BPO Employee Rape and Murder Case Pune Death Sentence

(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.


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.


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


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


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


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


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


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


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


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


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


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 :


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.


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


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.


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


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


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


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


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


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


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


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;


(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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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) …..


(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


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


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


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


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


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


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


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


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


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


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


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


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.


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


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


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


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


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


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


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.


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 :


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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.


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


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


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


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


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


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


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


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


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:


“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


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


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


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


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


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


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


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


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.


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.


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


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


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


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


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


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


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


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


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


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.


"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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BPO Employee Rape and Murder Case Pune Death Sentence