisor of Wipro Company is
examined as P. W. 17 at Exhibit 105. Kishor Vasantrao Ghadge, Tahsildar
Vadgaon Maval, who conducted test identification parade of both
accused on 14012008 is examined as P. W. 18 at Exhibit 111.
Exhibit 114 is the memorandum of identification parade of both
accused. Dadasaheb Bhimrao Sawane, Police Constable who carried
seized muddemal to the office of Chemical Analyser is examined as
P. W. 19 at Exhibit 115. Kumudini Nanasaheb Ahire, Asstt. Sub
Inspector who took entry of missing report and other connected
documents in the station diary of Chatushringi Police Station is
examined as P. W. 20 at Exhibit 124. Sheshrao Baburao Suryawanshi,
Sr. Police Inspector of Chatushringi Police Station is examined as P. W.21
at Exhibit 127. At the initial stage, he had conducted investigation.
He arrested accused persons, recorded their confessional statement and
recovered articles in pursuant to those statements. Shahaji Ramchandra
Athawale, Police Head Constable who recorded F.I.R. is examined as
(10) (Sessions Case No.284/2008)
P. W. 22 at Exhibit 131. Ranjan Sajanrao Kadam, P.S.I., who visited the
spot of the incident initially and conducted preliminary investigation is
examined as P. W. 23 at Exhibit 138. Dr. Purushottam Ganesh Darshane,
Medical Officer, Sassoon Hospital, Pune is examined as P. W. 24 at
Exhibit 142. Both accused persons were examined by him. Adinath
Devidas Nagane, Police Naik is examined as P. W. 25 at Exhibit 148.
He had taken dead body of Jyotikumari for postmortem examination
and obtained clothes on that dead body which were ultimately seized.
Sanjay Babarao Bodke, a panch witness to identification parade of both
accused is examined as P. W. 26 at Exhibit 156. Rajendra Ganpati Patil,
Police Inspector of Talegaon Dabhade Police Station, who conducted
rest of the investigation is examined as P. W. 27 at Exhibit 161. Kailas
Dattatraya Dhamale, Police Constable who submitted copy of FIR to the
Court of J.M.F.C, Vadgaon Maval is examined as P. W. 28 at Exhibit 185.
Ganesh Ramrao Pawar, Asstt. Nodal Officer of Airtel Limited is
examined as P. W. 29 at Exhibit 219. Exhibit 220 is request letter by
police to Airtel Limited. C. A. reports are at Exhibit 99, 100, 101, 166,
167, 221 and 222.
13] Defence of both accused persons is that of total denial.
Accused No.1 Purushottam Borade has contended that he was not
driving that Indica car (Cab No. 535) on 1112007. In his statement
under Section 313 of Cr. P. C, accused Purushottam Borate has
contended that identification parade was held, but he was not identified
by the witness. He stated that his blood and semen samples were
collected during investigation. He admitted that his clothes were seized
during investigation, but according to him, they were not containing
any stains. Similarly, accused No.2 Pradeep Kokade is also stating that
(11) (Sessions Case No.284/2008)
identification parade was held, but he was not identified by the
prosecution witnesses. He has also stated that his blood and semen
samples were collected by the Investigating Officer so also his clothes,
but they were not containing any stains.
14] I heard Shri. Ujjwal Nikam, the learned Special Prosecutor
appearing for the prosecution. According to him, deceased Jyotikumari
was lastly seen in company of both accused persons and thereafter she
was never seen alive. No explanation is offered by accused persons in
this regard. Evidence of P. W. 12, 13 and 14 is consistent and
trustworthy. It is supported by documentary evidence, i.e. call detail
record. Accused No.1 was late in picking up P. W.11 Sagar Bidkar and
false explanation was given that the tyre was punctured. Accused No.2
Pradeep was in the said car itself. False reason is given by accused No.1
Purushottam to other prosecution witnesses regarding his late arrival at
Wipro Company for dropping P.W. 11 Sagar Bidkar. Accused gave false
explanation to prosecution witnesses that Jyotikumari did not board the
cab in that night. Confessional statement made by accused persons
resulted in recovery of articles which were in possession of Jyotikumari.
Her Odhani recovered at the instance of accused Purushottam was
found to be containing semen stains of both accused persons. C. A.
report further shows that fiber on the ligature mark found on neck of
deceased Jyotikumari tallied with fiber from Odhani recovered at the
instance of accused Purushottam Borate. Semen stains of both the
accused were found on clothes of the deceased. Thus, according to the
learned Special Public Prosecutor the circumstances against accused
persons are firmly established by the prosecution and, therefore,
charges stand proved. Per contra, according to the learned defence
(12) (Sessions Case No.284/2008)
advocate, accused deserve acquittal as there is discrepancy in the
clothes allegedly found on dead body of Kum. Jyotikumari, witnesses
are not stating that those clothes were stained with blood, paddy crop
on which dead body was found, was not seized, blade and stone seized
from the spot of incident were not referred to the Chemical Analyser,
register of Wipro Company is not produced before the Court. He further
argued that Identification parade of seized articles was not conducted
and the panchnamas are vague. Articles were planted at the house of
accused persons. The dead body was just adjacent to Express Highway
having huge traffic and patrolling by police, therefore, there was no
opportunity to accused to commit crime. According to the learned
defence advocate, evidence of P. W. 9 is totally unreliable as he is unable
to read. Shift duty and work of P. W. 10 Bhandari is not clearly brought
on record. Evidence of P. W.12 about description of accused persons is
unsatisfactory. Motive is not proved by the prosecution. Evidence
regarding test identification parade is unreliable. Forensic evidence is
not supporting the prosecution. According to the learned defence
counsel, evidence of all prosecution witnesses is not reliable and
trustworthy. The case is based on circumstantial evidence and
circumstances alleged against accused are not firmly established and
therefore, accused persons deserve acquittal. The learned defence
counsel has placed on record elaborate written notes of arguments
which are carefully perused by me.
15] Upon hearing rival submissions and on perusal of evidence
made available on record, the following points arise for my
consideration and determination and I record my findings thereon, for
the reasons to follow :
(13) (Sessions Case No.284/2008)
POINTS FINDINGS
1) Whether it is proved by the prosecution that Jyotikumari Ramanand Chaudhary died homicidal death ?
.. Yes.
2) Whether it is proved by the prosecution that on or about 1112007, accused persons agreed and caused to be done illegal acts, viz. to abduct Jyotikumari Chaudhary from her house at Panchwati, Pashan, Pune, to commit gang rape on her, thereafter to commit her murder by intentionally and knowingly causing her death and to dishonestly misappropriate her belongings ?
.. Yes.
3) Whether it is proved by the prosecution that on 1112007 at about 1030 p.m. from Panchwati, Pashan, Pune, both the accused persons in pursuant to their criminal conspiracy abducted Jyotikumari Ramanand Chaudhary ?
.. Yes.
4) Whether it is proved by the prosecution that on 1112007 in between 1030 p.m. to 1220 a.m. of 2112007 at the paddy field of Kisan Tukaram Bodke, within jurisdiction of village Gahunje, accused persons committed gang rape on Jyotikumari Ramanand Chaudhary in pursuant to criminal conspiracy hatched by them ?
.. Yes.
5) Whether it is proved that in pursuant to the criminal conspiracy hatched by accused persons in the intervening night of 1112007 to 2112007, they committed murder of Jyotikumari Chaudhary by intentionally and knowingly causing her death ?
.. Yes.
(14) (Sessions Case No.284/2008)
6) Whether it is proved that in pursuant to criminal conspiracy hatched by them, accused persons dishonestly misappropriated or converted for their own use gold finger ring, ear rings, wrist watch, mobile phone which were in possession of Jyotikumari Ramanand Chaudhary at the time of her death after committing her murder ?
.. Yes.
7) What order ? .. As per final order
REASONS
16] According to the prosecution case, in pursuant to the
criminal conspiracy hatched by accused persons, they committed
murder of Jyotikumari in the intervening night of 1112007 to
2112007 in the paddy field of Kisan Bodke within jurisdiction of
village Gahunje. Her dead body was seen by P. W. 8 Pankaj Laxman
Bodke at 715 a.m. of 2112007. Evidence of P. W. 8 Pankaj Bodke
shows that when he was proceeding towards his field by motorcycle, he
saw dead body of a lady on boundary of field of Kisan Bodke with
injuries on neck and right hand. There was blood on paddy crop and
stone. Evidence of P. W. 8 Pankaj further shows that there was a yellow
Kurta and a saffron Salwar on dead body. A pair of sandal was lying
nearby. He passed this information to P. W. 1 Hiraman Bodke who is
Police Patil of village Gahunje.
17] Evidence of P. W. 1 Hiraman Bodke, Police Patil shows that
on getting information, he did visit field of Kisan Bodke and saw dead
body of a lady lying there with injuries on hand. A blood stained stone
was seen by him lying nearby. His evidence further shows that he then
(15) (Sessions Case No.284/2008)
went to Police Station, Talegaon Dabhade on 2112007 itself and
lodged FIR Exhibit 21. Perusal of this FIR at Exhibit 21 shows that it
was lodged at 915 a.m. by Hiraman Bodke. In this FIR against
unidentified accused, it is mentioned that dead body of a female aged
about 20 to 22 years is found in the field of Kisan Bodke. The FIR
further shows that there were injuries to head, right wrist and neck of
the dead body. The FIR also shows that pair of sandal was found lying
near the dead body.
18] P. W. 22 Shahaji Athawale, Police Head Constable of
Talegaon Dabhade Police Station recorded FIR Exhibit 21 lodged by P.
W. 1 Hiraman Bodke. Evidence of P. W. 22 Shahaji Athawale shows
that accordingly Crime No. 167/2007 was registered against unknown
accused and investigation was handed over to P.W. 23 PSI Kadam.
Evidence of this P. W.23 Ranjan Kadam, PSI shows that on 2112007,
he went to the spot of the incident at village Gahunje and recorded
inquest notes at Exhibit 24. Inquest notes at Exhibit 24 recorded on
2112007 shows that there were two cut injuries on right wrist,
abrasion on cheeks, black mark and abrasions on neck, injury to
forehead and brain of the dead body. The dead body was thereafter
dispatched for postmortem, examination at Primary Health Centre,
Talegaon Dabhade. P. W. 25 Adinath Nagane, Police Naik of Talegaon
Dabhade Police Station deposed that he took dead body of that young
female which was still unidentified to Primary Health Centre, Talegaon
Dabhade on 2112007 for postmortem examination. Evidence of P. W.
25 Nagane shows that the Doctor came at 315 p.m.. He gave letter of
P.S.O. (Exhibit 139) raising queries regarding dead body to the Doctor
and thereafter autopsy was performed on the dead body.
(16) (Sessions Case No.284/2008)
19] This is how the dead body of unknown female in Crime No.
167/2007 was taken from village Gahunje to the Primary Health Centre
of Talegaon Dabhade on 2112007 for performing autopsy. On 211
2007, P. W. 16 Dr. Madhav Waghmare, Medical Officer attached to
Primary Health Centre, Talegaon Dabhade conducted postmortem
examination on that dead body from 325 p.m. to 425 p.m.. Evidence
of P. W. 16 Dr. Madhav Waghmare shows that during postmortem
examination, he noticed following external injuries on that dead body:
1) CLW on left parietal scalp region, size 1” c ½ “ x deep bone.
2) CLW on left tempro parietal scalp region size 1 ½ “ x ½ “ x
deep bone.
3) Ligature mark around the neck region, Nature grievous,
Position mark situated low down in the below thyroid the
base of groove being soft and reddish. Dimension – size 6”
x ½” x ¼”. Directions – Horizontally continuous low down
in the neck below the thyroid cartilage, encircling the neck.
Probable age of the injury 16 hours. Condition of
subcutaneous tissue under the mark ecchymosed character
of ligature mark – nylon rope fibers are used as ligature.
Fracture hyoid bone. Fracture skull involving frontal
parietal left temporal bone, frcture ribs right 2,3,4.
4) Multiple abrasion on left temporal to cheek left, and lower
mandibular regions size 6” x 3” x ¼”.
5) Multiple abrasions at base of left clavical and midsternum
thoracic regions, size 2” x 2” x ¼”.
6) Multiple abrasions with finger nail marks, right side of neck
region, frontolaterally, size 2” x 1 ½” x ¼”.
7) Multiple abrasions with finger nail marks on left side of the
(17) (Sessions Case No.284/2008)
neck regions frontolaterally, size 2 ½” x 1” x ¼”.
8) Incised wound on right wrist joint region ventrally, size 2” x
1 ½” x deep bone (radial artery not cut)
9) Incised wound just below above injury No. 8 on right wrist
region ventrally, size 2” x 1 ½” x deep bone.
10) Contusion on left eye and upper eyelid region, size 1” x 1”
(cynosed).
11) CLW on left eyebrow to frontal scalp region, size 1” x ½” x deep bone.
20] Evidence of P. W. 16 Dr. Madhav Waghmare further shows
that upon internal examination of dead body, he noticed following
injuries.
1) CLW on left parietal scalp region.
2) CLW on left temproparietal scalp region.
3) CLW on left eyebrow to frontal scalp region.
4) Fracture of skull involving frontal parietal left temporal
bone.
5) Laceration to the brain.
6) Fracture to ribs (right 2,3,4) of right side.
7) Pleura ruptured right.
8) Fracture larynx and trachea, bronchial tube contains froth.
9) Right lung congested, emphysematous, bullae on the
surface of the lung. Due to over distension rupture of intra
aveolar septa.
10) Carotid arteries – Internal coat ruptured seen.
11) Pubic hair not found, matted due to the presence of semen
or dried semen or stains. Bleeding from vagina is very
slight. No injury is seen to labia majora and labia minor. No
(18) (Sessions Case No.284/2008)
vaginal secretion seen. Uterus was congested and
normal. Oss closed.
21] Evidence of P. W. 16 Dr. Madhav Waghmare establishes
that injuries found on dead body of that female was ante mortem in
nature. P.W.16 Dr. Waghmare, upon conducting postmortem
examination on dead body came to the conclusion that the death of that
lady was due to shock and haemorrhage due to grievous injury on vital
organs with fractured skull involving frontal left temporal, parietal bone
with laceration to brain with fractured ribs, ruptured right lung with
strangulation. His evidence further shows that strangulation may be
committed when the victim was suddenly overpowered from behind by
using rope with hands. Dr. Waghmare had prepared memorandum of
postmortem examination on 2112007 itself which is at Exhibit 98.
This contemporaneous document fully corroborate version of P. W.16
Dr. Madhav Waghmare.
22] Now one will have to examine whether the prosecution
proves that the dead body of female found in the field at Gahunje was
that of Jyotikumari Chaudhary. Evidence of P. W. 12 Gaursundar shows
that on 3112007, in pursuant to missing report in respect of Kum.
Jyotikumari Chaudhary lodged by him, police came and told that dead
body of unknown female was found within jurisdiction of Talegaon
Dabhade Police Station. Evidence of P. W. 12 Gaursundar and P. W. 13
Sudhakumari shows that then they went to Police Station, Talegaon
Dabhade where Crime No. 167/2007 was registered on finding of dead
body at Gahunje. At that place, photograph of that dead body was
shown to them and they identified the said photograph to be of dead
(19) (Sessions Case No.284/2008)
body of Jyotikumari. Evidence of both these witnesses unanimously
shows that then they were taken to Sassoon Hospital, Pune by police
where dead body of that female was shown to them. They identified
that dead body as of Jyotikumari Chaudhary. This evidence of brother
inlaw and sister of deceased Jyotikumari gains corroboration from
evidence of P. W. 27 Rajendra Patil, Investigating Officer. He has also
testified that on 3112007, he showed photograph of the dead body of
unidentified female in Crime No. 167/2007 to P. W. 12 Gaursundar and
P. W.13 Sudhakumari. P. W. 27 Patil, Investigating Officer further
deposed that they both identified the photograph as of Jyotikumari. It
is, thus, clear that dead body of unidentified female found in the field of
Kisan Bodke within jurisdiction of village Gahunje on 2112007 was of
Jyotikumari Chaudhary. On establishing identity of that dead body as
that of Jyotikumari Chaudhary, P. W.27 Patil, Investigating Officer had
issued a letter at Exhibit 162 to the Medical Officer, Primary Health
Centre, Talegaon Dabhade to mention name of the deceased as
Jyotikumari Ramanand Chaudhary in the certificate of cause of death
and postmortem report. That is how P. W. 16 Dr. Waghmare wrote
name of deceased as Jyotikumari Ramanand Chaudhary in postmortem
report at Exhibit 98. Even in crossexamination, this Autopsy Surgeon
has clarified that on 5112007, police informed him name of the
deceased and thereafter it was mentioned in the postmortem report at
Exhibit 98 as Jyotikumari Chaudhary though it was prepared on
2112007. There is no material on record to suggest that injuries on
dead body of Jyotikumari were accidental or suicidal. Injuries reflected
in postmortem report rules out such possibility. Considering nature of
ante mortem injuries found on dead body of Jyotikumari Chaudhary
and cause of her death given by the autopsy surgeon, it needs to put on
(20) (Sessions Case No.284/2008)
record that Jyotikumari Chaudhary died homicidal death prior to
715 a.m. of 2112007 and her dead body was found at 715 a.m. of
2112007 in the agricultural field at village Gahunje, District Pune.
23] Now let us examine, whether it is proved by the
prosecution that by entering in criminal conspiracy, accused persons
abducted, raped, murdered Jyotikumari and misappropriated her
belongings.
24] Case of the prosecution is wholly depend on circumstantial
evidence. Prosecution is relying on the following circumstances in order
to establish that both the accused persons have hatched criminal
conspiracy to abduct Jyotikumari Chaudhary on 1112007 for
committing her murder after raping her and then for dishonestly
misappropriating the property which was in her possession at that time,
for their own use. The circumstances relied on by the prosecution can
be culled out as under :
[i] Jyotikumari Chaudhary was lastly seen alive by PW 12
Gaursunder at about 10.30 p.m. on 1112007, when she
left her house in company of both the accused in Cab No.
535 viz. Indica Car bearing registration No. MH14/AH
4560, and thereafter, she was never seen alive. Accused
have not offered any explanation as to what happened to
Jyotikumari Chaudhary after she sat in the Cab in the night
of 1112007.
[ii] Jyotikumari Chaudhary was lastly perceived to be alive in
the company of both the accused upto about 11.00 p.m.
on 1112007, while talking with her on mobile phone
(21) (Sessions Case No.284/2008)
by P.W. 14 Jeevan Baral. The accused did not offer
any explanation as to what happened to Jyotikumari
Chaudhary thereafter.
[iii] Statements made by Jyotikumari to P.W.14 Jeevan Baral
during their telephonic conversation as to the
circumstances of the transaction which resulted in her
death.
[iv] Dead body of Jyotikumari with injuries thereon was found
at 7.15 a.m. on 2112007 in the agricultural field of Kisan
Borade within jurisdiction of village Gahunje by PW 8
Pankaj Bodake. She suffered homicidal death.
[v] Though accused No.1 Purushottam Borate was supposed
to pick up PW 11 Sagar Bidkar at 10.30 p.m. of 1112007
after picking up of Jyotikumari, he was late by more than
two hours for this pick up. He picked up P.W. 11 Sagar
Bidkar at 00.45 a.m. of 2112007 and at that time,
accused No.2 Pradeep Kokade was accompanying accused
No.1 Purushottam Borate in that Cab No. 535.
[vi] Accused No.1 Purushottam Borate gave false explanation
for late pick up of PW 11 Sagar Bidkar and late reaching
at Wipro Co.; to PW 1 Sagar Bidkar and PW 17 Amol
Mugade, that the delay was due to puncture of tyre and
Jyotikumari did not board his Cab on 1112007.
[vii] Accused No.1 Purushottam Borate gave false identity of
accused No. 2 Pradeep Kokade as 'Shankar' to PW 10
Hiraman Bhandare. In hearing of P. W. 10 Hiraman
(22) (Sessions Case No.284/2008)
Bhandare, accused No.1 Purushottam Borate made a false
statement that Jyotikumari did not come for work on
1112007.
[viii] On the basis of confessional statement of accused No.1
Purushottam Borate, a wrist watch (article No.26), gold
ring (article No.27), one SIM card (article No.21) were
recovered on 3112007. These articles were identified to
be of Jyotikumari by P.W. 12 Gaursunder and P.W. 13
Sudhakumari.
[ix] On the basis of confessional statement of accused No.2
Pradeep Kokade, mobile phone (article No.29) and ear
rings (article No.28) were recovered on 2112007. These
articles were identified to be of Jyotikumari by PW 12
Gaursunder and PW 13 Sudhakumari.
[x] On the basis of confessional statement of accused No.1
Purushottam Borate, Odhani identified to be of Jyotikumari
was recovered on 4.11.2007. That Odhani was found to be
having semen stains of blood group of both the accused
persons. (C.A. Report at Exh. 166).
[xi] Fibers detected on scratch material on ligature mark on
neck of Jyotikumari tallied with fibers from clothes of
Odhani recovered at the instance of accused No.1
Purushottam Borate. (C.A. Reports at Exhs. 222 and
221 respectively.)
[xii] Kurta and Salvar (articles No. 6 and 7) of Jyotikumari were
(23) (Sessions Case No.284/2008)
found to be having stains of semen of blood group of both
the accused persons. Knicker of Jyotikumari was found to
be having semen stains of blood group of accused No.2
Pradeep Kokade.
[xiii] On pubic hair and vaginal swab of Jyotikumari, human
semen was detected (C.A. Report Exh. 99).
[xiv] Blood stains were found on Cab No. 535 in which
Jyotikumari undertook last travel of her life. Accused
persons have not offered any explanation about it.
(C.A. Report Exh. 167).
According to the prosecution, evidence adduced by it firmly
establishes these circumstances and these proved circumstances are
establishing guilt of the accused in the offence alleged against them.
25] As the case is based on the circumstantial evidence, it needs
to be kept in mind that the prosecution will have to establish all these
circumstances by independent evidence and the circumstances must be
clinching and forming complete chain of events leading to irresistible
conclusion that those were the accused and none else who have caused
death of Jyotikumari after abducting and raping her. The law in this
regard is well settled and can be found in State of U. P. Vs. Dr. Ravindra
Mittal, AIR 1982 SUPREME COURT 2045, wherein it is held that the
essential ingredients to prove guilt of an accused persons by
circumstantial evidence are :
(1) the circumstances from which the conclusion was drawn should be fully proved;
(24) (Sessions Case No.284/2008)
(2) The circumstances should be conclusive in nature;
(3) all the facts so established should be consistent with the hypothesis of guilt and inconsistent with innocence;
(4) The circumstances should be to a great certainty exclude the possibility of guilt of any person other than the accused.
26] In Kashmira Singh Vs. State of Madhya Pradesh AIR
1952 SUPREME COURT 159, Hon'ble Supreme Court has held that in
case of cruel and revolting murder, it will be necessary to examine
evidence with more than ordinary care lest the shocking nature of the
crime induced an instinctive reaction against a dispassionate judicial
scrutiny of the fact and law. The case at hand is also a case of cruel
murder of a young girl after commission of rape on her and, therefore,
evidence adduced by the prosecution will have to scrutinize carefully.
27] In the case at hand, according to the prosecution,
Jyotikumari was in the Company of both the accused since she left
home with them at 1030 p.m. of 1112007 in the cab No. 535 driven
by accused No.1 Purushottam Borate. She was perceived to be alive
upto 1100 p.m. and then her dead body was found at 715 a.m. in the
field of village Gahunje. Thus, the theory of last seen together is relied
by the prosecution to prove the guilt of accused. In Sk. Yusuf Vs. State
of West Bangal – 2011 ALL MR (Cri) 2365 (S.C.), relied by the defence
theory of last seen together is explained by the Hon'ble Supreme Court
in para No. 14 of the report, which reads thus:
“14 . The last seen theory comes into play where the time gap between the point of time when the accused and
(25) (Sessions Case No.284/2008)
deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible”.
28] Similarly, para Nos. 12, 13 and 15 in the matter of Shivaji
@ Dadya Shankar Alhat Vs. State of Maharashtra – AIR 2009
SUPREME COURT 56 relied by the prosecution are relevant to
understand appreciation of evidence in cases of circumstantial evidence.
Para No. 12, 13 and 15 of this report needs reproduction and they read
as under :
“12. So far as last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows: “22. The last seen theory comes into play where the timegap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P. Ws.3 and 5, in addition to the evidence of P. W. 2.”
“13. In Ramreddy Rajeshkhanna Reddy v. State of A. P.[2006(10) SCC 722] it was noted as follows: “27. The last seen theory, furthermore, comes into play where the timegap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for
(26) (Sessions Case No.284/2008)
some corroboration”.”
“15. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.”
To buttress its contention that in cases of circumstantial
evidence, there is always the danger that the conjecture or suspicion
may take the place of legal proof and, therefore, a chain of evidence
must be complete so as not to leave any reasonable ground for
conclusion consistent with the innocence of the accused, the defence
has relied on rulings in the matters of Hanuman Govind Nargundkar
and another Vs. State of M. P. AIR 1952 S. C. 343(1); Shankarala
Dixit Vs. State of Maharashtra – AIR 1981 Supreme Court 765 (1).
Similarly, according to the learned defence counsel, mere suspicion or
suspicious circumstances cannot relieve the prosecution of its primary
duty of proving the case against an accused beyond reasonable doubt.
Court of justice cannot be swayed by the sentiment or prejudice against
a person accused of the very reprehensible crime of the incident.
Reliance is placed by the defence on Syed Osman Vs. State of
Maharashtra – 1998 ALL MR ()Cri.) 204; Ashish Batham Vs. State of
M. P. 2002 CR. L. J. 4676 (S.C.); Parashram Siddha Vs. State of
(27) (Sessions Case No.284/2008)
Maharashtra – 2001 Bom. C.R. (Cri.) 166; Kashinath Patil Vs. State
of Maharashtra – 2000 ALL MR (Cri.) 1847 and Toran Singh Vs.
State of M. P. 2002 CRI. L. J. 3737 (S.C.). The learned defence
counsel is contending that when the link in the chain of circumstances
is missing, the charges cannot be established by relying on Mujjib and
another Vs. State of Kerala – 2000 Cri. L. J. 742. I have minutely gone
through the rulings cited by the learned defence counsel wherein
principles of appreciation of evidence in the case based on
circumstantial evidence is elaborated by the superior Courts. Let us,
therefore, examine whether the circumstances alleged against the
accused are of conclusive nature and if found to be proved, they are
such as to exclude every hypothesis but the one proposed to be proved
by the prosecution.
29] At the outset let us examine whether the prosecution has
proved that Jyotikumari was lastly seen alive in company of both the
accused persons soon before her death. P. W. 12 Gaursundar – her
brotherinlaw is a prime witness on this aspect. P. W. 12 Gaursundar
and his wife P.W. 13 Sudhakumari (sister of deceased Jyotikumari )are
unanimous in stating that on 1112007, Jyotikumari was on duty in
third shift commencing from 1100 p.m. to 900 a.m.. A cab hired by
Wipro Company used to come to their residence to fetch Jyotikumari.
P. W. 12 Gaursundar and P.W. 13 Sudhakumari have consistently
deposed that as per practice, before coming driver of the cab gave a
missed call to Jyotikumari on her mobile phone bearing No.
9960621120. Though this cell phone is in name of P.W. 13
Sudhakumari, evidence of both these witnesses establishes that this cell
phone was being used by Jyotikumari. These witnesses further deposed
(28) (Sessions Case No.284/2008)
that Jyotikumari then talked with driver of the cab and told him to
come to pick her up. At that time, Jyotikumari was playing with Kartik.
When she started going down, Kartik started crying. Hence, as per
version of both these witnesses, Jyotikumari, Kartik and P. W. 12
Gaursundar went downstairs to accompany Jyotikumari upto the cab.
He and Jyotikumari talked with each other for five minutes when that
cab was waiting for Jyotikumari. It is in evidence of P. W W. 12
Gaursundar that registration number of that Indica car which came to
fetch Jyotikumari was MH14/AH4560 and there were two persons in
that cab. P. W. 12 Gaursundar has stated that driver was blackish in
complexion. He was wearing maroon coloured pant, cap as well as
jacket. As per his version, another person was sitting just behind the
driver and he was wearing blue pant and black Tshirt. Evidence of P. W.
12 Gaursundar shows that he had ample opportunity to see and
observe both the driver and his companion in the light of the street
light. As per his version, after talking with Jyotikumari for five minutes
at that place, Jyotikumari went for her job in that Indica car bearing
registration No. MH14/AH4560. P. W. 12 Gaursundar Prasad has
identified accused No.1 Purushottam Borate as a driver and accused
No. 2 Pradeep Kokade as companion of the driver; with whom
Jyotikumari went for office in Indica car at about 1030 p.m. on 111
2007.
30] By relying on ruling in the matter of Sharad Sarda Vs.
State of Maharashtra – AIR 1984 SC 1622, the learned defence
advocate has contended that as P. W. 12 Gaursundar and P.W. 13
Sudhakumari are closely related to deceased Jyotikumari, their
evidence is not reliable as they have a tendency to exaggerate or add
(29) (Sessions Case No.284/2008)
facts. No doubt, it is normal rule of appreciation of evidence that
evidence of related or interested witnesses has to be appreciated with
great care and caution but it is equally well settled that merely because
the witnesses are related to the deceased, their evidence cannot be
outrightly thrown away. Rejection of such evidence on the sole ground
that witnesses are related to the deceased would invariably leads to
failure of justice. Once the evidence of witnesses examined appears to
be truthful, reliable and acceptable, the mere fact that they are related
to the deceased does not make their evidence unworthy of credence.
On the contrary, close relatives of the deceased would normally be
themselves reluctant to spare the real assailant and falsely mention the
name of other persons. In the case at hand, P. W. 12 and 13 namely
Gaursundar and Sudhakumari are most natural witnesses and presence
of P. W. 12 Gaursundar to see off Jyotikumari when she went for work
in company of the accused cannot be doubted in normal way.
31] There is absolutely nothing on record to doubt version of
P.W. 12 Gaursundar and P. W. 13 Sudhakumari on the aspect of
P.W.12 Gaursundar accompanying Jyotikumari upto the cab. On the
contrary, this version of both these witnesses is strengthened in the
crossexamination of both these witnesses. It has came on record in
crossexamination of P. W. 12 Gaursundar that he used to go downstairs
for dropping Jyotikumari at the cab regularly and in his absence, his
wife used to do this work. Similar is the version of P. W. 13
Sudhakumari in crossexamination wherein she stated that her husband
used to accompany Jyotikumari upto the cab and in his absence, she
used to drop her upto the cab. Thus, there is no reason to doubt version
of P. W.12 Gaursundar that on 1112007, he went downstairs with
(30) (Sessions Case No.284/2008)
Jyotikumari to accompany Jyotikumari upto the cab and as he stayed
with Jyotikumari for about five minutes at the cab, he had seen the
driver of that cab and the person accompanying the driver in that cab
viz. accused No.1 Purushottam Borate and accused No. 2 Pradeep
Kokade. Even in crossexamination of this witness, it has come on
record that the same driver came to pick up Jyotikumari even on 3010
2007 and 31102007. As P. W. 12 Gaursundar was regularly going
downstairs to drop Jyotikumari at the cab, he had every opportunity to
see and observe the physique and personality of the driver who used to
come to pick her up for taking her to the work place. At this juncture, it
is apposite to note that P. W. 13 Sudhakumari is not claiming to have
accompanied Jyotikumari on 1112007 to the cab. She is not claiming
to have seen the accused persons. Thus, it is seen that though closely
related to the deceased, she is not adding embellishment to her version.
For these reasons, evidence of P. W. 12 Gaursundar that it was accused
No.1 Purushottam Borate who was driving the cab and it was the
accused No.2 Pradeep Kokade who was accompanying him in the cab
when they had taken Jyotikumari on 1112007 at about 1030 p.m.
needs to be accepted as the same is fully trustworthy and reliable.
32] So far as identity of that cab is concerned, evidence of
P.W.12 Gaursundar is cogent on this aspect and even strengthened from
the material brought on record from his crossexamination. It has come
on record in his crossexamination that on 30102007 and 31102007,
same vehicle, i.e. Indica car bearing registration No. MH14/AH4560
came to pick up Jyotikumari. This witness has stated that these details
are in his mind because he lost his sisterinlaw Jyotikumari. Evidence
of P. W. 12 Gaursundar is very natural on this aspect and the reason for
(31) (Sessions Case No.284/2008)
keeping memories of the incident fresh in his mind is also genuine.
Therefore, there is no reason to doubt version of this witness that
Jyotikumari was taken in Indica car bearing registration No. MH
14/AH4560 at about 1030 p.m. on 1112007 by both the accused
persons.
33] Defence has contended that evidence of P. W. 12
Gaursundar and P. W. 13 Sudhakumari is untrustworthy because
whatever is stated by them before the Court is not disclosed by them
while lodging report regarding missing of Jyotikumari. Let us, therefore,
examine whether nondisclosure of the facts that Jyotikumari was taken
by the accused in the cab on 1112007 by P. W. 12 Gaursundar creates
doubt in the veracity of evidence of P. W. 12 Gaursundar and P. W. 13
Sudhakumari. P.W. 12 Gaursundar has stated that on 2112007, he
alongwith his wife P. W. 13 Sudhakumari went to Chatushringi Police
Station and lodged missing report. Defence has confronted P. W. 12
Gaursundar with this missing report which is at Exhibit 80. On the
basis of this missing report, occurrence report was recorded by Police
Station, Chatushringi and the same is at Exhibit 79. Perusal of this
missing report at Exhibit 80 shows that it was recorded by some Asstt.
SubInspector in the form of statement of P. W. 12 Gaursundar wherein
it is stated that Jyotikumari left for work as usual at 1030 p.m. on 111
2007, but she has not returned upto 1030 a.m. in the morning. It is
further mentioned therein that she was supposed to return by the cab of
the Company and, therefore, inquiry was made in the Company and it
was informed that she had not attended duty. According to the defence,
P. W.12 Gaursundar has not disclosed in this first report lodged by him
that Jyotikumari left home in company of the accused in the cab driven
(32) (Sessions Case No.284/2008)
by accused No.1 Purushottam Borate and, therefore, evidence of the
prosecution is not trustworthy. However, no substance is found in this
contention because of clarification given by P. W. 12 Gaursundar and
P.W. 13 Sudhakumari in their crossexamination itself. P. W. 12
Gaursundar has categorically denied that he had not disclosed
description of the driver and his friend to the police or about
conversation between him and Jeevan Baral to the police. According to
this witness, police informed him that first they will record missing
report, do the investigation and then FIR would be filed. Hence,
according to P. W. 12 Gaursundar, police did not write details given by
him in missing report at Exhibit 80 or occurrence report at Exhibit 79.
According to P. W. 12 Gaursundar, he did inform police about mobile
phone number as well as name of Jeevan Baral but police had not
written these details as they wanted to do investigation. In the similar
manner, even P. W. 13 Sudhakumari in her crossexamination has
candidly stated that they had disclosed lot of information to the police
while lodging missing report, but police did not record all the
information given by them. She denied the fact that she and her
husband simply informed police that Jyotikumari left the house by
saying that she is going to the Company. This material coming on record
from crossexamination of both these witnesses is sufficient to remove
the doubt which a prudent person may have due to nonfinding of
details about leaving house in the Company's cab with both the
accused by Jyotikumari in the missing report at Exhibit 80. It appears
that police had taken the matter too casually and recorded missing
report at Exhibit 80 in the way in which they thought fit to record
report regarding missing of a young girl aged about 20 to 22 years.
Even, occurrence report at Exhibit 79 prepared after registering missing
(33) (Sessions Case No.284/2008)
report at Exhibit 80 shows that police even thought that the report
disclosed noncognizable offence and, therefore, P. W. 12 Gaursundar,
as seen from this occurrence report Exhibit 79, was given an
understanding that his complaint is of noncognizable nature. If police
shows apathy in such serious case that cannot be a ground to discredit
otherwise truthful version of reliable witnesses such as P. W. 12
Gaursundar and P. W. 13 Sudhakumari. Shri. Nikam, the learned
Special Public Prosecutor has rightly relied on Dhanraj Singh alias
Shera Vs. State of Punjab 2004 S.C.C. (Cri. ) 851, wherein the Hon'ble
Apex Court relying on earlier decisions has held that if the lapse or
omission is committed by the investigating agency because of
negligence, the prosecution evidence is required to be examined
dehorse such omissions to find out whether said evidence is reliable or
not. It is further held that if primacy is given to negligent investigation,
to the omission or lapses by perfunctory investigation or omissions, the
faith and confidence of the people would be shaken not only in the law
enforcing agency, but also in the administration of justice. In case of
defective investigation, the Court has to be circumspect in evaluating
the evidence. As discussed in foregoing para, evidence of P. W. 12
Gaursundar and P. W. 13 Sudhakumari is totally consistent, cogent and
free from all infirmities. It is corroborated in all material particulars by
other evidence on record which would be discussed subsequently and,
therefore, only because concerned police official has not recorded
details given by P. W. 12 Gaursundar about the incident while lodging
missing report, his evidence cannot be discarded.
34] Now let us examine other evidence adduced by the
prosecution in order to ascertain whether accused No.1 Purushottam
(34) (Sessions Case No.284/2008)
Borate was driver on Indica car bearing No. MH14/AH4560 in which
Jyotikumari left her home for attending the work at about 1030 p.m.
on 1112007. P. W. 10 Hiraman Bhandare is the owner of this Indica
car bearing No. MH14/AH4560. His evidence shows that this car was
purchased to ply as Taxi by him in Feb. 2006 and from 16022006, he
had attached this car to Om Sai Enterprises through which it was given
to Mico Car Private Limited, Pune which was doing the work of ferrying
the employees of Wipro BPO Company, Hinjwadi, Pune from their
houses to the work place and from work place to their houses.
Evidence of P. W. 10 Hiraman Bhandare firmly establishes the fact that
his Indica car bearing No. MH14/AH4560 was given Cab No. 535 and
he himself and accused Purushottam Borate was driving this car for
picking up employees of Wipro Company from their houses and for
dropping them to their work place and viceversa from 24102007. It
is in evidence of P. W.10 Hiraman Bhandare that Om Sai Enterprises
had provided mobile phone No. 9975557535 for this work of
transporting the employees of Wipro Company and that mobile phone
used to be in his car viz. Cab No. 535. Wipro Company used to give
chart known as Pick Up Drop sheets/Rosters to them in advance
mentioning name of employees which are required to be transported.
P.W.10 Hiraman Bhandare candidly deposed that from 24102007 to
28102007 he worked as driver on the Cab No. 535 during night shift
and accused No.1 Purushottam Borate worked as driver in day shift.
Thereafter, from 29102007, as per version of P. W. 10 Hiraman
Bhandare, he drove that cab in day time and accused Purushottam
Borate drove it in night time for transporting employees of Wipro
Company till date of incident, i.e. 1112007. Thus evidence of P. W.10
Hiraman Bhandare also shows that accused No.1 Purushottam Borate
(35) (Sessions Case No.284/2008)
had taken Jyotikumari in this cab No. 535 at 1030 p.m. on 1112007.
35] During searching crossexamination of P. W. 10 Hiraman
Bhandare, pick up Drop sheet/Rosters seized from this Cab No. 535
were referred to him by the learned defence counsel in order to
demonstrate that these sheets bears his name as driver of the cab and
this aspect creates doubt in the prosecution case that it was accused
No.1 Purushottam Borate who was driving the Cab No. 535 at the time
of the incident. P. W. 21 Sheshrao Suryawanshi, Sr. P. I. of Chatushringi
Police Station had seized the Indica car bearing No. MH14AH4560
and the pick up sheets/rosters found therein in presence of panch
witness P. W. 4 Hanumant Chavan by seizure panchnama Exhibit 43 on
3112007. Their evidence proves the seizure of pick up sheets/rosters.
P. W. 4 Hanumant Chavan who apart from acting as panch witness to
this seizure is also proprietor of Om Sai Enterprises which supplies
vehicles to Wipro Company through Mico Cars Pvt. Ltd.. His cross
examination shows that after picking up and dropping the employees,
pick roster is returned to the Supervisor. Evidence of P. W. 17 Amol
Mugade, Supervisor of Wipro Company shows that there was practice to
give photo copy of these pick up sheets to the drivers of the cab. This
evidence brought on record through crossexamination of P. W. 4
Hanumant and P. W. 17 Mugade establishes authenticity of seizure of
pick up sheets at Exhibit 67 to 69 from Indica car No.MH14/AH4560
(Cab No. 535). Pick up an Drop sheet/Rosters of 30102007,
31102007 and 1112007 are at Exhibit 69, 67 and 68, respectively. In
these printed sheets registration number of the vehicle is given as Indica
Car No. 4560, Cab Number allotted to it is shown as 535. In the
column of name of driver Hiraman is written. Hence, according to the
(36) (Sessions Case No.284/2008)
defence, it was P. W. 10 Hiraman who was driving that cab and not
accused No.1 Purushottam Borate. However, this argument is devoid of
merit because in crossexamination of P. W. 10 Hiraman Bhandare, it
has come on record that he used to mention his name as well as
distance travelled in the pick updrop sheets/Rosters well in advance
and, therefore, his name is appearing in these sheets at Exhibit 67 to 69
as driver. In the similar way, he has stated that distance to be travelled
by the cab is a calculated distance and it is also mentioned in each sheet
as 44 km.. This explanation of P. W. 10 Hiraman is an honest,
trustworthy and reliable explanation for the simple reason that the cab
was engaged for transporting the employees round the clock because
work of Wipro Company goes on round the clock in three shifts, first
shift commencing from 700 a.m. and the third shift ending on 700
a.m. of the next day. As such, it is virtually impossible for one driver to
work round the clock for ferrying the employees. Accused No.1
Purushottam Borate was employed as driver by P.W.10 Hiraman
Bhandare on his Indica car and P. W. 10 Hiraman Bhandare was also
driving that car by dividing their work in two shifts, viz. day shift and
night shift. It is, therefore, but natural that P.W.10 Hiraman who is also
owner of the cab had written his name as driver in the pick up drop
sheets at Exhibit 67 to 69 well in advance. Mere mentioning of name of
P W. 10 Hiraman as driver in these sheets is not sufficient to jettison
clear evidence of P. W. 12 Gaursundar that it was accused No.1
Purushottam Borate who was driving Indica car bearing No. MH
14/AH4560 at 1030 p.m. of 1112007 while taking Jyotikumari for
her office. Moreover, there is substantive evidence of P.W.9 Bashir
Shaikh, P. W.10 Hiraman Bhandare, P. W.11 Sagar Bidkar and P. W.17
Amol Mugade which shows that it was accused No.1 Purushottam
(37) (Sessions Case No.284/2008)
Borate who was driving the Indica cab No. 535 in the night of 111
2007. By their evidence entry of name of P. W. 10Hiraman Bhandare in
pick uip sheets at Exhibit 67 to 69 gets explained.
36] Pick up – Drop sheets at Exhibit 67 to69 shows that Indica
car No.MH14/AH4560 was supposed to transport in all four
employees named therein who were residing at Panchwati and Pashan
area to Wipro Company on 30102007, 31102007 and 1112007. P.
W. 11 Sagar Bidkar is one of such employee. His evidence shows that
on 28102007, Manager of Wipro Company informed him that Indica
car bearing No. MH14/AH4560 viz. Cab No. 535 would come to pick
him up from 29102007. Accordingly from 29102007, Cab No. 535
driven by accused No.1 Purushottam Borate started coming for his pick
up alongwith other employees including Jyotikumari. P. W. 11 Sagar
Bidkar has also identified accused No.1 Purushottam Borate as a
person who was driving Cab No. 535 from 29102007 to 1112007
while picking him up for night shift commencing from 1100 p.m..
There is nothing in crossexamination of P. W.11 Sagar Bidkar to doubt
his version about accused No.1 Purushottam Borate being driver of Cab
No. 535 in night shift from 29102007 to 1112007. This witness
denied the suggestion that Jyotikumari was travelling in Cab No. 7 and
not in Cab No. 535 from 29102007. This witness was firm to state
that Jyotikumari was with him as copassenger in Cab No. 535 from
29102007. Even pick up sheet at Exhibit 69 for 30102007 and
Exhibit 67 for 31102007 shows signature of Jyotikumari in the
prescribed column against her name as a token of being passenger in
Cab No. 535 for third shift. It is seen that pick up sheets are maintained
in the common course of business by Wipro Company for the purpose of
(38) (Sessions Case No.284/2008)
transporting their employees to work place. Those appears to have been
signed by the concerned employees regularly and, therefore,
presumption needs to be drawn from these pick up sheets bearing
signature of Jyotikumari that she was to travel to her work place in the
Cab No. 535 from 29102007 to 1112007 and in fact she did travel in
that cab. Thus, evidence of P.W. 10 Hiraman Bhandare and P. W. 11
Sagar Bidkar coupled with documentary evidence regarding pick up
sheets at Exhibit 67 to 69 corroborates version of P. W. 12 Gaursundar
that it was accused No.1 Purushottam Borate who was driving Indica
car No.MH14/AH4560 (Cab No. 535) in which Jyotikumari left home
for work on 1112007.
37] Evidence of P. W. 11 Sagar Bidkar shows that on
1112007, though the cab was supposed to pick him up at 1030 p.m, it
actually came to pick him up at 0045 a.m. of 2112007. When he sat
in that Cab No. 535, apart from accused No.1 Purushottam Borate, he
found one person aged about 23 to 24 years sitting at the backside of
the car. On inquiry by P. W. 11 Sagar Bidkar, that person gave his name
as Pradeep Kokade by saying that he is friend of the driver and painter
by occupation. P.W.11 Sagar Bidkar had sufficient opportunity to
observe him during their travel. There is no reason to disbelieve this
part of evidence of P. W.11 Sagar Bidkar regarding presence of accused
No.2 Pradeep Kokade in that Cab No. 535 at 0045 a.m. of 2112007.
P. W.11 Sagar Bidkar has identified both the accused persons before the
Court as driver of Cab No. 535 and the person accompanying the driver
on 1112007. Thus, evidence of P. W. 12 Gaursundar that accused No.2
Pradeep Kokade was sitting in rear seat of Indica car driven by accused
No.1 Purushottam Borate gains corroboration from evidence of P. W.11
(39) (Sessions Case No.284/2008)
Sagar Bidkar.
38] Evidence of P. W. 12 Gaursundar to the effect that
Jyotikumari was taken by both the accused persons in Cab No. 535
gains further corroboration from version of P. W. 9 Bashir Dastagir
Shaikh, a Chicken Vendor residing at village Murmad of accused No.2
Pradeep Kokade. This witness is neighbourer of accused No.2 Pradeep
Kokade. His evidence shows that accused No. 1 Purushottam Borate is
friend of accused No. 2 Pradeep Kokade and on 1112007 at about
800 to 830 p.m. when he himself, accused No.2 Pradeep Kokade and
one Rahul were chitchatting, accused No.1 Purushottam Borate came by
Indica car and took accused No.2 Pradeep Kokade with him. P. W. 9
Bashir Shaikh has stated registration number of that car as MH14/AH
4560, but this appears to be his exaggerated version as he does not
know English reading and writing. At the same time, it has came on
record in his crossexamination that he had seen accused Purushottam
Borate in the said car as driver since last three days prior to the
incident. His version reveals that number plate of that car was yellow.
Therefore, even if registration number of Indica car stated by this
witness is ignored then also evidence of P.W. 9 Bashir Shaikh shows that
on 1112007 at about 800 to 830 p.m. accused No.2 Pradeep Kokade
accompanied accused No.1 Purushottam Borate in Indica car which was
in fact plying as taxi and therefore having yellow number plate.
Evidence on this aspect of P. W. 9 Bashir Shaikh needs to be relied
because he was acquainted with both the accused persons and had seen
accused No.1 driving Indica car at least since three days prior to the
incident. Though this witness was served with summons with copy of
his statement, there is nothing on record to infer that he is a tutored
(40) (Sessions Case No.284/2008)
witness. He does not know reading and writing. It is thus clear that
from 830 p.m. of 1112007, accused No.2 Pradeep Kokade was in
company of accused No.1 Purushottam Borate. Therefore, immediately
thereafter, he must have accompanied accused Purushottam for picking
up Jyotikumari by indulging in criminal conspiracy to abduct her for
committing her rape and murder. Evidence of P. W. 9 Bashir Shaikh as
such corroborates evidence of P. W. 12 Gaursundar that those were the
accused sitting in the dock who had taken Jyotikumari in the cab at
about 1030 p.m. on 1112007.
39] The prosecution has conducted test identification parade of
both the accused persons through P. W. 18 Kishor Ghadge, Tahsildar of
Vadgaon Maval on 14012008. Both the accused persons are admitting
this fact but are contending that witness had not identified them.
Evidence of P. W. 18 Ghadge shows that he received request letter dated
19112007 (Exhibit 112) from Police Station for conducting
identification parade of both the accused and this request was followed
by reminders dated 26122007 (Exhibit 113) and 7012008 (Exhibit
114). On 14012008, he conducted test identification parade in the
Tahsil hall at Vadgaon Maval. As came on record from his evidence,
arrangement of sitting of witness was done in separate room and door
and windows of that room were closed. P. W. 12 Gaursundar came and
he was asked to sit in that closed room. Thereafter, two panch witnesses
were selected from amongst the persons present in the Tahsil office.
After calling about 15 persons resembling personality of both the
accused, P. W. 18 Ghadge selected 12 persons resembling
height,physique and colour of the accused persons. Evidence of P. W. 18
Ghadge shows that precaution was taken so as to ensure that the
(41) (Sessions Case No.284/2008)
accused and the witness should not see each other. The accused were
brought in veil in the Tahsil hall where the dummies were present.
Option was given to the accused to change their clothes and hair style
so also to stand in a row at the position of their choice. Accordingly,
both the accused took position of their choice. Thereafter, P. W. 12
Gaursundar was called and he was asked to identify accused persons.
Evidence of P. W. 18 Kishor Ghadge shows that P. W. 12 Gaursundar
identified accused No.1 Purushottam Borate and accused No.2 Pradeep
Kokade and accordingly memorandum Exhibit 114 was prepared by
dictating text as per short notes taken by him to his writer. Perusal of
this memorandum at Exhibit 114 shows that at two places, date is
incorrectly written as 16012008, but the same is stated to be a mistake
of the writer. P. W. 18 Ghadge stood the test of crossexamination and
nothing came on record in his crossexamination to disbelieve his
version. In crossexamination also, he maintained that there was only
one door to the Tahsil office where test identification parade was
conducted and he had verified that panchas are respectable and
independent persons. Thus, evidence of P. W. 18 Ghadge shows that test
identification parade was conducted by taking all necessary precautions
that the witness and the accused should not see each other prior to test
identification parade. By relying on Ramu Thapa Vs. State 2007 ALL
MR (Cri.) 925, the learned defence advocate contended that as there is
delay in holding the identification parade, such parade is valueless.
However, in that matter, the Investigating Officer had not explained the
delay in holding the identification parade. True it is that in the present
case there is some delay in conducting test identification parade of
accused who were arrested on 3112007, but P. W. 27 Patil,
Investigating Officer has explained the reason as heavy police duty and
(42) (Sessions Case No.284/2008)
at the same time, it is seen that though request letter was sent to the
Tahsildar on 19112007, which was subsequently followed by two
reminders, it was the Tahsildar who delayed the matter by actually
conducting the test identification parade on 14012008. At the same
time, there is nothing on record to suggest that prior to this test
identification parade, P. W. 12 Gaursundar had seen both the accused at
any point of time. Relying on the ruling in Ganesh Pandian Vs. State of
Maharashtra – 1985 Cri. L. J. 191, the learned defence advocate
criticised the identification parade by contending that as two accused
are dissimilar in appearance, two separate parade should have been
taken. However, in the case at hand, both the accused are of similar age
and similar appearance and evidence of P. W. 18 Ghadge shows that
dummies of similar appearance were used in the identification parade.
Thus, it is established that accused were identified by P.W. 12
Gaursundar in test identification parade and this fact lends
corroboration to his version that on 1112007, they had taken
Jyotikumari on the pretext of transporting her to the work place. His
identification of both the accused in the dock gains corroboration from
evidence of test identification parade.
40] The learned defence advocate relied upon the ruling in
Anwar and another Vs. State – 1961 (1) Cri. L. J. 22 and submitted
that evidence of identification of the accused is a weak type of proof
and it must satisfy the test of definition of the word 'proved' contained
in Sec. 3 of the Evidence Act. However, in the case at hand, there is
substantive evidence of identification of both the accused before the
Court by P. W. 12 Gaursundar. Similarly, his evidence do show that on
1112007, he had good opportunity of seeing both the accused in the
(43) (Sessions Case No.284/2008)
light of street light when he was talking with Jyotikumari for about five
minutes and as accused No.1 Purushottam Borate came to fetch
Jyotikumari even on 30102007 and 31102007. The features of both
the accused were well fixed in the mind of P. W. 12 Gaursundar on
1112007 and they remained imprinted in his memory because of
gruesome murder of his sisterinlaw Jyotikumari. P. W. 12 Gaursundar
had reliable power of identification as he identified both the accused
from amongst twelve dummies of identical physique and resemblance.
Similarly, there is nothing on record to show that P. W.12 Gaursundar
had an opportunity to see both the accused after their arrest. Nothing of
such type is elicited from him in his crossexamination. Thus, evidence
of test identification parade attaches great value to evidence of P. W.12
Gaursundar.
41] After Jyotikumari was taken by the accused persons,
according to the prosecution case, she was continuously talking with
P. W. 14 Jeevan Baral resident of Bangalore on her cell phone bearing
No. 9960621120 which was proved to be in her possession from
unimpeached evidence of P. W. 12 Gaursundar and P. W. 13
Sudhakumari. P. W. 14 Jeevan Baral is friend of Jyotikumari and he has
also disclosed the same number as mobile number of Jyotikumari on
which he used to contact her daily. This witness was having love affair
with Jyotikumari and was used to be in her constant contact over cell
phone as seen from his crossexamination. As admitted by him in cross
examination, even on 1112007, he talked with Jyotikumari on her cell
phone for 6 to 7 times. With this, let us examine his evidence. His
evidence shows that on 1112007, at about 1030 p.m. he called
Jyotikumari on her cell phone and she told him that she is going to
(44) (Sessions Case No.284/2008)
office in office car. After 5 to 7 minutes of talk, the call was
disconnected and, therefore, P. W. 14 Jeevan Baral again called
Jyotikumari. At this time, their conversation last for long till
disconnection of call after loud noise. P.W.14 Jeevan Baral has stated in
his evidence that during conversation with Jyotikumari in this second
call, he heard Jyotikumari saying “driver Purushottam where you are
taking the vehicle” and the driver's answer that a person from Nigadi is
required to be picked up. P. W. 14 Jeevan Baral further stated that after
some time, Jyotikumari asked driver Purushottam as to why he was
taking car in the jungle and the driver replied that as condition of the
road is worst, another road is adopted. Thereafter, P. W. 14 Jeevan
Baral asked Jyotikumari whether she was alone in the car and upon that
she told that friend of driver namely Pradeep was also present in the
car. Then after some time, as per version of Jeevan Baral, Jyotikumari
asked the driver why the car was stopped in the jungle and shouted
“please what you are doing”. Thereafter, according to P. W. 14 Jeevan
Baral there was loud noise and the call was disconnected and
subsequently cell phone of Jyotikumari was found to be switched off. In
crossexamination of this witness, it is brought on record that he even
tried to contact Pune police by dialing 020100, but could not get
response from police. This witness has acted prudently by calling Pune
police but his attempt prove futile . On the next day, he had also
contacted relatives of Jyotikumari. Even it has brought on record from
his crossexamination that on 2112007, he received a call from Pune
police and disclosed to Pune police what he heard during conversation
with Jyotikumari. From evidence of P. W. 14 Jeevan Baral, it is
established that during the course of her travel in cab No. 535,
Jyotikumari was accompanied by accused No.1 Purushottam Borate and
(45) (Sessions Case No.284/2008)
accused No. 2 Pradeep Kokade. Trustworthiness of evidence of P. W. 14
Jeevan Baral is implicit from call detail record of cell phone No.
9960621120 of Jyotikumari. This call detail record is at Exhibit 90.
Apart from being exhibited due to its reference in the crossexamination
of P. W. 13 Sudhakumari, this call detail record at Exhibit 90 is also
proved by P. W. 29 Ganesh Pawar, Asstt. Nodal Officer of Airtel
Company. The call detail record at Exhibit 90 shows that at 10.31.10
p.m. of 1112007, there was incoming call on this mobile phone No.
9960621120 from mobile phone No. 9986233097 and duration of this
call was 406 seconds i.e. 6.07 minutes. Then there was another call
from the same number on 1112007 at 10.30.28 and its duration was
1422 seconds, i.e. 23.07 minutes. Cell Phone No. 9986233097 is that
of P. W. 14 Jeevan Baral. This call detail record at Exhibit 90 lends
assurance to the truthfulness of version of P. W. 14 Jeevan Baral and it
does shows that he was continuously talking with Jyotikumari from
1031 p.m. of 1112007 upto about 101 p.m. of 1112007. Therefore,
it is but natural that he would hear what Jyotikumari was telling to the
driver of the cab. Hence, there is no reason to doubt version of P. W.14
Jeevan Baral about what he heard during the course of his conversation
with Jyotikumari.
42] That apart, P. W. 14 Jeevan Baral has narrated what he
heard during the course of his conversation with Jyotikumari to
P. W. 12 Gaursundar and P. W. 13 Sudhakumari immediately on the
next day, i.e. on 2112007 when P. W. 12 Gaursundar called him from
cell phone of P. W. 13 Sudhakumari. In their evidence P. W. 13
Gaursundar and P. W. 13 Sudhakumari are vividly describing what they
heard from P.W. 14 Jeevan Baral and how he heard Jyotikumari talking
(46) (Sessions Case No.284/2008)
with the driver of the cab and the questions she put to the driver and
answers given by him. It is, thus, clear that P. W. 14 Jeevan Baral had
immediately, i.e. on very next day has narrated to P. W. 12 Gaursundar
and P. W. 13 Sudhakumari what transpired during the course of journey
of Jyotikumari in the cab, which was heard by him on his cell phone.
Previous statement of P. W.14 Jeevan Baral made to P. W.12
Gaursundar and P. W.13 Sudhakumari is perfectly admissible under
Section 157 of the Evidence Act to corroborate his version as it was
made immediately when mind of P.W. 14 Jeevan Baral was
uninfluenced. [see State of Tamil Nadu Vs. Suresh AIR 1998 SC 1044]
43] True it is that there is some delay in recording police
statement of P. W. 14 Jeevan Baral, R/o. Bangalore but explanation for
the same has come on record from his mouth in crossexamination that
after hearing shocking news of murder of Jyotikumari, he went under
depression and even police did not call him immediately. However, he
came to Pune from Bangalore on 10112007 and then his statement
was recorded by police. As such, delay in recording statement of this
witness is not fatal to the prosecution in any manner. The ruling in the
matter of Balya @ Baliram More Vs. State 2010 ALL MR (Cri. )2677
relied by the defence is not applicable to the facts of the present case as
in that matter, there was delay in recording statement for which no
proper explanation was given. In the case at hand, deceased
Jyotikumari was lover of P. W. 14 Jeevan Baral and her brutal murder
put P. W. 14 Jeevan Baral in depression leading to illness, but still
within a short time, he came all the way from Bangalore to Pune on
10112007 itself. Hence, merely on account of delay of few days in
recoding the statement due to nonavailability of this witness, his
(47) (Sessions Case No.284/2008)
evidence cannot be doubted. In the matter of Banti @ Guddu Vs. State
of M. P. 2004 SCC (Cri. ) 294 relied by the learned Special Public
Prosecutor, Hon'ble Supreme Court has ruled that it cannot be laid
down as a rule of universal application that if there is any delay in
examination of a particular witness, the prosecution version becomes
suspect. Similarly, in the matter of State of U. P. Vs. Satish AIR 2005
SC 1000, it is reiterated by the Hon'ble Supreme Court that unless the
Investigating Officer is categorically asked as to why there was delay in
examination of the witness, the defence cannot gain any advantage
therefrom. In the case at hand no such attempt is made by the defence.
Evidence of P. W. 14 Jeevan Baral as such fully corroborates version of P.
W. 12 Gaursundar and the prosecution has proved that even after
leaving her house in company of both the accused persons at 1030 p.m.
on 1112007, Jyotikumari was with them very much alive upto 1100
p.m. of that date.
44] The dead body of Jyotikumari was found at 7.05 a.m. on
2112007 at village Gahunje. Let us, therefore, ascertain time of her
death in between those seven hours. Postmortem examination on dead
body of Jyotikumari was conducted by PW 16 Dr. Madhav Waghmare
from 3.25 p.m. to 4.25 p.m. of 2112007. At that time, as seen from the
report of Postmortem examination of Jyotikumari at Exhibit 98, there
was wellmarked rigor mortis on whole of the dead body. In cross
examination of PW 16 Dr. Waghmare, it has been brought on record
that formation of rigor mortis starts in 12 hours, it remains in the body
for 12 hours and it starts disappearing after 12 hours. In the case at
hand, rigor mortis on dead body of Jyotikumari was very much present
fully at the time of her Postmortem examination, which was conducted
(48) (Sessions Case No.284/2008)
from 3.25 p.m. of 2112007. This goes to show that after passing of 12
hours, rigor mortis was fully developed and at the time of Postmortem
examination, it was found to be well marked over the dead body. Thus,
this medical evidence shows that Jyotikumari must have died at about
12 O'clock in midnight of the intervening night of 1112007 and
2112007. This time of death of Jyotikumari assessed from medical
evidence on record shows the close proximity between her death and
her being in company of the accused at the relevant time. This proved
fact regarding time of death of Jyotikumari shows that in all human
probability, she was murdered by both the accused persons while she
was still in their company.
45] Statements made by Jyotikumari while proceeding in
company of both the accused on 1112007 and heard by P. W.14
Jeevan Baral constitutes the circumstances of the transaction which
resulted in her death. P. W. 14 Jeevan Baral has stated to have heard
that in that night of 1112007 Jyotikumari was questioning accused
No.1 Purushottam Borate that where he was taking the vehicle and
answer of the accused that 'a person from Nigadi was require to be
picked up'. Similarly, Jyotikumari had questioned accused No.1
Purushottam Borate as to why he was taking car in the jungle and why
the car was stopped in the jungle. Similarly, P. W.14 Jeevan Baral had
heard shout of Jyotikumari “please what you are doing”. These are the
statements of Jyotikumari made by her proximately to the actual
occurrence resulting in her death as her dead body was found within
few hours thereafter and precisely at 715 a.m. of 2112007 by P. W. 8
Pankaj Bodke in the field at village Gahunje. Medical evidence shows
that Jyotikumari might have died at 12 O'clock in midnight of night
(49) (Sessions Case No.284/2008)
intervening in 1112007 and 2112007. Statements of Jyotikumari
heard by P. W. 14 Jeevan Baral shows that she was in company of both
the accused persons and they took her in the jungle. Though the
learned defence advocate has stated that there was no jungle adjoining
the place where the dead body was found, it is a matter of common
knowledge that a city dwellers perceives jungle as an isolated or
secluded place and even the field. In the night hours of 1112007,
Jyotikumari was right in saying that why car was taken and stopped at a
jungle because that place was agricultural field surrounded by other
such fields. The statements regarding circumstances where she was
taken and her utterances in fear made in company of both the accused
persons have close proximate relation to the actual occurrence of her
rape and consequent murder. The statements made by Jyotikumari
which were addressed to either accused No.1 Purushottam Borate or to
both the accused persons constitutes her dying declaration as they
forms circumstances of the transaction which resulted in her death.
Clause (1) of Sec. 32 of the Evidence Act refers to two kinds of
statements :
(1) Statement made by a person as to the cause of his death, and,
(2) Statement made by a person as to any of the circumstances of transaction which resulted in his death.
Utterances of Jyotikumari while talking on cell phone with
P. W. 14 Jeevan Baral and subsequent disconnection of the call with
loud noise unerringly points out that both the accused persons with
whose company she was at the relevant time had committed offence
alleged against them by raping and murdering Jyotikumari. At this
juncture, it is apposite to quote para Nos. 18 & 19 as well as relevant
(50) (Sessions Case No.284/2008)
portion of para No. 21 in the matter of Sharad Biridhichand Sarda Vs.
State of Maharashtra – AIR 1984 SUPREME COURT 1622(1) (supra).
“18. Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of Cl.(1) of S.32, viz. “the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question” is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. The State, AIR 1960 Punjab 310, where the following observations were made :
“Clause (1) of Sec. 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead, … are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which the cause of that person's death comes into question ….. It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death.
In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death”.
19. And in the case of State V. Kanchan Singh, AIR 1954 All 153, it was observed thus :
“The law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death. Even if the person did not apprehend that
(51) (Sessions Case No.284/2008)
he would die, a statement made by him about the circumstances of his death would be admissible under S. 32, Evidence Act.”
20. …..
21. Thus, from a review of the authorities mentioned above and the clear language of S.32 (1) of the Evidence Act, the following propositions emerge :
(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act in view of the peculiar conditions of our society and the diverse nature and character of our people has though it necessary to widen the sphere of S. 32 to avoid injustice.
(2) The test of proximity cannot be literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 34 months the statement may be admissible under S.32.(3) …..
(52) (Sessions Case No.284/2008)
(4) …..(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a telltale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.”
46] Statements made by Jyotikumari as to the circumstances of
transaction which resulted in her death shows that in all human
probability, offence of her murder after raping her was committed by
both the accused persons in whose company she was at that time.
47] While examining whether Jyotikumari has suffered
homicidal death, on scrutiny of evidence of P. W. 8 Pankaj Bodke as well
as that of P. W. 12 Gaursundar and P. W. 13 Sudhakumari, it has
already been held that identity of the dead body found in the
agricultural field at village Gahunje on 2112007 at 715 a.m. is
established to be that of Jyotikumari Chaudhary. Thus, by clear, cogent
and consistent evidence, the prosecution has established that
Jyotikumari Chaudhary was alive in the company of both the accused
persons at about 1100 p.m. of 1112007 and soon thereafter at 715
a.m. of 2112007, she was found in dead condition with injuries on her
body in the agricultural field at village Gahunje. Her death seems to
have occurred in the midnight. Thus, on account of close proximity of
time between the event of both the accused having been lastly seen and
perceived in company of Jyotikumari Chaudhary and the fact of death
of Jyotikumari Chaudhary, rational mind is persuaded to reach an
irresistible conclusion that either the accused should explain how and in
(53) (Sessions Case No.284/2008)
which circumstances Jyotikumari suffered death or should owe the
liability of her homicidal death. As the prosecution has proved beyond
reasonable doubt that both the accused persons were lastly found in
company of Jyotikumari Chaudhary, burden shifts on them to at least
prove how and in what manner they parted company with her since she
was never seen alive thereafter. This burden is not at all discharged by
both the accused persons. Their defence is that of total denial. No
explanation is forthcoming in their statement under Section 313 of
Code of Criminal Procedure. On the contrary, stand of accused No.1
Purushottam Borate as reflected from crossexamination of prosecution
witnesses is to the effect that he was not driving Cab No. 535 at the
relevant time and Jyotikumari had not boarded that cab in that fateful
night. However, this stand is absolutely false as seen from prosecution
evidence. Substantive evidence of prosecution witnesses and more
particularly that of P.W. 9 Bashir Shaikh, P. W. 10 Hiraman Bhandare, P.
W. 12 Gaursundar, P. W. 11 Sagar Bidkar and P. W. 17 Amol Mugade
shows that it was accused No.1 Purushottam Borate who was driving
Cab No. 535 in the night hours of 1112007. Thus, this half hearted
plea of alibi is not proved by accused No.1 Purushottam Borate though
the burden to establish this fact was on him.
48] Now, let us examine subsequent conduct of both the
accused persons when they went for second pick up of that night
intervening 1112007 and 2112007. As per pickup roster of
1112007 (Exhibit 68), second pick up of that night was of PW 11
Sagar Bidkar, System Administrator of Wipro Company. It is in evidence
of PW 11 Sagar Bidkar that from 29102007, his duty was in third
shift starting from 11.00 a.m. and accused No.1 Purushottam Borate
(54) (Sessions Case No.284/2008)
used to come in Cab No. 535 for picking him up along with other co
employees. His evidence shows that he and his coworkers were
regularly picked up by accused No.1 Purushottam Borate from
29102007 to 31102007, but on 1112007, though accused No.1
Purushottam Borate informed him about pick up at 10.30 p.m., he did
not come at that time. PW 11 Sagar Bidkar has deposed that he
inquired from accused Purushottam about pick up after 10.45 p.m. and
accused Purushottam Borate assured that he will reach within ten
minutes. However, accused Purushottam Borate did not come and after
11.00 p.m. he informed him that the tyre of the car is punctured and
after repair, he would come. Evidence of PW 11 Sagar Bidkar shows
that ultimately accused No.1 Purushottam Borate came in Cab No. 535
at 00.45 a.m. of 2.11.2007 for his pick up. According to version of PW
11 Sagar Bidkar, one person aged about 23 to 24 years was sitting at
the backside of the car and that person told his name as Pradeep
Kokade friend of the driver. PW 11 Sagar Bidkar deposed that
Pradeep Kokade was frightened while talking and got down prior to
entering in the gate of Wipro Company. PW 11 Sagar Bidkar who had
sufficient opportunity to observe both the accused in cab has identified
both the accused persons Purushottam Borate as the driver on the Cab
at the relevant time and accused No.2 Pradeep Kokade as friend of the
driver, who was present in the Cab. Frightened condition of accused
No.2 Pradeep Kokade is also relevant to infer that he was the partner in
this horridus crime. PW 11 Sagar Bidkar further stated that accused
Purushottam Borate requested him to write on pick up sheet/rosters
that the tyre of that Cab was punctured by pleading that else fine would
be imposed. PW 11 Sagar Bidkar did make that endorsement so that
accused Purushottam Borate should not suffer. When Cab No. 535
(55) (Sessions Case No.284/2008)
entered in the company, as it was late, Gateman did not affix regular
stamp on pick up sheet/rosters and, therefore, the pick upsheet at
Exhibit 68, according to PW 11 Sagar Bidkar, is not bearing stamp of
the company. PW 11 Sagar Bidkar has candidly stated that on the way
to the company, accused Purushottam Borate informed him that other
coemployees are not coming for work. This witness stood the test of
crossexamination and denied that Jyotikumari was not his co
passenger in Cab No. 535 during that period or that from 29102007,
Jyotikumari was going to the company in Cab No. 7. Even PW 11
Sagar Bidkar denied suggestion that accused Purushottam Borate was
not driver on Cab No. 535 on 1112007 or during that period. An
attempt was made to falsify pick up sheets at Exhs. 67 to 69 by showing
those sheets to this witness and pointing out to him that he made
signatures on these sheets in different styles. However, it was not
suggested to PW 11 Sagar Bidkar that those signatures were not of
him. What was suggested is that he made signature in different style.
Once the defence accepts that the signatures on pick up sheets at Exhs.
67 to 69 are of Sagar Bidkar, then the style in which they are made,
loses importance. It is a common practice to make signature in
different style on different paper. Less important papers are signed
casually in various styles and, therefore, no overbearing importance can
be given to such fact. Evidence of PW 11 Sagar Bidkar is duly
corroborated by pick upsheet at Exhibit 68 wherein he made
endorsement that Cab late due to tyre failure, at the instance of accused
Purushottam Borate.
49] If scrutiny of this evidence of PW 11 Sagar Bidkar
established that accused Purushottam Borate was late by more than two
(56) (Sessions Case No.284/2008)
hours for pick up of this witness on 1112007. Accused No.1
Purushottam Borate is proved to have picked up Jyotikumari at 10.30
p.m. of 1112007 and there is no explanation from the accused as to
what they were doing in the span of more than two hours with
Jyotikumari. Ultimately, both the accused persons came for pick up of
PW 11 Sagar Bidkar at 00.45 a.m. of 2112007 in Cab No. 535.
Subsequent conduct of accused No.1 Purushottam Borate in giving false
explanation to PW 11 Sagar Bidkar that the delay was due to
punctured tyre and Jyotikumari did not come for work on that day, goes
a long way to infer guilt of both the accused persons in the crime in
question, as they had sufficient time of more than two hours to commit
the same. Evidence of PW 11 Sagar Bidkar is duly corroborated by PW
17 Amol Mugade, who was Security Supervisor at Wipro Company. His
evidence also shows that accused No.1 Purushottam Borate was driving
Cab No. 535 and he came at about 1.00 a.m. of 2112007 with pick up
sheet at Exhibit 68 with a request to enter time of entry of the vehicle as
'11.00 p.m.' According to version of this witness, he refused to oblige
accused Purushottam Borate and entered the time of entry of that Cab
as '1.00 a..m.' on pick upsheet /rosters at Exhibit 68. Evidence of PW
17 Amol Mugade gains further corroboration from pick up
sheet/rosters Exhibit 68 wherein he made entry as “In time 1.00 a.m.”
True it is that this witness was unable to tell his name of other drivers
who came in the company on 1112007, but by that itself it cannot be
presumed that he is telling a lie. Other drivers must not have made
such unusual request and, therefore, it was but natural if PW 17 Amol
Mugade had still remember accused Purushottam Borate.
50] With this evidence, prosecution has established that
(57) (Sessions Case No.284/2008)
accused No.1 Purushottam Borate was late by more than two hours for
pick up of PW 11 Sagar Bidkar on 1112007, and when he went to
pick up PW 11 Sagar, he falsely informed that the delay was due to
punctured tyre of the Cab and Jyotikumari did not board the cab for
work in that night of 1112007. This conduct of accused Purushottam
Borate is certainly compatible to his guilt and it was in consonance with
their meticulously chalked out plan for commission of the crime.
51] As accused No.1 Purushottam Borate gave false explanation
for late pick up and not coming to the work by Jyotikumari to P. W. 11
Sagar Bidkar, so also he gave false identity of accused No.2 Pradeep
Kokade as Shankar to his employer P. W. 10 Hiraman Bhandare. It is in
evidence of P. W. 10Hiraman Bhandare that on 2112007 at about
1230 p.m. accused No.1 Purushottam Borate came to him for
returning the cab. At that time, he received call from Wipro Company
for making inquiry about pick up of Jyotikumari at the last night. As
accused No.1 Purushottam Borate was very much present there with
P. W. 10 Hiraman Bhandare, the cell phone was handed over by him to
accused No.1 Purushottam Borate. P. W.10 Hiraman Bhandare has
stated that at that time, accused No.1 Purushottam Borate has
telephonically informed the supervisor of the Wipro Company that
Jyotikumari did not come to the office though he had been to her
house. P. W.10 Hiraman Bhandare further deposed that upon making
inquiry, accused No.1 Purushottam Borate told him that during last
night, his friend named Shankar was accompanying him. This inquiry
was made by P. W. 10 Hiraman Bhandare as P. W. 11 Sagar Bidkar had
informed him that during his pick up by accused No.1 Purushottam
(58) (Sessions Case No.284/2008)
Borate, one person was accompanying accused No.1 Purushottam
Borate. Nothing came in crossexamination of this witness to disbelieve
this portion of his evidence. From this evidence of P. W.10 Hiraman
Bhandare, conduct subsequent to commission of crime by accused No.1
Purushottam Borate came on record. Here also accused No.1
Purushottam Borate had given false information in hearing of P. W. 10
Hiraman Bhandare that Jyotikumari did not board his cab in the night
of 1112007. Accused No.1 Purushottam Borate gave further false
information that the person accompanying him in the cab in last night
was Shankar, though it was accused No.2 Pradeep Kokade who
accompanied him. This is a circumstance which goes a long way to
establish guilt of both the accused persons.
52] Thus prosecution, by trustworthy and reliable evidence has
established that accused No.1 – Purushottam Borate had given false
explanation of late pick up of P.W.11 Sagar Bidkar and late reaching at
Wipro Company to P. W. 10 Hiraman Bhandare, P. W. 11 Sagar Bidkar
and P.W. 17 Amol Mugade that he was late as the tyre of the cab got
punctured. He gave false information to P. W. 11 Sagar Bidkar and to the
supervisor of the Wipro Company in hearing of P.W. 10 Hiraman
Bhandare that in the night of 1112007, Jyotikumari did not board the
cab and came for attending her duty. Accused Purushottam Borate had
even stated name of accused No. 2 Pradeep Kokade as Shankar to this
employer P. W. 10 Hiraman Bhandare. Criminal intention of accused
No.1 Purushottam Borate can be inferred from this conduct subsequent
to commission of offence and it destroys presumption of his innocence.
This subsequent conduct of accused No.1 Purushottam Borate is clearly
admissible under second part of Sec. 8 of the Evidence Act and is a
(59) (Sessions Case No.284/2008)
relevant fact apart from being an incriminating circumstance. This
subsequent conduct of accused Purushottam Borate can be ultilised as
furnishing further proof of his guilt.
53] Both the accused persons were arrested on 3112007 by
preparing arrestcumseizure panchnama which is at Exhibit 11. The
prosecution is heavily relying on confessional statement of both the
accused persons and resultant recovery of articles of deceased
Jyotikumari on the basis of confessional statements of the accused.
According to the prosecution, the information contained in the
statements of both the accused persons made while in police custody is
confirmed by the finding of articles which subsequently proved to be
that of deceased Jyotikumari and hence such information provided by
both the accused as is distinctly connected with the said discovery is
admissible in evidence and constitute a circumstance against them as
per provisions of Sec. 27 of the Evidence Act. The prosecution will,
therefore, be required to establish following conditions for application
of Sec. 27 of the Evidence Act.
(1) That consequent to the information given by accused persons, it led to the discovery of facts stated by them;
(2) The facts discovered must be one which was not within the knowledge of police and the knowledge of the fact was for the first time derived from the information given by accused persons;
(3) Information given by accused persons has resulted in discovery of a fact which is the direct outcome of such information;
(4) The discovery of the fact was in relation to a
(60) (Sessions Case No.284/2008)
material object and even embraced within its fold the mental condition, i.e. knowledge of the accused of the place from where the objects were recovered and the knowledge that those objects were there;
(5) Only such portion of information as is distinctly connected with the said recovery is admissible.
54] The accused persons made confessional statements before P.
W. 21 Sheshrao Suryawanshi, Sr. P. I. of Chatushringi Police Station on
3112007 in presence of panch witness P. W. 7 Vijay Shirke and co
panch Ravindra Vichare. Evidence of P. W. 21 Suryawanshi, Sr. P.I. and
that of P. W. 7 Vijay Shirke is congruous. In unison, both these witnesses
have stated that on 3112007 accused No.1 Purushottam Borate made
confessional statement that he had kept wrist watch, a finger ring and
sim card concealed at his house and he would take out the same. Their
evidence shows that this statement was recorded and the accused as
well as both panch witnesses signed it. Admissible portion of this
memorandum statement of accused No.1 Purushottam Borate is at
Exhibit 50.
55] Evidence of P. W. 7 Shirke panch witness and that of
P. W. 21 Sheshrao Suryawanshi, Sr. P.I. further shows that then as per
willingness of accused No.2 Pradeep Kokade, his confessional
statement was recorded thereafter wherein he has stated that he had
concealed ear rings and Nokia handset at his house. This confessional
statement duly signed by accused No. 2 Pradeep Kokade and the panch
witnesses, excluding inadmissible portion, it is at Exhibit 51. These
confessional statements show that confessional statement at Exhibit 50
(61) (Sessions Case No.284/2008)
of accused No.1 Purushottam Borate was recorded at 715 a.m. whereas
that of accused No.2 Pradeep Kokade was recorded at 730 a.m..
56] Evidence of P. W. 7 Shirke and P. W. 21Suryawanshi shows
that in pursuant to confessional statement of both the accused persons,
they and both the accused persons proceeded by jeep in the direction
shown by accused No.1 Purushottam Borate. He took them to village
Gahunje and pointed out his house. According to version of both these
witnesses, mother and sisterinlaw of accused No.1 Purushottam
Borate were present in that house. From behind of the photo frames of
Gods in the bed room of his house, accused Purushottam Borate
produced gold finger ring, wrist watch of Titan Company and sim card
of Airtel Company. As per version of both these witnesses, then recovery
panchnama at Exhibit 50/A was prepared and those articles were seized
and sealed.
57] P. W. 7 Shirke and P. W. 21 Suryawnashi have further
stated that then accused No.2 Pradeep Kokade took them to his house
where his mother was present. As per version of these witnesses, from
the cupboard of bed room of his house, accused Pradeep Kokade
produced ear rings and mobile handset of Nokia Company which were
seized by preparing recovery panchnama Exhibit 51/A on 3112007
itself.
58] From crossexamination of P. W. 21Suryawanshi, P. I. it was
attempted to show that confessional statements and recovery
panchnamas were recorded at Wipro Company itself. But P. W. 21
Suryawanshi, Sr. P. I. has candidly denied such suggestions. In the same
(62) (Sessions Case No.284/2008)
manner, in searching crossexamination of P. W. 7 Shirke, an attempt
was made to show that he had not actually went to the spot from where
the articles were recovered. However, P. W.2 Shirke in his cross
examination was able to give details of house of accused No. 1
Purushottam Borate by stating that it is the one floor house having
three rooms at ground floor and a staircase. Similarly, he was able to
clarify in the crossexamination that house of accused No. 2 Pradeep
Kokade was three room house and by standing on the threshold of that
house, he had seen accused Pradeep Kokade producing the articles. In
crossexamination, this panch witness Shirke was able to give correct
time of reaching at the houses of the accused persons and the time
taken for effecting recovery. Thus, careful scrutiny of evidence of P. W. 7
Shirke and P. W. 21 Suryawanshi, Sr. P. I. goes to show that their
evidence is truthful and consistent. No infirmities could be pointed out
in evidence of both these witnesses. The articles seized by P. W. 21
Sheshrao Suryawanshi, Sr. P. I. at the instance of both the accused
persons were then handed over in sealed condition on 3112007 itself
to Talegaon Dabhade Police Station, where the crime in question was
registered.
59] At this juncture, it is apposite to mention that as per
version of P. W. 12 Gaursundar and P. W. 13 Sudhakumari, while going
for her duty in night hours of 1112007, Jyotikumari was wearing
finger ring, ear rings, wrist watch of Titan Company and she was also
having mobile phone of Nokia Company with her. From this evidence,
the prosecution has clearly established that information given by both
the accused persons has caused discovery of the fact and that
information was related distinctly to the fact discovered. Both the
(63) (Sessions Case No.284/2008)
accused persons are found to be having knowledge of the place from
where the objects viz. gold ornaments, sim card and mobile handset
were recovered.
60] Evidence of P. W. 6 Sunil Bodke, panch witness shows that
on 4112007, he was called at Talegaon Dabhade Police Station where
P. W. 12 Gaursundar and P. W.13 Sudhakumari were present. Evidence
of this witness and that of P.W.27 Rajendra Patil, P. I. of Talegaon
Dabhade Police Station shows that on 4112007, sealed packets
containing articles recovered at the instance of both the accused persons
were opened in presence of P.W. 12 Gaursundar and P. W. 13
Sudhakumari. Those packets were containing gold finger ring, wrist
watch,g old ear rings, sim card and a mobile phone. P. W.6 Sunil Bodke
and P. W. 27 Patil, P .I. have deposed that P. W. 12 Gaursundar and P.
W. 13 Sudhakumari have identified those articles to be that of deceased
Jyotikumari. Accordingly, panchnama at Exhibit 48 was prepared and
those valuable articles were resealed. Evidence of both these witness is
fully corroborated by contemporaneous panchnama Exhibit 48. Their
evidence gains further corroboration from evidence of P. W.13
Sudhakumari who has candidly stated that on 4112007 at Talegaon
Dabhade Police Station, seized ear rings, finger ring, wrist watch,
mobile handset and sim card were shown to her and her husband and
they identified those articles to be belonging to deceased Jyotikumari. P.
W. 12 Gaursundar and P.W. 13 Sudhakumari have identified before the
Court these articles viz. article No. 28 ear rings, article No. 29 mobile
handset, article No. 25 finger ring, article No. 26 wrist watch and
article No. 27 sim card as the articles belonging to deceased
Jyotikumari. It is contended by the defence that identification was not
(64) (Sessions Case No.284/2008)
done by mixing these articles with similar articles and,therefore, this
evidence is of no use to the prosecution. This submission cannot be
accepted as deceased Jyotikumari was residing with her near relatives,
i.e. P W. 12 Gaursundar and P. W. 13 Sudhakumari who had
opportunity to see her belongings daily. Even they had seen these
articles and cell phone of the deceased when she left house in company
of both the accused on 1112007. It is well settled that in case of things
which are of daily use, identification can be made even without any
special identification mark on those things. In Kundanlal Vs. State of
Maharashtra 2001 (5) Bom. C. R. 897, identification by lady witness
on reasoning that her mother used to wear those articles was held
proper identification and admissible in evidence. In Mohan Singh Vs.
State of Punjab – 1983 Cri. L. J. NOC 34 ( P & H), it is held that
evidence of identification cannot be discarded on the ground that such
articles are available in market. Uncanny sense of identifying their
belongings of the ladies is recognized in Erabhadrappa Vs. State of
Karnataka – AIR 1983 SC 446. Hence, evidence of prosecution
regarding identification of ornaments and mobile phone of deceased
Jyotikumari recovered at the instance of both the accused persons by
her sister P. W. 13 Sudhakumari cannot be doubted or faulted. In the
similar way, P. W. 6 Sunil Bodke and P. W. 27 Rajendra Patil, P. I. have
also identified these articles before the Court as the articles which were
shown to P.W. 12 Gaursundar and P. W. 13 Sudhakumari. By relying on
ruling in Koki Reddy Vs. State of A. P 2007 Cri. L. J. 263, the learned
defence Advocate submitted that mere recovery of articles from the
accused are of no assistance to the prosecution. However, in the case at
hand recovery of articles of Jyotikumari from accused is not the only
evidence to incriminate them.
(65) (Sessions Case No.284/2008)
61] It is, thus, clear that information provided by both the
accused persons has resulted in discovery of valuable articles which
proved to be the ornaments and cell phone of deceased Jyotikumari,
which were on her person when she left home in company of both the
accused persons. This discovery was direct outcome of information
provided by the accused persons in their confessional statements. Both
the accused persons were having knowledge of the place where these
articles were kept. This discovery of the fact in pursuant to the
information given by both the accused persons is related to the
commission of offence of murder of Jyotikumari and subsequent
misappropriation of her belongings. Therefore, conditions prescribed in
Sec. 27 of the Evidence Act in unwrapping the cover of ban against
admissibility of statement of accused to the police have been satisfied
and this part of information provided by both the accused persons
became admissible in evidence. As articles worn by deceased
Jyotikumari when she left the house in company of both the accused
persons were discovered on the basis of information provided by the
accused, this evidence incriminates both the accused persons in crime in
question. In addition to this, it needs to be noted here that dead body
of Jyotikumari was found at 715 a.m. of 2112007 and the
information provided by both the accused persons in morning hours of
3112007 has resulted in discovery of articles of Jyotikumari from the
place in their house which was within their knowledge. Thus, both the
accused persons were found to be in possession of valuable articles
belonging to Jyotikumari soon after her homicidal death. This fact leads
to an inference that in all probabilities having regard to the normal
course of natural events and human conduct, those were the accused
sitting in the dock who had committed the offences in respect of
(66) (Sessions Case No.284/2008)
Jyotikumari alleged against them.
62] The next circumstance relied by the prosecution to prove
guilt of the accused persons in the offence alleged against them is
recovery of Odhani at the instance of accused No.1 Purushottam Borate
on 4112007. This recovery was on the basis of confessional statement
made by accused No.1 Purushottam Borate to P. W. 27 Rajendra Patil,
P. I. in presence of panch witness P. W. 15 Ankush Tumkar and
copanch Pappu Yavale. Evidence of P. W. 15 Tumkar and P. W. 27 Patil,
P. I. shows that on 4112007 while in custody, accused No.1
Purushottam Borate made a statement before them that he would point
out the spot where he had thrown Odhani and purse. As per version of
these witnesses, confessional statement of accused Purushottam Borate
was recorded and the same is at Exhibit 96. Then as per evidence of
both these witnesses, accused Purushottam Borate, both panchas and
P. W. 27 Patil, P. I. with police staff proceeded as per direction shown by
the accused. The accused took them to Dharmraj Mangal Karyalaya and
from the bushes, he took out an Odhani. According to the version of
both these witnesses, that Odhani was seized by wrapping in paper and
that packet was sealed. Version of both these witnesses further shows
that accused Purushottam Borate had also disclosed the place where he
had thrown the purse. It was under the bridge and despite searching in
the water, the purse could not be traced out. In crossexamination of
P. W.15 Tumkar, it was attempted to show that muddemal article No.
30 Odhani is not having any embroidery as stated by him. However, in
evidence of P.W. 27 Patil, P. I. it is clarified that embroidery means pico
done to both ends of Odhani. Both these witnesses identified muddemal
article No. 30 Odhani as the article recovered at the instance of
(67) (Sessions Case No.284/2008)
accused No.1 Purushottam Borate. This Odhani as per version of P. W.
27 Patil, P .I. was having reddish and white stains and this fact is
reflected in contemporaneous recovery panchnama which is at Exhibit
96/A. This Odhani article No. 30 is identified as the Odhani of
deceased Jyotikumari by P. W. 13 Sudhakumari. The defence has
contended that Odhani of the deceased is shown to be recovered from
the open space at the instance of the accused and such recovery from
the place accessible to public at large is of no use to the prosecution.
Reliance is placed on Durgavati Sharma Vs. State of Maharashtra –
2010 ALL MR (Cri. )3405. In that matter acquittal of the accused was
confirmed by accepting reasons given by the learned Sessions Judge
and it appears that recovery made therein was from open public place
accessible to the public at large. However, in the case at hand, recovery
of Odhani at the instance of accused Purushottam Borate was from a
secluded place near Dharmraj Mangal Karyalaya. Evidence regarding
recovery of Odhani at the instance of accused is clinching and that
Odhani was identified to be of Jyotikumari by P. W. 13 Sudhakumari
who is sister of deceased Jyotikumari. Hence, no doubt can be entertain
in respect of this recovery at the instance of accused No.1 Purushottam
Borate. It is thus clear that information provided by accused No.1
Purushottam Borate has resulted in recovery of Odhani of deceased
Jyotikumari and he was knowing the place where it was kept by him.
63] According to the prosecution case, clothes on dead body of
Jyotikumari were seized and those were subjected to chemical analysis.
At the outset itself, one ambiguity regarding colour of the clothes of
deceased needs to be clarified. P. W. 1 Hiraman Bodke, Police Patil has
lodged report regarding finding of dead body of a female which
(68) (Sessions Case No.284/2008)
ultimately proved to be of Jyotikumari. He appears to be a rustic
villager who could not understand what is meant by Salwar and what is
mean by Kurta. This fact is clear from his FIR at Exhibit 21 wherein he
mentioned that dead body is having Salwar of yellow colour and at
lower portion saffron coloured Kurta is worn. What he mean to convey
was cloth on upper portion of dead body was of yellow colour and that
on lower portion of the dead body was of saffron colour. This goes to
show that Kurta on the dead body was of yellow colour and Salwar was
of saffron colour. This fact is clarified by P. W.1 Hiraman Bodke by
stating that he was not understanding difference between Salwar and
Kurta. Even P. W. 12 Gaursundar and P. W. 13 Sudhakumari have stated
that on 1112007 Jyotikumari was wearing yellow coloured Kurta,
saffron coloured Salwar and saffron coloured Odhani. P. W. 23 Kadam,
PSI had dispatched the dead body of Jyotikumari through P. W. 25
Adinath Nagane, Police Naik for postmortem to Primary Health Centre,
Talegaon Dabhade. After postmortem examination of dead body, P.W.25
Adinath Nagane had produced clothes of that dead body before PSI
Kadam. Evidence of PSI Kadam and that of P. W. 6 Sunil Bodke panch
witness shows that on 2112007, clothes on dead body of Jyotikumari
produced by P. W. 25 Adinath Nagane were seized by preparing seizure
panchnama Exhibit 47. Evidence of both these witnesses shows that
those clothes were yellow coloured Kurta which was stained with blood
and white stains, saffron coloured Salwar which was stained with blood
and white stains, a knicker, brassier and petticoat which was also
stained with blood. Evidence of panch witness P. W. 6 Sunil Bodke and
that of P. W. 23 Ranjan Kadam, PSI shows that clothes on the dead body
were seized by sealing them. This fact is also found in contemporaneous
document, i.e. seizure panchnama Exhibit 47 which duly corroborates
(69) (Sessions Case No.284/2008)
version of both these witnesses. These seized clothes on dead body of
Jyotikumari were shown to P. W. 12 Gaursundar and P. W. 13
Sudhakumari on 3112007 by P. W. 27 Rajendra Patil, P. I. by opening
those sealed packets in presence of panch witnesses P. W. 5 Shahaji
Ghojage. Evidence of these witnesses shows that P. W. 12 Gaursundar
and P. W. 13 Sudhakumari had identified those clothes as well as sandal
seized from the spot of the incident as belonging to Jyotikumari. After
identification of these articles to be belonging to deceased Jyotikumari
by P. W. 12 Gaursundar and P. W. 13 Sudhakumari, P. W. 27 Rajendra
Patil, P. I. prepared panchnama of this fact which is at Exhibit 45. These
articles were again seized and sealed in presence of panch witnesses
including P. W. 5 Shahaji Ghojage. Evidence of P. W. 5 Shahaji Ghojage
and that of P. W. 27 Rajendra Patil rules out possibility of tampering
these articles in any manner as those were immediately resealed after
showing them to the relatives of deceased Jyotikumari.
64] The prosecution is heavily relying on forensic evidence in
order to establish guilt of accused persons in the crime in question. P.W.
27 Rajendra Patil, P. I. has deposed that on 13112007, alongwith
request letter at Exhibit 116, he sent seized articles in this crime for
chemical analysis in sealed condition through P. W. 19 Dadasaheb
Sawane, Police Constable. Perusal of letter at Exhibit 116 shows that
clothes seized from dead body of Jyotikumari including her Odhani
seized at the instance of accused Purushottam Borate , articles seized
from the spot including blade of Supermax Company, samples of blood,
pubic hair and samples of semen of both the accused persons apart from
their clothes were sent to the Chemical Analyser. Evidence of P. W. 19
Sawane, carrier constable shows that he carried those articles which
(70) (Sessions Case No.284/2008)
were in sealed condition and deposited all those 23 articles in sealed
condition with the Chemical Analyser on 13112007. He obtained
acknowledgment from that office in token of receiving those articles.
Office copy of the request letter addressed to the Chemical Analyser
which is at Exhibit 116 do show that there is acknowledgment of the
Regional Forensic Science Laboratory, Pune. Crossexamination of P. W.
19 Sawane lends assurance to his testimony as he has confirmed in his
crossexamination that the muddemal was with Muddemal Clerk of the
Police Station and he has experience of carrying muddemal to the office
of C.A.. Thus, this evidence establishes the fact that all 23 muddemal
articles were deposited in sealed condition with the Regional Forensic
Science Laboratory, Pune for the chemical analysis.
65] It is in evidence of P. W.27 Rajendra Patil, P. I. that on
2012008, vide its letter at Exhibit 169, Forensic Laboratory informed
that blood samples of both the accused persons are unsuitable for
analysis and requested to send blood samples of both of them again.
This appears to be correct position as C. A. report at Exhibit 103 and
145 in respect of blood and semen of both the accused persons shows
that results were inconclusive. Hence, P. W. 27 Patil, P. I. has requested
the learned J.M. F. C. by his application dated 10012008 (Exhibit 133)
to hand over custody of both the accused persons for extracting their
blood samples. P. W. 22 Shahaji Athawale, Police Head Constable of
Taledgaon Dabhade Police Station submitted this application Exhibit
133 and obtained favourable orders from the learned J.M.F.C, Vadgaon
Maval. It is seen that both the accused persons were again referred to
P.W.16 Dr. Waghmare, Medical Officer of Primary Health Centre,
Talegaon Dabhade with request letter dated 14012008 which is at
(71) (Sessions Case No.284/2008)
Exhibit 170. By this letter, Dr. Waghmare was requested to extract
blood samples of both the accused persons. Evidence of P. W. 16 Dr.
Waghmare shows that on 14012008, he collected blood samples of
both the accused persons for chemical analysis and sent those samples
in sealed condition. It is in evidence of P. W. 27 Rajendra Patil, P. I. that
he received samples of blood of both the accused persons in sealed
condition and on the very same day, i.e. on 14012008, alongwith
request letter at Exhibit 171 he forwarded those samples in sealed
condition to the Regional Forensic Science Laboratory for chemical
analysis. Thus, the prosecution has established that articles seized in
this crime No. 167/2007 were duly sealed and were in sealed condition
till they were forwarded to the Chemical Analyser.
66] This evidence of the prosecution is criticised by the learned
defence counsel by relying on rulings in the mater of State Vs. Prabhu
Gade – 1995 Cri. L. J. 1432 and Lalchand Chhedilal Vs. State – 2000
Mh. L. J. 349 by contending that there is no evidence to show that the
articles were kept in sealed condition till they were sent to the chemical
analysis and when once the factum of sealing the articles become
doubtful, possibility of blood being smeared on it cannot be ruled out.
However, evidence in the instant case is otherwise. The police officers
seizing the articles and the panch witnesses in whose presence the
articles were seized have categorically stated that the articles were
sealed by police at the time of their seizure. The articles were deposited
with the muddemal clerk and evidence of P. W. 27 Rajendra Patil, P. I.
and P.W.19 Sawane, constable shows that they were sent and deposited
in sealed condition with the office of the Chemical Analyser. Reliance is
placed on by the defence on ruling in the matter of Karam Singh Vs.
(72) (Sessions Case No.284/2008)
State – 1994 Cri.L. J. 3446. In that matter the Investigating Officer
who recovered the articles belonging to the deceased before arresting
the accused had not sent recovered articles for chemical analysis.
Hence, it was found that his action creates doubt regarding recovery of
the articles. Such is not case at hand. All required articles were sent for
chemical analysis by P.W.27 Rajendra Patil, P. I. alongwith request letter
at Exhibit 116. His evidence shows that subsequently on 14012008,
blood samples of both the accused were also sent to C.A. In sealed
condition. Even all C. A. reports shows that the articles were received by
Forensic Laboratory in sealed condition. Hence, this ruling has no
application to the facts of the present case. So far as ear rings, finger
ring, wrist watch and mobile phone of deceased is concerned, there was
no scope for chemical analysis of those articles. According to the
learned defence counsel, the blade which is shown to be weapon of
offence is not sent for chemical analysis. However, this contention is not
in consonance with record. Request letter addressed to the Chemical
Analyser at Exhibit 116 do show that the blade seized from the spot of
the incident was sent for chemical analysis and in fact report of its
chemical analysis is on record.
67] Once, it is held that the seized articles were sent for
chemical analysis in sealed condition, let us now see what is the result
of the chemical analysis of those articles. The C.A. Report at Exhibit 100
and 101 shows that blood group of accused Pradeep Kokade is “O” and
that of accused Purushottam Borate is “A”. Blood group of deceased
Jyotikumari was “B”. It would be apposite to give result of chemical
analysis of the seized articles in a tabular form as under :
(73) (Sessions Case No.284/2008)
Result of Chemical Analysis of the seized Articles
C.A. Report Description of Articles Finding
Exh. 99 P.M. Blood of Jyotikumari Blood GroupB
Exh.99 Nail clippings of Jyotikumari
Blood GroupB
Exh.99 Pubic hair of Jyotikumari Human semen
Exh.99 Vaginal swab of Jyotikumari
Human semen
Exh. 100 Blood Sample – Sealed phial(Received on 14.1.2008 ) of accused No.2 Pradeep Kokade
Blood GroupO
Exh. 101 Blood Sample – Sealed phial(Received on 14.1.2008 ) of accused No.1 Purushottam Borate
Blood GroupA.
Exh. 166 Kurta of Jyotikumari Blood GroupB
Exh. 166 Kurta of Jyotikumari Human semen of A & O
Exh. 166 Salwal of Jyotikumari Blood GroupB
Exh. 166 Salwar of Jyotikumari Human semen of A & O
Exh. 166 Knicker of Jyotikumari Blood GroupB
Exh. 166 Knicker of Jyotikumari Human semen of O
Exh. 166 Petticoat of Jyotikumari Blood GroupB
Exh. 166 Brassiere of Jyotikumari Blood GroupB
Exh. 166 Cotton swab Blood – Inclusive
Exh. 166 Blade produced by accused No.1 Purushottam Barate
Blood GroupB
Exh. 166 Odhni of Jyotikumari Blood GroupB
(74) (Sessions Case No.284/2008)
Exh. 166 Odhani of Jyotikumari Human semen of A & O
Exh. 222 Odhani (recovered at the instance of accused No.1 Purushottam Borate u/s. 27 of Evidence Act)
Fiber detected on scratch material on ligature mark on neck of Jyotikumari tallies with fiber from cloth of Odhani.
Exh. 167 Indica Car Stained with blood of GroupB
Perusal of C. A. reports shows that on Kurta as well as
Salwar of deceased Jyotikumari, semen of blood group of both the
accused persons was found. On Odhani which was identified to be of
Jyotikumari, semen of blood group of both the accused persons was
found. On her knicker, semen of blood group of accused No. 2 Pradeep
Kokade was found. Blood on the blade found on the spot of the
incident was found to be of blood group “B” which is of deceased
Jyotikumari. This fact in all probability shows that it was used to slash
wrist of Jyotikumari. Her clothes as well as nail clippings were found to
be stained with blood of her own group. Odhani which was ultimately
identified to be of deceased Jyotikumari which was recovered at the
instance of accused Purushottam Borate was subjected to chemical
analysis for examination of its fibers visavis fibers found on ligature
mark on neck of dead body of Jyotikumari. Fibers of Odhani were
compared with the scratch material on ligature mark on neck of
Jyotikumari which was also sent for chemical analysis. In chemical
analysis, it is found that fibers detected on scratch material on ligature
mark on neck of Jyotikumari were tallied with fibers from cloth on that
Odhani. Thus, C. A. reports fully corroborate version of prosecution and
(75) (Sessions Case No.284/2008)
finding of semen of blood group of accused on clothes of Jyotikumari,
goes a long way to establish that in all human probability, Jyotikumari
was ravished by them and ultimately she was done to death.
68] Accused persons are charged for the offence of committing
gang rape on deceased Jyotikumari apart from her murder and
misappropriation of her property. Therefore, let us examine whether the
circumstantial evidence on record indicate that she was raped by the
accused persons and whether they were acting in concert while
committing such offence. Dead body of Jyotikumari was examined by
P.W. 16 Dr. Waghmare while conducting autopsy. His evidence which is
duly corroborated by contemporaneous record made by him, viz.
postmortem report at Exhibit 98 shows that though very slight but there
was bleeding from vagina. From crossexamination of P.W.16 Dr.
Waghmare, it has come on record that hymen of Jyotikumari was not
intact. Circumstantial evidence as discussed in foregoing paras is
establishing the fact that in the night hours of 1112007, both the
accused persons had taken her in the agricultural field of Kisan Bodke
within jurisdiction of village Gahunje on the pretext of reaching her to
her work place viz, Wipro Company. Bleeding from vagina of deceased
Jyotikumari coupled with the fact that her hymen was found to be
ruptured by the autopsy surgeon, shows that there was penetration of
male organ of accused in the vulva of the deceased. Medical evidence
do show that there was penetration of the male organ of accused within
the labia of the deceased and forensic evidence further corroborates this
evidence. The clothes seized from her dead body and particularly
Salwar, Kurta and Odhani as well as knicker are found to be having
stains of semen of blood group of the accused persons. Her dead body
(76) (Sessions Case No.284/2008)
was found on straws of rice as came on record from crossexamination
of P. W.3 Raju Tikhe. As such, nonfinding of any injury in the form of
scratch mark on her back is of no consequence. Straws of rice must
have acted as cushion while she was being raped. By relying on ruling
in the matter of Suresh Nagdeve Vs. State 2008 Cri. L. J. 2943 and
contended that as no injuries were found on backside of dead body of
Jyotikumari, it cannot be said that she was raped. In that matter of
Suresh Nagdeve, allegations were commission of rape by three strong
built persons on the prosecutrix on 'dhura' i.e. bund in the field.
However, in the case at hand, the act of commission of rape must be
on cushion of straws of rice in the agricultural field and this appears to
be the reason for nonfinding of any injury on backside of dead body of
Jyotikumari. Bleeding from vagina of the dead body coupled with
rupture of hymen unerringly points out that deceased Jyotikumari was
subjected to sexual violence. Sexual violence by accused persons on
Jyotikumari is also seen from abrasion on her cheek and lower
mandibular region and nail marks on her body. P. W. 16 Dr. Waghmare
opined that if two persons rape a woman, then there can be injury to
labia majora, but this cannot be a universally true proposition.
Jyotikumari was taken to the secluded place in night hours by both the
accused persons and considering this situation, she must have
surrendered the accused persons due to their terror instead of offering
any resistance. Post mortem report shows that Jyotikumari had thin
built and as such she was not expected to offer resistance to accused
who were two in number. Therefore, nonfinding of any injury on
private part of dead body of Jyotikumari is of no consequence when
evidence on record is pointing out that she was ravished by both the
accused persons. Both the accused persons were immediately subjected
(77) (Sessions Case No.284/2008)
to medical examination and P. W. 24 Dr. Darshane had conducted their
medical examination on 3112007. In their medical examination,
Dr. Darshane found that smegma was absent from glans penis of both
the accused persons. Time of 24 hours is required for accumulation of
smegma. Medical examination of accused was conducted at 100 p.m.
of 3112007 and incident of rape on Jyotikumari had happened from
1100 p.m. to 1200 O'clock in the midnight of 1112007. Thus, as
accused were medically examined after 24 hours of the incident,
absence of smegma loses its importance. [See S.P. Kohli vs. High Court
of Punjab and Haryana (AIR 1978 SC 1753)]. However, semen of
accused was found on clothes of deceased Jyotikumari. C. A. report at
Exhibit 166 shows that seized underwear of accused Pradeep Kokade
was also having stains of semen. The learned defence counsel by relying
on Rahim Baig Vs. State 1972 Cri. L. J. 1260 has contended that
semen can exist on undergarment of a young man because of variety of
reasons and would not necessarily connect him with the offence of rape.
In the case at hand, totality of circumstances shows that both the
accused persons have indulged in commission of rape on deceased
Jyotikumari and cumulative effect of circumstances irresistibly leads to
the guilt of the accused persons in the crime in question. Chemical
analysis of vaginal swab and pubic hair from dead body of Jyotikumari
is also reflecting that she was subjected to sexual violence inasmuch as
samples of her pubic hair and vaginal swab were found to be containing
semen stains. Therefore, it needs to be held that deceased Jyotikumari
was subjected to gang rape by both the accused persons prior to her
murder in the night intervening 1112007 and 2112007.
69] The defence has contended that conviction in rape case
(78) (Sessions Case No.284/2008)
cannot be based merely on the fact that hymen of victim was found
ruptured. Reliance is placed by the defence on Suresh Yerawar Vs.
State of Maharashtra – 2003(4) Mh. L. J. 898. It was a case of rape
on deaf, dumb and mentally retarded girl and the Hon'ble High Court
has held that it would be dangerous to pass a conviction merely on the
fact that the hymen of the prosecutrix was found ruptured. However, in
the case at hand, as discussed, ruptured hymen is not the only
circumstance on which the conclusion is being arrived. Hence, the
ruling so cited has no application to the facts of the present case.
70] Learned defence Advocate relied on Manik Jibhkate and
others Vs. The State of Maharashtra – 2011 ALL MR (Cri.) 2474 and
contended that expert opinion as to result of forensic examination is not
a conclusive proof of commission of rape. However, it needs to mention
here that the statement of proof in criminal trial is proof beyond all
reasonable doubts and not the conclusive proof. The yardstick of proof
is satisfaction of a prudent man. In the present case, the circumstantial
evidence passes the test of satisfaction of a prudent man that
Jyotikumari was ravished by accused persons prior to commission of her
murder.
71] The defence has tried to make capital of the fact that FIR at
Exhibit 21 was sent to the learned J.M.F.C., Vadgaon Maval belatedly.
However, this aspect gets explanation from evidence of P. W. 28Kailash
Dhamale, Police Constable. His evidence shows that on 4112007, he
received copy of FIR of Crime No. 167/2007 and as there was vacation
to the Court upto 11112007 and as the charge of the Court of J.M.F.C,
Vadgaon Maval was with the learned J.M.F.C, Pimpri, he could not
(79) (Sessions Case No.284/2008)
submit the FIR in the Court. His evidence is duly corroborated by
certificate at Exhibit 187 issued by the Assistant Superintendent of the
Court. Therefore, no overbearing importance can be given to this fact.
That apart, submission of copy of FIR with promptitude to the
concerned Magistrate is insisted so that there should not be any
concoction during investigation and the Investigating Officer should not
get time to give shape of his choice to the investigation. In the case at
hand, the FIR at Exhibit 21 is against unidentified accused persons and,
therefore, there cannot be any scope for concoction. As such,
submission of copy of FIR to the Court of J.M.F.C. on its reopening
cannot create doubt in the prosecution case. Shri. Nikam, the learned
Special Public Prosecutor has rightly relied on Sunilkumar and others
Vs. State of Rajasthan – 2005 SCC (Cri.) 1230 and State of Jammu
and Kashmir Vs. S.Mohan Singh and another (2006) 2 SCC
(Cri.)484, wherein Hon'ble Apex Court has held that it cannot be laid
down as a rule of universal application that whenever there is some
delay in sending the FIR to the Magistrate concerned, the prosecution
version becomes unreliable.
72] A faint attempt came to be made by the defence by
contending that accused persons had no opportunity to commit the
crime in question as the dead body was found lying near the Express
Highway. From crossexamination of P. W. 8 Pankaj Bodke, it is brought
on record that dead body of Jyotikumari was visible from Express
Highway and there is round the clock traffic and patrolling on that
Express Highway. This situation by itself cannot cast doubt on
prosecution case because, the incident happened from 1100 p.m. to
1200 O'clock in midnight. On Express Highway, the traffic is never
(80) (Sessions Case No.284/2008)
slow. One cannot expect from the travellers on the Express Highway
and that too in the night hours to be vigilant to watch what is going on
outside and particularly in the agricultural field. Moreover, there was no
source of light at the spot. Hence, no substance can be found in
contention of the learned defence counsel that accused persons had no
opportunity to commit crime adjacent to the Express Highway.
73] The learned defence counsel is also contending that the
prosecution has not proved motive in this case based on circumstantial
evidence and as such the accused deserves acquittal. The learned
defence counsel relied on Mohan Vs. State of M. P. 2005 Cri. L. J. 79,
wherein Hon'ble Madhya Pradesh High Court has held that if the case
is based on circumstantial evidence, the motive has some significance.
Reliance is also placed on Ramshankar Sahane Vs. State – 2009(2)
Mh. L. J. (Cri.) 249, wherein Division Bench of Hon'ble Bombay High
Court has held that motive may not be relevant in a case where
evidence is overwhelming, but it is a plus point for the accused in cases
where the evidence is only circumstantial. In the case at hand, one
cannot say that either the circumstantial evidence is weak or the
prosecution has not proved motive. The motive as reflected from the
proved facts is to ravish the victim and to misappropriate her belongings
after eliminating her. With this motive, the accused persons have raped
and eliminated deceased Jyotikumari and ultimately her valuable
belongings were found in their houses on the basis of information
provided by both the accused persons. Hence, the submission so
advanced deserves to be rejected.
74] In the result, evidence of prosecution is firmly establishing
(81) (Sessions Case No.284/2008)
the circumstances on which the prosecution case is based. These proved
circumstances are leading to the irresistible and inescapable conclusion
that it were both the accused persons who abducted Jyotikumari by
adopting deceitful means under the guise of reaching her to her work
place, then committed rape on her and by murdering her; dishonestly
misappropriated her belongings including finger ring, ear rings, wrist
watch and mobile handsent with sim card. Jyotikumari is seen to be
assaulted brutally. She was strangulated by her Odhani from behind
causing fracture of hyoid bone larynx, trachea. Then she was hit on
head by big stone causing injuries to her head apart from fractured
skull. Not satisfied with this, accused slashed her wrist ventrally twice in
order to see that she could not survive. Thus, Jyotikumari was done to
death by both the accused persons jointly while she was in their custody
with requisite intention and knowledge of causing her death, making
the act punishable under Section 302 R/w 120B of the Indian Penal
Code. However, for want of evidence, it cannot be said that the accused
persons have misappropriated her purse and cash amounting to
Rs.330/.
75] Now let us examine whether the accused persons have
committed these offences by acting in league and concert by agreeing to
commit the offences by indulging in criminal conspiracy. Section 120A
of the Indian Penal Code, defines 'criminal conspiracy' as under :
“120A – Definition of criminal conspiracy. – When two or more persons agree to do, or cause to be done, –
(1) an illegal act, or (2) an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy
(82) (Sessions Case No.284/2008)
unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation, – It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.”
To establish a charge of conspiracy, knowledge about
indulgence in either an illegal act or legal act by illegal means is
necessary. Common design or an agreement to commit illegal act with
requisite knowledge is essential for establishing the charge of
conspiracy. In the matter of Kehar Singh Vs. State (Delhi
Administration) AIR 1998 S.C. 1883, ingredient of the offence of
criminal conspiracy is explained by the Hon'ble Apex Court in the
following manner :
“271. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Ss. 120A and 120B, IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.
272. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of
(83) (Sessions Case No.284/2008)
agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand (Criminal Law Review 1974, 297 at 299) explains the limited nature of this proposition :
“Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties “actually came together and agreed in terms” to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was “a tacit understanding between conspirators as to what should be done.”
76] What constitutes an offence of criminal conspiracy is
further explained by the Hon'ble Apex Court in the matter of Tamil
Nadu Vs. Nalini 1999 Cri. L.J. 124 and it is held thus :
“The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive action evidencing their joining of conspiracy. It has been said that a criminal conspiracy is a partnership in crime and there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy any act done by any of them pursuant to the agreement is in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution of furtherance of the common purpose is deemed to have been said, done or written by
(84) (Sessions Case No.284/2008)
each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose.”
77] Thus, in order to prove the offence of criminal conspiracy,
the prosecution will have to establish that :
(a) Both the accused were having object to be accomplish viz. abducting Jyotikumari, then raping her and subsequently misappropriating her belongings after commission of her murder;
(b) A plan or scheme was framed by both the accused persons for accomplishing this object;
(c) There was agreement or understanding between both the accused persons for accomplishment of the object by executing the same in the manner decided by them.
The prosecution as such will have to establish that in
unlawful combination, accused persons had done unlawful act by
acting under tacit agreement for accomplishment of their joint venture.
Naturally, there cannot be any direct evidence on this aspect. Deep
scrutiny of evidence on record do show that for accomplishment of their
object, both the accused persons have meticulously prepared a plan and
by cooperating with each other and acting in combination, they did
execute plan hatched by them by abducting Jyotikumari at about 1030
p.m. on 1112007, taking her to the secluded field, raping her and then
misappropriating her belongings after murdering her. The first step in
accomplishment of this object was choosing the right time for abducting
Jyotikumari under the pretext of taking her to her work place. As her
employer had provided facility of pick up and dropping her after the
work to her residence, Jyotikumari was regularly going to Wipro
(85) (Sessions Case No.284/2008)
Company by the cab sent by the Company. Due to this routine practice,
she had developed confidence in the system and as such she was found
to be a soft target by accused persons. Careful scrutiny of pick up
rosters/sheets at Exhibit 67 to 69 goes to show that employees used to
be picked up by rotation and, therefore, order of pick up was used to
be changed. To quote, on 29102007, first pick up as per pick up sheet
(Exhibit 69) was that of Merlin Pillai and second was that of P.W.11
Sagar Bidkar. On that day, last pick up was of Jyotikumari. On next
two days, i.e. on 30102007 and 1112007, first pick up was of
Jyotikumari and second pick up was of P.W.11 Sagar Bidkar. This is
seen from pick up sheets at Exhibit Nos. 67 and 68, respectively. As seen
from evidence of P. W. 10 Hiraman Bhandare, the Company used to
give information about pick up in chart one day prior to pick up and
dropping of the employees. The pick up and drop sheets were used to
kept in concerned cab itself as on 3112007, the pick up/drop sheets
were seized from Cab No. 535 by panchnama (Exhibit 43)in presence of
panch witness P.W. 4 Hanumant Chavan. Therefore, accused No.1 –
Purushottam Borate who was driver of Cab No. 535 in night shift, was
very well aware of the fact that on 1112007, the first pick up was that
of deceased Jyotikumari Chaudhary. Pick up sheet at Exhibit 67 for
31102007 shows that Jyotikumari Chaudhary attended work on that
night and her signature is there on this pick up sheet. 1112007 was
the last day of employment in Wipro Company of Jyotikumari
Chaudhary as period of 30 days notice of resignation tendered by her
was expiring on 1112007. This fact is brought on record by the
defence itself from crossexamination of P. W. 12 Gaursundar. This
evidence shows that accused driver Purushottam Borate was very well
aware of the fact that deceased Jyotikumari Chaudhary who attended
(86) (Sessions Case No.284/2008)
duty on 31102007 will certainly attend duty on 1112007. As per
pick up sheet at Exhibit 68 which was within knowledge of accused
Purushottam Borate, first pick up was that of Jyotikumari. This
evidence coupled with subsequent act and preparation made by accused
Purushottam Borate goes to show that the offence in question is an
outcome of ill designed plan of both the accused.
78] Now let us examine what was the rule and practice of
Wipro Company when first pick up in night hours was that of a female
employee. This procedure has came on record from evidence of P. W.11
Sagar Bidkar, System Administrator in Wipro Company. According to
version of this witness, as per rule and practice of Wipro Company, the
driver of the cab was supposed to pick up male employees first and then
to pick up a female employee. In case if the first pick up was of a female
employee, the driver of the cab was required to take the security guard
from the Company with him. This practice is further vouched and
clarified by P. W. 10 Hiraman Bhandare owner of Cab No. 535, who
himself was working as driver on that cab. His evidence shows that as
per rule of Wipro company, if after 900 p.m. first pick up was of female
employee, then the driver was required to take with him a security
guard from the Company. His evidence further shows that this
instruction was given to all the drivers of the cabs by the Company.
There is nothing on record to disbelieve version of both these witnesses
about rule and practice of Wipro Company for safeguarding its female
employees during night hours.
79] Now let us see what actually happened in night hours of
1112007, when accused Purushottam Borate was supposed to pick up
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Jyotikumari as first pick up of that night. Evidence on record shows
that in execution of their object of committing the crime in question,
accused Purushottam Borate went to Murmadi by Indica cab No. 535 at
about 800 to 830 p.m. of 1112007. Evidence of P. W. 9 Bashir Shaikh
makes it clear that there accused No. 2 Pradeep Kokade joined accused
No.1 Purushottam Borate and accused No. 2 Pradeep Kokade then left
by Indica cab No. 535. Evidence of P. W. 12 Gaursundar makes it clear
that thereafter both the accused persons reached at the place of
residence of Jyotikumari at about 1030 p.m. on 1112007 in that Cab
No. 535. The place chosen for sitting by accused No.1 Pradeep Kokade
is very relevant. Though he was not an employee of Wipro Company
but mere friend of accused No.1 Purushottam Borate, still he choose
rear seat of Indica car and sat behind the driver's seat. This sitting
arrangement in the cab apparently made by both the accused persons
do show that they were acting in concert for executing their object of
commission of crime. Naturally, deceased Jyotikumari sat on the rear
seat beside accused No.2 Pradeep Kokade. This situation automatically
gave ample scope and opportunity to accused No.2 Pradeep Kokade to
overpower and silence Jyotikumari while committing the crime in
question. The act and conduct of both the accused points out their
agreement for commission of the crime.
80] The next circumstance from which criminal conspiracy
hatched by accused persons can be inferred is deliberate violation of
rule of Wipro Company by accused No.1 Purushottam Borate while
picking up Jyotikumari on 1112007. This was certainly done in
execution of accomplishment of goal of their joint venture. Though
accused Purushottam Borate was duty bound to take with him a
(88) (Sessions Case No.284/2008)
security guard in that night as first pick up in that night was of
Jyotikumari Chaudhary and the time was 1030 p.m.. It is clear that
accused driver Purushottam had deliberately not taken security guard
with him for picking up Jyotikumari in that night. Rather accused No.2
Pradeep Kokade was accompanying him by sitting in the rear seat for
taking suitable opportunity for overpowering Jyotikumari. This was
done with the design to commit the offence in question.
81] Joint venture of accused persons in commission of the
crime is writ large from the fact that after taking up Jyotikumari at
about 1030 p.m. on 1112007 though accused No.1 Purushottam
Borate, being the driver of the cab was supposed to take up P. W.11
Sagar Bidkar, he deliberately avoided to do so. P. W. 11 Sagar Bidkar
was also having duty in third shift commencing from 1100 p.m.. He
was copassenger with Jyotikumari as per the pick up roster. Accused
persons had intentionally avoided to pick up P. W. 11 Sagar Bidkar
when Jyotikumari was in their cab. Similarly, in preplanned manner,
they had decided to give excuse for late picking up of P. W. 11 Sagar
Bidkar by informing that tyre of the cab was punctured. Similarly,
accused No.1 Purushottam Borate had stated falsely that Jyotikumari
did not come for work on 1112007. Without designing the scheme,
this was not possible. These factors point out that the accused persons
had indulged in criminal conspiracy for commission of the offences.
82] Indica car in which both the accused persons had taken
Jyotikumari was subjected to chemical analysis after its seizure vide
panchnama (Exhibit 43) dated 3112007. C. A. report at Exhibit 167
shows that said Indica car was stained with blood of “B” group which
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was the blood group of deceased Jyotikumari. Dying declaration of
Jyotikumari made to P.W.14 Jeevan Baral shows that Jyotikumari asked
accused No.1 Purushottam Borate as to why the car was stopped in
jungle and then she shouted, “please what you are doing?” This was
followed by a loud noise and phone call was disconnected. This
indicates that after stopping the car in the field, accused No.2 Pradeep
Kokade must have overpowered Jyotikumari causing injury to her and
thereby staining of Indica car by her blood. This sequence of events
goes to show that both the accused persons were acting in pursuant to
their agreement made for commission of crime. By no stretch of
imagination, it can be said that the accused persons were independently
pursuing the same end. On the contrary, the circumstances brought on
record do show that accused persons have come together in pursuit of
the unlawful object and they committed the crime in partnership.
83] The another circumstance which points out indulgence of
both the accused in criminal conspiracy is finding of valuables of
Jyotikumari from the houses of both the accused persons as per
information provided by them. It is clear that after eliminating
Jyotikumari in that fateful night, both the accused persons shared the
booty. Accused No.1 Purushottam Borate took gold ring, Tatan wrist
watch and sim card of Airtel Company of Jyotikumari whereas accused
No.2 Pradeep Kokade took her ear rings and Nokia Mobile handset.
These acts and conduct of both the accused persons shows that they
both had agreed to commit the offence jointly by conspiring with each
other. As such, the prosecution has established the offence punishjable
under Section 120B of the Indian Penal Code against both the accused
persons.
(90) (Sessions Case No.284/2008)
84] By relying on Pralhad Naphade Vs. State of Maharashtra
1978 Cri. L. J. 830, the learned defence counsel finally contended that
when there are two parallel stories put forth by the parties, one in
favour of defence will have to be preferred and the accused in such case
becomes entitled for benefit of doubt. In the case at hand, I am unable
to find any other parallel version much less equally probable. On the
contrary, evidence of prosecution though circumstantial is forming a
chain so complete that it exclude any other hypothesis than the guilt of
the accused. Hence, the ruling so cited has no application to the instant
case.
85] In the result, the prosecution has established that both the
accused persons had indulged in criminal conspiracy and in pursuant to
that criminal conspiracy for achieving the desired goal, at about 1030
p.m. on 1112007, they abducted Jyotikumar Ramanand Chaudhary,
took her at the secluded place at the paddy field of Kisan Bodke at
village Gahunje. The prosecution has further proved that acting in
league, both the accused persons committed rape on Jyotikumari
Ramanand Chaudhary and subsequently murdered her. The prosecution
has further proved that after commission of her murder, both the
accused persons had misappropriated and converted for their own use
finger ring, ear rings, wrist watch, mobile phone which were in
possession of Jyotikumari Ramanand Chaudhary at that time. Hence,
by answering the point Nos. 1 to 6 in affirmative, I take a pause to
hear the parties on quantum of sentence.
86] At this juncture, Shri. Nikam, the learned Special Public
Prosecutor has rightly relied on ruling in the mater of Allauddin Mian
and Others Sharif Mian and Another Vs. State of Bihar reported in
(91) (Sessions Case No.284/2008)
1989 Supreme Court Cases (Cri.) 490. Relevant portion of para No. 10
of this judgment needs reproduction and it reads thus:
“The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the court in determining the correct sentence to be imposed the legislature introduced subsection (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality. Mr. Garg was, therefore, justified in making a grievance that the trial court actually treated it as a mere formality as is evident from the fact that it recorded the finding of guilt on March 31, 1987, on the same day before the accused could absorb and overcome the shock of conviction they were asked if they had anything to say on the question of sentence and immediately thereafter the decision imposing the death penalty on the two accused was pronounced. In a case of life or death as stated earlier, the presiding officer must show a high decree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this case, without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the court, the court's decision on the sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has
(92) (Sessions Case No.284/2008)
far more serious consequences on the offender and his family members than in the case of a purely administrative decision; a fortiori, therefore, the principle of fair play must apply with grater vigour in the case of the former than the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. Likewise a sentencing decision taken without following the requirements of subsection (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing court must approach the question seriously and must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. We think as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. In the present case, as pointed out earlier, we are afraid that the learned trial Judge did not attach sufficient importance to the mandatory requirement of subsection (2) of Section 235 of the Code. The High Court also had before it only the scanty material placed before the learned Sessions Judge when it confirmed the death penalty.”
Following this law laid down by the Hon'ble Supreme Court
of the land, at this stage after informing the accused persons they are
found guilty of the charges levelled against them, I defer to hear the
parties on quantum of sentence. Hence, the case be posted for hearing
the parties on quantum of sentence on 19th March, 2012.
Sd/xxx
Pune. (A. M. BADAR)
Dated: 17th March, 2012. Sessions Judge, Pune
(93) (Sessions Case No.284/2008)
87] Heard the learned counsels for both the parties at length
apart from hearing both the accused on quantum of sentence. In view of
mandate of Section 354(3) of the Code of Criminal Procedure, 1973,
the death sentence cannot be awarded save in the rarest of rate cases
when the alternative option is unquestionably foreclosed. Wording of
Section 354(3) of the Code reflects legislative command and the
condition which needs to be satisfied prior to awarding the death
sentence. While awarding such sentence, the Court is required to weigh
the mitigating and aggravating circumstances and principle of
proportionality of sentence is also required to be kept in mind. Whether
case falls within the rarest of rate case or not has to be examined with
reference to the facts and circumstances of each case and on finding the
case to be rarest of rare, the Court is justified in awarding death penalty
which is on the Statute Book. As back as in the year 1974, the Hon'ble
Apex Court in the matter of Ediga Anamma Vs. State of A. P. AIR
1974 SC 799 has observed thus :
“deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime”.
It is further observed that
“Horrendous features of the crime and the hapless and helpless state of the victim steel the heart of law for the sterner scheme”.
88] What is the rarest of rare case is a concept difficult to
define and no straight jacket formula can be applied for enumeration of
rarest of rare case. However, the Hon'ble Apex Court in the matter of
Bachan Singh Vs. State of Punjab AIR 1980 SC 898, has laid down
the guidelines on this aspect which can be summarised thus :
(a) The extreme penalty of death may be inflicted
(94) (Sessions Case No.284/2008)
in gravest cases of extreme culpability;
(b) While imposing death sentence the circumstances of the offender are also require to be taken into consideration alongwith the circumstances of the crime;
(c) Death sentence be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime; and
(d) Extreme penalty can be imposed after striking the balance between aggravating and mitigating circumstances found in the case.
Aggravating circumstances include:
(a) If the murder has been committed after previous planing and involves extreme brutality; or
(b) If the murder involves exceptional depravity,
Mitigating circumstances include:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be
(95) (Sessions Case No.284/2008)
reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case the accused believed that he was more justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
89] These guidelines were followed in Macchi Singh and Ors.
Vs. State of Punjab, 1983 S.C.957 by holding that death sentence
could be imposed only in rarest of rare cases when the collective
conscience of the community is so shocked that it would expect the
holders of judicial power to inflict the death penalty irrespective of their
personal opinion as regards the desirability or otherwise of retaining
death penalty as a sentencing option. The following are the
circumstances given by the Hon'ble Apex Court in the matter of Macchi
Singh in which the case can be treated as rarest of rare for imposing
capital punishment by entertaining such sentiment of the community:
(1) When the murder is committed in extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e. g. murder by hired assassin for money or reward; or coldblooded murder for gains of a
(96) (Sessions Case No.284/2008)
person visavis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of Scheduled Caste or minority community etc., is committed not for personal reason but in circumstances which arouse social wrath; or in cases of “bride burning” or “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.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person visavis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community”.
90] Hon'ble Supreme Court has however cautioned 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.
91] Ratio of the rulings in the matters of Devender Pal Singh
Vs. State of N. T. C. of Delhi AIR 2002 SC 1661 and Atbir Vs. Govt of
NCT of Delhi AIR 2010 SC 3477= JT 2010 (8) SC 372 shows that
(97) (Sessions Case No.284/2008)
death sentence may be warranted when the murder is committed in an
extreme brutal manner or for a motive which evinces total depravity
and meanness. The Hon'ble Apex Court has also held that death
sentence can also be justified when the crime is enormous in proportion
or when the victim of murder is an innocent child or a helpless woman
or old or infirm person or a person whom the murderer is in a
dominating position, or a public figure generally loved and respected by
the community. Thus, the Court is required to follow the rule of
proportionality considering the circumstances of the case in providing
punishment according to the culpability of each kind of criminal
conduct keeping in mind the effect of inadequate punishment on the
society. In the matter of Aqueel Ahmed Vs. State of U. P. AIR 2009 SC
1272. Hon'ble High Court has ruled out that even in the case of single
victim death sentence can be awarded taking into consideration the
circumstances of the case.
92] At this juncture, it is apt to quote observations of the
Hon'ble Supreme Court in Shivaji @ Dadya Alhat Vs. State of
Maharashtra – AIR 2009 SC 56, (earlier referred in para No. 28)
wherein it is held thus in para 25, 26,30 and 31:
“25. The law regulates social interests, arbitrates
conflicting claims and demands. Security of persons
and property of the people is an essential function
of the State. It could be achieved through
instrumentality of criminal law. Undoubtedly, there is
a crosscultural conflict where living law must find
answer to the new challenges and the Courts are
required to mould the sentencing system to meet
(98) (Sessions Case No.284/2008)
the challenges. The contagion of lawlessness would
undermine social order and lay it in ruins. Protection
of society and stamping out criminal proclivity must be
the object of law which must be achieved by imposing
appropriate sentence. Therefore, law as a cornerstone
of the edifice of “order” should meet the challenges
confronting the society. Fridman in his “Law in
Changing Society” stated that “State of criminal law
continues to be – as it should be – a decisive reflection
of social consciousness of society”. Therefore, in
operating the sentencing system, law should adopt the
corrective machinery or the deterrence based on factual
matrix. By deft modulation sentencing process be stern
where it should be, and tampered with mercy where it
warrants to be. The facts and given circumstances in
each case, the nature of the crime, the manner in which
it was planned and committed, the motive for
commission of the crime, the conduct of the accused,
the nature of weapons used and all other attending
circumstances are relevant facts which would enter into
the area of consideration. For instance a murder
committed due to deepseated mutual and personal
rivalry may not call for penalty of death. But an
organised crime or mass murders of innocent people
would call for imposition of death sentence as
deterrence. In Mahesh Vs. State of M. P. ((1987) 2 SCR
710, this Court while refusing to reduce the death
sentence observed thus:
(99) (Sessions Case No.284/2008)
“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 jargaon”.
26. Therefore, undue sympathy to impose inadequate
sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law
and society would not long endure under such serious
threats. It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the
offence and the manner in which it was executed or
committed etc. This position was illuminatingly stated
by this Court in Sevaka Perumal etc. Vs. State of Tamil
Nadu (AIR 1991 SC 1463).
30. In Jashubha Bharatsinh Gohil Vs. State of Gujarat
(1994(4) SCC 353), it has been held by this Court that
in the matter of death sentence, the Courts are required
to answer new challenges and mould the sentencing
system to meet these challenges. The object should be
to protect the society and to deter the criminal in
achieving the avowed object of law by imposing
appropriate sentence. It is expected that the Courts
would operate the sentencing system so as to impose
such sentence which reflects the conscience of the
(100) (Sessions Case No.284/2008)
society and the sentencing process has to be stern where
it should be. Even though the principles were indicated
in the background of death sentence and life sentence,
the logic applies to all cases where appropriate sentence
is the issue.
31. Imposition of sentence without considering its
effect on the social order in many cases may be in
reality a futile exercise. The social impact of the crime,
e.g. where it relates to offences against women, dacoity,
kidnapping, misappropriation of public money, treason
and other offences involving moral turpitude or moral
delinquency which have great impact on social order,
and public interest, cannot be lost sight of and per se
require exemplary treatment. Any liberal attitude by
imposing meager sentences or taking too sympathetic
view merely on account of lapse of time in respect of
such offences will be resultwise counterproductive in
the long run and against societal interest which needs
to be cared for and strengthened by string of deterrence
inbuilt in the sentencing system.”
93] It is thus clear that duty is cast upon the Court to respect to
the society's cry for justice against the criminals by imposing
punishment befitting the crime so that the Courts reflect public
abhorrence of the crime.
94] What should be the view of the Courts in the matters of
(101) (Sessions Case No.284/2008)
crimes against women is pointed out recently by the Hon'ble Apex Court
in Rajbir @ Raju and Another Vs. State of Haryana AIR 2011 SC 568,
para 5 of the judgment in that matter needs reproduction and it reads :
“5. We have recently held in the case of Satya Narayan
Tiwari @ Jolly and Another Vs. State of U. P.. Criminal Appeal
No. 1168 of 2005 decided on 28th October, 2010 (reported in
2010 AIR SCW 7144) that this Court is going to take a serious
view in the matters of crimes against women and give harsh
punishment”.
95] Now let us examine whether the case at hand falls under
the category of rarest of rare case and if the answer is in affirmative,
what are the special reasons for awarding death sentence. The passing
of the sentence of death must elicit the greatest concerned and
solicitude of the Judge because that is one sentence which cannot be
recalled. It is already held that both the accused are found guilty of the
offences punishable under Section 120B, 302 R/w 120B, 376(2) R/w
120B and 404 R/w 120B of the Indian Penal Code for abducting,
raping and murdering Ku. Jyotikumari Chaudhary in the night hours of
1112007. Let us, therefore, draw balance sheet of aggravating and
mitigating circumstances of the crime.
AGGRIVATING CIRCUMSTANCES:
1) Previous Planning : Proved circumstances on record goes to
show that both the accused persons meticulously chalked out a plan to
commit the offence and it was executed in extreme brutality. Accused
No.1 Purushottam Borate who was having pick up sheets/rosters
(102) (Sessions Case No.284/2008)
Exhibit 67 to 69 was knowing that on 31102007 and 1112007 first
pick up of the night was Jyotikumari. He was also aware that
1112007 was the last day of employment of Jyotikumari as her 30
days notice of resignation from employment of Wipro Company was
expiring on 1112007 and therefore, Jyotikumari would certainly
attend duty in that night. Therefore, accused No.1 Purushottam Borate
conspired with accused No.2 Pradeep Kokade and they both prepared
the scheme for committing the offence. In implementing that scheme,
accused No.1 Purushottam Borate has deliberately breached the rule of
the Wipro Company of taking with him the Security Guard as first pick
up of 1112007 was that of Jyotikumari and that too at 1030 p.m. in
night. Both the accused picked up Jyotikumari in that night and
deliberately avoided to pick up P.W. 11 Sagar Bidkar so as to execute
their plan of commission of the crime. In pursuant to predesigned
scheme, Jyotikumari was abducted, raped and murdered. After
commission of offence as conspired, accused No.1 Purushottam Borate
gave false explanation to the prosecution witness that Jyotikumari did
not board his cab in the night and he was late for pick up of P.W.11
Sagar Bidkar as the cab was punctured. Proved circumstances shows
that with a great care plan to commit the offence was chalked out by
both the accused persons.
2) Motive of Crime : Deceased Jyotikumari was unmarried
young lady of 23 to 24 years of age who after passing degree
examination in Science had joined work in Information Technology
Sector at Pune. She was working as an Associate with Wipro Business
Process Outsourcing Company at Hinjwadi area of Pune. Accused No.1
Purushottam Borate being the driver of the cab was knowing this young
(103) (Sessions Case No.284/2008)
and beautiful girl. Proved circumstances shows that motive for this
crime was sheer lascivious lust. The crime was not committed in a
sudden impulse of sex but in a predetermined manner to satisfy their
hunger for sex by both the accused persons by acting in a league. While
satisfying his hunger of sex, accused No. 1 Purushottam Borate even
forgot that he is a married person. This motive evinces total depravity
and meanness of sex maniacs having pervert mind. The question which
needs to answer is whether we need such perverts and pests in our
society who will inspire others to commit heinous crime. The obvious
answer is no.
3) Personality of the Victim : Deceased Jyotikumari was helpless
innocent female of 22 years age having a thin built as seen from report
of postmortem examination of her dead body. Evidence on record shows
that both the accused persons have committed the crime in question
neither under duress nor on provocation and an innocent helpless
young girl's life was snuffed out by both the accused persons brutally
after committing rape on her turn by turn. Deceased Jyotikumari could
not have provided any resistance to accused. She was a helpless victim
in a hapless situation at a place which was too far from her house in an
isolated agricultural field.
4) Betrayal of Trust by accused Purushottam Borate : Being an
employee of Wipro Company, Jyotikumari was enjoying facility of
transport from her residence to the work place. Accused No.1
Purushottam Borate was driver of the cab which was entrusted with the
work of her transport to the work place and then to the residence at the
relevant time. As such she had complete faith and trust on accused
(104) (Sessions Case No.284/2008)
Purushottam Borate. Deceased Jyotikumari meekly went with both the
accused persons in the night hours of 1112007 from her house
reposing full faith and confidence on accused No.1 Purushottam Borate
as a driver of the cab provided by her employer. Accused Purushottam
Borate was known to her as he had picked her up for reaching the work
place since last two days. Accused not only blatantly betrayed the
confidence reposed on them, but took advantage of loneliness of
helpless victim for satisfaction of their carnal desire. Accused persons
being two in number were in dominating position when they committed
the crime in question.
5) Manner of Commission of Crime : Both the accused persons
committed the crime in question in extremely brutal, revolting and
dastardly manner. They took helpless victim who was confiding them to
the secluded place in the field within jurisdiction of village Gahunje.
There they committed rape on her turn by turn. Thereafter, as seen from
evidence on record, by using shaving blade, they slashed right wrist of
Jyotikumari twice. She was strangulated with great force by using her
Odhani. Then her head was smashed with a big stone. Report of
postmortem examination of dead body of Jyotikumari shows that she
died violent death and assault on her was brutal. Because of
strangulation, there was fracture of hyoid bone. Her ribs were also
found to be fractured. There were nail marks to her neck and multiple
abrasions on her cheek, lower mandible region, left clavical and mid
sternum thorasic region, etc. Larynx and trachea of the dead body were
found to be fractured. Because of blow of the stone, there was fracture
of skull of Jyotikumari involving frontal parietal left temporal bone
apart from laceration to the brain. The deceased was found to be having
(105) (Sessions Case No.284/2008)
injuries to her head. Thus, she was done to death in very cruel manner
by accused persons and they left no stone unturned in commission of
her murder in order to see that she must die very painful death. They
adopted each and every mode and method of assault to see that
Jyotikumari should not survive and their crime should not be detected.
6) Subsequent Conduct of accused : Even after commission of
crime in question in brutal manner, both the accused showed no
remorse. They immediately went for second pick up of P.W.11 Sagar
Bidkar. The behaviour of both the accused after commission of heinous
crime was too cool. This fact shows that they had no repentance for
eliminating helpless young lady in a brutal manner. Accused No.1
Purushottam Borate gave false information to all concerned for late pick
up of P.W.11 Sagar Bidkar by stating that tyre of the cab was punctured
and that Jyotikumari did not board his cab. He even insisted P.W.17
Amol Mugade to create false record by showing that the cab entered in
the premises of the Company at 1100 p.m.. Accused Purushottam
Borate had also obtained endorsement of P.W. 11 Sagar Bidkar on pick
up sheet that the delay was due to punctured tyre. Their post event
conduct shows that they were taking all precautions to see that their
heinous acts should not come to surface and they were not having any
regret for what they had done with Jyotikumari.
7) Impact of the Crime on Community : Both the accused
persons have murdered a young working woman who was reposing
trust on accused Purushottam Borate for going to her work place in
night hours. She was working in I.T. Sector in Business Process
Outsourcing Company where the work is normally carried on in night
(106) (Sessions Case No.284/2008)
hours. The crime was committed in extreme brutal and beastly manner
demonstrating deprival character of both the accused persons. Safety of
working women in a city like Pune which is nearly attending status of
metropolitan city and hub of I.T. Sector came to jeopardy due to crime
of such intensity, gravity and magnitude committed by accused. The
impact of criminal act of accused has virtually thrown safety and
security of working women at Pune out of gear. Tempo of life of
community at Pune is affected due to criminal act of both the accused
persons and ultimately security of society is endangered. Nowadays,
women are considered as backbone of any economy and they are
important in shaping future of the country. Women of this era are
participating in the process of economic development of the country on
equal footing with men. The Factories Act, 1948 is now being amended
to allow women employees to work in night shifts. Rapid growth of
Information Technology Sector and increased employment of women in
that Sector as well as round the clock working hours in this Sector
contributes in economic development of the nation. Better pay package
and demand of job are the reason for work by women in night shifts. In
a Research Study Conducted by Associated Chamber of Commerce and
Industries of India sponsored by National Commission for Women, it is
found that women working night shifts in Business Process Outsourcing
constitute 40% of total work force in Business Process Outsourcing.
Sector in India. One assumption of their families is that despite the
strange hours of work, their daughters will be safe because “the
Company will take care of them”. It was found that situation of Business
Process Outsourcing employees in Bangalore is fearful because of case
of rape and murder of Pratibha. It was a case of taxi driver Shiva Kumar
raping and murdering Pratibha Murty an employee of Hewlett Packard
(107) (Sessions Case No.284/2008)
at Bangalore. She was picked by the accused therein for the night shift
in the said Company, but she was raped and murdered by him. In para
No. 4.2.1 of that Study, it is observed that the BPO Sector is the most
promising Sector for women to work in night shifts. However, the
present crime has shocked the conscience of the community and this is
not the only case of crime of such nature at Pune. In the era of equal
opportunities, women can get respect in society if night shift jobs
ensures their safety. Such type of crimes creates negative impact and
deter women from seeking employment in lucrative sector due to
gender discrimination act of sexual offences. In that sense, the crime in
question has not only affected one family but all working women and
their families. Safety and security of the community and particularly
that of women is adversely affected by such crime.
96] As against these aggravating circumstances of the crime, let
us consider what may be the mitigating circumstances favouring the
accused persons in order to strike the balance.
1) Mitigating Circumstances : It was argued by the learned
counsel for the accused that both the accused persons are of young age
and there is possibility of their reformation. However, they are not
extreme young persons. In the matter of Jai Kumar Vs. State of M. P.
1999 SCC (Cri) 638, in a similar case of rape and murder of a lady with
her 8 years old daughter, the Hon'ble Apex Court in para No. 21 has
held thus:
“21. In the matter in issue, however, we do
not find any balancing factor so as to strike a balance.
(108) (Sessions Case No.284/2008)
As a matter of fact aggravating factors there are
aplenty and galore without any mitigating
circumstances as noticed above. The age of the
accused being 22 years cannot, in the factual matrix
of the matter under consideration, be said to be a
mitigating factor. The accused is 22 years of age
while the victim was aged 30 years and at the time of
the unfortunate death, she was under pregnancy
between 22 to 30 weeks – the other victim was an
innocent girl – a child of 8 years; the murders were
coldblooded while the two victims were in a helpless
and hapless situation. No amount of perversity would
prompt a person to break open the door by removing
the bricks from the wall and commit such gruesome
murders on failure to satisfy the lust – the human lust
ought to know its limits.
Similarly, in Sevaka Perumal and Another Vs. State of
Tamil Nadu1991 Supreme Court Cases (Cri)724, Hon'ble Apex Court
in para No. 12 has held thus :
….... It is further contended that the appellants are young men. They are the breadwinners of their family each consisting of a young wife, minor child and aged parents and that, therefore, the death sentence may be converted into life. We find no force. These compassionate grounds would always be present in most cases and are not relevant for interference. Thus we find no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court warranting interference. The appeals are accordingly dismissed.
(109) (Sessions Case No.284/2008)
It was the case of murder of innocent boys committed for
gain as a means of living. It is seen from these rulings that when the
murder is coldblooded and that of a helpless female victim in a hapless
situation, mere fact that accused are of young age is not a balancing
factor. In the case at hand, Jyotikumari was also a young lady of 23,24
years, but she was done to death in most brutal manner by accused
persons. Hence, merely because they both are also young, they cannot
escape from their criminal liability.
97] The offence was not committed by the accused under
influence of extreme mental or emotional disorder. There is no question
of accused believing that they were morally justified in committing the
offence on helpless and defenceless young unmarried lady.
98] Accused No.1 Purushottam Borate is a driver by
occupation. He had abducted deceased Jyotikumari with help of
accused No.2 Pradeep Kokade and they subsequently raped and
murdered her. They did not show any regret, sorrow or repentance at
any point of time. Rather they acted in a very normal manner after
commission of crime. Accused No.2 Pradeep Kokade accompanied
accused No.1 Purushottam Borate for second pick up after committing
the crime in most brutal manner. He alighted the cab prior to reaching
the gate of the Company and then accused No.1 Purushottam Borate
attempted to create false record by requesting P. W. 17 Amol Mugade,
Security Supervisor. Thus, in every probability they have potency to
commit similar offence in future. Considering the fact that accused are
perpetrator of this coldblooded spine chilling crime of rape and murder
of a young girl; which was meticulously planned, there is no probability
(110) (Sessions Case No.284/2008)
that accused can be reformed or rehabilitated. Accused were not under
the duress or domination of any other person but their acts were just for
satisfying their lust.
99] Both the accused persons have submitted their written
statement on quantum of sentence, but the averment made therein are
totally irrelevant so far as question of quantum of sentence is
concerned. Both the accused persons have contended that if Shri.
Mahendra Kawchale who was earlier representing them as an Advocate
was allowed to continue to defend them after suspension of his Sanad,
then they could have secured acquittal. Circumstantial evidence
adduced by the prosecution is bogus and documentary evidence and
oral evidence is contradictory. Both the accused persons further
contended that accused No.1 Purushottam Borate is having
responsibility to maintain his aged mother, wife and sister and accused
No.2 Pradeep Kokade is required to maintain his widowed mother and
younger sister. It needs to mention here that Shri. Mahendra Kawchale
was found to have obtained Provisional Sanad on the basis of fake
certificate. The Division Bench of the Hon'ble Bombay High Court by its
order dated 5092011 in Criminal Writ Petition No. 640/2011 had
directed the Bar Council to sent intimations to the Registrars of all the
Courts across the State of Maharashtra and State of Goa to not entertain
the Vakalatnama of Shri. Mahendra Kawchale or permit him to appear
in any proceedings in any Court. This Court had also received a letter
(Exhibit 190) from Incharge Secretary of Bar Council of Maharashtra
and Goa informing that Sanad of Shri. Mahendra Kawchale is
suspended. Applications moved by both the accused persons seeking
permission to allow Shri. Mahendra Kawchale to defend them were
(111) (Sessions Case No.284/2008)
rejected by this Court with a reasoned order. Subsequently, both the
accused persons have chosen to engage another counsel of their choice
who had ably defended them. All witnesses were recalled for further
crossexamination. Hence, the contention raised by the accused persons
in their written statement regarding quantum of sentence is totally
irrelevant. The contention that the accused persons are required to
maintain their family members cannot tilt the balance in their favour by
suppressing the aggravating circumstances.
100] At this juncture, it is apposite to refer ruling in Dhananjoy
Chatterjee alias Dhana Vs. State of W.B. 1995 AIR SCW 510. In that
matter accused Dhananjoy was one of the Security Guard deputed to
guard the building where deceased Hetal, a girl aged 18 years was
residing. Because of complaint of Hetal, he was transferred to the other
building. Subsequently Hetal was found to be raped and murdered in
her flat by accused Dhananjoy. While dismissing his appeal and
confirming the death sentence, Hon'ble Supreme Court in para No. 16
has held thus :
“16. The sordid episode of the security guard,
whose sacred duty was to ensure the protection and
welfare of the inhabitants of the flats in the
apartments, should have subjected the deceased, a
resident of one of the flats, to gratify his lust and
murder her in retaliation for his transfer on her
complaint makes the crime even more heinous.
Keeping in view the medical evidence and the state
in which the body of the deceased was found it is
obvious that a most heinous type of barbaric rape
(112) (Sessions Case No.284/2008)
and murder was committed on a helpless and
defenceless schoolgoing girl of 18 years. If the
security guards behave in this manner, who will
guard the guards? The faith of the society by such a
barbaric act of the guard, gets totally shaken and its
cry for justice becomes loud and clear, the offence
was not only inhuman and barbaric but it was a
totally ruthless crime of rape followed by, cold
blooded murder and an affront to the human dignity
of the society. The savage nature of the crime has
shocked our judicial conscience. There are no
extenuating or mitigating circumstances whatsoever
in the case. We agree that a real and abiding
concern for the dignity of human life is required to
be kept in mind by the courts while considering the
confirmation of the sentence of death but a cold
blooded preplanned brutal murder without any
provocation after committing rape on an innocent
and defenceless young girl of 18 years by the security
guard certainly makes this case a “rare of the rarest”
cases which calls for no punishment other than the
capital punishment and we accordingly confirm the
sentenced death imposed upon the appellant for the
offence under Section 302, I.P.C. The order of
sentence imposed on the appellant by the courts
below for offences under Section 376 and 380, I.P.C.
are also confirmed along with the directions relating
thereto as in the event of the execution of the
(113) (Sessions Case No.284/2008)
appellant, those sentences would only remain of
academic interest. This appeal fails and is hereby
dismissed.
101] If the stock of aggravating and mitigating circumstances is
taken and theory of proportionality is kept in mind, the case at hand
needs to be held as rarest of rate cases. The balance of mitigating
circumstances is not tilting in favour of accused persons. The crime has
been committed and executed in a preplanned manner which shows
determination of both the accused to complete the crime and take away
life of Jyotikumari. This incident had sent a shock waives throughout
the city of Pune and particularly in the I.T. Sector which has gained
roots at Pune.
102] On facts, the case at hand is almost identical with the case
of Dhananjoy Chatterjee alias Dhana (supra). In present case, accused
driver alongwith coaccused committed rape and murder of helpless
and defenceless young girl who was reposing complete faith and trust
on them by carefully planning the crime and executing it in barbaric
manner. Taking the verdict in the matter of Dhananjoy Chatterjee
(supra) as yardstick, there is no hesitation to put on record that the case
at hand is the rarest of rare case warranting nothing else but the death
penalty to accused persons. This Court is satisfied that the extreme
depravity with which the offences were committed and the merciless
manner in which Jyotikumari was done to death coupled with the other
factors including the position of trust held by accused No.1
Purushottam Borate, impact of the crime on the community and
particularly women working in night shifts at this hub of Information
Technology Centre – Pune, brings the case within the category of rarest
(114) (Sessions Case No.284/2008)
of rare case, which merits death penalty and none else. The mitigating
factors as pointed out in forgoing paras are absent. The collective
conscience of the community is so shocked by this crime that imposing
alternate sentence, i.e. life imprisonment on the accused would not
meet the ends of justice. Rather it would tempt other potential
offenders to commit such crime and get away with such lesser
punishment. Accused without showing any remorse or repentance for
their action made a false story that Jyotikumari did not board the cab.
It is clear that both the accused persons proved a menace to society and
they are incapable of rehabitation. Hence, by answering the points
accordingly, I proceed to pass following order :
ORDER
[i] Accused No. 1 Purushottam Dashrath Borate and accused
No. 2 Pradeep Yashwant Kokade, both R/o. Sainagar, Gajanan Society,
Gahunje, Taluka Maval, District Pune are convicted under Section
235(2) of the Code of Criminal Procedure, 1973 of the offence
punishable under Section 120B of the Indian Penal Code and they both
are sentenced to death and to pay a fine of Rs.5000/ (Rs. Five
thousand only), each and in default to undergo rigorous imprisonment
for one year. They both be hanged by neck till they are dead.
[ii] Accused Nos. 1 and 2 are further convicted of the offence
punishable under Section 302 R/w 120B of the Indian Penal Code and
they both are sentenced to death and to pay a fine of Rs.5000/ (Rs.
Five thousand only) each, in default to under rigorous imprisonment for
one year. They both be hanged by neck till they are dead.
[iii] Accused Nos. 1 and 2 are further convicted of the offence
(115) (Sessions Case No.284/2008)
punishable under Section 376(2)(g) R/w 120B of the Indian Penal
Code and they both are sentenced to suffer imprisonment for life and to
pay a fine of Rs.5000/ (Rs. Five thousand only), each and in default to
undergo rigorous imprisonment for one year.
[iv] Accused Nos. 1 and 2 are further convicted of the offence
punishable under Section 364 R/w 120B of the Indian Penal Code and
they both are sentenced to suffer imprisonment for life and to pay a
fine of Rs.5000/ (Rs. Five thousand only) each and in default to
undergo rigorous imprisonment for one year.
[v] Accused Nos. 1 and 2 are further convicted of the offence
punishable under Section 404 R/w 120B of the Indian Penal Code and
they are sentenced to suffer rigorous imprisonment for two years and to
pay a fine of Rs.1000/ (Rs. One thousand only) each, and in default to
undergo rigorous imprisonment for three months.
[vi] Substantive sentences to run concurrently.
[vii] Seized muddemal property, i.e. Article No.1 stone, Article
No.2 pair of sandal, Article No. 3 blood mixed earth, Article No. 4
simple earth, Article No. 5 Blade of Supermax Company, Article No. 6
yellow coloured Kurta, Article No.7 saffron coloured Salwar, Article No.
8 brown coloured knicker, Article No. 9 white coloured petticoat,
Article No. 10 white coloured brassier, Article No. 12 Identity card of
Wipro Company having a photograph on it, Article No. 13 black
coloured jerkin, Article No. 14 maroon coloured cap (Kantopi), Article
No.15 maroon coloured full pant, Article No. 16 white coloured half
shirt, Article No. 17 Underwear of Lux Company, Article No. 18 Blue
(116) (Sessions Case No.284/2008)
coloured jeans pant, Article No. 19 half Tshirt, Article No. 22 Under
wear of Lax Company, and Article No. 24 photocopies of documents
pertaining to Indica car, being worthless, be destroyed after period of
appeal is over.
[viii] Article No.11 Mobile handset and Article No. 20 two
mobile handsets recovered from accused No. 2, be auctioned and sale
proceeds be credited to Government, Article No. 21 cash amounting to
Rs.1070/ be credited to Government, after appeal period is over.
[ix] Article Nos. 25 Gold ring, Article No. 26 Wrist watch of
Titan Company, Article No. 27 Sim Card of Airtel Company, Article No.
28 pair of earrings and Article No. 29 Mobile handset of deceased
Jyotikumari be returned to P. W. 13 Sudhakumari, after appeal period is
over.
[x] Muddemal Article No. 23 Indica Car V2 bearing
registration No. MH14/AH4560 returned to its registered owner be
retained by him on the same terms and conditions until the appeal
period is over and thereafter the Superatnama bond executed by him
shall stand cancelled.
[xi] The proceeding shall be submitted to the Hon'ble High
Court and sentence of death shall not be executed until it is confirmed
by the Hon'ble High Court.
Se/xxx PUNE. (A. M. BADAR)Dated: 20th March, 2012. Sessions Judge, Pune.
(117) (Sessions Case No.284/2008)
"I affirm that the contents of this P.D.F. file Judgment are same word for word as per original Judgment. Name of Steno : B. D. Wabale, Personal Assistant. Court Name : Sessions Judge Pune Date : 22032012.Judgment signed by presiding officer on : 20032012.Judgment uploaded on : 22032012.
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