Trikambhai Alias Tike Ravajibhai Thakor, Petitioner
V. State Of Gujarat, Respondent.
DATE : 10-05-2000
2000-(106)-CRLJ -4363 -GUJ
M R Calla
R R Tripathi
GUJARAT HIGH COURT
M. R. CALLA, J. :- The judgment and order of conviction and sentence
passed by the learned Addl. Sessions Judge at Nadiad in Sessions
Case No. 95 of 1999 dated 25-8-99 is the subject matter of challenge
in the Criminal Appeal No. 913 of 1999 (through jail) at the instance
of appellant Trikambhai alias Tiko Ravjibhai Thakor and in confirmation
Case No. 1 of 1999 the confirmation of death sentence under sub-section
(1) of S. 366 of Cr.P.C. awarded to the accused appellant, namely,
Trikambhai alias Tiko Ravjibhai Thakor is to be considered.
2. The appellant was tried for the offences punishable under sections
363, 376(2)(F), 451, 302 and 201 of I.P.C. in Sessions Case No.
95 of 1999 before the learned Addl. Sessions Judge at Nadiad.
The appellant was found to be guilty for the offences punishable
under Sections 302, 376(2)(f), 363 and 451 of I.P.C. and was convicted
accordingly but was acquitted of the offence punishable under
S. 201 of I.P.C. After giving the judgment under S. 235(1) of
Cr.P.C. and after hearing the appellant on the question of sentence
under S. 235(2) of Cr.P.C. the trial Court passed the following
Under the provision of Section 235(2) of Code of Criminal Procedure,
and subject to confirmation of Hon'ble Gujarat High Court under
Section 28(2) of the Cri P. Code, for the offence punishable under
S. 302 of I.P.C., the accused is hereby awarded the sentence of
death, and also ordered to pay fine of Rs. 5000 (Rupees five Thousand
Only) in default, two years rigorous imprisonment.
For the offence punishable under section 376(2)(F) of IPC., the
accused is ordered to suffer life imprisonment and also to pay
fine of Rs. 5000 (Rupees Five Thousand Only) in default, two years
For the offence punishable under section 363 of IPC., the accused
is awarded rigorous imprisonment of 7 years and to pay fine of
Rs. 5000 (Rupees Five Thousand Only) in default, one year rigorous
For the offence punishable under section 451 of IPC., the accused
is awarded rigorous imprisonment of 2 years, and to pay fine of
Rs. 2000 (Rupees Two Thousand Only) in default, six months rigorous
Set off against the sentence of imprisonment be given to the accused
for the period of detention undergone by him under section 428
of Cr.P. Code.
All the sentences of imprisonment shall run concurrently.
The matter alongwith R & P be immediately referred to the
Hon'ble Gujarat High Court for confirmation of sentence of death
under Section 28(2) of Cr.P. Code.
The muddamal is ordered to be destroyed after appeal period.
Copy of the judgment and the order be given to the accused under
section 363 of Cr.P. Code."
3. Briefly stated, the case of the prosecution is that on 5-1-99
one Shri Mahijibhai Ambalal Thakor, resident of Indira colony,
village Lakkadpura, District Kheda went to the house of one Shri
Kalidas Vitthalbhai Thakor with his wife at about 9.30 p.m. to
watch T.V. Serial 'Om Namaha Shivaya', leaving their daughters
namely, Ramila and Jagruti sleeping at their residence. The house
of Shri Kalidas Vitthalbhai Thakor is situated just opposite to
the house of said Shri Mahijibhai. At about 10.00 p.m. the youngest
daughter, namely, Jagruti cried and, therefore, wife of Mahijibhai
returned to her house and came back to the house of Kalidas Vitthalbhai
Thakor alongwith Jagruti leaving Ramila alone in the house. When
the T.V. Serial was over said Shri Mahijibhai alongwith his wife
returned to their house and to their dismay they found that their
daughter Ramila, aged 5 years, was not there. A search was made
in the nearby area, in other villages Simarda, Rupiyapura, Dantali
but Ramila could not be found. On 6-1-99 said Shri Mahijibhai
lodged a complaint before Petlad Town Police Station about his
missing daughter Ramila. The dead body of Ramila with injuries
was then found in the sim of Vaniyavali Nali on 6-1-99 itself.
Petlad Town Police Station therefore undertook an inquiry under
accidental death case registered at No. 2 of 1999. Inquest Panchanama
was drawn and the dead body of Ramila, as was recovered, was sent
to the Medical Officer, SSG Hospital, Petlad for post mortem.
The Panchanama of the scene of the offence was prepared and the
statements of certain witnesses were recorded. After the receipt
of the post mortem note, it was revealed that the death of Ramila
was homicidal death and, therefore, the complaint was lodged by
the Police Inspector Shri Madhavsinh Pahadsinh Vasava and the
case was accordingly registered for the offences. The statements
of some more witnesses were recorded and on 8-1-99 the dog squad
was called and dog tracking was made. The dog jumped at the accused
appellant standing in a crowd and, therefore, the accused appellant
was arrested on 8-1-99. The Panchanama with regard to the places
shown by the accused was made, the muddamal pant, shirt, etc.
shown by the accused were seized and the muddamal shown by the
accused and seized at the time of drawing the panchanama of the
scene of offence were sent to the Forensic Science Laboratory
at Ahmedabad for examination. The accused was medically examined
and the F.S.L. reports were collected alongwith the Map and kept
with investigation papers. As it was revealed that the girl was
also raped, the charge-sheet was filed accordingly against the
accused in the Court of Judicial Magistrate, First Class, Petlad.
The learned Judicial Magistrate, First Class, Petlad committed
the case to the Court of Session where from it was transferred
to the Court of Addl. Sessions Judge at Nadiad for trial and disposal
according to law. The charges were framed as per Exh. 4 dt. 12-7-99
for offences punishable under section s 302, 376(2)(F), 363, 451
and 201 I.P.C., the accused pleaded not guilty and demanded trial.
4. The prosecution examined 13 witnesses in all. There is no eye
witness but the prosecution sought its case to be proved on the
basis of the circumstantial evidence in the form of the accused
being last seen with the victim i.e. deceased Ramila, aged 5 years,
other witnesses, stating the circumstances against the accused
showing his involvement in the commission of the offence including
the witnesses, who had associated in the search of Ramila, panch
witnesses of scene of offence, panch witness of the panchanama
of dog tracking, the police investigation officer, who has referred
to inquest report, panchanama of scene of offence, arrest panchanama,
dog tracking panchanama, discovery panchanama, report of Radiologist
with regard to the age of the accused, F.S.L. reports, map of
the scene of the offence, photographs of the dead body of the
deceased, the complaint as lodged by Police Inspector Madhavsinh
Pahadsinh Vasava, etc. and the two Doctors, who performed the
post mortem examination of the dead body of deceased Ramila and
also medically examined the accused and gave the certificate.
The answers of the accused were recorded under S. 313 of Cr.P.C.
at Exh. 5. Defence of the accused is total denial coupled with
the say that he had been falsely involved at the instance of ex
Sarpanch Muljibhai. For the purpose of pointed and proper appreciation
of the evidence, we may classify the same in the following heads
(i) Evidence that the accused was last seen with the deceased.
(ii) Oral evidence of victim deceased Ramila's father and other
witnesses, who were associated in the search of deceased Ramila
and those who have disclosed circumstances against the accused
(iii) Evidence of dog tracking.
(iv) Expert evidence of two Doctors including the answer given
by the accused-appellant to P.W. 2 admitting his acts in his own
words with regard to the offences.
(v) Evidence of investigation officers, discoveries, panchanamas
and the F.S.L. reported about the muddamal recovered from the
accused and the scene of offence so as to provide corroboration
to the circumstances appearing against the appellant.
A. First of all we may refer to the evidence of P.W. 3 Mahijibhai
at Exh. 16 (pages 105 to 114 of the paper book). This witness,
aged 33, is the father of deceased Ramila, engaged in the agricultural
labour. He says that he has three children, eldest is son Jayesh
aged 7 years, who was at village Rapiyapura on the date of incident,
his daughter Ramila was about three and half years at the time
of incident and the youngest daughter Jagruti was about 1 year
at the time of incident. Deceased Ramila was studying in Balmandir.
He states that the incident took place on Fifth January, 1999.
In the evening, after returning from the work, after taking dinner,
he alongwith his wife had gone to his relative Kalidasbhai's house
to watch the T.V. Serial 'Om Namaha Shivaya'. The house of Kalidas
is only about 15 feet away from his house. When they went to the
house of Kalidas to watch the T.V. Serial, daughters Ramila and
Jagruti had gone to sleep. After the start of the T.V. Serial,
daughter Jagruti cried and thereupon his wife brought her and
came back to the house of Kalidas while Ramila was still asleep
in the house. At about 10 to 10.15 p.m. the Serial was over and
when he went back to his house, Ramila was not found. Even after
searching her in the nearby and in the whole colony, Ramila was
not found, she was also not found at her Mausal i.e. her mother's
place. Ramila was not found for the whole night and, therefore,
he gave a photo of Ramila to the Police and stated that Ramila
was missing. This information was given at Petlad Police Station.
It was also stated by him before the police that in the photograph
his daughter was wearing a sweater of blue colour (in Gujarati
the word "Bhoora" is used for blue colour). After informing
the police he came back to the village and on his return (6-1-99)
Muljibhai, a resident of village told him that Ramila had been
found. He told him that Ramila's body was lying in Vaniyavali
Nali and we have to go there after calling the police. They went
to the place where Ramila was lying after the Police came. He
was made to stand away. Police made some writings there and the
dead body was sent to the Hospital. The Police then recorded his
statement and, thereafter, on the next day (7-1-99) after the
Hospital procedure was over, the dead body was given to him and
the finale of the dead body was done. Thereafter, on the next
day (8-1-99) Police recorded his further statement and the Police
also came to his village for investigation alongwith the dog.
The dog was made to smell place where the dead body was lying
and thereafter the dog started moving at different places and
at last Trikambhai Ravjibhai (the accused) was caught. Said Trikambhai
Ravjibhai was known to him and that he was living about 4 to 5
houses away from his house, that he and Trikambhai had no relations
of visiting each other's house, that he had no enmity with the
appellant or anyone else.
In cross-examination he has stated that he had studied upto IInd
standard. There were about 60 houses in Indira colony and all
persons belonging to Thakor community are living there. Only two
Mohammedans are living there. The house of Kalidas is opposite
to his house but his house and the appellant's house are in the
same line. Kalidas was his Bhua's son and Ashokbhai Ambalal Thakor
was also his Bhua's son, Ambubhai Punjabhai and Champakbhai Gordhanbhai
were also his relatives. He says that he had gone to the house
of Kalidas on many occasions to watch the T.V. On the date of
the incident the Serial had started at 9.30 p.m. and was over
at about 10.30 p.m., that at the house of Kalidas he had gone
with his wife and, therefore, his neighbour Ichchaben had also
come there. Jagruti had cried after about half an hour of the
starting of the Serial and his wife had gone to bring Jagruti.
He says that throught out the Serial he was sitting in front and
his brother was sitting behind and, therefore, during the period
of Serial if any person had gone out or not is not known to him.
Since he was watching the T.V. he could not see Kalidas, who was
sitting on the bed in the side room. After the T.V. Serial was
over he, his wife and brother went to his house and Kalidas remained
in his own house. He then states that when he was searching for
Ramila, Kalidas had also come and Kalidas had also started searching
for Ramila. According to him Kalidas was working as a driver and
used to take liquor occasionally. He says that he does not know
as to whether there was any police case against Kalidas. That
during the period he was watching the T.V. Serial and till the
T.V. Serial was over nothing was talked about Ramila in the house
of Kalidas. There were no street lights in Indira colony. There
was no street light on the way leading to Nali and on the date
of incident, it was winter and chill cold. On the next day he
and his brother-in-law had gone to the Police Station and no one
else was there. They had reached the police Station at about 9.30
a.m. He says that they took about half an hour to inform the police.
The dog was brought on 8-1-99. He has denied the suggestion that
the dog had caught Punambhai Vaghabhai and Chhaganbhai Mangalbhai.
He has denied the suggestion that prior to the date of incident
appellant used to come to his house. He has agreed to the suggestion
that he had come to know about the offence being committed by
the appellant because dog had caught the appellant, but he had
no personal knowledge.
(a) From the statement of this witness it is clear that :-
(i) the incident had taken place on the night of 5-1-99 and after
the T.V. Serial was over i.e. 10.30 p.m. when he returned to his
house Ramila was not found in the house.
(ii) While the Serial was going on and till it was over at 10.30
p.m. there was no talk about Ramila and he also does not know
as to whether any person had gone out of the house during the
period of the Serial or not.
(iii) Kalidas had also come for the search of Ramila and had started
(iv) He does not say anything about Kalidas going out after the
Serial was over. On the contrary he says that after the Serial
was over he came back to his house and that while he came back
to his house after the Serial was over Kalidas remained in his
(v) He reported to the police at 9.30 a.m. on 6-1-99.
(vi) After his return from Police Station, through Muljibhai,
a resident of his village, he came to know that dead body of Ramila
was lying in the Vaniyavali Nali i.e. on 6-1-99.
(vii) That the appellant did not use to come to his house and
that the appellant was living about 4 to 5 houses away from his
house in the same line.
(viii) That Kalidas and Ashokbhai were his Bhua's sons and Ambubhai
Punjabhai and Champakbhai Gordhanbhai were his relatives.
(ix) That his neighbour Ichchaben had also come to watch the T.V.
Serial at the house of Kalidas after he had reached there alongwith
There is nothing to disbelieve this witness and it appears that
he has given the correct version of whatever was in his knowledge
and there is nothing to disbelieve the version of this witness
as given by him right from the time when he went to watch the
T.V. Serial on 5-1-99 till 8-1-99 when the dog tracking was conducted
by the Police.
B. We may now refer to the evidence of P.W. 4 Kalidas Vitthalbhai
Thakor Exh. 19 (Pages 117 to 124 of the paper book). He is the
person who lives in the same colony i.e. Indira colony of village
Lakkadpura opposite to the house of Mahijibhai i.e. father of
the deceased and at whose house Mahijibhai and his wife had gone
to watch the T.V. Serial 'Om Namaha Shivaya'. His age is 40 years
and occupation is driving. He has deposed in the examination-in-chief
that he was at his house in the evening of 5-1-99 i.e. the date
on which the incident took place. On that night Mahijibhai alongwith
his wife had come to his house to watch the T.V. Serial 'Om Namaha
Shivaya', which started at 9.30 p.m. After the T.V. Serial started
the younger daughter of Mahijibhai had cried and, therefore, wife
of Mahijibhai brought the younger daughter with her and sat in
the front. After some time he went to urinate. He says that at
that time appellant Trikambhai was standing ahead of Mahijibhai's
house with the elder daughter of Mahijibhai, namely, Tapu (Ramila
- the deceased). He says that he asked the appellant as to what
was he doing and thereupon the appellant replied that since she
was crying he was bringing her to her mother. Thereupon he came
into his house, but the appellant did not bring Ramila. He also
says that thereafter he watched the Serial, Shri Mahijibhai was
sitting before the T.V. and he kept sitting behind Mahijibhai.
He also says that after the Serial was over he had to go to Ambaji
with his taxi and, therefore, he left for Ambaji. On the next
day i.e. 6-1-99 he came back from Ambaji at about 8.00 to 8.30
p.m. and by that time Trikambhai i.e. appellant had been arrested
with regard to this incident of committing rape by him on the
daughter of Mahijibhai.
In cross-examination he has stated that he had driving licence
since 1982, the Serial had started at 9.30 p.m. and was over at
10.30 p.m., after about 10 minutes of the starting of the Serial,
daughter of Mahijibhai had cried and, therefore, his wife went
out, came back with her daughter and about 5 to 10 minutes thereafter
he had gone to urinate. On his return after urination, he did
not inform Mahijibhai that he had seen the appellant outside and
Mahijibhai did not know that he had gone to urinate because Shri
Mahijibhai was sitting in the front and he was siting at the back.
After the T.V. Serial was over all had gone to their respective
houses and he had left for Ambaji with the vehicle in their presence.
He says that at the time when he left for Ambaji he did not know
that Ramila was missing. He has also denied the suggestion that
at 10.30 p.m. he knew that Ramila was missing. He has also denied
the suggestion that he had associated with Mahijibhai on that
night in the search of Ramila. He then says that on the evening
of next day when he came back from Ambaji his wife had informed
about the incident, which took place with Ramila and on that very
evening his wife had informed him that the appellant had committed
rape upon Ramila, had bitten her and had killed her. He has denied
the suggestion that he was in the habit of drinking alcohol, but
had admitted that in past a complaint of committing rape had been
filed against him. He has admitted that he knows one Rajubhai
of his village who sells liquor. He has also denied the suggestion
that on the date of the incident he did not go to Ambaji but had
gone for drinks at Rajubhai's place. He has also denied the suggestion
that the appellant was with him for drinks at Rajubhai's place.
He has also denied the suggestion that he had not gone to urinate
during the Serial, he has also denied the suggestion that he was
giving false evidence because he was related to Mahijibhai. He
has pleaded no knowledge in answer to the question as to whether
the dog, which was brought by the Police, had pointed towards
Punambhai Vaghabhai and Chhaganbhai Mangalbhai or not.
(a) If we examine the statements of this witness in the light
of the deposition made by P.W. 3, namely, Mahijibhai, we find
that this witness Kalidas does not find support from P.W. 3 on
the question that he had left for Ambaji immediately after the
T.V. Serial was over and in the presence of the persons, who had
come to watch T.V. Serial at his house while the visitors were
going back to their houses. This witness is contradicted by the
statement of P.W. 3 on the question that he did not know about
the missing of Ramila and he is also contradicted on the question
that he had not made any search on that night for missing Ramila.
Besides this, his statement that on the next day i.e. 6-1-99 itself
in the evening when he came back from Ambaji, Trikambhai had already
been arrested, is factually incorrect, because it is a matter
of record that Trikambhai had been arrested on 8-1-99 and till
the evening of 6-1-99 it was not even known that the appellant
was the person, who had committed the rape upon the daughter of
Mahijibhai. Not only this, he has stated in the cross-examination
that in the evening of 6-1-99 when he came back from Ambaji his
wife had informed that the appellant had raped Ramila, had bitten
her and killed her. This part of his statement is factually incorrect.
His wife has not been examined and in the facts of this case,
there is no material on record on the basis of which it can be
said that the appellant had been apprehended by Police or anyone
else on 6-1-99 itself and the fact is that the appellant was apprehended
only on 8-1-99 after the dog tracking. Thus, his statement on
this aspect of the matter does not inspire any confidence. What
has come on record is that as per the information given to P.W.
3 i.e. Mahijibhai by Muljibhai that the dead body of Ramila had
been found lying at Vaniyavali Nali on 6-1-99 and, therefore,
till that time i.e. the evening of 6-1-99 it could not be said
by anyone that Ramila had been bitten, raped and killed by the
appellant. The appellant was connected with the offence only on
(b) Apart from it, the conduct of this witness is wholly unnatural
inasmuch as he did not inform the father or mother of Ramila on
return after urinating that their daughter was with the appellant
outside their house. The father of Ramila and this witness are
relatives and if he had seen the appellant with Ramila in the
cold night and when the appellant had also told him that he was
bringing Ramila to her mother because she was crying, it would
have been absolutely natural for him to immediately inform the
father or mother of Ramila, who were watching T.V. Serial in his
house that the appellant was standing with Ramila outside the
house but he did not do so. Not only this, he did not even inform
them after the T.V. Serial was over as to why the appellant did
not come in his house to hand over Ramila to her mother, more
particularly when he himself says that the appellant had told
him that he was bringing Ramila to her mother because she was
crying. This conduct on the part of this witness is wholly unnatural
and if P.W. 3 is believed, this witness has also belied, for reasons
not known, the fact that he had also started searching for Ramila
on that very night after the T.V. Serial was over. Thus, this
witness cannot be said to be a reliable and dependable witness
and his story on the question of the evidence that the appellant
was last seen with the deceased is not at all believable. We,
therefore, do not find it safe to rely upon this witness on the
question that appellant was last seen with the deceased Ramila
on the fateful night.
C.P.W. 6 Exh. 21, Manishaben, daughter of Ashokbhai, aged 14 years,
has been examined to show that on the evening of the date of the
incident i.e. 5-1-99 the accused appellant was in search of some
opportunity to satisfy his sexual urge. This witness has stated
that in the evening of 5-1-99 when she and her family members
had gone to sleep after taking dinner, accused appellant came
to her house and gave a call in her mother's name. She came out
and saw the accused appellant standing. She asked him as to what
for he had come there and he answered that he had just come and
while she was returning, he asked her to stay on. She asked him
as to what was the work and then he told, 'would you do my work
? She asked him as to what ? She again questioned as to what ?
Then he told that he would give her 50 rupees. Thereupon she told
that she would wake up her father and having said so, she came
back in the house and gone to sleep and the accused appellant
went away. On the next morning she came to know that Mahijibhai's
daughter Ramila was missing and then came to know that the dead
body had been found and that Police had recorded her statement.
In the cross-examination she says that the accused appellant had
come to her house on 5-1-99 for the first time, that she was living
in the house along with her father, mother, younger brother and
younger sister and that in the next morning after the night of
5-1-99 she told her father that the accused appellant had come
and had offered her 50 rupees and she has agreed to the suggestion
that she had disclosed the fact about the offer of 50 rupees for
the first time to the police when the police came to record her
(a) Through this witness the prosecution has tried to establish
that on the evening of the date of incident, the accused appellant
was intent to satisfy his sexual urge and, therefore, made the
aforesaid indecent proposal.
(b) The version of this witness does not appear to be natural
inasmuch as no person would go to a house in which a family of
five persons is living so as to give a call in the night hours
in the name of the mother of the witness and then dare to offer
50 rupees to the witness and make any indecent proposal while
knowing the fact that she was not living alone in the house and
that the girl was living in the house with her parents and more
particularly when he had never gone to her house in the past prior
to the date of the incident, while he has been living in the same
D.P.W. 7 Iswarbhai Mangalbhai Thakor, aged 32 years, has been
examined at Exh. 22. He has stated that the accused appellant
was known to him and on the date of incident in the evening when
he came back from his job at about 7.30 p.m. accused appellant
had come to him for taking the cycle and he had given the cycle
to him. Thereafter, at about 9.35 p.m. when the T.V. Serial 'Om
Namaha Shivaya' started, he returned the cycle and went towards
the house of Mahijibhai. Thereafter, in the late night he came
to know that the daughter of Mahijibhai was missing and he also
went for her search. Next day her dead body was found and the
Police had recorded his statement. He says that even prior to
the date of the incident the accused appellant had taken his cycle
and returned the same, many times. He has also stated that after
10.30 p.m. on the date of incident, when he came to know that
Ramila was missing and he went to the house of Mahijibhai, he
had told there that the accused appellant had taken his cycle.
(a) This witness has been examined to show that the accused-appellant
just prior to the time when it was known that Ramila was missing,
was moving around the house of Mahijibhai i.e. father of deceased
and after handing over the cycle to this witness, he had gone
towards the house of Mahijibhai. Obviously, this witness has been
examined to lend support to the prosecution case that appellant
was a person, who could be the person last seen around the house
of the deceased and just before the time when it became known
that Ramila was missing.
(b) Although this witness has stated in the cross-examination
that he had disclosed, the factum of the cycle being taken by
the accused-appellant and his going towards Mahijibhai's house,
after it became known that Ramila was missing and that this witness
had gone to Mahijibhai's house, P.W. 3 Mahijibhai has not stated
anything on this aspect of the matter.
E. Next witness P.W. 8 Maganbhai Khodabhai Thakor, aged 26 years,
engaged in the occupation of driving, has been examined at Exh.
26. This witness has stated that on 5-1-99 while he was sleeping
at his house at about 10.00 p.m., Mahijibhai along with his wife
had come to his house and told him that on their return from the
house of Kalidas after watching the T.V. Serial, they found that
their daughter Ramila was not there in the house on her bed and,
therefore, they are in her search. This witness says that he also
went in search of Ramila and in the way he met Bhikhabhai Mangalbhai
and while they were on way towards the Nali in the search of Ramila
they saw accused appellant from Nali side coming. The accused-appellant
told that there is darkness at Nali and, therefore, they should
not go there. At that time, it was about 11.00 p.m. Accused-appellant
then told that he was going to his house and having said so, he
went to his house but this witness continued with the search but
Ramila was not found till the morning. Ramila's father then reported
the matter to Police and thereafter, Ramila's dead body was found
and thereafter on the 3rd day the police dog had caught hold of
the accused-appellant and the dog had jumped thrice over the accused-appellant.
In the cross-examination there appears to be some error in recording
that the witness had denied the suggestion that at the time of
incident, the accused-appellant was not in his house. Obviously,
in cross-examination it could not be suggested that the accused
was not in his house at the time of incident, more particularly
when this witness has already stated and has also agreed to the
suggestion in the cross-examination that the accused-appellant
had met him on the way while coming from Nali side and asked the
witness not to go towards Nali and that this fact has been disclosed
by this witness for the first time before the Police. In the end
he has denied the suggestion that he was giving a wrong statement
at the instance of Muljibhai.
(a) This witness has been examined to establish incriminating
circumstances against the appellant accused inasmuch as he has
prevented this witness and the persons in search of Ramila to
go towards Nali in the night and that immediately after Ramila
was found to be missing and that at about 11.00 p.m. i.e. after
the Serial was over at 10.30 p.m. when Ramila was being searched,
he was seen coming from Nali side i.e. spot where from the dead
body of Ramila was recovered on the next day and this is how the
appellant-accused stands connected with the offence as there could
not be any reason for anyone to go to Nali in the darkness and
come back late at 11.00 p.m. in a chill cold night in darkness
and according to the prosecution it is a very strong circumstance
to connect the appellant-accused with the offence at the first
available opportunity and immediately after the incident had taken
place and on the very same date of incident.
(b) Mr. Shah, learned counsel for the appellant-accused, has submitted
that according to this witness, Mahijibhai and his wife had reached
that house of this witness at 10.00 p.m. itself, which is on the
face of it wrong because it has come in the evidence of Mahijibhai
himself that they were watching the T.V. Serial till 10.30 p.m.
and it was only after 10.30 p.m. that they came to know that Ramila
was missing. It has also been pointed out by Mr. Shah that according
to this witness one Bhikhabhai Mangalbhai had met him on the way
when he was going towards Nali in search of Ramila and at that
time the appellant-accused met him while coming from Nali side.
Mr. Shah has submitted that Bhikhabhai Mangalbhai, was the witness
and was the only person who could corroborate this witness on
the question of accused-appellant coming from the Nali side and
meeting the witness on the way and preventing the witness from
going towards the Nali, but Bhikhabhai Mangalbhai has not been
examined and, therefore, the version of this witness remains uncorroborated
although no explanation whatsoever has been given for non-examination
of Bhikhabhai Mangalbhai by the prosecution. On this aspect of
the matter according to Mr. Shah this witness even otherwise should
not be believed because he has not disclosed the story of accused-appellant
coming from the Nali side and meeting him on the way to Nali and
preventing him from going towards the Nali to anyone except the
F. P.W. 5 Muljibhai Desaibhai Thakor, aged 48 years, Exh. 20,
has stated in the examination in chief that Popat i.e. brother
of the accused-appellant had met him when he was accompanied by
Thakor Fatehsinh on 6-1-99 in the afternoon about 2.30 or 3.00
p.m. He says that at that time he was going towards his field
and they were coming from the Nali side and they informed him
that the dead body of Ramila was lying ahead. This witness therefore
went to the Sarpanch and a group of persons had collected there
and they all went towards the dead body and it was found that
the dead body was lying without cloths. Thereafter, on the other
day police came with dog and dog was taken to the spot where the
offence had been committed and therefrom it came to Mahijibhai's
house and thereafter it came to the house of the appellant-accused
and therefrom the dog went to the Chowk where the dog jumped on
the accused-appellant for three times. In cross-examination this
witness has stated that he was a Sarpanch about 15 years ago.
He has denied the suggestion that the appellant-accused did not
vote for him when he contested elections and therefore he and
the accused were not happily disposed of. It was voluntarily stated
by this witness that he had family relations with the appellant-accused.
He has also denied the suggestion that in the Panchayat there
were cases of embezzlement against him. While the witness has
said that he had no personal knowledge in this case he has denied
the suggestion that dog had first pointed out Punambhai Vaghabhai
and Chhaganbhai Mangalbhai.
(a) This witness has stated about the place of dead body and has
categorically denied the suggestion made on behalf of the accused-appellant
that the accused-appellant had been caught involved in this case
at the instance of this witness on account of enmity because of
the Panchayat elections.
(b) Mr. Shah has submitted that neither Popat nor Thakor Fatehsinh
has been examined while both these persons had been named by this
witness and it has been stated by him that on 6-1-99 when they
met him in the afternoon while this witness was going towards
his field and these two persons were coming from the Nali side
and they had informed him that the dead body of Ramila was lying
ahead. Mr. Shah has submitted that in fact according to this witness
Popat and Thakor Fatehsinh were the first persons who had seen
the dead body at Nali and, therefore, they were important witnesses,
who have not been examined.
(c) However, this witness has categorically denied any ill-will
towards the accused-appellant on account of not voting in his
favour and he says that he was a Sarpanch about 15 years back
and has also stated that he was having family relations with the
accused-appellant and has also denied the suggestion that the
dog had first pointed towards Punambhai Vaghabhai and Chhaganbhai
G. P.W. 9 Ambubhai Punjabhai Thakor, aged 38 years, has been examined
at Exh. 27. He is the Panch witness with regard to the scene of
offence at Nali and other witness of the panchanama of the scene
of offence is Champakbhai Gordhanbhai. He has stated that the
place of incident was an unused place where the dead body was
lying. He has then stated about 8 items, which were found lying
on the spot and which were recovered by the police :-
(1) a ball pen
(2) a but of Rajkamal bidi
(3) a cover of Rajkamal bidi containing 3 bidies
(4) a sample of blood stained soil
(5) a sample of unstained soil
(6) an underwear
(7) dry grass
(8) a button with 4 holes.
These items are Exh. 35 and Exh. 36 is the panchanama of the scene
of the offence.
(a) Mr. Shah, learned counsel for the appellant, has pointed out
that there is no reference to any pant in Exh. 36 and that the
other panch witness, namely, Champakbhai Gordhanbhai has not been
H.P.W. 10 Ranchhodbhai Ravabhai Thakor, aged 46 years, has been
examined at Exh. 37. This witness is the panch witness of dog
tracking. He has stated that on 8-1-99 he was called by the police
at Indira colony of Lakkadpura at about 9.00 to 9.30 a.m. The
dog while roaming went towards Nali at the place of the offence
where it was made to smell and underwear and a pant. The dog then
went to the deceased girl's house i.e. house of Mahijibhai. From
there the dog went to the house of the accused-appellant and thereafter
it went to the place where the public had assembled and there
the dog jumped thrice over the accused-appellant. The dog did
not take any jump over any one else. The Panchanama was prepared
accordingly. The other panch witness was Punambhai Punjabhai.
This panchanama is at Exh. 38.
(a) Learned counsel for the appellant-accused has pointed out
that there is no item like pant in Exh. 36 i.e. the panchanama
of the scene of offence and the other Panch Punambhai Punjabhai
has not been examined.
I. P.W. 11 Chhaganbhai Mangalbhai Thakor, aged 40 years, has been
examined at Exh. 39. He is the panch witness with regard to the
discovery panchanama under S. 27 of the Indian Evidence Act. The
other panch witness of this panchanama is Rajubhai Dahyabhai.
This witness has stated that he had been called on 8-1-99 by the
Police to be a panch witness and was told by the police that appellant-accused
wanted to disclose something and, therefore, a panchanama was
required to be prepared. He says that he was called in the afternoon
at about 3.30 p.m. He has stated that the appellant-accused led
him and the police people first to the house of Mahijibhai and,
thereafter, to the way leading to Nali via the house of Kalidasbhai.
Near the Nali there was a bush where he had thrown the underwear.
Then he shown the unused Nali and told them as to how the incident
took place. At Nali he also pointed out a Shawl of Maroon colour
on which there was some grass. This Shawl was taken into custody
by the police. Therefrom, they came back to the house of the appellant-accused
where he shown a blue colour (Bhura pant) pant and a shirt. There
were some spots on the pant. The police took the pant and shirt
into custody and sealed and signed them. The same are articles
9, 10 and 11 and the Panchanama Exh. 43 was prepared. In the cross-examination
he has stated that the shirt, which was got recovered by the appellant-accused,
had 4 buttons. He had not counted total number but there were
about 4 buttons and 2 buttons on the lower side were not there
i.e. at 2 places buttons were not there.
(a) Mr. Shah, learned counsel for the appellant, has submitted
that as per this witness he was called in the afternoon at about
3.30 p.m. on 8-1-99 whereas according to P.W. 10 Ranchhodbhai
Ravabhai Thakor the dog tracking was held in the morning at 9.00
to 9.30 a.m. on the same date i.e. 8-1-99 and, therefore, the
pant, which was recovered in the afternoon, could not be offered
for smell to the dog in the morning on the same date i.e. 8-1-99.
J. P.W. 12 Jagatsingh Savabhai Gadhvi, A.S.I., has been examined
at Exh. 12, who has investigated the case as an accidental death
and has not stated anything which is of importance for the purpose
K. P.W. 13 Madhavsinh Pahadsinh Vasava has been examined at Exh.
57, he is the concerned Police Inspector who has investigated
the offence. He has prepared the inquest report, had sent dead
body for post mortem, prepared the panchanama of the scene of
offence, has collected 8 items from the scene of the offence,
to which reference has been made by P.W. 9, has conducted the
dog tracking, arrested the accused-appellant, had also taken into
custody the shirt, pant and the Shawl and prepared panchanamas
and map etc. and recorded statements of the witnesses and after
the receipt of the post mortem report had also sent the muddamal
to the F.S.L., Ahmedabad and S.S.G. Hospital, Vadodara. He has
referred to muddamal articles 1 to 8 and 9 to 11. He has stated
that all the Panchanamas bear his signature and the signatures
of the panch witnesses made in his presence and has also referred
to the Certificate of the F.S.L., Osteopathic Certificate and
the Certificate of SSG Hospital and the medical examination of
5. Having discussed the oral evidence, as above, we now come to
the evidence of the Doctors. P.W. 1 Dr. Rajesh Shambhulal Thakkar
has been examined at Exh. 7. He was working as the Medical Officer
at S.S.G. Hospital, Petlad. He has stated that on 6-1-99 the dead
body of Ramila, daughter of Mahijibhai was brought to him for
postmortem examination by the police along with the police yadi
at about 6.30 p.m. Since the post-mortem was to be conducted by
a panel and it was already evening by the time the body had been
received, the post mortem was taken up on the next day i.e. 7-1-99
in the afternoon at 2.00 p.m. at Karamsad. He had seen the dead
body at Petlad in the morning of 7-1-99 but whereas the expert
opinion was necessary and there is medical college at Karamsad,
the body was taken to Karamsad and there in the afternoon the
post-mortem was conducted. Dr. D. R. Khadayate and Dr. Gupta,
who is head of Department of Forensic Medicines were associated
in conducting the post-mortem and two tutors, namely, Dr. Sunil
Bhatt and Dr. Satish Patel, who were working under Dr. Gupta were
also present. The post-mortem, which was started at 2.00 p.m.
was over at 5.00 p.m. According to this witness, the age of the
deceased female child was about 5 years. There was a blue colour
(Bhura) full sweater without buttons on the dead body and a half
shirt with green and coffee colour lines. Having given description
about the built of the body, etc. he has deposed that there were
7 external injuries on the body out of which injuries No. 1 to
6 were ante mortem and injury No. 7 was post-mortem. The description
of the 7 injuries is as under :-
"(1) Three oval shaped contusions with abraded surface over
the left cheek each size 2 cm x 1.5 cm with intervening clean
(2) Contusion with abraded surface on the left thigh on inner
surface obliquely going, size 8.5 cm x 1.5 cm.
(3) Inner surface of lower lip bruised in the area of 2 cm x 1
cm in the left half.
(4) Laceration in the lower lip at the left angle of mouth, size
1/4 cm x 1/4 cm x 1/4 cm.
(5) Inner surface of the upper lip in the left half bruised.
(6) Posterior vaginal tear in the mid line extending up to Anus
deep into vagina.
(7) Skin is missing from the pubic area and both thigh on the
medical surface and extending up to the abdomen 5 cm below umbilicus,
size 21 cm (Horizontal) x 11 cm (vertical), skin deep muscles
are intact. Labia majora and labia minora cut, margins are regular
Injury No. 1 to 6 are ante-mortem.
Injury No. 7 is post-mortem."
On the basis of internal examination he has stated that while
there was no injury on the head, the brain was full of blood and
congested, both lungs were congested. The right side veins of
the heart were congested and were full of blood. Food pipe was
empty but there was some digested food in the stomach, in the
small intestine there was digested food and in the bigger intestine
there were stool deposits. Her lever etc. were congested and urinary
bladder was empty. It has been opined that she must have taken
her last meals before 6 hours of death. He has also stated that
the samples were also taken for Osteopathic test and slide of
vaginal swab was prepared and sent to F.S.L. Ahmedabad. It has
also been opined that she should have died because of asphyxia
as a result of suffocation and she must have died about 36 hours
prior to the post-mortem. According to the external injuries 2
and 3 and other injuries, it was likely to be a case of rape.
He has also deposed that there may be asphyxia as a result of
suffocation and in normal course it may result into death. He
has proved the post-mortem report, signed by him and Dr. D. R.
Kandayate at Exh. 10 and the death certificate is at Exh. 11.
Exh. 12 is the letter sent to the Petlad Police Station for tests
in Osteopathic Laboratory. It has also been stated that there
were injuries on the interior of the upper lip on account of smothering.
He has also stated in cross-examination that he had not received
the report of viscera. On being questioned by the Court he has
stated that cause of death, which has been given in the post-mortem
note Exh. 10, could be given even without the report of viscera
and that he can say with certainty even without viscera report
that the cause of death in this case was asphyxia as a result
of smothering. This witness was examined on 26-7-99 but on the
basis of an order passed on Exh. 54 (Application dt. 28-7-99 by
prosecution to examine this witness with the photographs showing
injuries as these photographs were not available on 26-7-99) this
witness was recalled and was further examined on 28-7-99. On 28-7-99
he has stated that he had been shown the photographs Exh. 53-I
to 53-M along-with the external injuries mentioned by him in column
No. 17 of the post-mortem report Exh. 10. Having seen the photographs
and the injuries mentioned in the post-mortem note, he has stated
that injury No. 7 was not likely to be caused by animal. If such
an injury is caused by animal there must be bite marks. Whereas
there is no bite marks the possibility of injury being caused
by a sharp edged weapon is more. He has also stated that he had
not come across any such case in which a person, who fails to
commit the rape, may cause the injury No. 7 as mentioned in column
No. 17 of the post-mortem note Exh. 10. In the further examination
he has also denied the possibility of such injury being caused
if the dead body is dragged by any animal and has explained that
in that case, the depth of injury at different places would be
different and it cannot be symmetrical whereas injury No. 7 is
similar all over. He has also explained that in case there are
insects over the dead body, the skin may be peeled off but in
that case it cannot be of similar measure.
6. P.W. 2 Dr. D. R. Khadayate, Exh. 13, aged 42 years, is the
Medical Officer, who was contacted with the police yadi Exh. 8
for the post-mortem of the dead body of Ramila on 6-1-99. He has
stated that he along with Dr. Rajesh Thakkar in the panel had
conducted the autopsy on 7-1-99 and the post-mortem note Exh.
10 was prepared, which bears his signature. The death certificate
of Ramila Exh. 11 also bears his signature. He has explained that
in case a person dies because of suffocation resulting into asphyxia,
it is not necessary that in every such case he must suffer the
congestion of the wind pipe. In a given case it may not be there.
He has further stated that on 9-1-99 he was contacted with police
yadi for medical examination of the appellant-accused Trikambhai.
The Police yadi has been exhibited as Exh. 14. He says that he
had first taken the consent of the accused-appellant for his medical
examination, also asked his name, age etc. He disclosed his name
to be Trikambhai Ravjibhai Thakor, gave out his age to be 20 years
and that he was resident of Lakkadpura Indira Colony. He says
that the appellant-accused was examined on 9-1-99 in the afternoon
at Petlad. On his left leg above knee in the middle part there
is an old mark of injury (identification mark). He says that he
asked the accused-appellant as to what had happened and the accused-appellant
in his own words disclosed the above sexual conduct as under :-
"HOO RATRE SADE NAV THI PONA DAS VAGE CHHOKARI TAPU (RAMILA)
NE UTHAVI NE NALI MA LAI GAYALO. TENI CHADDI KADHELI ANE PACHHI
TENE UPER CHADHELO. PACHHI PAG PAHOLA KARELA. MAI ANO MODHO DABAVYO
ANE SAMBHOG KARVANI KOSHIS KARELI. MODHA UPAR BACHAKA BHARYA.
MAI SAMBHOG MATE ADADHA KALLAK SUDHI PRAYATN KARYO. CHHOKRI MARI
GAYI JEVU LAGELU PACHHI HOO GHARE AAVI NE SUI GAYALO."
English translation :
"AT ABOUT 9.30 TO 9.45 IN THE NIGHT I HAD LIFTED THE GIRL
TAPU (RAMILA) AND TAKEN HER TO NALI, REMOVED HER CHADDI AND CAME
OVER HER. THEN WIDENED HER LEGS, I PRESSED HER MOUTH AND TRIED
SEX. BITTEN ON MOUTH. I TRIED SEX FOR HALF AN HOUR. I FELT THAT
THE GIRL HAD DIED, THEN I CAME TO HOUSE AND GONE TO SLEEP."
(a) This disclosure as has been made by the accused-appellant
to this Doctor P.W. No. 2 had been recorded by the witness in
the medico legal certificate No. 16 dt. 9-1-99 itself and has
been produced by the witness during the course of his deposition
as mark 9/14 and the same is Exh. 15. The learned defence counsel
in the trial took an objection that the above portion in the Certificate
mark 9/14 i.e. Exh. 15 is a self inculpatory statement and, therefore,
the document mark 9/14 i.e. Exh. 15 should be read and exhibited
except for the portion, as aforesaid, which is in Gujarati. The
trial Court has sustained this objection and the document has
been marked as Exh. 15, as has been recorded in the body of the
statement of this witness.
(b) This witness has also deposed that the accused-appellant had
changed his clothes as disclosed by the accused-appellant himself
and that he had come to this witness after taking bath. The accused-appellant
had given out before this witness that he is an unmarried person.
This witness has also deposed that the appellant-accused was mentally
normal, there were no marks of injury either on his body or on
his private parts and his private parts were fully developed.
He has also stated that he examined the private parts of the accused-appellant
and nothing abnormal was detected. The witness further deposed
that in order to examine the semen, the appellant-accused was
asked to masturbate. He got erection but did not eject semen and,
therefore, semen could not be examined. His blood group was found
to be "B-Rh" positive. The samples of pubic hair and
saliva of the appellant-accused were taken for forensic test and
were given to the police. X-rays were also taken for determination
of his age and were sent to Radiology Department of SSG Hospital,
(c) In the cross-examination this witness had stated that injury
No. 6, as has been mentioned in Exh. 10 P.M. Note, could not be
a post-mortem injury. He has denied the suggestion that the appellant-accused
could not ejaculate because he was impotent. He has explained
that it is not necessary that in case a person masturbates, he
must ejaculate semen, even impotent person can ejaculate semen.
He had categorically denied that an impotent person cannot eject
out semen. He has stated that it was correct to suggest that at
the time when the appellant-accused was brought to him he was
in police custody and that in the police yadi Exh. 14 he had not
been asked to record the version of the accused-appellant.
7. Besides the evidence as above, we may also make a brief reference
to the documentary evidence, as under :-
(1) Exh. 8 is the police yadi with which P.W. 1 Dr. Rajesh Thakkar
was contacted on 6-1-99 for the post-mortem of dead body of Ramila.
(2) Exh. 10 is the post-mortem note dt. 7-1-99 of Ramila duly
signed by Dr. Rajesh Thakkar, P.W. 1 and Dr. D. R. Khadayate,
(3) Exh. 11 dt. 7-1-99 is the death certificate of Ramila signed
by Dr. Rajesh Thakkar, P.W. 1 and Dr. D. R. Khadayate, P.W. 2.
(4) Exh. 12 is the letter addressed to the police by the Medical
Officer for the test of viscera and Osteopathic test.
(5) Exh. 14 is the letter sent to the Medical Officer by the Police
for the medical examination of the appellant-accused on 9-1-99.
(6) Exh. 15 is the medico legal certificate dt. 9-1-99 issued
by P.W. 2 Dr. D. R. Khadayate.
(7) Exh. 17 dt. 6-1-99 is the report made by Mahiji i.e. Ramila's
father that Ramila was missing.
(8) Exh. 18 is a photograph in which there are 2 males, 2 females
and 2 kids including Ramila, which were given to the Police by
Mahijibhai at the time when the report Exh. 17 dated 6-1-99 was
(9) Exh. 23 is the inquest panchanama.
(10) Exh. 24 is the panchanama dated 8-1-99 of the place of the
house of Mahijibhai (father of deceased Ramila).
(11) Exh. 25 is the panchanama dt. 8-1-99 of the accused.
(12) Exhs. 28 to 35 are the slips dt. 6-1-99 bearing the signatures
of the Panch Witnesses, which were used at the time of sealing
the articles Nos. 1 to 8, which were found at the place and which
were collected by Police and sealed.
(13) Exh. 36 is the panchanama of the scene of offence.
(14) Exh. 38 dt. 8-1-99 is the panchanama of dog tracking.
(15) Exhs. 40, 41 and 42 dt. 8-1-99 are the slips bearing signatures
of panch witnesses, which were used at the time of sealing articles
Nos. 9 to 11, which were recovered at the instance of the accused
(under S. 27 of the Evidence Act).
(16) Exh. 43 is the panchanama showing the place of the offence
by the accused.
(17) Exh. 44 is the police report dt. 6-1-99 sent to the Civil
Surgeon for the purpose of post-mortem.
(18) Exh. 45 is the letter by which muddamal were sent to the
Forensic Science Laboratory.
(19) Exh. 46 is the report of X-ray for the age determination
of the accused.
(20) Exh. 47A-Exh. 47B are the letters dt. 25-1-99 by the Forensic
Science Laboratory to the Police with regard to the receipt of
the muddamals as were sent by the Police.
(21) Exh. 48 is the letter dt. 30-1-99 sent by Forensic Science
Laboratory, Ahmedabad to the Police in continuation of the earlier
letter dt. 25-1-99 informing the police that Osteopathic test
is possible only in the Medical College and, therefore, if Osteopathic
test is to be conducted, viscera, which has been sent, may be
taken back and if only chemical examination is to be done, Forensic
Science Laboratory may be informed accordingly and that action
be taken only after the receipt of the reply.
(22) Exh. 49 is the letter dt. 15-4-99 sent by Forensic Science
Laboratory to the Police that correspondence may be made with
Scientific Officer Mr. P. M. Acharya.
(23) Exh. 49-Papers sent by Forensic Science Laboratory to the
police with the report of the Scientific Officer under covering
letter dt. 15-4-99.
(24) Exh. 50 is the Map of the scene of offence.
(25) Exh. 53 to 53M are the photographs of the dead body of Ramila.
8. Taking note of the injuries and the cause of death, as has
been given in the post-mortem note Exh. 10 and the presence of
blood mixed with in the sample No. 15, vaginal swab and sample
No. 16 vaginal smear, as reported by Scientific Officer of the
Forensic Laboratory in the papers with Exh. 49 and the statements
of other witnesses, it is clearly established that deceased Ramila,
a girl of about 5 years, was lifted from her house on the night
of 5-1-99 between 9.30 to 10.30 p.m. was taken to the lonely place
of Vaniyavali Nali in a dark chilly night and was subject to the
heinous offence of rape in an inhuman and cruel manner and was
done to death thereafter by suffocation and thus it is a clear
case of homicidal death on account of suffocation resulting into
asphyxia. Hence the offences punishable under sections 451, 363,
376(2)(F) and 302, I.P.C. have taken place. Necessarily the question
arises as to who has committed these offences and as to whether
it is the appellant accused, who has committed these offences
9. In absence of any eye-witness and no direct evidence, the entire
case of the prosecution is based on the circumstantial evidence.
The offence was committed on 5-1-99, the dead body was found on
6-1-99, the post-mortem was conducted on 7-1-99 and it was on
8-1-99 that as a result of dog tracking the accused was zeroed
in, when the sniffer dog jumped thrice over the accused, who was
one of the persons in the group. It is on the basis of the evidence
of dog tracking that accused is detected and traced but in order
to establish that he is the person, who has committed the offences,
as aforesaid, we will have to travel from the evidence to the
accused. First of all name of the accused appears in the statements
of Kalidas - P.W. 4, who is a cousin (Bhuva's son) of father of
the deceased victim Ramila. There is no dispute that the house
of Mahijibhai - P.W. 3 and the house of this witness Kalidas-P.W.
4 are situated opposite each other in Indira Colony, Lakkadpura,
and the accused also lives in the same colony at about 4 to 5
houses away from the house of Mahijibhai i.e. father of the deceased
and the house of the accused is also in the same row. According
to P.W. 4 Kalidas while the T.V. serial was going on he came out
of his house for urination and found that the accused was standing
with Tapu (Ramila) outside the house of Mahijibhai and on being
questioned by P.W. 4 Kalidas, accused answered that the girl was
crying and, therefore, he was bringing her to her mother. Kalidas-P.W.
4 then quietly returns in his house. In normal course he should
have immediately asked the accused that the mother of the girl
is sitting in his own house watching T.V. and, therefore, he will
take Ramila with him and accused need not to bother and may go.
Instead of doing so, he not only quietly enters back in his house,
also goes and resumes watching of the T.V., does not even take
care to inform either of the parents of Ramila that the accused
was standing out with Ramila because she was crying, he does not
even inform them of this fact even after the serial is over and
when parents of Ramila left his house. This conduct of P.W. 4
Kalidas is not only unnatural but is not capable of any plausible
explanation. He is a close relative of Mahijibhai, happens to
be the uncle of deceased Ramila (her father's cousin as Bhuva's
son) and yet he did not feel any concern although he himself saw
a third person, not being a member of their family, standing out
of the house of Mahijibhai in the night hours with a minor girl,
who was stated to be crying. He was further stated that he had
to go to Ambaji with his vehicle and, therefore immediately after
the serial was over, he left for Ambaji. In the cross-examination
he says that while the visitors of the T.V. Serial at his place
were leaving back for their houses, he left for Ambaji within
their gaze and he did not know at that time that Ramila was missing
and he has denied the suggestion that on that night he had gone
with Mahijibhai in search of Ramila. If we compare his say with
the statements of Mahijibhai, we find that Mahijibhai-P.W. 3 has
not stated a word about Kalidas leaving for Ambaji while Mahijibhai
was leaving for his house after the T.V. Serial was over. On the
contrary, P.W. 3 Mahijibhai has stated in the cross-examination
that while he along with his wife etc. left for his house, Kalidas
remained in his house and further that while they were searching
for Ramila, Kalidas came there and had also started searching
Ramila. We find that P.W. 3 Mahijibhai i.e. father of deceased
Ramila is a straight forward witness and is quite believable.
If this witness is believed, it is clear that P.W. 4 Kalidas has
associated in the search of Ramila, the fact that Ramila was missing
had become known to him after the T.V. Serial was over and, therefore,
it is all the more surprising that he did not disclose the fact
that he had seen accused with Ramila outside the house of Mahijibhai
while the serial was going on and he had gone to urinate and that
on questioning accused had answered that since Ramila was crying,
he was bringing her to her mother. Therefore, on the question
of leaving for Ambaji immediately after the serial was over, on
the question that Kalidas did not know at that time that Ramila
was missing and on the question that he did not associate in search
of Ramila with Mahijibhai, he stands contradicted by P.W. 3. Not
only that this witness Kalidas-P.W. 4 has deposed that he came
back from Ambaji in the evening of the next day at about 8 to
8.30 p.m. i.e. on 6-1-99 and that when he came to the house, his
wife told him that the present appellant had been caught in this
incident, in which he had committed rape upon the daughter of
Mahijibhai. Now we find that this deposition is on the face of
it false inasmuch as till the evening of 6-1-99 the appellant
was no where in picture with regard to this incident, what to
talk of being caught for committing rape upon daughter of Mahijibhai.
All that was known till 6-1-99 evening was that Ramila had been
raped and done to death. Who had done it was not known to anybody
and, therefore, there is no question of the wife informing this
witness on 6-1-99 that the appellant had been caught with regard
to this incident for committing rape upon the daughter of Mahijibhai.
In the cross-examination he has stated that his wife narrated
to him the incident which took place with Ramila and told that
the appellant had raped, had bitten her and had killed her. On
consideration and comparison of the statements made by this witness
Kalidas P.W. 4 with the statements of P.W. 3 Mahijibhai and the
fact that the present accused was apprehended for the first time
on 8-1-99, we find that not only that the conduct of this witness
has been unnatural and incomprehensible, this witness has positively
made a false statement and is not at all reliable. This is besides
the fact that his wife has not been examined by the prosecution,
nay she was summoned and then not examined, for which there is
no apparent reason. In the cross-examination he has denied the
suggestion that on the day of incident instead of going to Ambaji
he had gone along with accused for drinking liquor at the place
of Rajubhai, who sells liquor. However, he has agreed to the suggestion
that there was a case of rape against him. The endeavour of the
prosecution was to bring the evidence of accused being last seen
in the company of the deceased, through this witness, but on over
all consideration of the statements of this witness read with
other evidence, we find that this witness is not at all reliable
and so far as the testimony of this witness is concerned, we find
that he cannot be taken to be a trustworthy witness for the purpose
of evincing the fact that accused was last seen in the company
of the deceased immediately before it became known that Ramila
10. We do not find any reason to disbelieve P.W. 7 Ishwarbhai
Exh. 22 when he says that on the date of incident when this witness
came back from his job in the evening, the accused had come to
his house to take his cycle, he had taken the cycle and then he
came back to return the cycle after about 5 minutes of the starting
of the T.V. Serial and having returned the cycle, the accused
went towards the house of Mahijibhai i.e. father of the deceased.
In the cross-examination this witness has stated that even prior
to the date of the incident, the accused had taken cycle from
him many times and had returned the same. In this view of the
matter, we find that on the date of incident, it was not a new
or unusual act on the part of accused so as to take the cycle
of this witness and return the same. The only part of the statement
of this witness which swings the needle of suspicion against the
accused is that after returning the cycle the accused went towards
the house of Mahijibhai, while the T.V. serial was going on, but
that is hardly sufficient to establish that accused was the person
last seen in the company of deceased.
11. P.W. 8 Maganbhai Exh. 26 is certainly an important witness,
who has deposed that on the night of the incident while he was
on search of Ramila and was going towards the Nali, the accused
met him while the accused was coming back from the Nali side and
the accused told this witness that there was darkness in the Nali
and, therefore, the witness should not go towards Nali. Having
said so, the accused said that he was going to his house. We do
not find any reason to disbelieve this witness and his testimony
has remained untrammelled during the cross examination. This witness
certainly takes the accused nearer to the deceased to the extent
that perhaps he could be the last person with the deceased. In
normal course, neither the accused had any reason to go towards
the Nali nor he was supposed to say no to the person, who was
on search for Ramila on that night and to that extent the testimony
of this witness goes against the accused and point out a strong
circumstance about the involvement of the accused in the offence.
It is a different matter altogether that Bhikhabhai Mangalbhai,
who had also met in the way to this witness while he was on search
for Ramila and before he went towards Nali in search of Ramila,
has not been examined by the prosecution.
12. Thus on the question of the evidence against the accused for
being last person with the deceased, the only strong circumstance
is that at about 11.00 p.m. on the same night he was coming from
Nali, had met witness P.W. 8 Mangalbhai, who was on search for
Ramila and he tried to prevent the witness from going towards
the Nali by saying that there was darkness and he should not go.
13. So far as P.W. 6 Manishaben is concerned, she is a girl of
14 years and with reference to her evidence, we find that in normal
course it may not sound natural that a boy, who is living in this
very colony near the house of this witness, would go to the neighbour's
house in the night and give a call in the name of the mother of
this witness and when the girl comes out he would make a proposal
for 50 rupees while the girl is in the house with her parents,
younger brother and sister. But how human mind works at a particular
point of time cannot be said with any certainty and, therefore,
it is not possible to say with certainty as to whether that accused
acted in that way on that particular day of incident or not. In
my case, the purpose of prosecution in examining this witness
is only to establish that on the date of incident, the accused
was moving around with a sexual urge and nothing beyond it.
14. P.W. 5 Muljibhai is the witness who has disclosed as to how
the dead body of Ramila was found on 6-1-99. The version of this
witness is that on 6-1-99 in the afternoon at about 2.30 to 3.00
p.m. while he was going towards the field, the brother of accused
Popat along with Thakor Fatehsinh met him while they were coming
from the side of Nali and they informed him that the dead body
of Ramila was lying ahead, he went to the Sarpanch, few people
were collected, Mahijibhai was also taken and thereupon they were
able to locate. He has then pointed out about the police calling
the dog squad and that the sniffer dog was taken to the place
of the offence, the dog then came to Mahiji's house and then to
the house of accused and thereafter in the Chowk the dog jumped
thrice over the accused. In the cross-examination he has stated
that he was a Sarpanch 15 years ago and has denied the suggestion
that he was biased against the accused because in the election
accused did not vote for him. We have no reason to disbelieve
the testimony of this witness. However, we find that Popat and
Thakor Fatesinh, who had informed this witness about the whereabouts
of the dead body, have not been examined by the prosecution.
15. The dog squad was called and dog tracking was conducted on
8-1-99. The witness P.W. 10 Ranchhodbhai, who is a resident of
the very same Indira Colony, Lakkadpura, says that he was called
by the police at about 9.00 to 9.30 a.m. in the morning of 8-1-99
to be a panch. The dog was taken to the Nali i.e. place of the
offence and the dog was made to smell a chaddi and pant. The dog
first went to the house of Ramila and therefrom to the house of
the accused. The public had assembled and the dog jumped thrice
over the accused. With regard to this dog tracking panchanama
Ex. 38 was prepared. He has also stated that prior to jumping
over the accused the dog had just smelled Punambhai Vaghabhai
and Chhaganbhai Mangalbhai, but did not do anything else. There
is no reason to disbelieve this witness and, therefore, we find
that so far as the result of dog tracking is concerned, it goes
against the accused. However, we notice that P.W. 13 Madhavsinh
i.e. Police Inspector, who has investigated the case, has stated
in the cross-examination, para 11 of his statement Exh. 57, that
along with the dog squad, the expert man i.e. dog handler Ganpatsinh
Chauhan was there, who was called through a wireless message (referred
in para 10), but this dog handler Ganpatsinh Chauhan has not been
examined by the prosecution.
16. On the question of the articles Nos. 1 to 8, which were found
at the scene of offence on 6-1-99 and which were taken into custody
by the police and sealed vide Exh. 28 to Exh. 35, for which Panchanama
Exh. 36 was prepared and articles Nos. 9 to 11, which were recovered
at the instance of accused on 8-1-99 under S. 27 of the Indian
Evidence Act and sealed as per Exhs. 40 to 42 and for which Panchanama
Exh. 43 was prepared, the details were found as under on the basis
of the result given by Forensic Science Laboratory which is Exh.
49 shows that :
(a) Sample 1 i.e. Matti (soil) was found to be blood stained (human
blood) - group undecided.
(b) Sample 2 control matti was found to be blood stained.
(c) Sample 3 - 3 bidis in a cover of Rajkamal bidi works - no
blood, no saliva found when compared to sample 5 i.e. bud of smoked
(d) It has been reported that thread on the bidi of sample 3 and
the thread on the bud of sample of sample 5 was similar.
(e) Sample 4 i.e. button with 4 holes, which was found from the
scene of the offence, was compared with the buttons on sample
11 i.e. shirt of the accused and it has been found that it resembles
with the white buttons on the shirt, the colour of which had become
(f) Sample 5 is the bud of the bidi, saliva is found to be present,
but no blood. Group of Saliva on sample 5 has been mentioned as
'B' but against the group of saliva i.e. sample No. 18, which
was taken from the accused i.e. saliva of accused, the group has
been mentioned as 'undecided' in the report of the Scientific
Officer dt. 5-4-99.
(g) Sample 6 is the grass on which no blood was found and it has
been identified as remains of a botanical product.
(h) Sample 7 is the pant on which no blood was found.
(i) Sample 8 is a synthetic torn chaddi of green like colour on
which neither blood nor semen has been found.
(j) Sample 9 is the Shawl (recovered at the instance of the accused)
of Maroon colour, on which neither blood nor semen was found,
but the remains of some grass stuck to it comparable with grass
of sample No. 16 and beyond this nothing more could be found.
(k) Sample 10 is the pant (recovered at the instance of the accused)
- synthetic cloth - black colour. Neither blood nor semen was
(l) Sample 11 shirt (recovered at the instance of accused), full
sleeve white and green design, neither blood nor semen was found.
(m) Sample 12-14 i.e. shirt and rumal, human blood of group 'O'
has been found, but no semen was found.
(n) Sample 13 i.e. sweater, neither blood nor semen has been found.
(o) Sample 15 - vaginal swab, human blood mixed with semen has
been found, but the group has been reported as 'undecided' as
per the report dt. 5-4-99.
(p) Sample 16 - vaginal smear - human blood mixed with semen has
been found, but the group has been left 'undecided' as per the
report dt. 5-4-99.
(q) Sample 17 - pubic hair of the accused - neither blood nor
semen has been found.
(r) Sample 18 - Saliva of the accused - It has been reported that
it appeared to be saliva but in the report dt. 5-4-99 the Group
has been left 'undecided'.
17. Thus we find that on the basis of the results, which have
been given by the Scientific Officer of the Forensic Science Laboratory,
samples 15-16 i.e., vaginal swab and vaginal smear and the presence
of blood mixed with semen therein support the commission of the
offence of rape, but there is no sample of the semen of the accused
and, therefore, there could not be comparison and cross-matching.
P.W. 2 Dr. D. R. Khadayate, who had examined the accused, has
stated that the accused did not discharge any semen when he was
asked to masturbate. On masturbation semen cannot be discharged
unless a person, who masturbates, is willing to discharge the
semen. In any case, the fact remains that there was no semen of
the accused as a sample for the purpose of test and samples 15
and 16 had been made use of while conducting the tests, as has
been mentioned against these items in the report of the Scientific
Officer and the prosecution did not ask for and did not get the
DNA test conducted. Had any DNA test been conducted, something
concrete could come out. Now at this stage, even we could not
direct for DNA test because vaginal swab and vaginal smear samples
15 and 16 are no more available and the same are already made
use of and as per the report on none of the other items i.e. clothes
either of the accused or of the deceased Ramila or the Shawl or
any other item, there is any stain of semen. Even with regard
to Sample 18 i.e. Saliva of the accused, the group has been reported
to be 'undecided' as per the report dt. 5-4-99. Whereas the saliva
on the bud of the bidi sample 5 has been mentioned as Group 'B'.
P.W. 2 Dr. Dr. Khadayate has stated that the Group of the blood
of the accused was "B-Rh Positive". However, the button
with 4 holes, which has been found from the scene of the offence
i.e. Sample 4, is found to be similar to that of the buttons on
the shirt of the accused i.e. Sample 11. The description of sample
11 shows that 3-4 buttons of this shirt were missing. First button
is a white transparent button, second button is a gray white but
non transparent, 5th button and the buttons of both the sleeves
were white transparent buttons, which had become pale. The white
button, which had become pale, has 4 holes and the diameter of
each of which was 1.1 cm. The description of sample 4 also shows
that it was a white button, which had become pale, it also had
4 holes and its diameter was 1.1. cm. It was transparent and made
of plastic material with the thickness of 0.2 cm. Thus, button
sample 4, which was found from the shirt, has been found to be
resembling with those 3 buttons of the shirt - sample 11, which
were white and which had become pale i.e. 5th button of the shirt
and two buttons of the sleeve of the shirt, which had been found
to be of the same diameter. The controversy has been raised on
this aspect of the matter on behalf of the defence that the witness
Chhaganbhai Mangalbhai Thakor i.e. P.W. 11 (Exh. 39) had stated
in the cross-examination that he did not know about the number
of buttons on the shirt and that there were 4 buttons on the shirt
and that lower 2 buttons were missing on the shirt whereas in
the panchanama Exh. 43 it was mentioned that there were 6 buttons
on the shirt of the accused, out of which 2 and 3 from the bottom
were not found and further that in Forensic Science Laboratory
report about sample 11 it is found that 3rd and 4th buttons were
missing and as per panchanama Exh. 43 also 2 buttons have been
found to have been missing from the shirt. Forensic Science Laboratory
report also shows that 2 buttons were missing. We find that the
description, as has been given in the Panchanama about missing
buttons, is for all the buttons right from the lowest up to the
collar. Therefore, this controversy is not of much significance.
The fact remains that 2 buttons were missing from the shirt and
the button which was found from the scene of the offence i.e.
sample 4 is found to be resembling with at least 3 buttons of
the shirt sample 11. They have been found to be resembling in
colour, transparency as well as in size and number of holes.
18. Net result of the report of the Scientific Officer of the
Forensic Science Laboratory is that on the bud of the bidi, saliva
is of Group 'B', blood group of the accused is 'B-Rh positive'
and the button, which was found from the scene of the offence,
has been found to be resembling with three of the buttons of the
shirt of the accused - Sample 11 in colour, transparency, diameter
and the number of holes.
19. Dr. D. R. Khadayate (P.W. 2) had recorded the say of the accused
in his Medico Legal Certificate No. 16 dt 9-1-99 Exh. 15, which
we have quoted in the earlier part of this order. This part of
this Medico Legal Certificate is in the nature of extra judicial
confession. So far as the deposition of this witness P.W. 2 before
the Court is concerned, it is found from the body of the statement
itself that this witness had stated this extra judicial confession
at verbatim in para 4 and the Certificate Mark 9/14 (which is
Exh. 15) was produced, to which objection was taken that it could
be exhibited only bereft of the portion of extra judicial confession
because it is a self inculpatory statement and this objection
was also allowed by the trial Court. However, we find that even
if this objection was sustained by the Court and the document
mark 9/14 has been exhibited as Exh. 15 minus the portion of extra
judicial confession, the same has also been stated by the witness
i.e. Dr. D. R. Khadayate in his statement and in no case the objection,
as has been sustained by the trial Court, can dilute the value
of the disclosure, as has been made by the accused before the
concerned Doctor. Whether Doctor was asked to record the say of
the accused about the incident in the police yadi or not and even
if it is found that at that time accused was in police custody,
the fact remains that the accused had stated so before the witness,
may be on the asking of the Doctor as to what had happened. The
fact of the matter is that the accused in his own words had stated
before the Doctor and the Doctor P.W. 2 has deposed before the
Court in his statement as to what had been given out by the accused.
He has quoted the extra judicial confession in the words of the
accused himself in para 4. The contents of para 4 of the statement
of this witness show that witness had asked the accused as to
what had happened ? and in answer he gave out that in the night
at about 9.30 to 9.45 p.m. he lifted the girl Tapu (Ramila) and
took her to Nali, removed her underwear, came over her, pressed
her mouth and tried to have sex, bitten on her face and tried
sex for half an hour, he felt that the girl had died and then
came to his house and gone to sleep. Technically the accused was
in police custody because he was brought to the Doctor by Police,
but he has given an answer to a question put by the Doctor, who
was to examine him and the Doctor had only asked him as to what
had happened. Moreover, it is not that the witness has disclosed
this extra judicial confession for the first time before the Court
when he was examined. The fact remains that he had recorded on
the same day i.e. on 9-1-99 when he examined the accused and gave
Medico Legal certificate on 9-1-99 and this extra judicial confession
is duly incorporated in the body of the Certificate, which is
under the heading, "H/O Sexual contact according to Trikambhai's
own statement'. Even if this portion has been kept out of being
exhibited from the contents of Exh. 15, when this document was
produced before the Court during the statement of witness P.W.
2, the extra judicial confession of the accused made before the
Doctor remains. It is not as if the witness had been examined
before the Court and therefore the first time he has come out
with this version of the accused. The argument is raised that
it is a self inculpatory statement. Every extra judicial confession
will be self inculpatory statement and we do not find that this
confession is required to be ignored and that the same cannot
be relied upon merely because technically the accused was in police
custody at that time. In the facts and circumstances of this case,
though the accused was produced for examination with police yadi,
even if technically he was in police custody, it is not a statement
made to the police itself. Nor it is the case of the defence that
any pressure was exerted on the accused and that he made this
statement under coercion. It appears that the Doctor while examining
him had asked him as to what had happened and he gave the answer
in his own words and the Doctor recorded the same. Therefore,
this disclosure made by the accused to the Doctor P.W. 2 and as
deposed by this witness P.W. 2 before the Court in his statement
can be relied upon against the accused even if we ignore such
contents as a part of Exh. 15 which were left from being exhibited
out of Exh. 15 by the trial Court by sustaining the objection
raised on behalf of accused, more particularly when we do not
find any reason as to why the Doctor should try to falsely implicate
20. Thus the analysis of the entire evidence, as above, brings
out following circumstances against the accused and we have to
examine as to whether the same are sufficient to connect him with
the offence and to show that he is the person involved in the
commission of the offences.
(i) On the date of incident i.e. 5-1-99 at 11.00 p.m. while he
was coming from the side of the Nali (where the offence was committed)
he met the witness P.W. 8 Maganbhai and told him that there was
darkness at the Nali and thereby prevented him from going towards
the place where the offence was committed.
(ii) As a result of dog tracking it was found that sniffer dog
jumped thrice over him while he was standing in a group of persons,
as has been stated by P.W. 10 Ranchhodbhai, P.W. 8 Maganbhai,
P.W. 5 Muljibhai and P.W. 3 Mahijibhai.
(iii) The answer given by accused before P.W. 2 Dr. D. R. Khadayate
- as deposed by this witness. While answering accused appellant
stated that he had lifted the deceased girl, taken her to Nali,
laid her in the missionary position, pressed her mouth, tried
sex for half an hour and when he felt that she is dead, came home
and gone to sleep.
(iv) Resemblance of the button, which was found from the scene
of the offence, with the buttons of the shirt of the accused as
per the report of the Scientific Officer and the Group 'B' of
the saliva on the bud of the bidi.
(v) That the blood Group of the accused is 'B-Rh positive' i.e.
corresponding to the group of saliva found on the bud of the bidi.
21. Mr. D. M. Shah has submitted that on the basis of the evidence,
which has been available in this case, the involvement of the
accused in committing the offence is not at all established. P.W.
4 Kalidas cannot be relied upon for the purpose of taking the
accused to be the person last seen in the company of the deceased,
the accused lives in that very area and, therefore, merely because
one of the witnesses i.e. P.W. 7 Ishwarbhai has stated that on
the date of the incident, the accused had borrowed the cycle from
him and that the cycle was returned immediately after the starting
of the T.V. serial and, thereafter, he saw the accused going towards
the house of Mahijibhai, would not afford any evidence on the
question of accused being last seen in the company of the deceased.
He lives in that very area and his house is also situated in the
same row in which the house of Mahijibhai is situated and, therefore,
on the basis of the say of this witness P.W. 7 that the accused
went towards the house of Mahijibhai, it does not bring out any
case against the accused so as to connect him with the offences.
While criticising the evidence of P.W. 6 Manishaben as unnatural
he has submitted that the say of this witness is not only unnatural
but unbelievable, as a person like the accused living in that
very colony would not dare to go to the house of a person in the
same colony, give a call at the house in the night in the name
of the mother of this witness and then offer a sum of 50 rupees.
On the basis of this evidence, it cannot be taken that the accused
somehow or other intended to satisfy his sexual urge on that day.
Mr. Shah has also submitted that on the basis of the evidence
of P.W. 8 that the accused met him on the way of this witness
in search of Ramila towards Nali and that at that time the accused
was coming from the side of Nali and told him that there is darkness
towards Nali, he should not go there, it does not connect the
accused with the commission of the offence. He has also submitted
that Bhikhabhai Mangalbhai, who had met this witness before he
met the accused, has not been examined by the prosecution. He
has also submitted that while P.W. 5 Muljibhai has named Popat
and Thakor Fatesinh, who had informed this witness that dead body
was lying ahead, they have not been examined by the prosecution.
While making reference to the evidence of P.W. 9 Ambubhai he has
submitted that this witness has not stated about the recovery
of any pant. The pant was in fact recovered on 8-1-99 in the afternoon
at about 3.30 p.m. as per P.W. 11, namely, Chhaganbhai and hence
there was no question of the pant being made available for smell
of the sniffer dog in the morning at about 9.00 to 9.30 a.m. on
8-1-99 as has been stated by P.W. 10 Ranchhodbhai. While referring
to P.W. 10 Ranchhodbhai, who is a witness with regard to the dog
tracking, it has been submitted that this witness cannot be said
to be a trustworthy witness for the simple reason that although
the pant was not available at 9.00 a.m. to 9.30 a.m. on 8-1-99,
the witness has stated that the pant was offered for smell to
the sniffer dog and thus he has made a factually incorrect statement,
which renders his testimony to be doubtful. Mr. Shah has also
submitted that besides the fact that the evidence on the basis
of the dog tracking itself is a weak evidence and cannot be made
the basis for conviction, the fact is that the expert man, who
had come with the dog squad and the dog handler, who has been
named by the Investigating Officer P.W. 13, has not been examined.
The Police Inspector Madhavsinh, who investigated the offence,
has categorically named Ganpatsinh Chauhan as the dog handler
and yet neither the dog handler has been examined nor any person,
who had come as an expert with the dog squad has been examined
and, therefore, in the facts and circumstances of this case, the
evidence of dog tracking cannot be believed. With reference to
P.W. 3 i.e. Mahijibhai, the father of the deceased, it has been
submitted by the learned counsel for the accused that he has not
stated any such thing on the basis of which the accused can be
connected with the commission of the offence. He has categorically
admitted that he came to know against accused only on the basis
of the dog tracking. Mr. Shah has also submitted that witness
No. 3 Mahijibhai has categorically named one Ichchaben, who had
also come to see the T.V. serial on the day of the incident at
the house of Kalidas, but she has not been examined by the prosecution.
Further that the prosecution has also not examined the wife of
P.W. 4 Kalidas as a witness although she had been summoned. It
has also been submitted that the evidence of P.W. 1 Dr. Rajesh
Thakkar only shows that the offence has been committed against
Ramila but it does not bring out anything against the accused
that it was he who had committed the offence. About P.W. 2 also
it has been submitted that except for the admission of the offences
which has been attributed and put in the mouth of the accused
by this witness, his evidence does not establish any link with
the accused for the purpose of commission of the offences. He
has also submitted that at the time when the alleged admission
is said to have been made before the Doctor, accused was in police
custody and that in normal course, Doctor was not supposed to
record the version of the accused, who had been brought to him
by Police Yadi for the purpose of medical examination and it was
no where mentioned in the Police Yadi that the Doctor has to record
his statement or admission in any manner. It has been submitted
that it was a self inculpatory statement and, therefore, the same
is not admissible in evidence and that the objection raised on
behalf of the accused before the trial Court that this portion
be left from being exhibited out of Exh. 15 was sustained by the
trial Court. With regard to the report of the Scientific Officer
of Forensic Science Laboratory, it has been submitted by Mr. Shah
that the resemblance of the button, which was found from the scene
of the offence and the button on the shirt of the accused, cannot
be made the basis for conviction as such button can be found anywhere
and it may also be a case of simple coincidence. There are factual
inaccuracies with regard to the say of the missing buttons by
the concerned witness, namely, Ambubhai P.W. 9 and the description
of the items. He has also submitted that the Group of the saliva,
which was taken as sample from the accused, is not matching with
the saliva as was present on the bud of the bidi. Merely because
the blood group of the accused is 'B-Rh positive', it cannot be
said that the accused stands connected with the saliva found on
the bud of the bidi, which is of Group 'B'. Mr. Shah has submitted
that the group of blood may not necessarily be the group of saliva
Group 'B' or with saliva of Group 'B' and the present accused
is not the only person, who can be said to be a man with saliva
of Group 'B'. Mr. Shah has submitted that in no case the commission
of the offence can be said to have been proved against the accused
and that the prosecution has failed to establish the entire chain
of the circumstantial evidence and that it is certainly a case
in which the accused is at least entitled to the benefit of doubt
and hence there is no question of either conviction or any sentence,
must less the death sentence.
22. We may now deal with the case cited on behalf of the appellant
in support of the submissions that whatever has been stated by
the appellant before the Doctor P.W. 2 is not an extra judicial
confession and is not an evidence within the meaning of S. 25
of the Indian Evidence Act, as to what is the evidentiary value
of dog tracking and absence of injuries on the male organ of accused
is a pointer towards his innocence.
(a) Malkhan Singh v. State of Punjab, reported in AIR 1988 SC
1705. It was a case in which the son is alleged to have committed
murder of his father to have lands of father transferred to him.
Para 11 of the Judgment shows that the accused had gone to one
Amrik Singh to make extra judicial confession. Amrik Singh has
stated that the accused told him that as the police was after
him he had confessed the fact so that he might not be unnecessarily
harassed. The Court found as a question of fact that there was
nothing to indicate that Amrik Singh was a person having some
influence with the Police or a person of some status to protect
the appellant from harassment. The Supreme Court observed that
as rightly conceded by the learned counsel for the State that
extra judicial confession is a very weak piece of evidence and
is hardly of any consequence.
In the case at hand, it is not the case of the accused appellant
that he was harassed by the Police and that he had made a statement
before the Doctor to save himself from the police harassment.
(b) In the case of Balwinder Singh v. State of Punjab, reported
in AIR 1996 SC 607 : (1996 Cri LJ 883), it was a case in which
the charge against the father was for murder of daughters. The
confession of the crime was made to one of the relatives, who
lodged the complaint with the police after a delay of 3 days,
although as a social worker she was with the police for 2 days
in connection with some other case. In this case, the accused
had made an extra judicial confession to P.W. 3, who was a Pradhan
of Mohalla and was a social worker. She visited the house of the
accused on 20-3-84 on learning from the neighbours that the accused
had killed his two daughters and it is on this date i.e. 20-3-84
that the extra judicial confession was made. However, this witness
P.W. 3, who was Pradhan of the Mohalla, lodged the complaint with
the police on 23-3-84. The Court found that the manner in which
the judicial confession is alleged to have been made and the silence
of P.W. 3 for 3 days in disclosing the same to the police, even
though she had admitted that she had been with the police between
21-3-84 and 23-3-84, renders it unsafe to rely upon her statement.
This unexplained long delay in lodging the F.I.R. detracts materially
from the reliability of the prosecution case in general and testimony
of P.W. 3 in particular. The Court found that the alleged extra
judicial confession is surrounded by suspicious circumstances
and the prosecution has not been able to establish that the appellant
had made any extra judicial confession to P.W. 3 Satya Walia and,
therefore, this circumstance remained unestablished.
Such is not the fact situation in the case at hand.
(c) In J. A. Naidu v. State of Maharashtra, reported in (1980)
1 SCC 206 : (1979 Cri LJ 962), the Court considered the confessions
made before the raiding parties headed by the Assistant Collector
of Customs in presence of Intelligence Officers. It was a case
in which 14 accused were tried for offences punishable under sections
120-B, 161, 165-A and 218 of I.P.C., Sections 5(1)(a) and 5(2)
of Prevention of Corruption Act, 1947 and Sections 135 and 136
of Customs Act, 1962. The confessions were said to have been made
by accused Nos. 1 to 11 at the time of production of currency
notes by them and the goods in question. The trial Court was of
the opinion that whatever the currency notes and the goods might
have been produced by accused within the sight of Sainani (P.W.
11), the latter was not within the hearing of the accused and
the concerned Customs officials. The High Court held that the
entire evidence of the Customs Officers and Police Officer Sainani
with regard to the confessional statement of accused 1 to 11 is
inadmissible and cannot be relied upon as evidence against the
accused, because it found that the presence of the police seems
to have been procured because the Customs Officers had a lurking
suspicion about the conduct and integrity of the Excise staff
and they were deliberately kept present to overawe the Excise
Officers and that object seems to have succeeded and if that be
so, all the incriminating statements made by accused 1 to 11 either
in relation to money or the goods will have to be eliminated from
consideration altogether. The Supreme Court agreed with the view
taken by the High Court.
In our opinion, this case is of no help to the appellant in the
facts of the present case as the accused had made this statement
to the Doctor during the course of his medical examination and
even if the accused is taken to be in police custody at that time
because he was taken to Doctor under police yadi, it cannot be
said that he was overawed in any manner and it appears in the
facts of this case that it was a statement made by the accused
to the Dr. P.W. 2, on his simple question as to what had happened.
(d) In the case of Mulak Raj v. State of Haryana, reported in
(1996) 1 Crimes 24 : (1996 Cri LJ 1358) (SC) the Supreme Court
was concerned with the case of murder of one Krishna Kumari in
Kitchen by father-in-law, husband and sister-in-law in a case
of dowry death. The Supreme Court has considered the evidence
regarding extra judicial confession in para 19 of this judgment
as under on page 33 :-
"19. That takes us to the consideration of the evidence regarding
extra judicial confessions of accused Nos. 1 and 2. We may at
once state that coupled with the evidence of motive, if the evidence
of extra judicial confessions of accused Nos. 1 and 2 stood the
test of scrutiny then there would have been cast iron case against
accused Nos. 1 and 2. However, unfortunately for the prosecution,
on this score it has drawn blank. It is the case of the prosecution
that in the months of November, December 1977 accused Nos. 1 and
2 approached P.W. 10 Hari Kishan who was a member of the Ad hoc
Committee of the Janata Party and P.W. 13, Gopal Dass who was
an employee of the father of deceased Krishna Kumari and stated
before them that they had committed mistake and that they had
killed the girl in anger and they should get the matter amicably
settled. That again after 15 days the accused met the witness
Hari Kishan and stated that the girl cannot come back and that
they are prepared to compensate. The evidence of this witness
was disbelieved by the learned trial Judge as in the Court itself
the witness was not in a position to points out accused No. 2
and he pointed out instead one Vinod Kumar, who was alleged to
have made the confession before him. Even that apart the statement
of the witness that he had informed Shri Taneja, that is, father
of deceased Krishna Kumari about this confession, is not corroborated
by the evidence of P.W. 23, Shri Taneja himself. The witness also
did not inform any one about the so-called confessional statement
of the accused. His further statement was recorded by the police
on 20th January, 1978 in connection with this alleged extra-judicial
confession of the accused. If there was any such confession made
by the accused before him in November or December there is no
reason why he should not have gone to the police immediately and
reported about the same when investigation was in progress and
even a criminal complaint was filed by the father of the deceased
in the Magistrate's Court and summons were issued to the accused.
Consequently no reliance could be placed on the extra judicial
confessions said to have been made by the accused before him.
The witness was also not known to any of the parties and hence
it was unlikely that accused would confide in him and confess
their guilt before him. The learned trial Judge was, therefore,
justified in not placing reliance on extra judicial confessions
of accused Nos. 1 and 2, said to have been made before this witness."
In the present case the accused was arrested on 8-1-99 after dog
tracking, he made the statement before the Doctor during the course
of his medical examination and the Doctor recorded the same then
and there on the very same day in the Medico Legal Certificate
and narrated the same before the Court during the course of his
examination before the Court. We, therefore, find that this case
is of no help to the accused, as the evidence which was considered
by the Supreme Court and the facts and circumstances in which
the extra judicial confessions were made and reported are entirely
different and in the case before the Supreme Court there was a
considerable delay with regard to the point of time when the extra
judicial confessions were made and the time when it was reported
and recorded by police.
(e) In yet another case of State of Haryana v. Rajinder Singh,
reported in 1996 Cri LJ 1875 : (AIR 1996 SC 2978), extra judicial
confession allegedly made before many villagers was found unreliable.
In this case the statement as was recorded stated about assault
on the deceased by mistake and the Court, therefore, found that
if a statement is not true, that cannot be used even if the same
is found to be confessional in nature.
(f) The case of Abdul Razak Murtaza Dafadar v. State of Maharashtra,
reported in AIR 1970 SC 283 : (1970 Cri LJ 373) is the case cited
on behalf of the accused on the question of evidentiary value
of dog tracking and the learned counsel Mr. D. M. Shah has invited
our attention to the observations made by the Supreme Court to
the effect that the tracker dog's evidence cannot be likened to
the type of evidence accepted from scientific experts describing
chemical reactions, blood test and the actions of bacilli, because
the behaviour of chemicals, blood corpuscles and bacilli contains
no element of conscious volition or deliberate choice. Dogs are
intelligent animals with many thought processes similar to the
thought processes of human beings and wherever there are thought
processes there is always the risk of error, deception and even
self-deception. In the present state of scientific knowledge evidence
of dog tracking, even if admissible, is not ordinarily of much
weight. However, we find that in para 12 of this judgment, the
Supreme Court has observed as under :-
"12. In the present case it is not, however, necessary for
us to express any concluded opinion or lay down any general rule
with regard to tracker dog evidence or its significance or its
admissibility as against the appellant. We shall assume in favour
of the appellant that the evidence of P.W. 72 and of the panchas
with regard to the identification of appellant by the tracker
dog is not admissible. Even on that assumption we are of opinion
that the rest of the prosecution evidence namely the confession
of the appellant Ex. 130 and the discovery of the spanner conclusively
proves the charges of which the appellant has been convicted."
In this case the Supreme Court has also considered the confession
made by the accused. It has been found that after questioning,
the accused was sent back to jail and the confession was recorded
on the next day, while the accused spent 4 days in judicial custody
and he was not under influence of investigating agency for at
least 4 days. The Supreme Court held that the confession was voluntary
and it was clear that he had spent 4 days in judicial custody
and even if he was produced before the Magistrate, he had 24 hours
to think after he was told by the Magistrate that he was not bound
to make any confession and if he made one it would be used against
(g) In the case of Surinder Pal Jain v. Delhi Administration,
reported in AIR 1993 SC 1723 : (1993 Cri LJ 1871), the Court was
concerned with the case of wife's murder by her husband. In the
facts of this case, the accused had slept in the verandah near
the cot where the dead body of his wife was found, and he had
locked the collapsible door with the recovered lock before going
to sleep and had himself been close to the dead body before the
police came. Thus the picking up of the smell by the dogs of police
and pointing towards the accused could not be said to be circumstance
which could exclude the possibility of guilt of any person other
than that of the accused or be compatible only with hypothesis
of guilt of the accused. The pointing out by the dogs could as
well lead to a misguided suspicion that the accused had committed
the crime. The Court also considered the explanation of the accused
regarding the injuries on his person as having been caused by
the police and the explanation was found to be quite plausible
because according to the father of the deceased, the sister of
the deceased, when the tenants of the house and other neighbours
had reached the spot, the appellant was wearing only a vest and
the pyjama and no shirt and there were no marks of injuries on
his body before he was taken to the police station. The prosecution
case regarding the presence of injuries on the person of the deceased
was also found to be quite doubtful. In such circumstances, the
Supreme Court agreed with the learned Sessions Judge that the
prosecution has not established the case against the appellant
beyond reasonable doubt.
Such is not the position in the present case. In the case under
consideration before us, the sniffer dog of the dog squad was
first taken to the scene of the offence and was then let free.
The evidence is that he first went to the house of the deceased,
then to the house of the accused and, thereafter, jumped thrice
over the accused while he was standing in a group of persons.
(h) In the case of Rahim Beg v. The State of U.P., reported in
AIR 1973 SC 343 : (1972 Cri LJ 1260), the Supreme Court was concerned
with the case of a rape alleged to have been committed by a fully
developed man on a girl of 10 to 12 years. It was alleged that
2 persons had committed rape upon her. As per Doctor, who conducted
the post-mortem, contusions were found on both sides of her face,
neck, chest and the arms. Abrasions were also found on both her
legs as well as on the neck. There was half inch long vertical
tear which started from the lower portion of the junction of labia
majora. Clotted blood was present on the margin while blood was
found in the vagina. Hymen and vagina were found to be torn. Subcutaneous
tissue of the neck portion was congested. Brain and membrances
too were congested. Likewise, there was congestion in the larynx
and the lungs. Hyoid bone was fractured. Forthy blood mucus was
found in the lungs. Death, in the opinion of the doctor, was due
to asphyxia as a result of pressing of the neck and blockade in
the passage of the mouth. The vaginal injuries were the result
of rape. In para 18 of the judgment, the Court considered the
evidence regarding extra judicial confession of the 2 accused,
which had been made by them to Mohd. Nasim Khan (P.W. 4) and the
recovery of the ornaments belonging to the deceased from the two
accused, on which the conviction was based. The confession was
made to one Mohd. Nasim Khan and the Court found that according
to the said witness, the 2 accused came to him at his house and
told him that they had raped and killed the daughter of Ramjas
by strangulating her and they also stated about the removal of
her ornaments. The Court considered that said Mohd. Nasim Khan
belongs to some another village, there was no history of previous
association between the witness and the 2 accused as may justify
the inference that the accused could repose confidence in him.
The Court found it highly improbable that the 2 accused would
go to Mohd. Nasim Khan and blurt out a confession. The Court considered
the circumstance that the two accused persons could not have tried
to run away on seeing the police party coming with Mohd. Nasim
Khan if Mohd. Nasim Khan had gone to the police at their request.
In this case offence of rape and murder was committed on 3-8-69.
The 2 accused had been arrested on the morning of 4-8-69 and their
medical examination was held on 5-8-69. The Court considered the
evidence of the Medical Officer of District Jail, Rae Bareli,
Dr. Katiyar, who deposed that if a girl of 10 or 12 years, who
is virgin and whose hymen is intact is subjected to rape by a
fully developed man, there are likely to the injuries on the male
organ of the man. But no injury was found by the Doctor on the
male organ of any of the two accused and the absence of such injuries
on the male organs of the accused would thus point to their innocence.
The Supreme Court found that no cogent explanation has been furnished
as to why they were not got medically examined soon after they
are arrested by police. In the facts of this case, the Court found
that the accused persons could not have made the extra judicial
confession to a person with whom they had no previous association
and the accused could not have reposed confidence in him. In the
facts of the present case, extra judicial confession was not found
to be natural and believable and in the facts of this case, the
absence of injuries on the male organs of the 2 accused persons
were also taken to be a pointer towards their innocence.
In the case before us, the extra judicial confession has been
made before the Doctor and there is no reason to disbelieve the
Doctor P.W. 2, who had recorded the say of the accused in his
medico legal certificate on the same date on which he was examined
i.e. on 9-1-99. The accused was arrested on 8-1-99 in the afternoon
and was subjected to medical examination on the next day i.e.
9-1-99 while the incident had taken place on 5-1-99 and, therefore,
in the facts of this case, mere absence of injuries, cannot absolve
the criminal liability of the accused. Moreover, the injury, which
has been noted by Doctor in the post-mortem notes shows that there
was a tear right from vagina to anus by some sharp edged weapon
in Exh. 10. This injury was in fact in the nature of episiotomy
(incision of perineum) and after episiotomy even if a minor girl
is subjected to rape by a fully developed man, he may not sustain
any such injury or injuries on his male organ which may be visible
or capable of being noticed even after four days. (i) In the case
of State of Gujarat v. Mohanlal alias Munno Usmanbhai Chauhan,
reported in (1996) 1 Guj LH 919, accused, aged 25 years, had committed
rape on a minor girl of 11 years and no injury was found on the
private part of the accused. There was only swelling in the male
organ of the accused and the same was found to be not sufficient
to draw inference against the accused. The Court considered that
victim had not disclosed to the Doctor as to how her private parts
had been injured, she also did not disclose about abrasions or
bruises on her back and she suppressed the wrong done by the accused
and the incident was suppressed for no good cause by the victim
as well as mother at the initial stage and the FIR was filed after
two days, the Court did not rely on the evidence of such witnesses
in want of independent corroboration and relying upon the case
of Rahim Beg v. State of U.P. (1972 Cri LJ 1260) (SC) (supra)
found the acquittal to be in order.
In our opinion, this case has no relevance with the present case
except on the question of absence of injury on the part of male
organ of the accused. The absence of such injuries on the male
organ of the accused in the present case stands explained as stated
above in para (h).
(j) The case of Jaharlal Das v. State of Orissa, reported in AIR
1991 SC 1388 : (1991 CRI LJ 1809), was a case of rape and murder
based on circumstantial evidence and the Supreme Court did not
believe the case of the prosecution that accused and deceased
were last seen together as the same was not proved beyond doubt
and the recovery of the dead body at the instance of the accused
was also not proved and the medical witness on examination of
the accused has stated that there was no intercourse within one
hour of his examination.
23. The cases cited on behalf of the State by the learned P.P.
are dealt with as under :-
(a) In State v. Ammini, AIR 1988 Kerala 1 : (1988 Cri LJ 107)
a Full Bench of Kerala High Court considered the statement made
by accused to a Doctor of Government Hospital. Such statement
although incriminating, was found to be admissible in evidence
and it was held that it was not hit by S. 26. In para 44 of this
judgment, the statements given by 3rd and 4th accused to Doctors,
who examined them after arrest, have been considered. The 3rd
accused was arrested on 2-7-80 and after interrogation he was
taken to Doctor attached to Government Hospital. The Doctor noticed
3 wounds on the right fingers of 3rd accused, all the 3 wounds
were found infected. When the Doctor asked the 3rd accused as
to how he sustained the injuries, the reply given by the 3rd accused
was recorded by Doctor in Ext. P. 22 wound certificate in the
following words :-
"These small injuries were caused by biting when I closed
Merly's mouth to silence her at 7.30 p.m. on Monday before last."
Similarly the 4th accused was arrested on 5-7-80 and he was taken
to Doctor attached to Government Hospital and the Doctor noticed
2 healing scars. The 4th accused told the Doctor that, "my
left elbow and the outer part of the right hand were injured while
taking Merly to the kitchen, holding her from behind with left
hand, inside Merly's house at about 7.30 p.m. on Monday, 26-3-1980".
This statement was recorded by Dr. P.W. 64 in Ext.P36 wound certificate.
The said items of evidence were attacked on two grounds. Firstly
that they are inadmissible in evidence and secondly that the wound
certificates have been concocted for this case. The Full Bench
made a careful scrutiny. It was observed that admissibility was
questioned on the ground that the statements are hit by S. 26
of the Evidence Act, which prohibits confession made by a person
whilst he was in the custody of a police officer. The Court held
that what is prohibited is only 'confession' and the embargo is
not extended to the statements which do not amount to confession.
Admission can be proved as against the person who makes it, and
S. 21 of the Evidence Act permits such admissions being proved.
The contours of S. 21 are not bounded by limitations of the person
being in the custody of a police officer. There is no doubt that
if the admission amounts to 'confession' it transgresses into
the forbidden field designed in S. 26. Neither the Evidence Act
nor other statutes on criminal law defines confession. Reference
was made to a decision of Lord Atkin in the case of Narayana Swami
v. Emperor, reported in AIR 1939 PC 47 : (1939 (40) Cri LJ 364)
and observations of Lord Atkin have been quoted as under :-
"The words "confession" as used in Evidence Act
cannot be construed as meaning a statement by an accused "suggesting
the inference that he committed" the crime. A confession
must either admit in terms the offence, or at any rate substantially
all the facts which constitute the offence. An admission of a
gravely incriminating fact, even a conclusively incriminating
fact is not of itself a confession".
It has also been noted by Full Bench of Kerala High Court in this
case that the Supreme Court had adopted the aforesaid explanation
as correct in Palvinder Kaur v. State of Punjab, reported in AIR
1952 SC 354 : (1953 Cri LJ 154). In Aghnoo Nagesia v. State of
Bihar, reported in AIR 1966 SC 119 : (1966 Cri LJ 100), the Supreme
Court considered the question of severability of the accused's
confession while in custody; one exculpatory and the other inculpatory.
In the context Supreme Court found it worthwhile to adopt the
same line of thinking about the contours of confession and the
principles followed in Palvinder Kaur's case were reaffirmed.
The important decision on this subject, in view of the context
in this case, is Kanda Padayachi v. State of Tamil Nadu, reported
in AIR 1972 SC 66 : (1972 Cri LJ 11). The subject dealt with in
that decision is the admissibility of a statement made by an accused,
in police custody, to a doctor regarding some minor injuries found
on his person, to the effect that, "it was the deceased who
at about midnight on July 10, 1969 had caused the injury by biting
him." The Supreme Court made reference to the case law on
the subject including Pakala Narayana Swami's case and held that
the statement in question did not amount to a confession, but
only amounts to an admission of fact, "no doubt of an incriminating
fact, and which established the presence of the appellant in the
deceased room". In Para 13 of this judgment, the Supreme
Court observed as under :-
"It is thus clear that an admission of a fact however incriminating,
but not by itself establishing the guilt of the maker of such
admission, would not amount to confession within the meaning of
Sections 24 to 26 of the Evidence Act."
The Full Bench of Kerala High Court in this decision has also
made reference to the earlier Division Bench decision of Kerala
High Court in case of Chandran v. State of Kerala, reported in
(1987) 1 Ker LT 391 : (1986 Cri LJ 1865) and observed that the
Division Bench followed the same principle. On this basis, the
statements of the two accused, as were made in the case to the
Government Doctor, were held to be admissible, though they were
incriminating statements and it was held that this incriminating
statements do not amount to confession and hence they are not
hit by S. 26 of the Evidence Act.
(b) In the case of State of A.P. v. Gangula Satya Murthy, reported
in (1997) 1 SCC 272 : (1997 Cri LJ 774), the Supreme Court had
occasion to consider the provisions of Sections 24, 25 and 26
of the Indian Evidence Act, in which confession was made by the
accused before two witnesses of the locality, which were then
reduced to writing inside the police station, when the accused
was produced before the Police. The Supreme Court held that such
extra judicial confession was not hit by S. 26. The Supreme Court
held that while it is true that any confession made to a police
officer is inadmissible under S. 25 of the Act and that ban is
further stretched through S. 26 to the confession made to any
other person also if the confessor was then in police custody,
such custody need not necessarily be post arrest custody. The
word 'custody' used in S. 26 is to be understood in a pragmatic
sense. If any accused is within the ken of surveillance of the
police during which his movements are restricted then it can be
regarded as custodial surveillance for the purpose of the section.
If he makes any confession during that period to any person, be
he not a police officer, such confession would also be hedged
within the banned contours outlined in S. 26 of the Evidence Act.
However, in the case before the Supreme Court, the confession
made by the accused was not made while he was anywhere near the
precincts of the police station or during the surveillance of
the police and, therefore, the mere fact that the confession spoken
to those witnesses was later put in black and white is no reason
to cover it with the wrapper of inadmissibility.
(c) In the case of Dhananjoy Chatterjee v. State of W.B., reported
in (1994) 2 SCC 220, the Court was concerned with the case of
rape and murder of a young girl of 18 years by security guard
of the building. In this case the circumstances relied upon by
the prosecution include recovery of button and broken chain of
accused from the place of occurrence along with seizure of shirt
and pant of accused. It was a case based on circumstantial evidence.
24. It has also been submitted by the learned P.P. Mr. P. G. Desai
that in this case, the offence is proved on the basis of circumstantial
evidence right from the point of time when the accused was seen
in the company of the deceased Ramila, by P.W. 4 Kalidas, he was
also seen going towards the house of Mahijibhai - the father of
the deceased girl by P.W. 7, was also moving in the locality knocking
at doors of the neighbours to satisfy his sexual urge and making
indecent proposal to Manishben, aged 14 years old girl, P.W. 6,
and when he prevented the witness P.W. 8 Maganbhai from going
towards the Nali while the accused was coming from the side of
Nali at 11.00 p.m. on the date of incident. He has also submitted
that the evidence of the dog tracking has gone against the accused
and the examination of the articles, which were recovered from
the spot and at the instance of the accused from his house, and
the examination of the same by Forensic Science Laboratory and
the presence of saliva on the bud of the bidi with Group 'B',
blood group of accused being 'B-Rh positive', resemblance of the
button from the spot and the buttons of the shirt of the accused
go a long way to prove the commission of the offence by the accused
and none else. The extra judicial confession before P.W. 2 and
the fact that the accused did not co-operate before this Doctor
in giving the sample of semen for the purpose of investigation
and to compare it with the result of the vaginal swab and vaginal
smear, clearly prove that none else but the accused is the offender
in this case. The beastly manner in which the heinous offence
has been committed with cruelty against the female child of about
5 years old living in his own neighbourhood certainly warrants
a punishment not short of death sentence.
25. As a result of the study and the analysis of the various cases,
which have been cited, the following principles are clearly discernible
A) In absence of direct evidence and no eye-witness i.e. cases
based on circumstantial evidence only :-
(a) The circumstances from which the conclusion of guilt is to
be drawn should be fully proved and these circumstances must be
conclusive in nature to connect the accused with the crime. All
the links in the chain of events must be established beyond reasonable
doubt and the established circumstances should be consistent with
the hypothesis of the guilt of the accused and totally inconsistent
with his innocence.
(b) The Court has to be on its guard to avoid the danger of allowing
suspicion to take place of legal proof and has to be watchful
to avoid the danger of being swayed by emotional considerations,
however, strong they may be, to take place of proof.
(c) The chain of circumstances would snap if the main link goes
and the other circumstances do not establish the guilt beyond
(d) For a definite conclusion, 'may be true' should not be allowed
to take place of 'must be true'.
B. Extra Judicial Confessions and admissions.
(a) A statement, which is confessional in nature, if sought to
be relied upon against the maker in a criminal trial, the same
has to be true as well as voluntary.
(b) An extra judicial confession by its very nature is rather
a weak type of evidence and requires appreciation with great deal
of care and caution.
(c) Where an extra judicial confession is surrounded by suspicious
circumstances its credibility becomes doubtful and it looses its
(d) The Courts generally look for independent reliable corroboration
before placing any reliance upon an extra judicial confession.
(e) Any confession made to a police officer is inadmissible under
S. 25 of the Indian Evidence Act and this bar is further stretched
though S. 26 to the confession made to any other person also if
the confession is made in police custody.
(f) Such "custody" need not necessarily be post arrest
custody. The word 'custody' used in S. 26 is to be understood
in a pragmatic sense. If any accused is within the ken of surveillance
of the police during which his movements are restricted then it
can be regarded as custodial surveillance for the purpose of this
section. If he makes any confession during that period to any
person, be he not a police officer, such confession would also
be hedged within the banned contours outlined in Section 26 of
the Evidence Act.
(g) A distinction has to be made between a statement, which does
not amount to confession as against admission. Admission can be
proved as against the person who makes it and S. 21 of the Evidence
Act permits such admissions being proved. The contours of S. 21
are not bounded by limitations of the person being in the custody
of a police officer. However, the admission should not transgress
its limits so as to become a confession within the meaning of
S. 26 of the Evidence Act.
(h) A confession must either admit in terms the offence, or at
any rate substantially all the facts which constitute the offence.
(i) An admission of a gravely incriminating fact, even a conclusively
incriminating fact, is not of itself a confession.
(j) Confession cannot be construed as meaning a statement by an
accused suggesting the inference that he committed the crime.
(k) Admission of a fact incriminating, but not by itself establishing
the guilt of the maker of such admission, would not amount to
confession within the meaning of Sections 24 and 26 of the Evidence
C. On the question of tracking dog's evidence :-
(a) The comparison of tracking dog's evidence with the type of
evidence of scientific expert describing chemical reactions, blood
tests and the absence of bacilli, does not appear to be sound.
Behaviour of chemicals, blood corpuscles and bacilli contains
to element of conscious volition or deliberate choice. Dogs are
intelligent animals with many thought processes similar to the
thought processes of human beings and wherever there are thought
processes there is always the risk of error, deception and even
self-deception. Therefore, in the present state of scientific
knowledge, evidence of dog tracking, even if admissible, is not
ordinarily of much weight.
(b) Even if it is found that tracking dog's evidence is not admissible,
if there is other evidence proving the involvement of the accused
in the commission of the offence, including the admission of certain
facts by the accused, compatible with the hypothesis that accused
was guilty, the same can be used.
26. We have examined the evidence available in this case on the
basis of the above principles formulated on the strength of the
judicial opinion expressed by the Courts and our findings are
as under :-
(a) On the question of accused being last seen in the company
of the deceased, P.W. 4 Kalidas cannot be believed and, therefore,
this circumstance is not proved against the accused. The evidence
of P.W. 8 is of course suggestive that perhaps the accused could
be the last person with the deceased and it also goes against
the accused that he prevented the witness in search of 'Ramila'
to go towards Nali.
(b) The factum of borrowing the cycle from P.W. 7 Ishwarbhai on
the evening of the date of the incident and returning of the same
by the accused to the witness after the starting of the T.V. serial
also does not go against the accused because it was not only on
that day but in past also the accused had been borrowing the cycle
and returning the same to this witness on many occasions. The
say of this witness that after returning the cycle of the accused
went towards the house of Mahijibhai, does not lead to the conclusion
that the accused was last seen in the company of the deceased.
Accused lives in the same colony and the house of the accused
as well as that of Mahijibhai are in the same row and, therefore,
if the witness says that he went towards the house of Mahijibhai,
it cannot lead to any definite or irresistible conclusion that
he is the person, who was last seen in the company of the deceased.
Thus, the say of this witness only raises a lurking doubt.
(c) The say of P.W. 6 Manishaben that the accused had gone to
her house sometime before the incident, called her mother and
when she came out he made an offer of 50 Rupees for her work while
she was in her house with her parents, brother and sister, does
not sound very natural, as a person living in the same locality
would not dare to do so in normal course, more particularly when
this witness has not given any such past history, not even single
instance about the accused coming to her house. Even if it is
assumed that what she has stated must have happened, because some
times a person may do a stupid act also and we do not know how
the human mind works in a given situation, all that can be inferred
from the evidence of this witness P.W. 6 is that accused was actuated
with sexual urge at that time, but that by itself cannot be taken
to be any evidence for the purpose of proving the case of accused
being last seen in the company of the deceased.
(d) We also do not find it safe to rely upon the tracking dog's
evidence, particularly when the actual dog handler Ganpatsinh
Chauhan has not been examined nor any other person, who was expert
of the dog squad, has been examined, although the presence of
such experts and the dog handler at the time of dog tracking is
admitted by the Investigating Officer P.W. 13 Madhavsinh himself,
who has stated that he had procured the presence of the team of
the dog squad and that the expert of the dog tracking and the
dog handler Ganpatsinh Chauhan was present at the time when the
dog tracking was conducted. Jumping of the sniffer dog thrice
over the accused, as stated by more than one witnesses, and the
denial of the suggestion by the witnesses that the dog had not
jumped on the other persons, namely, Punambhai Vaghabhai and Chhaganbhai
Mangalbhai and the dog had only smelled these two persons and
did not do anything else to them, may have given basis to the
prosecution to apprehend the accused but it could also be misguided
and, therefore, the result of the dog tracking does not lead to
an irresistible conclusion against the accused that he is the
culprit. The evidence in this regard also suffers from the infirmity
which remains unexplained inasmuch as P.W. 10 Ranchhodbhai has
stated that he was called to be a panch witness in the morning
at 9.00 to 9.30 a.m. on 8-1-99 and at the place of the offence
sniffer dog was made to smell the chaddy and pant whereas the
pant was recovered at the instance of the accused under S. 27
only after the result of the dog tracking i.e. in the afternoon
at 3.30 p.m. as stated by P.W. 11 Chhaganbhai.
(e) So far as the result of the examination of the articles by
Scientific Officer of Forensic Science Laboratory is concerned,
the bud of bidi with saliva of Group 'B' and the button found
from the place of offence, which has been found to be resembling
with the other buttons on the shirt of the accused, proves the
presence of the accused appellant at the place of offence and
the presence of blood mixed with semen in the vaginal swab and
vaginal smear show that the offence of rape had been committed.
(f) The evidence of P.W. 1 and the post-mortem note Exh. 10 proved
that offence had taken place. The deposition of P.W. 2 Dr. D.
R. Khadayate show that the accused did not co-operate in ejaculating
the semen and that he had admitted the fact of taking Ramila to
Nali, biting on her face pressed her mouth, laid her in the missionary
position and tried sex with her for half an hour and went back
to his house and gone to sleep when he felt that she was dead.
Admission of these facts by the accused before this witness P.W.
2 corroborates the case of the prosecution against the accused
and affords a very strong basis to be relied upon so as to establish
the guilt of the accused in the commission of the offences for
which he has been convicted and it also finds due corroboration
from the resemblance of the button which was found from the scene
of the offence with 3 buttons of the shirt of the accused. The
button has been found to be resembling in colour, size, and number
of holes and the blood Group of the accused i.e. B-Rh Positive
has also been found to be the same as that was present on the
saliva of the smoked bud of the bidi, which has been found to
be of Group 'B'. In these circumstances, even if the other evidence,
which has been brought on record, including the evidence of the
dog tracking is ignored, there is sufficient evidence so as to
prove the involvement of the accused in the commission of these
(g) It is also a fact that the prosecution did not examine the
following witnesses :-
(i) Madhuben, wife of P.W. 3 Mahijibhai i.e. the mother of the
deceased, who was present alongwith Mahijibhai so as to watch
the T.V. serial at the house of Kalidas.
(ii) Ichhaben too was present watching the T.V. serial at the
house of Kalidas, as has been stated by P.W. 3 Mahijibhai.
(iii) Popat and Fatehsinh Thakor, who met P.W. 5 Muljibhai and
informed him in the afternoon of 6-1-99 that dead body of deceased
was lying ahead when both of them met the witness P.W. 5 while
he was on his way to the field.
(iv) Bhikhabhai Mangalbhai, who had met P.W. 8 Maganbhai while
he was on search of Ramila on the night of 5-1-99, just before
this witness met the accused when the accused was coming from
the side of the Nali i.e. the place of the offence, has also not
(v) Ganpatsinh Chauhan, dog handler, who was present at the time
of dog tracking.
However, we find that the non-examination of these witnesses is
not fatal to the case of prosecution in view of the other evidence.
It would have been better had these witnesses been also examined.
We may also observe that the prosecution could have also gone
for D.N.A. Test on the basis of blood mixed with semen in the
vaginal swab and vaginal smear and the investigation could be
still more scientific on more than one aspects - but the case
of the prosecution is not liable to be rejected on this ground
- when there is sufficient evidence otherwise to believe the case
of prosecution as discussed above.
27. As a result, we find that the accused is the person, involved
in the commission of these offences, and he has been rightly convicted
by the trial Court for the offences punishable under sections
363, 376(2)(F), 451 and 302 of the I.P.C. and, therefore, so far
as the question of conviction is concerned, the same is hereby
sustained and to that extent the Appeal filed by the accused challenging
the conviction fails.
28. Now comes the question with regard to the sentence and the
question of confirmation of death sentence. In this regard, following
cases have been cited before us :-
Cases in which death sentence confirmed :
(i) Mahendra Nath Das v. State of Assam, reported in (1999) 5
SCC 102 : (1999 Cri LJ 2873).
Offence under S. 302, I.P.C. Hand of the deceased amputated in
the market and he was beheaded. Accused carried the blood dripping
head to the Police outpost through road, carrying the head in
one hand and the sword in the other hand. A case of depicting
the extreme depravity. The accused a man of 33 years having three
unmarried sisters and aged parents and his case was that he was
not well at that time.
Death sentence awarded by the trial Court confirmed up to Supreme
(ii) (1994) 4 SCC 478 : (1994 Cri LJ 3071), Shankar v. State of
Offence under S. 302, I.P.C. The accused was found to be a hardened
criminal and a menace to the society.
Death sentence confirmed up to Supreme Court.
(iii) (1998) 4 SCC 531 : (1998 Cri LJ 2913), Govindasami v. State
The Supreme Court came to the conclusion that declining to confirm
the death sentence would be yielding to misplaced sympathy.
Death sentence confirmed up to Supreme Court.
(iv) State v. Nalini, reported in (1999) 5 SCC 253 : (1999 Cri
The case of assassination of Rajiv Gandhi. Originally 26 accused
in all, out of which in case of 7 accused persons, including Nalini,
the conviction for offences punishable under S. 120B read with
S. 302, I.P.C. was confirmed and in case of 4 including Nalini
out of this 7, death sentence was confirmed and in case of remaining
3 it was altered to imprisonment for life. The remaining accused
persons were acquitted.
Shri Rajiv Gandhi and 18 other persons died and 43 persons were
seriously injured, which include Police Officers and innocent
It has been observed by the Supreme Court that while in Office
of Prime Minister of India, Shri Rajiv Gandhi, to bring about
a settlement of disputes between Tamil speaking ethnic minority
and Government of Sri Lanka, signed the Indo-Sri Lankan Accord
on 22-7-87 under which the Government of India took upon itself
certain role. The LTTE (Liberation Tigers of Tamil Eelam) was
among the signatories to that Accord. In discharge of its obligation
under the Accord, the Government of India sent the Indian Peace
Keeping Force (IPKF) to Sri Lanka to disarm LTTE. This fact together
with the alleged atrocities of IPKF against Tamilians in Sri Lanka
and non-co-operation of Government of India with LTTE, at what
is termed as the hour of their need, gave rise to grouse which
culminated in plotting of a conspiracy to assassinate Shri Rajiv
Gandhi, which was put through on the fateful date i.e. on 21-5-91.
According to Hon'ble Justice Wadhwa (Para 636) a former Prime
Minister of the country was targeted because this country had
entered an agreement with a foreign country in exercise of its
sovereign powers. Rajiv Gandhi being the head of the Government
at that time was signatory to the Accord which was also signed
by the head of the Government of Sri Lanka. The Accord had the
approval of Parliament. It was not that Rajiv Gandhi has entered
into the Accord in his personal capacity or for his own benefit.
Though it was held that object of the conspiracy was not to commit
any terrorist act or any disruptive activity, nevertheless murder
of a former Prime Minister for what he did in the interest of
the country, was an act of exceptional depravity on the part of
the accused, an unparalleled act in the annals of crimes committed
in this country. In a mindless fashion not only was Rajiv Gandhi
killed but along with him others died and many suffered grievous
and simple injuries. No mitigating circumstance was found to upset
the award of sentence of death and in case of Nalini along with
three others, it was found that they deserve extreme penalty and
the death sentence was confirmed.
The facts of the case were found to be uncommon. A crime committed
on Indian soil against the popular national leader, a former Prime
Minister of India, for a political decision taken by him in his
capacity as the head of the executive and which met with the approval
of Parliament, by persons running political organisation in a
foreign country and their agents in concert with some Indians
for the reason that it did not suit their political objectives
and of their organisation, cannot but be a 'rarest of rare' case.
In such a case the part played by Nalini was found to be a candid
participation in the crime of conspiracy to assassinate Shri Rajiv
Gandhi who was himself a young and popular leader so much loved
and respected by his fellow citizens and had been the Prime Minister
of India. The conspirators including Nalini had nothing personal
against him but he was targeted for the politicial decision taken
by him as the Prime Minister of India. She in spite of being an
Indian citizen joined the gang of conspirators and engaged herself
in pursuit of common intention to commit the crime only because
she was infatuated by the love and affection developed for Murugan,
and thus played her part in the execution of the conspiracy which
resulted in the assassination of Shri Rajiv Gandhi and death of
many police officers and innocent citizens including a small girl.
For a person like Nalini, it was observed by Justice Quadri (para
724) that taking into consideration all the mitigating circumstances,
there was no room for any leniency, kindness and beneficence.
Death sentence confirmed.
However Justice Thomas gave dissenting judgment on the question
of death sentence against Nalini. According to Hon'ble Justice
Thomas, in the normal spectrum of consideration, death penalty
is the first priority to be chosen for her. It was noted that
she was an elderly and educated woman, she was persistently brainwashed
by Murugan, who became her husband and then the father of a child.
On the basis of her confession, the Court gathered the impression
that she was led into the conspiracy by playing on her feminine
sentiments, she became an obedient participant without doing any
dominating role. By indoctrinative exercises she would have honestly
believed in the virtue of offering her help to the task undertaken
by the conspirators. In the confessional statement made by her
brother Bhagyanathan, another co-accused, it was revealed that
Nalini had confided to him on 23-5-91 (i.e. after 2 days after
the offence) itself that as a matter of fact she realised only
at Sriperumbudur that Dhanu was going to kill Rajiv Gandhi. Hon'ble
Justice Thomas considered the fact that she belongs to the weaker
sex and her helplessness in escaping from the cobweb of Sivarasan
and company, the mere fact that she became obedient to all the
instructions of Sivarasan need not be used for treating her conduct
as amounting to 'rarest of the rare cases' indicated in Bachan
Singh's case. Yet another consideration which was found to be
difficult to overlook by Hon'ble justice Thomas was that she was
the mother of a little female child who would not have even experienced
maternal huddling as that little one was born in captivity. Ofcourse
the maxim 'justitia non novit patrem nec matrem' (justice knows
no father nor mother) is a pristine doctrine. But it cannot be
allowed to reign with its rigour in the sphere of sentence determination.
It was also noticed that death sentence had been confirmed on
the father of the small child and, therefore, an effort to save
its mother from the gallows may not militate against jus gladii
so that an innocent child can be saved from imposed orphanhood.
Death sentence passed on her was altered to one of imprisonment
for life by Hon'ble Justice K. T. Thomas.
However, the death sentence was confirmed against her by majority
decision (Coram : Hon'ble Justice D. P. Wadhwa and S. S. M. Quadri,
JJ. with the dissent of Hon'ble Justice K. T. Thomas).
(v) In case of Kehar Singh v. State (Delhi Admn.), reported in
(1988) 3 SCC 609 : (1989 Cri LJ 1).
The case of assassination of Smt. Indira Gandhi. In this case
the security guards of Smt. Indira Gandhi, the then Prime Minister
of India, assassinated her. The Supreme Court classified it as
a 'rarest of rare case', inter alia, on the ground that the convicts
were involved in assassinating a great daughter of India and the
Prime Minister of India and that the act of the accused not only
took away the life of the popular leader but also undermined our
democratic system which had been working so well for the last
The death sentence of Satwant Singh who actually committed the
murder as well as that of Kehar Singh who conspired and inspired
for commission of the crime, was confirmed.
The principles laid down by the Supreme Court in the case of Bachan
Singh v. State of Punjab, reported in (1980) 2 SCC 684 : (1980
Cri LJ 636) and in the case of Machhi Singh v. State of Punjab,
reported in (1983) 3 SCC 470 : (1983 Cri LJ 1457) were applied.
(vi) Jai Kumar v. State of M.P., reported in AIR 1999 SC 1860
: (1999 Cri LJ 2569).
It was a case of offence under S. 302, I.P.C. The accused was
charged under section 302 read with S. 201, I.P.C. of committing
murder of his sister in law (brother's wife, carrying pregnancy
of 22 to 30 weeks), aged 30 years and her minor daughter (niece
of the accused) aged 8 years. The age of the accused was 22 years.
It was found to be not relevant. It was found to be an established
case of depravity and criminality of the accused in no uncertain
terms. The evidence, which was considered, was that the accused
entered the house and bolted from outside the mother's room and,
thereafter, removed certain bricks from the wall and 'choukat',
thus facilitating the entry into the room where the deceased sister
in law was sleeping with the child. The accused committed the
murder of his sister in law by axe blows on her neck severing
her head from the body and taking away her 8 years old daughter
and killing her in a jungle by axe blows said to be by offering
sacrifice to Mahuva Maharaj and burying her in the sand covered
with stones. Thereafter, the accused came back home and carried
the body of the deceased sister in law tied in a cloth to the
jungle and hung the head being tied on a branch with the hairs
and put the body, on the trunk of the tree. The mother herself
has appeared as a witness and she stated in no uncertain terms
that there was an attempt to commit rape on the sister in law.
The evidence of the mother, who watched the incident from the
creeks of the window was accepted as material evidence, who had
also spoken about the bad character and reputation of the accused
in the locality. It was found to be a 'rarest of rare case' in
which there were no extenuating or mitigating circumstances and
the death sentence was confirmed.
(vii) Dhananjoy Chatterjee v. State of W. B., reported in (1994)
2 SCC 220.
The case of rape and murder of a young girl of 18 years by a security
guard in the building. The case based on circumstantial evidence.
Death sentence imposed by the trial Court and confirmed by the
High Court was confirmed, as no extenuating or mitigating circumstance
whatsoever was found in this case.
(viii) Laxman Naik v. State of Orissa, reported in (1994) 3 SCC
381 : (1995 Cri LJ 2692).
A case of rape and murder of 7 years old girl by her own uncle.
No mitigating circumstance found; on the contrary the facts disclosed
only aggravated the circumstances against the accused inasmuch
as the accused was the uncle of the 7 years old girl, who must
have reposed complete confidence in him and acted upon the command
of the accused in accompanying him under the impression that she
was being taken to her village unmindful of the preplanned unholy
designs of the accused. The victim was totally helpless child,
there being no one to protect her in the desert where she was
taken by the accused misusing her confidence to fulfil his lust.
It was a case of circumstantial evidence of last seen together,
misrepresentation and intentional false statement of the accused
as to the whereabouts of the deceased, evidence relating to injuries
on deceased and discovery and seizure of incriminating articles,
serious bleeding injury in the private part of the deceased, her
cloths were found smeared with blood, eloquently speaking about
the monstrous sexual assault made on her and lastly the presence
of blood stained underwear belonging to the appellant near the
dead body which was seized and identified as one belonging to
the appellant and the chemical and serological examination established
the presence of blood on the same. The Court has observed that
the accused had acted in a beastly manner as after satisfying
his lust he thought that the victim might expose him for the commission
of the offence of forcible rape on her to the family members and
others and, therefore, with a view to screen the evidence of his
crime also put an end to the life of innocent girl.
The case was found to be 'rarest of rare case' and death sentence
(ix) Ravji v. State of Rajasthan, reported in AIR 1996 SC 788.
A case of murder of five persons by accused including his wife,
who was in advanced stage of pregnancy, and three minor children
and attempt to commit murder of two others. Brutal and heinous
murders committed in cool and calculated manner while victims
were asleep. The defence of temporary psychic disorder was not
accepted and no justification was found to commute death penalty
to imprisonment for life. The accused did not even spare his mother,
who tried to prevent him from committing such unpardonable crime.
He also attacked his mother with the axe which he had used to
kill his wife and minor children and caused injuries of her person
with an intention to kill her. Thereafter, he went to one of the
neighbour's house and attempted to kill the wife of the neighbour
while she was asleep and when the poor old Gulabji came in his
way while he tried to flee away, the accused killed him also before
the eyes of his wife. The crime was found to have been committed
with utmost cruelty and brutality without any provocation, in
a calculated manner.
Death sentence was confirmed.
(x) Kamta Tiwari v. State of M.P., reported in AIR 1996 SC 2800
: (1996 Cri LJ 4158).
A case of offence under sections 302 and 376, I.P.C. The accused
committed rape on a 7 years old girl, strangulated her to death,
threw her body in the well and caused disappearance of evidence.
The accused was close to the family of the deceased and she used
to call accused as 'uncle'. The accused run a television repairing
shop near the saloon. The deceased had gone for hair cut with
her father and brother and asked the accused on his shop for some
toffees and biscuits, the accused readily responded to her request
by taking her to the nearby grocery shop and handed over to her
a packet of biscuit as a prelude to his sinister design, which
unfolded in her kidnapping, brutal rape and gruesome murder and
dumping her dead body in a well. Since the accused was in a position
of trust, his culpability assumes the proportion of extreme depravity.
The Court found it a 'rarest of rare case' and found that the
death sentence is desirable.
(xi) Machhi Singh v. State of Punjab, reported in (1983) 3 SCC
470 : (1983 Cri LJ 1457).
In a case of family feud the accused persons committed 17 murders
in five incidents occurring in the same night in quick succession
in five neighbouring villages, while the victimes were asleep
in the night. The accused persons had made forcible entry in the
respective houses. The eye-witnesses had watched the respective
Death sentence confirmed against 3 of the accused persons.
Cases in which death sentence commuted to life imprisonment :
(i) Sheikh Abdul Hamid v. State of M.P., reported in (1998) 3
SCC 188 : (AIR 1998 SC 942).
A case of circumstantial evidence in which the accused and his
friend had committed murder of his wife and her 2 children. The
accused were living in a dhaba with the deceased persons. A report
was lodged in the police station by one Qadir Khan that his elder
sister Manglibi along with her children had disappeared or was
not traceable for two and half months and he suspected that accused
had either killed or sold them. The dead bodies were exhumed by
digging the earth. Both the accused persons were convicted under
S. 302 read with S. 34, I.P.C. and sentenced to death. High Court
confirmed the penalty of death sentence against both the accused
persons. The Supreme Court did not find it to be a case of 'rarest
of rare case' and noticed that the prosecution could not point
out that it was a cold blooded murder and that there was nothing
on record to show how the murder had taken place. In absence of
such evidence, death sentence was commuted to life imprisonment
by the Supreme Court as it was found to be a case of absence of
special reasons for death sentence.
(ii) Ronny v. State of Maharashtra, reported in (1998) 3 SCC 625
: (1998 Cri LJ 1638) was a case under S. 302/34 of I.P.C. in which
on determination of facts it was found by the Supreme Court that
it was a case of rape, murder and robbery in a cold blooded and
pre-planned way; all the three inmates of the house viz. husband,
wife and their son aged 17 years were brutally murdered by throttling
after committing rape on the lady aged over 45 years and the ornaments
and valuables were looted by the three accused persons, one of
them being a close relative (nephew). After considering the mitigating
and aggravating circumstances, the Supreme Court found from the
facts and circumstances of the case that what particular role
was played by each of the accused and whose case fell with the
rarest of the rare category was not ascertainable and, therefore,
the possibility of reform and rehabilitation could not be ruled
out. In the facts and circumstances of this case, the sentence
of death was reduced to sentence of life imprisonment.
(iii) Raja Ram Yadav v. State of Bihar, reported in (1996) 9 SCC
287 : (1996 Cri LJ 2307) was a case under sections 302/149 and
436/149, I.P.C. Conviction was based on the sole testimony of
a child witness. It was a case of murder of six persons to take
revenge and the child witness could not tell the names of four
out of eight accused persons. Although the murder was found to
have been committed in a premeditated and calculated manner with
extreme cruelty and brutality for which normally sentence of death
is wholly justified, but in the special facts of this case, it
was not considered proper to award the extreme sentence of death
and the death sentence was commuted to the sentence for life imprisonment.
(iv) In the case of Suresh v. State of U.P., reported in AIR 1981
SC 1122 : (1981 Cri LJ 746) the sole eye witness was a five year
old son of the deceased. The deposition of the child witness was
held to be convincing and reliable, but it was observed that the
extreme sentence cannot seek its main support from the evidence
of the child witness and it was not safe enough to act upon such
deposition, even if true, for putting out a life.
(v) State of H.P. v. Manohar Singh Thakur, reported in (1998)
6 SCC 158 : (1998 Cri LJ 3630) was a case of circumstantial evidence
under S. 302, I.P.C. The trial Court had recorded conviction but
High Court had acquitted the accused. When the matter came up
before the Supreme Court, the Supreme Court restored the conviction
as had been recorded by the trial Court but on the question of
sentence it was not found to be a rarest of rare case so as to
warrant death sentence. In this case the accused and deceased
were last seen together. The accused had given a false explanation
to the wife of the deceased that the deceased had stayed back
in the village and the accused was found in possession of the
key, which used to remain with the deceased and the dead body
of the deceased had also been found in the same direction in which
the deceased and the accused were observed as going. Injuries
were also found to have been inflicted on the head of the wife
of the deceased similar to the injuries found on the dead body
of the deceased. Currency notes were also recovered from the accused
at the time of his arrest and the weapon of offence and other
incriminating articles pursuant to disclosure statement made by
the accused were also recovered. Conviction was recorded, but
on the question of death sentence, the Supreme Court held that
the murder by its very nature was shocking but that per se does
not justify death penalty and the death sentence was substituted
by imprisonment for life.
(vi) In Allauddin Mian v. State of Bihar, reported in AIR 1989
SC 1456 : (1989 Cri LJ 1466), the Supreme Court held that the
death sentence is to be reserved for exceptional cases when the
criminal is a menace to the society. The Supreme Court found that
according to the charge the target was the father of the deceased
and not the two infant daughters who were killed and the killing
was not in the contemplation of any of the accused and the infants
were the victims of the offenders' ire resulting from frustration
at the escape of their target i.e. father. The Supreme Court found
that there was nothing so uncommon about the crime as to make
the case an exceptional one and the mere fact that infants were
killed, without anything more, was not sufficient to bring the
case within the category of 'the rarest of rare' cases.
(vii) Kishori v. State of Delhi, reported in (1999) 1 SCC 148
: (1999 Cri LJ 584) was a case under sections 302/149 and 148,
I.P.C. and it was relating to Delhi riot following assassination
of Prime Minister of India. An attack by mob resulted into death
of 3 persons. There was absence of evidence to establish that
death was caused only on account of injuries inflicted by the
accused. It was also found that the accused was neither the leader
of the mob nor he exhorted others to do any particular act. The
murder of several persons had taken place in a chain of events
occurring on one night and day. It was found to be a case of an
act of mob as a result of temporary frenzy and not a case of any
organised systematic activity. The Supreme Court found that riotous
mob is not expected to follow high ideals and in the circumstances
of this case, the death sentence passed by the trial Court and
confirmed by the High Court was converted into sentence of life
imprisonment and it was held that when the act is done as a participant
in the mob, it diminishes the responsibility, when such an act
was part of collective action unless the same is distinguishable
as an act of that particular individual.
29. It has always been a great predicament with the Judges in
the Court as and when a choice is to be made between death sentence
and life imprisonment. A study of the cases, as aforesaid, and
the analysis of various considerations, which have been taken
note of by the Courts in such cases, make out that the following
principles are to be applied when it comes to the question of
considering as to whether the death sentence is to be awarded
or life imprisonment only.
(i) Life imprisonment is the rule and death sentence is an exception.
(ii) Except in grave cases of extreme culpability, the extreme
penalty of death need not be inflicted.
(iii) While considering the circumstances and the manner in which
the crime has been committed, the circumstances of the offender
should also be considered before opting for death sentence.
(iv) A balancesheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating circumstances
have to be accorded full weightage and just balance has to be
struck between the aggravating and mitigating circumstances before
the option is exercised.
(v) Not only the rights of the criminal but also the rights of
the victim of crime and the society at large have to be considered
so that a punishment befitting to the crime is imposed so as to
reflect public abhorrence of the crime.
(vi) Aggravating factors cannot be ignored but at the same time
mitigating circumstances are also to be taken into consideration.
(a) Aggravating circumstances may include a case in which the
crime has been committed after previous planning and involve extreme
brutality and a case in which the crime involves exceptional depravity.
(b) Mitigating circumstances to be taken into consideration may
be as under :-
- That the offence was committed under the influence of extreme
mental or emotional disturbance.
- The age of the accused.
- The probability that the accused would not commit criminal acts
of violence as would constitute a continuing threat to the society.
- The probability that the accused may be reformed and rehabilitated.
- The accused believed that he was morally justified in committing
- That the accused acted under the duress and domination of another
- That the condition of the accused shows that he was mentally
defective and that the said defect impaired his capacity to appreciate
the criminality of his conduct.
- That the accused is not a hardened criminal but the crime is
a result of sudden impulsive act making him an insensible criminal.
(vii) Unless the nature of the crime and the circumstances of
the offender reflect that the criminal is a menace to the society
and sentence of life imprisonment would be altogether inadequate,
the Court should ordinarily impose lesser punishment and not extreme
punishment of death, which should be reserved for exceptional
(viii) The measure of punishment in a given case must depend upon
the atrocity of the crime; the conduct of the criminal and the
defenceless and unprotected state of victim.
(ix) Imposition of appropriate punishment is the manner in which
the Courts respond to the society's cry for justice against a
criminal. Justice demands that Courts would impose a punishment
befitting a crime so that the Courts reflect public abhorrence
of the crime.
(x) The Courts must not only keep in view the rights of the criminal
but also the rights of the victim of crime and the society at
large while considering imposition of appropriate punishment.
(xi) Courts should always bear in mind that criminal sentences
are in almost every case intended to protect the public, whether
by punishing the offender or reforming him, or deterring him and
others, or all of these things.
(xii) Death sentence is to be given only in rarest of rare case.
To determine as to whether a particular case is a rarest of rare
case or not, the answers to the following questions would be helpful.
(a) Is there something uncommon about the crime which renders
the sentence of imprisonment for life inadequate and calls for
a death sentence ?
(b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence after according maximum weightage
to the mitigating circumstances, which speak in favour of the
30. Applying the principles, as enunciated above on the basis
of various decisions, to the facts of the present case, we find
that on the one hand there are aggravating circumstances with
regard to the rape and murder of a minor girl of about 5 years
of age, who was totally unprotected as also the brutality and
the depravity with regard to the manner in which the crime has
been committed and on the other hand there are mitigating circumstances
that the accused is a boy of 20 years i.e. in the age of adolescence,
he is not a hardened criminal with any criminal record in past,
his father had already expired, seeming to be ignorant of social
and moral values, cannot be said to be a menace to the society,
it appears to be a case of impulsive bravado of sex and that he
wanted to satisfy his sexual urge on the date of the incident
and in the process the murder was also committed. The scope and
concept of mitigating factors to determine as to whether the death
penalty is warranted or not have to be given a liberal and extensive
construction after according maximum weightage to the mitigating
circumstances. According to the observations made in Bachan Singh's
case (supra) AIR 1980 SC 898 : (1980 Cri LJ 636) the Judges should
never be blood thirsty, hanging of murderers has never been too
good, the Courts have inflicted the extreme penalty with extreme
infrequency, that life imprisonment is the rule and death sentence
is an exception, a real and abiding concern for the dignity of
human life postulates resistance to taking a life through law's
instrumentality and that ought not to have been done save in the
rarest of rare cases when the alternative option is unquestionably
foreclosed. As observed by the Supreme Court in the case State
v. Nalini (1999 Cri LJ 3124) (Supra) Hon'ble Quadri, J. has expressed
that it ill behoves a person to order the death of another, he
who gives life alone has the authority to take life, in dispensing
justice a Judge is not only discharging a sovereign function but
he is also doing a divine function, the most difficult task for
a Judge is to choose the punishment of death in preference to
the punishment of life imprisonment for he is conscious of the
fact that once the life of a person is taken away by a judicial
order it cannot be restored by another judicial order of the highest
authority in this world and, therefore, having taken upon himself
the onerous responsibility of doing justice according to the Constitution
and the laws, the Judge must become independent of his conviction
and ideology to maintain the balance of scales of justice.
In the case of Suresh v. State of U.P., AIR 1981 SC 1122 : (AIR
1981 SC 746) the Supreme Court had altered the death sentence
to life imprisonment in the case of a boy of 21 years of age when
the conviction was based on the testimony of a sole eye witness
of 5 years old child and observed as under :-
"Extreme sentence cannot seek its main support from evidence
of this kind which, even if true, is not safe enough to act upon
for putting out a life."
31. In the case at hand, as recorded above, we have upheld conviction
of the present appellant solely on the basis of the circumstantial
evidence with corroboration of button and saliva on bidi bud etc.
coupled with his own say before P.W. 2 Dr. Khadayate and we do
not find it safe in the facts and circumstances of this case to
confirm the extreme penalty of death sentence. It cannot be said
in the facts of this case that there is some such thing which
can be said to be so uncommon about the crime so as to render
the sentence of imprisonment for life to be indequate and that
it is a case which calls for death sentence. Similarly giving
maximum weightage to the mitigating circumstances also, it cannot
be said in the facts of the present case that circumstances of
the crime in this case leave no alternative but to impose the
death sentence. Therefore, we do not find this case to be that
rarest of rare case in which the alternative of the punishment
of life imprisonment is unquestionably foreclosed. Appellant,
who is a young boy of 20 years, has a long way to go and since
he is not a hardened criminal and has not precipitated any crime
in past and has not exhibited any criminality in his behaviour
prior to the commission of this offence, the probability that
he can be reformed and rehabilitated cannot be ruled out. On consideration
of the circumstances of this case in totality, the evidence on
which we have upheld the conviction and the consideration of the
aggravating circumstances and the mitigating circumstances, the
balance certainly tilts in favour of opting for the penalty of
32. The upshot of the aforesaid ajudication is that the death
sentence, as has been awarded to the present appellant, is not
confirmed and the penalty of death sentence awarded to the appellant
is altered and commuted to that of life imprisonment. The reference
with regard to confirmation of death sentence is answered accordingly
and the Appeal against the conviction fails. Whereas the appellant
is sentenced to life imprisonment, the sentence of death, as ordered
by the trial Court, is set aside and to that limited extent the
Appeal is allowed and the slight modification is also made in
the order of the trial Court with regard to the set off given
by the trial Court under section 428, Cr.P.C. for the period for
which the accused-appellant remained in Jail during trial and
it is ordered that the appellant shall not be entitled to such
set off for the period during which he remained in jail during
the course of trial under S. 428 of the Cr.P.C. because it is
a case of sentence of life imprisonment to the appellant and in
case of life imprisonment such set off is not to be given.