How to appreciate CCTV camera evidence in Rape Case under POCSO Act?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.

CRIMINAL CONFIRMATION CASE NO. 01 OF 2020
APPELLANT : State of Maharashtra,
through the Police Station Officer,
Police Station, Chikhli, Tq. Chikhli,
District Buldhana

VERSUS

RESPONDENTS : 1] Sagar Vishwanath Borkar,
R/o Gorakshanwadi, Chikhli,
Tq. Chikhli, District Buldhana

2] Nikhil Shivaji Golait,
R/o Pundlik Nagar, Chikhli,
Tq. Chikhli, District Buldhana,

WITH
CRIMINAL APPEAL NO. 370 OF 2020
APPELLANT : Nikhil Shivaji Golait,
Aged about 28 years, Occu. Labour,
R/o Pundlik Nagar, Chikhli,
Tq. Chikhli, District Buldhana,
(Presently in Central Jail, Nagpur.

VERSUS

RESPONDENT : State of Maharashtra,
through the Police Station Officer,
Police Station, Chikhli, Tq. Chikhli,
District Buldhana

WITH
CRIMINAL APPEAL NO. 423 OF 2020
APPELLANT : Sagar Vishwanath Borkar,
Aged about 23 years, Occu. Labour,
R/o Gorakshanwadi, Chikhli,
Tq. Chikhli, District Buldhana (IN JAIL)

VERSUS

RESPONDENTS : 1] State of Maharashtra,
through the Police Station Officer,
Police Station, Chikhli, Tq. Chikhli,
District Buldhana

2] (…..name…..)(complainant/first informant)
Aged about 43 years, Occu. Coolie,
R/o Gorakshanwadi, Chikhli,
Tq. Chikhli, Dist. Buldhana.

Shri S. S. Doifode, Addl.Public Prosecutor for State in all appeals
Shri R. M. Daga, Advocate for accused – Nikhil Shivaji Golait
Shri A. A. Dhawas, Advocate for accused – Sagar Vishwanath Borkar

CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.

Judgment reserved on : AUGUST 05, 2021.

Judgment pronounced on : SEPTMEBER 07, 2021 JUDGMENT [Per V. M. Deshpande, J.]

1. A trial was conducted in the Court of learned Special Judge, Buldhana as Special (POCSO) Case No. 27 of 2019 against two accused persons namely- (1) Sagar Vishwanath Borkar ; and (2) Nikhil Shivaji Golait. They were charged for the offence punishable under Sections 363, 366-A, 376(2)(j), 376(2)(m), 376(DB), 506 read with Section 34 of the Indian Penal Code (IPC). They were also charged for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to 3 as “the POCSO Act” for the sake of brevity) and under Sections 3(1)(w)(i), 3(1)(w)(ii) and 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocities Act” for the sake of brevity.

After a full fledged trial, the learned Special Judge, Buldhana delivered the judgment on 13.08.2020 holding that the prosecution has proved the Charge and convicted both the accused persons for the offence punishable under Sections 363, 376(2)(m), 506 read with Section 34 of the Indian Penal Code (IPC).

The learned Special Judge also convicted both the accused for the offence punishable under Section 376(DB) read with Section 34 of the IPC and under Section 6 of the POCSO Act.

Only accused no.2 – Nikhil Shivaji Golait was convicted for the offence punishable under Section 3(1)(w)(i), 3(1)(w)(ii) and 3(2)(v) of the Atrocities Act.

Both the accused persons were acquitted for the offence punishable under Section 366-A read with Section 34 of the IPC.

2. For their conviction under Section 363 read with Section 34 of IPC, both the accused persons were directed to suffer rigorous 4 imprisonment for a period of seven years and to pay a fine of Rs.10,000/- by each of them with default clause of sufferance of simple imprisonment for four months.

For their conviction under Section 376(2)(m) read with Section 34 of IPC, they were directed to suffer rigorous imprisonment for life, with a direction that it shall mean, imprisonment for the remainder of their natural life and to pay a fine of Rs.25,000/- by each of them with default clause of sufferance of simple imprisonment for ten months.

For their conviction under Section 376(DB) read with Section 34 of the IPC and under Section 6 of the POCSO Act, sentence was ordered only for the offence under Section 376(DB) read with Section 34 of IPC and the sentence given to them was death sentence and they were ordered to be hanged by neck till they are dead and also to pay a fine of Rs.50,000/- by each of them.

Both the accused persons were sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- by each of them, they having committed an offence punishable under Section 506 read with Section 34 of the IPC.

Accused no.2 Nikhil Golait was directed to suffer rigorous imprisonment for a period of one year and to pay a fine of 5 Rs. 2,000/- and in default to suffer simple imprisonment for one month for the offence punishable under section 3(1)(w)(i) of the Atrocities Act.

Similarly, he was sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/- and in default to suffer simple imprisonment for one month for the offence punishable under section 3(1)(w)(ii) of the Atrocities Act.

Accused No.2 Nikhil Golait was also sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/- and in default to suffer simple imprisonment for four month for the offence punishable under section 3(2)(v) of the Atrocities Act.

3. Since, both the accused persons, who were tried by the learned Special Judge, Buldhana, were sentenced to death, the learned Special Judge made a reference to this Court for confirmation of death sentence and the entire record and proceedings were sent to this Court. The reference made by the learned Special Judge is registered as Criminal Confirmation Case No. 01 of 2020.

4. In the meanwhile, both the accused persons also preferred two separate criminal appeals challenging their conviction and punishment. The appeal filed by accused no.1 Sagar Vishwanath Borkar is registered as Criminal Appeal No. 423 of 2020, whereas the appeal preferred by accused no.2 – Nikhil Shivaji Golait is registered as Criminal Appeal No. 370 of 2020.

5. On 01.10.2020, the appeal filed by accused no.1 Nikhil was admitted. On the same day, notices were issued in Criminal Confirmation Case to the respondents/accused and Shri R.M. Daga, learned counsel who was present in the Court on the said day, for arguing the appeal filed on behalf of accused no.2 Nikhil, waived service in the Confirmation Case.

On 28.10.2020, Shri A.A. Dhawas, learned counsel appeared in the Confirmation Case for and on behalf of respondent/ accused no.1 Sagar Vishwanath Borkar, who filed Criminal Appeal No. 370/2020 and which was admitted on 28.10.2020.

6. Since, these proceedings arise out of the judgment and order of conviction and sentence passed by the learned Special 7 Judge, Buldhana in Special (POCSO) Case No. 27 of 2019, these three proceedings were heard simultaneously and they are being decided by this common judgment.

7. In this judgment, the appellants in Criminal Appeal No. 370/2020 and Criminal Appeal No. 423/2020 are referred by their original position in the trial Court i.e. appellant Sagar Borkar is referred to as “accused no.1” ; and appellant Nikhil Golait is referred to as “accused no.2”.

8. In order to screen the identity of the minor girl, on whom rape was committed and her father, the first informant,they will be referred to in this judgment as the “victim” and the “father”. PROSECUTION CASE

9. The prosecution case, as it is unfurled during the course of the trial, is as under :

A] “Father” (PW1) is the first informant. He lodged oral report on 27.04.2019 at Police Station, Chikhali, Dist. Buldhana. His oral report is at Exh.19, which culminated into registration of the 8 crime vide Crime No. 245/2019 for the offence punishable under Sections 366-A, 376DB, 506 of the IPC and under Section 6 of the POCSO Act against accused no.1 and one unknown person. The printed first information report is at Exh.19A. As per the report, the “father”, who was examined as PW1 in this prosecution case, used to reside at Agriculture Produce Market Committee (APMC), Chikhli along with his wife and three daughters, including “victim” (PW4), aged about 9 years, the eldest daughter and two other daughters aged about 5 years and 3 years. He is a Coolie and used to work as such at APMC, Chikhli and at night he used to work as a Guard, guarding the shop known as “Mahesh Traders” and used to stay with his family in a tin shed there during night hours.

B] The first information report further states that on 26.04.2019 at about 10.00 O’clock in the night, the first informant along with his wife and three daughters were sleeping after having dinner. At about 11.00 O’clock in the night, accused no.1 along with one boy, though he was knowing the said boy but was not knowing his name, came in front of the tin-shed where they were sleeping, on a Scooty. Report further narrates that at that time, the first informant woke up due to noise of these persons and he noticed that 9 both were consuming liquor. The report discloses that accused no.1 used to come intermittently inside the tin-shed for consumption of liquor. After consumption of liquor both left the place and the first informant again slept.

C] The report further narrates that at about 1.00 O’clock in the night, the first informant felt thirsty and therefore, he woke up for drinking water. That time, he could not notice the presence of his eldest daughter, the “victim”. Therefore, he woke up his wife and started searching for their daughter. As per the report, they made inquiry with Shivaji Onkar Salve (PW3), Watchman of APMC and Prakash Sandu Sasane, a labourer in Commission Agent shop of Shirale, as to whether they have seen their daughter. Upon that they disclosed that they had seen accused no.1 with one unknown boy with him taking a girl by making her to sit in between them on a Scooty. Therefore, at about 2.00 O’clock in the night, the first informant and his wife came on road in front of Mounibaba Sansthan and when they were searching for their daughter, they noticed their daughter, the “victim”, coming alone on foot from Siddharth Nagar side in front of Mounibaba Sansthan.

D] The first information report further states that at that 10 time, the “victim” was frightened and her clothes (salwar pant) were smeared with blood. The report further states that they made inquiry with their daughter (victim) as to what happened ? and where had been she ? Upon that, the victim disclosed to the first informant that accused no.1 and one boy with him, whose name she was not knowing, pressed her mouth while she was asleep, made her to sit on their Scooty and took her to a dark spot in an open area where Cricket is played, in front of burial ground, they removed their nickers and also her nicker and they inserted their urinary organs into her urinary place turn by turn, which resulted into oozing of blood from her urinary place. Thereafter they threatened her not to say anything to anyone and if she discloses anything, they will come there and will kill her and her family members and then they made her to sit on Scooty and left her at the corner of Mounibaba temple and both of them went away by Scooty. After narrating this to the first informant, as per the report, the victim was crying by saying “my urinary place and abdomen is paining a lot”. The report further states that the first informant and his wife realized what must have happened to their daughter and therefore, they came to Police Station along with their daughter.

E] PW14 Gulabrao Parashram Wagh, was discharging his duty as Police Inspector at Police Station, Chikhali on 27.04.2019. On that day at about 4.00 a.m., he received information from PSI Kiran Khade that two persons have committed sexual assault on a 9 year old girl. On getting this information, he immediately rushed to the Police Station. There he came to know that the victim and her parents were taken by police to the Rural Hospital, Chikhali. PW14 Gulabrao Wagh informed about the said offence to his senior officer on cell phone. The Deputy Superintendent of Police Shri Mahamuni (PW15) directed PI Gulabrao Wagh (PW14) to conduct the investigation.

F] After being entrusted with the investigation, PW14 PI Wagh issued a letter (Exh.77) to the Medical Officer, Chikhali and sought opinion of the Doctor whether the “victim” was in a position to give her statement. On obtaining positive response from the Medical Officer, statement of the “victim” was recorded as per the questions put to the “victim” by lady Naik Police Constable Jyoti Muley and lady Doctor Vijaya Kharpas (PW6).

G] The Investigating Officer PI Wagh also issued a letter (Exh. 78) to the Chief Officer, Municipal Council, Chikhli for 12 arranging two panch witnesses for recording spot panchanama. The Chief Officer provided two panch witnesses. They accompanied the Investigating Officer to the spot of incident, which was narrated by the “victim” and the “father”. The “victim” shown the place near Mahesh Traders where they were residing. Accordingly, panchanama was prepared. Thereafter, the “victim” took them to a place where sexual assault was committed on her. Accordingly, panchanama was prepared in presence of panchas. The spot panchanama is at Exh.24. This spot panchanama is a common panchanama about both the places. Thereafter, LPC Jyoti Muley brought samples of the “victim” such as, blood sample, nail sample, Urethral swab and vaginal swab in a sealed condition. Those were seized under the seizure panchanama (Exh.26).

The “victim” was referred to Civil Hospital, Buldhana by Dr. Vijaya for gynec opinion. At Buldhana, she was examined at Civil Hospital by Dr. Manisha (PW11) and after giving treatment, she referred the “victim” to Government Medical College at Aurangabad.

H] The Investigating Officer thereafter arrested accused no.1 Sagar vide arrest panchanama (Exh.79).

I] LPC Jyoti Muley also brought clothes of the “victim” at Police Station, which were seized under seizure panchanama (Exh.25). The clothes were – (i) black and white top having blood stains ; and (ii) purple colour with black dots salwar having blood stains. These two clothes are at Articles A and B.

J] The Investigating Officer also seized the clothes of accused no.1 Sagar i.e. (i) full sleeve white shirt with black design,

(ii) light blue colour jeans ; and (iii) one light blue colour underwear having blood stains, under seizure panchanama (Exh.27). These clothes are at Articles C, D and E.

K] The Investigating Officer thereafter seized a red colour two wheeler Scooty bearing registration No. MH-28/AM-1298, which was used in commission of the offence. It was seized from in front of house of Vijay Gadekar at Pundlik Nagar, Chikhli under seizure panchanama (Exh.29).

L] The Investigating Officer then issued a letter (Exh.51) to the Medical Officer, Rural Hospital, Chikhli for examining and obtaining samples of accused No.1. In pursuance to the same, the Investigating Officer received blood sample, nail sample, pubic hair and semen sample of accused no.1. Those were seized under seizure 14 panchanama (Exh.28). The Investigating Officer deposited these muddemal articles with Head Moharir and obtained receipts. Those are at Exhs.80, 81 and 82.

M] At this stage, Investigating Officer PI Wagh (PW14) received an information that the “victim” became serious and so she was shifted to Aurangabad.

N] On 28.04.2019, the Investigating Officer issued a letter (Exh.83) to the Sub Divisional Police Officer (SDPO), Buldhana for recording statement of the victim, who was taking treatment at Aurangabad, by a lady officer. On the said letter itself, SDPO, Buldhana directed PSI Manisha Hiwrale to record the statement of the “victim” and for that she was sent to Aurangabad. For sending PSI Manisha Hiwrale to Aurangabad, the Investigating Officer issued direction by order dated 28.04.2019. The said is at Exh.84. Accordingly, PSI Manisha Hiwarale went to Aurangabad and recorded the statement of the “victim”. In the meanwhile, the Investigating Officer PI Gulabrao Wagh also recorded the statements of four witnesses.

O] During investigation, complicity of accused no.2 was surfaced and therefore, the Investigating Officer arrested accused 15 no.2 Nikhil under arrest panchanama (Exh.85) on 28.4.2019. The Investigating Officer seized the clothes of accused no.2 which were on his person at the time of commission of the offence, under seizure panchanama (Exh.30). The clothes were consisting (i) fade colour full sleeves T-shirt, (ii) light blue colour jeans ; and (iii) light blue colour underwear having blood stains. These clothes are at Articles F, G and H. The Investigating Officer thereafter deposited those muddemal articles with Head Moharir and obtained receipt (Exh.86).

P] On 29.04.2019, the Investigating Officer along with panch witnesses went to the office of APMC, Chikhli to see CCTV footage. That time, an expert person in computer by name Akash Lambe was also present. Seven cameras were found to be fixed in APMC market. Camera at Sr. No.2 was covering the area near Mahesh Traders, whereas Camera No.10 was covering the area near main gate. The Investigating Officer seized DVR (Digital Video Recorder) and Adopter under panchanama (Exh.32). The DVR and Adopter are at Articles K & L.

Q] By issuing letter (Exh.38) to the Medical Officer, Government Hospital, Buldhana, the Investigating Officer asked for conducting medical examination of accused no.2 Nikhil and to 16 forward his samples. Accordingly, accused no.2 was medically examined. Blood sample, nail sample, pubic hair and semen sample of accused no.2 were seized by him under seizure panchanama (Exh.31). These muddemal articles were deposited with Head Moharir, for which receipt (Exh.90) was issued. Similarly, DVR and Adopter were also deposited with Head Moharir and for these two articles, two receipts (Exhs.91 and 92) were issued.

R] Aadhar Card and Caste Certificate of accused no.2 were also seized. The Caste Certificate of accused no.2 Nikhil is at Exh.87 and it shows that he belongs to caste ‘Kunbi Maratha’. According to the Investigating Officer, it was found that the accused were knowing that the victim belong to Scheduled Caste community. Therefore, the Investigating Officer issued a letter (Exh.88) to the Court of learned Special Judge for adding the offences under the Atrocities Act.

S] Having done to this extent, PW14 PI Gulabrao Wagh handed over further investigation to SDPO Baburao Bhauso Mahamuni (PW15). SDPO Mahamuni, who was posted as Dy.S.P. in April-2019, was entrusted with the investigation of Crime No. 245/2019 as the offence was also for the offences punishable under the Atrocities Act, in view of the letter (Exh.95) issued by the 17 Superintendent of Police, Buldhana directing him to conduct the further investigation. Dy.S.P. Mahamuni (PW15) thereafter, on 01.05.2019, sent a letter (Exh.96) to the Social Welfare Officer. On 30.04.2019, PSI Manisha Hiwrale informed Dy.S.P. Mahamuni about recording of the statement of the victim at Aurangabad.

T] On 02.05.2019, PW15 Dy.S.P. Mahamuni sent muddemal to Chemical Analyser through Police Constable Suraj Rajput by issuing Duty Pass (Exh.98) to him. Exh.99 is the requisition given to the Chemical Analyser along with the muddemal articles.

U] On 03.05.2019, PW15 Dy.S.P. Mahamuni issued a letter (Exh.54) to the Chief Officer, Municipal Council, Chikhli requesting him to provide Birth Certificate of the victim. Similarly, he issued a letter to the “father”, the first informant, for producing the Caste Certificate. The said intimation cum request letter is at Exh.101. The caste certificate of the “victim” was also obtained and her Caste Certificate is at Exh.21. The said was seized by preparing panchanama (Exh.20). As per the Caste Certificate (Exh.21), the caste of the victim is Scheduled Caste. On 04.05.2019, PW15 Dy.S.P. Mahamuni requested the Judicial Magistrate, First Class, Chikhli for recording statement of the “victim” under Section 164 of the Code of 18 Criminal Procedure. The letter given to the learned Magistrate is at Exh.102.

On 14.05.2019, he gave a letter (Exh.103) to the “victim” for remaining present before the learned Magistrate for recording of her statement.

V] On 04.05.2019, Dy.S.P. Mahamuni gave a letter to Ghati Hospital, Aurangabad for providing all medical papers and treatment of the victim at Aurangabad, which he received. He also gave letters to the schools of both the accused for obtaining their School Leaving Certificates. Exh.105 is the letter cum notice under Section 91 of the Code of Criminal Procedure to the Headmaster of Municipal Council Secondary School, Chikhli for providing School Leaving Certificate of accused no.1 showing his caste and date of birth. Similarly, letter cum notice Exh.106 was addressed to the Headmaster of Shivaji Vidyalaya, Chikhli for providing School Leaving Certificate of accused no.2 showing his caste and date of birth. Accordingly, he received the School Leaving Certificates of accused no.1 and accused no.2, which are at Exhs.107 and 108, respectively.

W] On 09.05.2019, the Investigating Officer gave a letter (Exh.109) to the Court of learned Special Judge seeking permission 19 to conduct Test Identification Parade of accused no.2 through the victim. After receipt of permission, the Investigating Officer requested the Tahsildar, Chikhli by issuing letter (Exh.66) for conducting Test Identification Parade. Accordingly, Test Identification Parade was held and he received its report (Exh.68). The memorandum of the Test Identification Parade is at Exh.69 and the panchanama of said parade is at Exh.70.

X] On 18.05.2019, DyS.P. Mahamuni gave a letter (Exh.110) to the Chief Officer, Chikhli requesting him to depute two employees as panchas for obtaining hash value of CCTV cameras. Accordingly, on 22.5.2019, hash value was calculated by Sharad Giri, Naik Police Constable on the laptop in “X-Way Winhex 18.5 software”. With its hash value, it was seized as per seizure panchanama (Exh.111).

Exh.112 is the Certificate under Section 65-B of the Indian Evidence Act. It was prepared in presence of the Investigating Officer by NPC Sharad Giri. A pen drive was purchased from Rudra Computers under receipt (Exh.113). The DVR, adopter and pen drive were seized by preparing panchanama (Exh.32). Those were deposited with the Head Moharir under muddemal receipts (Exhs.91 20 and 92). The Pen Drive is at Article M.

Y] On 24.05.2019, a letter (Exh.44) was given to the Medical Officer, Chikhli for obtaining medical papers of the victim. Accordingly, all medical papers of the victim were received.

Z] On 08.06.2021, the Investigating Officer gave a letter (Exh.114) to the Regional Transport Office, Buldhana for obtaining documents of Scooty vehicle used for commission of the offence. On 10.06.2019, the Investigating Officer received the documents along with letter (Exh.115) of the Regional Transport Office. The vehicle particulars issued by Regional Transport Office, Buldhana shows that the vehicle is in the name of accused no.2 Nikhil Golait. The said vehicle particulars are at Exh.116.

ZA] The Investigating Officer also requested Tahsildar, Chikhli for drawing map of the spot under request letter Exh.117. Accordingly, he received the map from Tahsildar office, Chikhli, which is at Exh.118.

ZB] On 14.5.2019, the Investigating Officer gave a letter (Exh.119) to Police Station, Chikhli for enquiry as to whether any other offences are pending against the accused persons. He received the details of the offences pending against the accused persons along 21 with the copies of the first information reports from Police Station, Chikhli under covering letter (Exh.120). Register Entry extract is at Exh.121 and the copies of the first information reports are at Exh.122 and 123. The Investigating Officer also issued a letter (Exh.124) to the Superintendent of Police, Buldhana for obtaining Subscriber Details Record (SDR) and Call Details Record (CDR) and tower location of the accused. Accordingly, he received the same. Those are collectively at Exh.125 on the record. As per the Investigating Officer, from CDR and SDR, it was revealed that location of the accused at the time of the incident was the spot of the incident.

ZC] After completion of the investigation, Dy.S.P. Mahamuni filed the charge-sheet before the Court and after receipt of the Chemical Analyser’s reports, the same were produced in the Court.

ZD] The learned Special Judge thereafter framed the Charge against both the accused persons for the offences which are stated in the opening paragraph of this judgment under Charge (Exh.3). Both the accused abjured the guilt and claimed for trial.

ZE] In order to bring home the guilt of the accused, the prosecution has examined in all 15 witnesses and also relied upon 22 various documents which were duly proved during the course of trial.

ZF] The learned Special Judge before whom the trial was conducted, also recorded the statements of both the accused under Section 313 of the Code of Criminal Procedure. They did not examine any defence witness. From their statements under Section 313 of the Code of Criminal Procedure and from the line of cross- examination, their defence is that they are falsely implicated in the crime.

ZG] After hearing the learned Public Prosecutor, the learned defence counsels and after appreciating the entire evidence, the learned Judge found that the prosecution was successful in proving its case against the accused persons as narrated in the opening paragraphs of this judgment and awarded sentence. Hence, these proceedings.

10. We have heard learned counsel for accused no.2 Shri R.M. Daga extensively. Learned counsel for accused no.1 Shri A.A. Dhawas adopted the arguments of Shri Daga, Advocate. We have also heard in extenso learned Additional Public Prosecutor for the 23 State Shri S.S. Doifode.

With the able assistance of the respective counsel, we have gone through, in detail, the notes of evidence and the record and proceedings.

SUBMISSIONS –

11. According to the learned counsel for the accused, they are falsely implicated in the crime in question. Learned counsel Shri Daga’s submissions can be cataloged as under :-

a] There is a delay of three hours in lodging the first information report and that is not explained at all.

b] Name of accused no.2 was not figuring in the first information report still subsequently he was arrayed as accused in the crime.

c] Though, from the evidence and the report, the “father” was knowing accused no.2, may be by face, for the reasons best known to the “father”, he did not implicate him in the first information report.

d] The identification of accused no.2 in evidence by PW3 Shivaji is unsafe to accept inasmuch as in his evidence he did state that his name was disclosed to him by other Security Guard Shri 24 Sasane. Thus, PW3 Shivaji was not knowing accused no.2. In this context, non-examination of Shri Sasane assumes importance.

e] Though, test identification parade of accused no.2 was made through “victim” (PW4), for the reasons best known to the Investigating Officer, the test identification parade was not conducted in respect of accused no.2 through PW3 Shivaji.

f] Even test identification parade of accused no.2 was also not done at investigation stage by the Investigating Officer through father.

g] The panchas regarding the identification parade were not examined and the identification parade was conducted after a period of 50 days.

h] The Court should not accept identification of accused no.2 even by the “victim” inasmuch as there is nothing in the spot panchanama (Exh.24) that there was source of light.

i] There is omission in respect of fat person in the statement of the victim recorded under Section 164 of the Code of Criminal Procedure and the learned Magistrate, who recorded her statement was also not examined.

j] Vijay Gadekar is not examined, which materially affects the prosecution case since Scooty used in commission of the offence was seized from in front of his house.

k] The injuries caused to the private part of the victim were possible due to fall on a pointed thing, as at least one of the Doctors does not rule out that possibility.

l] No injury on the genitals of any of the accused, shows their innocence.

m] As per the prosecution case, at once only there was sexual intercourse and as per the medical evidence, the injuries noticed on the genitals of the victim occurred due to sexual intercourse multiple times.

n] Seized muddemal was received at Chemical Analyser’s office on 03.05.2019 and there is no evidence that the muddemal was in proper condition from 29.04.2019 i.e. last date of the seizure.

o] Non-examination of Head Moharir to point out that the muddemal was in proper condition, is fatal to the prosecution.

p] It would be unsafe to accept DNA report because there is no evidence about safe custody.

q] In any case, there is a serious doubt about the truthfulness of the entire prosecution case.

r] In any case, the punishment imposed that the accused

should be hanged by neck till death is harsh inasmuch as this is not the case which could be placed in the category of rarest of rare.

s] No opportunity was given to any of the accused to adduce evidence to explain as to why death sentence should not be imposed upon them.

12. Per contra, learned Additional Public Prosecutor Shri S.S. Doifode vehemently supported the reasoning given by the learned Special Judge. He painstakingly pointed out as to how evidence of the “victim” is reliable and trustworthy. He pointed out the material from record as to how the “victim” could know accused no.1. He pointed out that evidence of the “victim” and “father” are free from any omission and contradiction and their evidence inspires confidence.

The learned Additional Public Prosecutor submitted that multiple injuries found on the private part of the victim shows the degree of torture on a minor girl, aged about 9 years, by committing rape. He submitted that once it is found that evidence of the “victim” is trustworthy and it can be safely accepted, the perpetrators of the crime cannot escape from legal punishment. He also submitted that 27 the learned Special Judge was right in imposing punishment of death since both the accused are beasts, who in order to fulfill their sexual lust have committed sexual atrocities on a minor girl. He, therefore, submitted that the reference be answered in affirmative and the appeals filed by both the accused be dismissed. CRITICAL ANALYSIS OF THE PROSECUTION CASE.

A] First Information Report.

13. It is a trite law that the first information report does not constitute substantive evidence. It can be used as a previous statement for the purpose of corroborating either its maker under Section 157 of the Indian Evidence Act, or for contradicting him under Section 145 of the said Act. The first information report’s importance is that it conveys earliest information regarding the occurrence so that it cannot be doubted. These are the principles enunciated by the Hon’ble Apex Court.

14. In the present case, the criminal law was set into motion by “father” (PW1). He lodged his oral report dated 27.04.2019 with Police Station, Chikhali, which is at Exh.19. The printed first 28 information report is at Exh.19-A.

In paragraph 9 of this judgment, the contents of the first information report are elaborately discussed. Therefore, in order to avoid repetition and to avoid bulkiness, we are not again discussing the factual matrix as stated in the first information report at this stage.

15. The first submission of the learned counsel for the accused persons, as cataloged above, is that there is a delay of three hours in registration of the crime, which is not explained and according to the learned counsel, it is fatal to the prosecution.

16. Let us examine this submission.

Sub clause (b) of Column 3 of the printed first information report (Exh.19A) shows that the information of the occurrence was received at Police Station early in the morning at 4.00 O’clock on 27.04.2019, whereas the date and time of the first information report in the said printed first information report shows as 27.04.2019 at 8.37 a.m. The unchallenged version of “father” (PW1) shows that 29 he and his wife were searching for their daughter, the “victim”, since 2.00 a.m. on 27.01.2019 when they noticed her absence on the bed and during search they noticed their daughter coming in frightened condition having blood on her clothes in front of Mounibaba Sansthan. As per the printed first information report (Exh.19A), the distance between police station and the place of occurrence is 2 kilometers. The learned counsel for the accused pointed out from evidence of PW14 PI Gulabrao Wagh that the distance between police station and the graveyard is about one kilometer and the distance between police station and APMC market is also about one kilometer. He, therefore, submitted that though the printed first information report shows that the information was received at the police station at 4.00 O’clock in the morning, for the reasons best known to the prosecution, the crime was registered at 8.37 a.m.

17. The printed first information report shows that the oral report lodged by “father” (PW1) was reduced into writing by PSI K.K. Khade. Though, PSI Khade was not examined by the prosecution, the contents of the first information report were duly proved by the maker i.e. “father” (PW1).

30 PW14 PI Gulabrao Wagh would state in his evidence that on 27.04.2019 at 4.00 a.m. he received information from PSI Khade that two persons have committed sexual assault on a 9 year old girl. Therefore, he immediately rushed to police station where he came to know that the “victim” and her parents were taken by police to the Rural Hospital, Chikhli. In our view, this postulates that at 4.00 O’clock in the morning when the “victim” along with her parents had been to the police station, looking to the physical appearance of the victim, PSI Khade rightly took them to Rural Hospital, Chikhali and in the meanwhile, he reported the occurrence to his superior PW14 Gulabrao Wagh. Of course, it was well open for PSI Khade to reduce into writing the entire narration of the “father” and register the first information report at 4.00 a.m itself, however, in such cases it was a natural reaction of a sensitive person, first to take immediate step to provide medical help to the victim, aged about 9 years by taking her along with her parents to the hospital. Even the evidence of PW6 Dr. Vijaya Kharpas, Medical Officer of Rural Hospital, Chikhli would show that the “victim” was brought to her at 4.00 O’clock in the morning on 27.04.2019 and she was accompanied by her parents. In her cross-examination, it was brought on record that she started 31 examining the victim at 4.15 a.m. The contemporaneous document, the forensic medical examination report (Exh.43A) of the victim also shows that Dr. Kharpas examined the “victim” at 4.15 a.m. From this, it is very clear that PSI Khade had shown sense of urgency and first took the girl to the hospital so that she can get the required medical assistance. It must be his thought process that the formality of registration of the crime can be deferred for a little while, but the first step is to provide immediate medical help. We approve this particular approach on the part of PSI Khade. Some time must have consumed by Dr. Kharpas after she started medical examination of the “victim”. Exh.42 is the history given by “father” to Dr. Kharpas. It shows that the writing was started at 4.30 a.m. It appears that after medical examination of the victim, she and her parents came to police station and that time detail statement of “father” was reduced into writing by PSI Khade at 8.37 a.m. and Crime No. 245/2019 came to be registered against accused no.1 and one unknown person for the offence punishable under Sections 366-A, 376(DB), 506 of the IPC and under Section 6 of the POCSO Act.

18. One limb of the submissions of learned counsel Shri Daga on this aspect is that the parents found the “victim” at 2.00 a.m. The distance, even as per Exh.19A, between the police station and the spot of occurrence, is two kilometers and still they reached to police station at 4.00 a.m. for which there is no explanation and therefore, the possibility of false implication of the accused in the crime, is not completely ruled out.

19. We are afraid that this submission has any merit. When the parents found the “victim” coming from Mounibaba sansthan on her foot, she was alone. Not only that, they found their daughter not only in a frightened condition, but the clothes on her person were smeared with blood. Visualizing the state of mind of the parents at that time, we are sure that they must have completely shattered in their mind and were absolutely dumbstruck and their thought process must have completely stopped and the only thought that must be creeping in their mind was to provide immediate help to their unfortunate daughter. From the first information report, it appears that “father” made an enquiry with the “victim” that time and she disclosed the horrifying act committed on her by the accused 33 persons. Undisputedly, “father” hails from lower strata of the society. His unchallenged version shows that he used to do labour work at APMC and in order to supplement his earning, he used to do work of watchman in the night at Mahesh Traders and also used to sleep along with his family members including the victim in a tin-shed in front of Mahesh Traders. It clearly shows that he was not having any vehicle with him. Some time must have consumed to cover the distance of two kilometers. Therefore, the evidence of unfortunate father that he reached to police station at 4.00 O’clock cannot be doubted. In our view, the aforesaid circumstances themselves have explained the fact that though the parents found the victim at about 2.00 am, why they reached to the Police Station at 4.00 a.m. and the crime was registered at 8.37 a.m. In our view the justice will be the victim if the prosecution case is thrown merely because the crime was registered at 8.37 a.m. though the information was received at 4.00 O’clock in the morning. In view of above discussion, we have no hesitation in our mind to reject the submission made by the learned counsel for the accused that the prosecution case must fall because of unexplained delay of three hours in registration of crime.

B] AGE AND CASTE OF THE VICTIM :-

20. AGE :- As per the oral report (Exh.19), “father” is having three daughters. The eldest is the victim, whose age is shown as 9 years and his other daughters at the relevant time were aged about 6 years and 5 years. The date of birth of the “victim” is not disclosed in the first information report.

21. During examination-in-chief of the “victim”, she has specifically stated her date of birth as 27.01.2009 and in her cross- examination it was brought on record that at the relevant time she was studying in 5th standard. The “father” also gave date of birth of the victim as 27.01.2009 and stated that her birth took place in a Government Hospital. This particular evidence was not challenged by any of the accused when “father” was cross-examined by two different learned counsel.

The date of birth is duly proved by the prosecution during the course of trial by examining Raju Wamanrao Deshmukh (PW9). This prosecution witness was discharging his duties as Senior Clerk at Nagar Parishad, Chikhli and he was in-charge of maintaining the Birth and Death Records. As per the evidence of 35 Dy.S.P. Mahamuni (PW15), when he took investigation to himself, he issued a letter (Exh.54) to Municipal Council, Chikhli for obtaining birth certificate of the “victim”. In pursuance to the said, he received birth certificate from the Municipal Council mentioning the date of birth as 27.01.2009. When PW9 Raju Deshmukh was in the Court, he was having original record with him pertaining to the date of birth of the “victim”. He proved the birth certificate (Exh.55).

22. PW6 Dr. Kharpas, who examined the victim firstly on 27.04.2019 early in the morning at 4.15 am, found that there were no hairs over pubic area of the victim and therefore, she could not obtain the samples. The learned counsel for the accused persons have fairly admitted that the victim was “child” within the meaning of section 2(d) of the POCSO Act and even during trial the claim of the “victim” that she was born on 27.01.2009 was never challenged. The date of the incident is 27.04.2019. Therefore, though in the report the age of the victim was stated as 9 years, she was aged about 10 years and 3 months, but of course, the victim was “child” at the relevant time.

23. CASTE – In the report (Exh.19) itself and also in the evidence, “father” (PW1) gave name of the caste to which he belongs and the said is ‘Scheduled Caste”.

PW15 Dy.S.P. Mahamuni gave a letter to “father” for producing his caste certificate. He received the same from “father”, which was produced on record. The caste certificate which was produced on record along with the charge-sheet is duly proved by the prosecution by examining Ravi Dinkar Tale (PW7). As per the evidence of PW7 Ravi Tale, S.D.O., by issuing order to him, had authorized him to adduce evidence in the trial. The said order is at Exh.49. It is clear from the evidence of this witness that at the time of adducing his evidence, he had brought original records with him. He had also brought certified copy of the caste certificate (Exh.21), which was produced on record by “father”. The certified copy of the caste certificate brought in the Court by PW7 Ravi Tale is at Exh.21A. His evidence shows that the contents of Exh.21 were as per the record. Though, in his cross-examination, the defence tried to challenge his evidence by giving him suggestion that he has not personally verified whether the victim belong to a particular caste or not, he denied the same.

37 Once it was found that the contents of Exh.21, the caste certificate, produced on record by “father” were in consonance with the original record and when this official (PW7) produced certified copy of Exh.21 and which was taken on record by the learned Judge as Exh.21A, we have no doubt in our mind to record a finding that the family of the victim and the “victim” belong to a caste, which is a ‘Scheduled Caste’.

C] MEDICAL EVIDENCE

24. From the first information report, it is clear that during search of the victim by her parents, they noticed the “victim” was coming towards her house on foot. When they noticed her, they found that she was in frightened condition and her clothes were smeared with blood. From the first information report, it is clear that at 4.00 O’clock in the morning, “father” along with the “victim” reached to police station.

25. From the evidence of PW14 PI Gulabrao Wagh, it is clear that at 4.00 O’clock in the morning, he received information from PSI Khade about commission of sexual assault on a minor girl. He, 38 therefore, immediately rushed to the police station where he was informed that the “victim” is already taken to the hospital.

26. Dr. Vijaya Kharpas (PW6) was posted at Rural Hospital, Chikhli on 27.4.2019. At 4.00 O’clock in the morning Lady Police Constable brought the “victim” to her for examination in relation to sexual assault. Exh.41 is the communication given to the Medical Officer, Rural Hospital, Chikhli by PSI Khade requesting the Medical Officer to conduct medical examination of the “victim”. Accordingly, Dr. Kharpas started examination of the “victim”. PW6 Dr. Kharpas also obtained consent from the parents of the “victim” she being minor for her examination. Obviously, the “victim” being minor, she obtained history from the parents about the incident. “Father” narrated the history, which was noted down on paper by Dr. Kharpas and she also obtained signature of the “father”. The said document is at Exh.42.

27. It appears that after doing these preliminary things, Dr. Kharpas started medical examination of the “victim”. Dr. Kharpas, on victim’s genital examination, found following injuries –

39 1] Bleeding was present over inner side of thigh, inner side labia majora, labia minora, bleeding per vagina present.

2] Tear is present over posterior part of vagina extending towards anus just anterior to anus opening involving skin deep.

3] Some secretions thin, whitish in colour mixed with blood is seen just below this tear.

4] Pubic hairs are absent.

5] No other hairs seen over genital parts.

6] On separating labia majora with two finger hymen torn seen.

7] No injury over other body part except some redness over lower back.

28. PW6 Dr. Kharpas also obtained nail sample, blood sample both plain and EDTA of the victim, however since there were no hairs over pubic area, hair sample could not be taken. She also took samples of vaginal swab, urethral swab. She found that the clothes of the victim were stained with blood. Dr. Kharpas thereafter sealed the samples and handed over the same to a Lady Police Constable, who was on duty.

29. Evidence of PW6 Dr. Kharpas would further show that sexual assault was on a minor i.e. ‘child’ and it was a matter under POCSO, she gave certificate in the format (Exh.43A). She also issued certificate after giving treatment to the victim. Certificate (Exh.43A) 40 contains victim’s medical examination, injuries noticed by the Doctor, samples taken by the Doctor and the treatment advise.

30. According to the opinion of Dr. Kharpas (PW6), the injuries found on the person of the “victim” were approximately 4-6 hours old and she examined the victim after 2-3 hours of the incident.

31. The record would show that Dr. Kharpas (PW6) by giving referral card (Exh.46) referred the “victim” to Buldhana Civil Hospital for gynec opinion.

32. The prosecution has examined Dr. Manisha Chavan (PW11), who was posted as Gynecologist at Civil Hospital, Buldhana on 27.04.2019. Her evidence would show that the “victim” was brought to the hospital by a Lady Police Constable. The Casualty Medical Officer recorded history of the patient, which was of sexual assault. Thereafter, Dr. Manisha Chavan was called. She went in casualty and examined the victim. She found that there was active bleeding. Therefore, the victim was taken to Operation Theater (OT) As per the evidence of PW11 Dr. Manisha, she explored the “victim”

41 under spinal anesthesia. She found laceration injury over right and left lateral vaginal wall. On further examination, she found posterior pouch of douglas was open, bowels were also seen from vagina. Evidence of Dr. Manisha would reveal that as condition of the “victim” was very serious and could not alone handle her, she called Dr. Bhusari as well as two Gynecologists. These Doctors were called for proper management of the “victim”.

In order to stop active bleeding, stitches were applied. Dr. Manisha further states from the witness box that she put mop for prevention of infection to the bowel. It would be useful to mention here that before the patient was taken to OT, Dr. Manisha did not forget to obtain consent from the parents, the “victim” being minor. Dr. Manisha proved the medical case papers, which were in her own handwriting and which bear her signature. When she was in witness box, her attention was drawn to the medical papers which were running form page 46 to 57. She proved the same. Those were collectively marked as Exh.59.

33. It was decided by Dr. Manisha to refer the “victim” to the Government Medical Collage and Hospital, Aurangabad and for that 42 she gave referral form under her signature. The said referral form is at Exh.60. Perusal of the said proved document would show that a request was made to the authorities of the Government Medical College, Aurangabad for admission of the victim. The summary of diagnosis as shown in Exh.60 , is as under :

“PV – 30 perennial tear, anal sphincter injury, all vaginal wall laceration, open, pouch of douglas for exploratory laparotomy and further treatment.”

34. After the victim was referred to Aurangabad, she was taken there. Insofar as victim’s examination at Aurangabad is concerned, the victim was examined by two Doctors, they were Dr. Vijay Yashwant Kalyankar (PW10) and Dr. Sanjay Bhaskarrao Pagare (PW12). On oath, PW10 Dr. Kalyankar deposed that on 27.04.2019 he was Associate Professor at Government Medical College, Aurangabad and he was discharging emergency duty of a Unit, which he was leading. At 9.45 p.m., the “victim” was brought to him. She was in emergency. Dr. Kalyankar would state that she was referred from Buldhana Civil Hospital. As per evidence of Dr. Kalyankar. The notes of Buldhana Civil Hospital would show that the “victim” was examined under spinal anesthesia. He found that pouch of douglas torn for 3 to 4 cms and bowel loops could be seen through it.

35. Evidence of PW10 Dr. Kalyankar further shows that the “victim” was examined and thereafter she was taken to Operation Theater for exploration and vaginal tear repair. Under his directions, the “victim” was taken for surgery. Operating surgeons were Dr. Sanjay Pagare (PW12), Dr. Pawan Bendale and Dr. Aulia Nasreen.

Evidence of PW10 Dr. Kalyankar would state that on operation table, the findings were as under :

1] There was III rd degree perennial tear with open pouch of douglas. The pouch of douglas was sutured after taking Surgeon’s opinion. 2] IIIrd degree perennial tear was repaired. There was no bleeding now. Post operatively the patient recovered health. She was observed for five days thereafter in the ward.”

36. Dr. Sanjay Pagare (PW12) had operated the victim. His evidence would show that he found that the victim was having injuries on vaginal part. He noticed that there was third degree perennial tear. Therefore, pouch of douglas was opened. He operated on those injuries and repaired it. According to operating Doctor, PW12 Pagare, these injuries were serious and grievous. According to the Doctor, those injuries were because of forceful sexual intercourse. He found the injuries fresh and made within 24 hours.

37. The victim was admitted at Aurangabad hospital on 27.4.2019 at about 9.30 p.m. and she was discharged from there on 02.05.2019 at 4.30 p.m. The operation notes were signed by Dr. Aulia Nasreen. Her signature was identified by PW10 Dr. Kanyankar, Head of the Department and Associate Professor. So also the discharge card was signed by Dr. Priyanka Kesarwani, whose signature was also identified by PW10 Dr. Kanyankar. Total 15 pages running from page nos.65 to 80 were collectively marked as Exh.57.

38. The noting at Buldhana hospital on 27.04.2019 at 9.30 a.m, which is a part of Exh.59, shows that Dr. Manisha Chavan (PW11) gave an understanding to the “father” that health of the victim was critical. The same was acknowledged by the “father”. Thus, it is clear that the Doctors at Buldhana took right step by referring the victim to Aurangabad Government Medical College for better management of the victim, who was in critical condition. From the evidence of PW10 Dr. Kanyankar and PW12 Dr. Pagare and from contemporaneous document (Exh.57), it is clear that in the wisdom of the team of Doctors, operation was required to be done and therefore, the victim was taken in the Operation Theater and the 45 operation was done from 12.00 to 12.30 am on 28.04.2019, as it could be seen from the noting made under head “Operative Details” of discharge card.

39. During trial, the line of cross-examination of all the Doctors, who examined the “victim” at three different places, was that the injuries received by the “victim” on her vaginal part was due to she falling on a pointed thing.

40. Even before this Court, the learned counsel for the accused tried to make capital out of the statement made by Dr. Kharpas (PW6) in her cross-examination that such type of injury is possible if somebody falls on pointed thing.

Though, same type of suggestion was given to Dr. Manisha (PW11), she stoutly denied the same. Similar suggestions were given to Dr. Pagare (PW12). During cross-examination conducted on behalf of accused no.2 Nikhil, following was brought on record :

“It is not true to say that such type of injuries are not possible due to sexual assault. Witness volunteers that except severe sexual assault, those injuries are not possible.”

46 PW10 Dr. Kalyankar, Associate Professor also denied stoutly the suggestions put to him regarding cause of injuries, which according to the defence was due to falling on hard and blunt object.

Doctors also denied stoutly the suggestion given that the injuries found could be due to repairing pouch of douglas. From the cross- examination of Dr. Kalyankar (PW10), following was brougnt on record :

“It is not true to say that this injury was done while repairing pouch of douglas. Witness volunteers that this type of injury only occurs due to sexual intercourse. It is not true to say that such type of injury is not possible due to sexual intercourse. Injury was so serious that bowel loops could be seen through the vagina and therefore, patient was referred to us.”

41. While appreciating the prosecution case, it is the duty of the Court to appreciate the entire evidence as a whole. It is not expected from the Court to give undue importance to the stray statements found in the testimonies of the prosecution witnesses. Evidence of a particular witness including Doctors cannot be read in bits and pieces. The entire evidence of the witnesses has to be read as whole and much importance cannot be attributed to the stray admission made in such evidence.

42. In this case, the suggestion given to the Doctors by the learned defence counsel that the injuries as noticed on genital part of the victim were caused due to fall on a pointed object, were given by the learned defence counsel out of cough. No scientific data or material in that behalf in the nature of any research paper, books by well known authors were pressed into service at the time of cross- examination of those Doctors. Another reason for discarding the said defence is that the proved events show that the “victim” received injuries on her person in between 1.00 am to 2.00 am at a place which is more than 1 kilometer away from the tin shed where she was sleeping along with her parents. It is impossible even to visualize that the “victim” at such time will go away to that place alone even for answering natures call and will receive injuries. In such a situation, we reject the submission made in that behalf by the learned counsel for the accused and accept the entire medical evidence oral as well as documentory, which were contemporary of each stage when the victim was medically examined.

43. We, therefore, agree that the prosecution case that was proved and disclosed before the Court through the Doctors, who 48 examined the “victim”, that the injuries found on the genital part of the “victim” were caused to her due to forcible sexual intercourse and due to the said, she received bleeding injuries on her private part and the injuries were critical requiring the “victim” to transfer firstly to Buldhana and from there to Aurangabad.

44. Here, we would like to appreciate the Doctors at Chikhli, Buldhana and Aurangabad, who shown sense of urgency to provide immediate medical help. At Buldhana, Doctor sutured to control active bleeding and at Aurangabad, ultimately the “victim” was required to undergo an operation. In our view, due to the timely intervention by the Doctors, precious life of the “victim” was saved.

45. Another submission of the learned counsel for the accused persons was that except injuries on genital part, there were no injuries on other part of the body of the “victim”.

On this aspect, Exh.43A would show that apart from injuries on genital parts, the victim was having redness over lower back. This aspect goes in conformity with the prosecution case that on a cement ota, sexual assault was made on the victim.

46. Learned counsel for the accused also submitted by reading out notes of evidence of PW8 Dr. Nutan Kale and PW5 Dr. Sachin Kadam and their medical certificates that no nail scratches were found on person of any of the accused. He submitted that it would be impossible that forcible sexual assault was made on a woman and there were no marks of resistance on the person of the accused.

47. Firstly, accused no.1 was arrested. He was referred for his medical examination at Rural Hospital, Chikhli on 27.4.2019. After examining him, Dr. Kale (PW8) issued a certificate (Exh.52). Similarly, after arrest of accused no.2, he was brought for his medical examination at Civil Hospital, Buldhana on 29.04.2019 and he was examined by Dr. Sachin Kadam (PW5). His medical certificate is at Exh.39.

48. True it is that on a perusal of respective medical certificates of the accused persons, no nail marks or scratches were found on their body, however, merely because of that, we are not ready to accept the submission made on behalf of the accused persons that it is a pointer for their innocence.

49. We cannot forget that the “victim” in this case is hardly 10 years of age. She was subjected to sexual assault by two fully grown male persons. The victim, therefore, was easily overpowered by these two accused persons, who were like beasts at the relevant time. It would be too far expectation from this little girl to assault on these two beasts when they were in the process of ghastly sexual assault on her. We, therefore, have no hesitation in our mind to reject this contention on behalf of the accused persons.

50. To complete on this aspect, we would like to consider one of the submissions of the learned Additional Public Prosecutor that in fact both the accused persons have admitted before the Doctors that they have committed sexual assault on the victim and therefore, according to the learned Additional Public Prosecutor, it is an extra judicial confession. For that, he invited our attention to the history noted down by Dr. Nutan Kale (PW8) given by accused no.1 Sagar. He invited our attention to document Exh.51A under head ‘Medical and Surgical History’ and submitted that accused no.1 himself has admitted that he has performed forcible sexual intercourse. Similarly, for accused no.2 Nikhil, he invited our 51 attention to such noting in Exh.39.

51. In our view, the submission as advanced by the learned Additional Public Prosecutor must fall on the ground.

52. After the arrest, both the accused persons were brought before two different Doctors for their medical examination. They were brought under custody before the Medical Officers. Therefore, we are of the view that even if such history was narrated by them, it was not voluntary, rather it was made when they were in custody. Therefore, in our view, the portion of both the documents to that extent is inadmissible in evidence.

D] IDENTIFICATION :-

53. During the course of the arguments, Mr. Daga, learned counsel for accused no.2 Nikhil straneously urged before the Court about identification of the said accused. In fact substantial part of his argument was covering this issue only. It was his submission that there was no proper identification of accused no.2 to show that he had participation in the offence.

54. Mr. Daga opened his arguments with a submission that name of accused no.2 did not figure in the first information report. He also submitted that his name cropped up only when, according to the prosecution, accused no.1 Sagar during his interrogation disclosed his name and thereafter he was arrayed as accused in the crime in question. He also submitted that though “father” was knowing him still he did not disclose his name in the first information report. Another limb of his submissions was that it would be unsafe to accept evidence of PW3 Shivaji because he was not knowing accused no.2, but his identity was disclosed to him by co-watchman one Shri Sasane and said Sasane was not examined during the course of the trial. The learned counsel also submitted that PW3 Shivaji did state in his cross-examination that he had not seen clearly the faces of the persons who were on Scooty. His further submission was that it would be really unsafe to accept the evidence of PW3 Shivaji because it was night time and in absence of source of light, he could see accused no.2. Insofar as identification by the “victim” is concerned, the learned counsel submitted that even as per the prosecution case, the victim was taken to a secluded place where rape was committed on her and looking to the spot of the incident, it 53 is clear that there was no source of light at that place.

Another submission of the learned counsel was that there is omission of word “fat” person in the first information report.

55. The learned counsel further submitted that though during the course of investigation, test identification parade was held, it was held belatedly. He also submitted that no steps were taken by the Investigating Officer for holding test identification parade in respect of accused no.2 either from “father” or PW3 Shivaji. He also submitted that both the panch witnesses regarding identification parade were not examined. He submitted that even though during the course of identification parade, the victim has identified accused no.2, she has not stated about his role in the identification parade. In order to buttress his submission, the learned counsel has relied upon the following cases :

1] 1995 Supp (4) SCC 448 (Shatrughana @ Satrughana Parida and others .vs. State of Orissa) 2] (1972) 4 SCC 773 (Sheikh Hasib @ Tabarak .vs. State of Bihar) 3] (2015) 6 SCC 623 (Iqbal and another .vs. State of Uttar Pradesh) 54
56. Mr. Daga, learned counsel also submitted that even during trial the victim has identified accused no.2 Nikhil only through his photograph. He also questions as to how the victim could disclose his name from the witness box.

57. By making aforesaid submissions regarding identity, the learned counsel sum up that there was no admissible evidence against accused no.2 Nikhil available in the entire prosecution case and therefore, that itself is sufficient to discard the prosecution case against him.

58. Mr. Dhawas, learned counsel for accused no.1 Sagar submitted that he will not offer any submission about the identity since name of accused no.1 not only was figuring in the first information report, but he was known to the victim.

59. Learned counsel also submitted that on the question of seizure of Scooty, the prosecution has not examined Vijay Gadekar, from in front of whose house it was seized. Therefore, according to him, seizure of Scooty is also suspicious.

60. Per contra, learned Additional Public Prosecutor Mr. Doifode submitted that the prosecution was successful in establishing the identify of accused no.2 as one of the culprits. He submitted that if evidence of PW3 Shivaji is evaluated in the whole background of the prosecution case, then there will be no other way but to accept his evidence in respect of identity of accused no.2. On the aspect of source of light, the learned Additional Public Prosecutor would submit that this Court can take judicial notice of certain facts. He submitted that the incident in question had occurred on 27.04.2019. He, with the assistance of calender “Kalnirnay”, has pointed out that 18.04.2019 was a full moon night ( Pornima) and 04.05.2019 was the night of no moon (Amavasya). He, therefore, submitted that there was sufficient moon light on the day of the incident and therefore, “victim” could recognize accused no.2 while committing rape on her.

61. We have given our anxious thought and consideration to the submissions made by both the learned counsel.

62. On the point of delay in holding test identification parade of accused no.2, Mr. Daga, learned counsel has pressed into 56 service judgment of the Hon’ble Apex Court in Shatrughna Parida’s case (supra). In this case, test identification parade was held after 1½ months after the occurrence in question. The learned counsel for the appellant therein, therefore, submitted that the Apex Court should set aside the conviction and sentence. Admittedly, in the case at hand, test identification parade was conducted on 15.06.2019 i.e. after 50 days of the occurrence. Therefore, according to the learned counsel for accused no.2, test identification parade has to be discarded in view of Shatrughna Parida’s case (supra).

63. Each prosecution case has to be evaluated as per the facts brought on record. A careful reading of the judgment of Hon’ble Apex Court in Shatrughna Parida’s case would show that except test identification parade, there was no other corroborative evidence. In the case at hand, the prosecution is not only relying on test identification parade of accused no.2 alone, but the prosecution is also heavily relying on proved facts through scientific evidence to corroborate its case. Therefore, we have no difficulty to record here with respect that the judgment in Shatrughna Parida’s case (supra) cannot be made applicable in the present matter.

64. Insofar as the rulings in Sheikh Hasib and Iqbal’s cases (supra) are concerned, the facts involved in these reported cases are entirely different than the case at hand and therefore, in our view, the learned counsel for accused no.2 was not right in placing reliance on the said two judgments.

65. By catena of decisions including Sheikh Hasib’s case (supra), the Hon’ble Apex Court has ruled that substantive evidence is the statement of witnesses in the Court. The test identification parade is held to lend assurance that the investigation is on right path. The Hon’ble Apex Court in Sheikh Hasib’s case has ruled that if there is no substantive evidence about the person having been one of the accused persons when the witness saw them at the time of occurrence of the offence, then test identification parade against him cannot be of any assistance to the prosecution. Keeping this principle in mind, let us scrutinize the evidence brought on record about identification.

66. Firstly, we would like to appreciate the submission of the learned counsel as to whether identification of both the accused by 58 the “victim” was proper identification or not because they were identified by the “victim” in the Court from their photographs.

67. The first information report would show that apart from penal provisions of the Indian Penal Code, the Investigation Officer also registered the offence under Section 6 of the POCSO Act, 2012. Similarly, the charge was also framed against both the accused for the offence punishable under Section 6 of the POCSO Act. Clause

(d) of Section 2 of the POCSO Act defines “child” and according to the said provision, the “child” means – “any person below the age of eighteen years.”

68. In the earlier part of this judgment, we have already dealt with the issue of age and has recorded a finding that the victim was a “child” under the provisions of the POCSO Act. The trial was conducted in the Court of learned Special Judge, Buldhana as Special (POCSO) Case No. 27/2019.

69. The POCSO Act was enacted to protect the children from the offence of sexual assault, sexual harassment and pornography 59 and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Chapter V of the POCSO Act deals with the procedure for reporting of cases. Chapter VI of the said Act deals with the procedure for recording the statement of the child ; and Chapter VIII of the Act deals with the procedure and powers of the Special Courts of recording of evidence.

70. Section 36 of the POCSO Act is reproduced hereunder :

“Section 36 – Child not to see at the time of testifying –

(1) The Special Court shall ensure that the Child is not exposed in any way to the accused at the time of recording of the evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.

(2) For the purposes of sub-section (1), the Special Court may record the statement of a child through video conferencing or by utilizing single visibility mirrors or curtains or any other device.”

Sub-section 1 of Section 36 mandates the Special Court that the said Court shall ensure that the child is not exposed in any way to the accused at the time of recording of evidence, while at the 60 same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate. Sub- section 2 of Section 36 also permits the Special Court to record statement of the child through video conferencing.

71. In our view, in order to give complete meaning to sub- section 1 of Section 36 of the POCSO Act, the learned Special Judge was absolutely right in recording evidence of the “victim” in respect of identification of accused persons by allowing the learned prosecutor to show their photographs. Further it was never the case of any of the accused either during trial or even before this Court that the photographs of the accused were not shown to the victim. Even it was not their case either during trial or even before this Court that the accused persons were not having opportunity to hear the statement of the child i.e. “victim” and they were unable to communicate with their advocate in that behalf. In view of this, we have no hesitation in our mind to reject the submission made by the learned counsel that the identification of accused persons in the Court by the “victim” is vitiated because they were identified by the “victim” through photographs.

72. The submission of the learned counsel for the accused was that though “father” was knowing accused no.2, his name was not disclosed in the first information report. In the first information report (Exh.19), it was stated by “father” that – “on 26.04.2019 at 10.00 O’clock in the night, after taking dinner when he along with his family were sleeping, at about 11.00 O’clock in the night, Sagar (accused No.1) along with one boy to whom he knows very well but not knowing his name, came on Scooty.” This particular assertion in the first information report itself is sufficient to discard the submission of the learned counsel in that behalf since the first informant himself has stated that he was not knowing the name. If that be so, it is a very adventurous submission by the learned counsel that the informant did not disclose the name of accused no.2 though he was knowing him.

73. Another submission of the learned counsel for the accused was that PW3 Shivaji was not knowing any of the accused and identity of accused no.1 was disclosed by one Prakash Sasane and still Prakash Sasane was not examined. During cross- examination of PW3 Shivaji, it was brought on record that at the 62 time of recording of the evidence said Sasane was passed away. In the cross-examination of PW3 Shivaji, it was brought on record that Prakash Sasane had disclosed only name of accused no.1 to him.

74. PW3 Shivaji was a Security Guard at APMC market, Chikhli with Kashinath Appa Bondre. His evidence would show that he was knowing “father” of the “victim”, who was also doing labour work at APMC. As per evidence of PW3 Shivaji, on 26.04.2019, his duty started at 9.00 p.m. and one Sasane was also doing security duty. His evidence would show that at 11.30 p.m., two persons came on red Scooty. He stopped them and made enquiry as to why they were moving in the night. He also told them not to move in that area during night time and asked them to leave that area. That time, as per evidence of Shivaji, Shri Sasane disclosed that one of them was Sagar Borkar (accused no.1). Evidence of PW3 Shivaji further discloses that at about 1.00 p.m., he saw three persons travelling on same Scooty, one was Sagar and another person’s name he was not knowing and in between them there was a girl, aged about 7-8 years and when he tried to stop them, they did not stop. His evidence further reveals that after some time, “father” of the girl came and 63 made enquiry about his daughter. That time, as per the evidence of PW3 Shivaji, he disclosed to the “father” that his daughter was taken away on Scooty by two persons. From the witness box, he did state that he can identify those two persons, who had taken away the girl. Relevant portion of the evidence is as under :

“I can identify those two persons who have taken away the girl. Accused persons shown to me are same. Witness has pointed out his finger saying that, one is Sagar.”
75. According to the learned counsel for accused no.2, therefore, PW3 Shivaji has not identified accused no.2 as he only pointed his finger towards Sagar.

We are afraid to accept this submission of the learned counsel. Evidence of PW3 Shivaji would show that another watchman Shri Sasane only disclosed the name of accused no.1 to him. If that be so, he has rightly pointed out the finger by taking name of Sagar, but at the same time he did state and he did identify accused no.2 also because he deposed that “accused persons shown to me are same.” (emphasis supplied)

76. From the cross-examination of PW3 Shivaji, it is brought 64 on record that even during night time villagers used to come with four wheelers and used to park their vehicles in the ground. From the evidence of PW14 PI Gulabrao Wagh, it is clear that APMC was under CCTV surveillance. During the course of hearing, this aspect was not disputed.

As per evidence of PW14 Gulabrao Wagh, seven CCTV cameras were fixed in APMC Market. Camera no.2 was covering area near Mahesh Traders and Camera no.10 was covering the area near main gate. CCTV footage was also seen by the Investigating Officer in presence of the panchas. Fixing of seven cameras clearly show that in APMC area, there was no darkness. Therefore, PW3 Shivaji could see the faces of both the accused persons on two occasions, firstly at 11.30 pm when they were roaming on red Scooty and they were stopped by this prosecution witness, made enquiry with them and asked them to leave the place, which portion was not at all challenged during his cross-examination ; and secondly, at about 1.00 p.m. when he saw three persons travelling on same Scooty, one was Sagar and another person’s name he was not knowing and in between them there was a girl, aged about 7-8 years and when he tried to stop them, they did not stop. Therefore, 65 though PW3 Shivaji was not knowing the name of accused no.2, he had sufficient opportunity to watch the face of accused no.2 and only because he was not called in test identification parade, his substantive evidence identifying accused no.2 cannot be discarded. Though, in the cross-examination, an attempt was made to seek his admission that he had not seen clearly the faces of the persons on Scooty, that does not mean that he had not seen the faces at all. Therefore, in our view, there was proper identification of accused no.2 by PW3 Shivaji from the witness box.

77. As per evidence of the “victim”, when she was sleeping , she was lifted from her house. Though at that time she was sleeping, her unchallenged evidence would show that she woke up when she was made to sit on Scooty. From APMC, she was taken about one kilometer away where rape was committed on her. So during this travel, there was sufficient opportunity for her to see and watch the faces of both the accused persons. Of course, out of those two, she was knowing accused no.1 as it is clear that he was resident of very same area where victim’s family used to reside.

78. True it is that at the place of occurrence, there was no source of light, however, learned Additional Public Prosecutor with the assistance of the calender has pointed out rightly in our view that the intervening night of 26th and 27th April, 2019 on which the incident had occurred, was not a night of no moon. There is nothing on record to show that clouds were hovering in the sky and moon was not visible. Further, both the accused committed rape on a small girl that postulates that their faces were very near to her and it is not that their faces were covered In our view, the little girl will never forget the faces of the persons who subjected her to brutal rape and she will always remember their faces forever. We have already seen the medical evidence, which shows how brutally both the accused persons have fulfilled their carnal lust. In our view, it will be really impossible for the girl to forget the faces of those beasts. She identified accused no.2 not only in test identification parade, but also from the witness box.

79. The prosecution case cannot be faulted for not examining the panch witnesses during test identification parade. The prosecution has examined Kunal Zalte (PW13), Naib Tahsildar, who conducted test identification parade. Before conducting test 67 identification parade, PW15 Dy.S.P. Mahamuni sought permission from learned Special Judge for holding and conducting test identification parade by giving request letter (Exh.109). It is dated 09.05.2019. On 10.05.2019, the said was allowed. Accordingly, test identification parade was held on 15.06.2019, in which the victim identified accused no.2. It is to be mentioned here that except that the identification parade was held after 50 days, the learned counsel for accused no.2 could not point out any lacunae in the test identification parade.

At the cost of repetition, we again point out that test identification parade is not a substantive piece of evidence. Substantive piece of evidence is the identification of the accused by the witness from witness box and in this case, the “victim” has very firmly identified both the accused. If that be so, even if there is some lacunae in holding test identification parade, only on that, the important piece of evidence of the victim identifying the culprit who committed rape on her, is not and cannot be allowed to be washed away. Therefore, we have no hesitation in our mind to reject the submissions made on behalf of learned counsel for the accused persons about identification.

80. In so far as Scooty is concerned, evidence of “father” (PW1) as well as PW3 Shivaji would show that two persons came on the spot on Scooty. “Father” witnessed them in between 11.00 to 11.30 p.m. as noticed by PW3 Shivaji, whereas at 1.00 O’clock in the night obviously PW3 Shivaji noticed both the accused persons along with the victim in between them on Scooty.

81. During the course of the investigation, it was revealed that two wheeler Scooty was used for carrying the victim from her place to the place of occurrence. PW14 PI Gulabrao Wagh seized Scooty bearing registration No. MH-28/AM-1298 under seizure panchanama (Exh.29). Seizure Panchanama (Exh.29) is duly proved by PW2 Subhash Bhalerao.

After the investigation was handed over to PW15 Dy.S.P. Mahamuni, on 08.06.2019, he gave letter (Exh.114) to the Regional Transport Officer (RTO) for obtaining the documents of the Scooty. Accordingly, on 10.06.2019, he received the documents along with letter of the RTO (Exh.115), whereas the vehicle particulars are at Exh.116. Vehicle particulars (Exh.116) would show that accused 69 no.2 Nikhil is the owner of two wheeler i.e. M-cycle/scooter. Further accused no.2 has not disputed that he is not the owner of the two wheeler, which is commonly used by word “Scooty” by the prosecution witnesses. From the evidence of PW2, Scooty was seized from Pundlik Nagar. The charge as well as the memo of appeal filed by accused no.2 Nikhil show the place of his residence as Pundlik Nagar. If that be so, merely because Mr. Gadekar, in front of whose house the Scooty was parked and seized, was not examined, is not sufficient to discard the evidence of the prosecution regarding seizure and identification of the Scooty.

E] VICTIM’S VERSION :

82. “Victim” (PW4) was examined by the prosecution during trial. Rape was committed on her and according to the prosecution, the accused persons committed the same.

83. From the evidence of the prosecution, it is clear that her date of birth is 27.01.2019, which is in conformity with Birth Certificate (Exh.55). Her evidence shows that she was taking education in a school run by Municipal Council, Chikhli. The learned 70 Judge before whom trial was conducted found that the “victim” though minor, knows sanctity of oath. Therefore, oath was administered to her. It is also seen from the record that in view of the provisions of the POCSO Act, her father was also present while recording her evidence.

84. Her evidence would show that on the date of the incident, after taking dinner, she and her parents slept. When she was asleep, accused no.1 and according to the “victim’s” version, one fat boy came and they lifted her and took away to the vehicle i.e. Scooty. She did state that when she was kept on Scooty, she woke up. She was kept in between them. Thereafter they took her near grave yard, where there was a cement ota. There they removed her clothes i.e. her pant, thereafter accused no.1 Sagar and fat person also removed their pants, then accused no.1 inserted his urinary organ into her urinal place, similarly, fat boy also inserted his urinal organ into her urinary place, is the account given by the victim about rape. She also deposed that due to these acts of both the accused, her private part started bleeding. Also her stomach started aching. After fulfillment of their sexual lust, as per the “victim” both the 71 accused asked her to sit on Scooty and then they dropped her near Mounibaba math, where she met with her parents.

85. During trial, learned Prosecutor invited attention of the “victim” by showing the clothes to her which were on her person at the time of incident, which she identified as very same.

86. The version of the “victim” that both the accused persons kept her in between them when they were proceeding on Scooty from tin shed to the actual spot of incident, is duly corroborated by PW3 Shivaji, who did state that at about 1.00 am he noticed three persons travelling on Scooty, one was Sagar (accused no.1) and one another person, whose name said witness was not knowing and in between them, there was a girl.

87. The victim was knowing accused no.1 Sagar. From her cross-examination conducted by the learned counsel for accused no.1, it was brought on record that she resides in Gorakshan wadi and accused no.1 used to reside in other lane. During her cross- examination, a suggestion was given to the “victim” that due to 72 darkness she was unable to state as to who had taken her to the cricket ground. Said suggestion was stoutly denied by the “victim”. In the earlier part of this judgment we have already discussed about the source of light.

88. Suffice to say that from the suggestion given to her, it appears that there was no complete darkness in the APMC area.

Though, the “victim” was not knowing by name accused no.2, during her cross-examination at the hands of learned counsel for accused no.2, she stated that :-

“I have seen fat boy prior to the incident.”.

Nothing could be brought on record during her cross-examination that her evidence suffers from improvements and omissions when her police statement was recorded under Section 161 of the Code of Criminal Procedure.

89. After reading the notes of evidence of the “victim”, at three places the learned Judge before whom the trial was conducted, has noted that the “victim” was weeping when the questions were put to her to suggest that she was lying. In fact at one place she 73 volunteered to the Advocate conducting cross-examination for accused no.1 that he is lying. The demeanor of the witness, especially the victim during the course of the trial, which was noted by the learned Judge has its own importance.

90. In this case, rape was committed on the girl in between 1.00 am to 2.00 a.m. at a secluded place. Therefore, nobody can expect that the act of the accused could be witnessed by anybody.

91. Evidence of the victim, in our view, is free from improvements. There is nothing on record to show that the victim was having any motive to implicate any of the accused falsely. We are of the view that evidence of the victim is trustworthy and reliable. Further she suffered injuries on her private part which corroborates her version, though corroboration to the version of the “victim” in rape cases through medical evidence is not rule. Once it is found by Court that evidence of “victim” in rape cases is found to be trustworthy and it inspires confidence then the solitary evidence of such “victim” is sufficient to record conviction. In the present case, not only the evidence of “victim” is found to be trustworthy, but 74 in addition to that it is proved that due to the rape, she suffered life threatening injuries.

F] SCIENTIFIC EVIDENCE :-

92. In this case, the prosecution is relying upon Chemical Analyser’s reports as well as DNA report to show complicity of both the accused in relation to the rape committed by them on “victim”.

93. Learned counsel for the accUsed submitted that for certain lacunae, DNA report (Exh.10) needs to be discarded. According to the learned counsel for the accused, prosecuting agency has failed to examine the Assistant Chemical Analyser, who gave C.A. report as well as DNA report. To buttress the said submission, the learned counsel relied upon the decision of Single Judge of this Court (Coram : V.M.Deshpande, J.) in Nagesh Samayya Made .vs. State of Maharashtra, reported in 2019 All M.R. (Cri) 2224. So also, he relied upon the decision in Ganesh Laxman Madne .vs. State of Maharashtra, reported in 2019 (5) Mh.L.J.(Cri) 314.

94. In the earlier part of this judgment, we have already discussed that the victim was brought in the early morning hours at 75 Rural Hospital, Chikhli and she was examined by Dr. Vijaya Kharpas (PW6) and her evidence is elaborately discussed.

Evidence of Dr. Kharpas (PW6) would show that after examination of the victim, she obtained nail samples, blood samples i.e. plain and EDTA, vaginal swab, urethral swab etc. Her unchallenged evidence shows that after obtaining samples, she sealed the samples and handed over it to a Lady Police Constable, who was on duty. At the same time, she did state that she could not obtain pubic hair sample of the “victim” because of its absence.

Evidence of the victim also shows that the clothes of the victim were smeared with blood.

95. PW14 PI Gulabrao Wagh was in-charge of the investigation from 27.04.2019 till it was handed over to Dy.S.P. Mahamuni (PW15) on 29.04.2019 as per the orders of the Superintendent of Police, Buldhana (Exh.95) because of invocation of the provisions of penal sections under the Atrocities Act. On 27.04.2019, as per the evidence of PW14 PI Wagh, Lady Police Constable brought samples of the victim from hospital in sealed condition. Those were seized by him in presence of panch witness 76 Subhash Bhalerao (PW2). Seizure panchanama is at Exh.26. This contemporaneous document shows that the samples were in duly sealed condition.

96. Similarly, on very same date, the clothes of the “victim” were also seized in presence of PW2 Bhalerao, which were produced by LPC. The clothes, consisting of full lower pant (Salwar) and top, were seized under seizure panchanama (Exh.25) and those were sealed. These clothes were duly identified as Article-A and Article-B by panch witness Subhash Bhalerao (PW2) from the witness box.

From the cross-examination of PW14 PI Wagh and PW2 Bhalerao, it is clear that there was no serious challenge at all on the aspect of “sealing” of the clothes and samples of the “victim”.

97. PI Gulabrao Wagh (PW14) arrested accused no.1 Sagar Borkar on 27.04.2019 itself at about 11.32 hours under arrest panchanama (Exh.79). After arrest, his clothes i.e. one white colour shirt, light blue colour jeans pant and light blue colour underwear having blood stains, were seized in presence of panch witness Subhash Bhalerao (PW2). Those were seized under seizure memo (Exh.27).

98. The Investigating Officer also sent accused no.1 Sagar to the Rural Hospital, Chikhli for his medical examination by issuing communication dated 27.04.2019 (Exh.51) addressed to Medical Officer, Rural Hospital, Chikhli requesting him to conduct medical examination of accused no.1. Accordingly, Dr. Nutan Kale (PW8), who was discharging his duty at Rural Hospital, Chikhli on 27.4.2019, conducted medical examination of accused no.1 when he was brought to him. Evidence of Dr. Kale (PW8) would show that before medical examination, he obtained consent of accused no.1.

99. Evidence of Dr. Kale (PW8) would show that he collected blood samples, pubic hair sample, nail clipping and semen sample of accused no.1, as it could be seen from Exh.52. His evidence further shows that after collection of the samples, he sealed it and handed over the same to the Constable. When those samples were brought in the police station, the Investigating Officer seized the same under seizure memo (Exh.28).

100. Investigating Officer PI Wagh (PW14) arrested accused no.2 Nikhil under arrest memo (Exh.85) on 28.04.2019. After his arrest, he was also sent for medical examination at Rural Hospital, 78 Chikhli and he was examined by Dr. Sachin Kadam (PW5) on 29.04.2019 when accused no.2 was brought to him with a letter (Exh.38) from the Investigating Officer requesting him to conduct medical examination of accused no.2. Accordingly, PW5 Dr. Kadam examined accused no.2 and after examination, he collected samples of blood, pubic hair, nails and nail clippings, preferential swab, coronal swab and urotrol swab for chemical analysis and those were sealed and handed over to the Police Constable on duty. He also identified from the witness box accused no.2 as the same person, whose samples were taken by him. Similarly, clothes of accused no.2 were also seized under seizure panchanama (Exh.30) and under seizure memo (Exh.31). The samples collected and sealed by Dr. Kadam (PW5) were seized by the Investigating Officer in presence of panch witness Subhash Bhalerao (PW2).

101. Worth to mention here that from witness box, both, the Investigating Officer and panch witness, have identified the clothes of accused nos.1 and 2 when those were shown to them.

102. Muddemal was sent to the Regional Forensic Science 79 Laboratory (RFSL), Amravati by Dy.S.P. Mahamuni (PW15) under letter (Exh.99) dated 02.05.2019. Exh.99 shows an endorsement that those were received on 03.05.2019 in the said laboratory.

103. The Chemical Analyser’s reports are at Exh.135 collectively. It show that the samples and the clothes of the “victim” were registered as M.L. Case No. BAM-1310/19, in respect of accused no.1 it was registered as M.L. Case No. BAM-1311/19, and in respect of accused no.2 it was registered as M.L. Case No. BAM- 1312/19.

104. Perusal of C.A. reports (Exh.135) would show that the muddemal in respect of “victim” and both the accused was received in sealed condition.

105. Examination of M.L. Case No. BAM-1310/19 would show that blood group of the “victim” was determined as “B”. As per M.L. Case No. BAM-1311/1, blood group of accused no.1 Sagar was determined as “A”, whereas as per M.L. Case No. 1312/19, blood group of accused no.2 Nikhil was determined as “AB”.

Ex.A1 and A2 were the clothes of the victim i.e. top and 80 full lower pant (stated to be salwar) ; Ex.B1 to B3 were the clothes of accused no.1 Sagar i.e. full shirt, full jeans pant and underwear ; and Exh.C1 to C3 were the clothes of accused no.2 Nikhil i.e. full jeans pant, full T-shirt and underwear (torn).

106. C.A. Report (Exh.135), which is available in this paper book running from page nos.130 to 131, would show that blood was detected on the clothes of the “victim”. Similarly, underwear of accused no.1 Sagar was also found to be stained with blood. So also, clothes of accused no.2 Nikhil i.e. full pant, full T-shirt and underwear were found to be stained with blood. C.A. report shows that clothes of the “victim” were stained with blood of group ‘B’, obviously because of the fact that her blood group was determined as “B”. Though, on the clothes of the accused blood was found, as noted above, its group could not be determined, however, importantly, the blood found on their clothes was human blood.

107. C.A. Report also shows that full lower pant (salwar) of the “victim” was having four semen stains, two semen stains each of about 1 cm in diameter on back middle portion, one semen stain of 81 about 2 cm in diameter and one semen stain of 3 cm in diameter on front right middle portion of the said Salwar. The Chemical Analyser found that said semen detected is of human.

108. C.A. Report (Exh.135) would further show that exhibits (1), (2) i.e. clothes of the victim and exhibits (5), (6), (7) and (8) i.e. clothes of accused no.1 Sagar and accused no.2 Nikhil, were forwarded for DNA analysis as M.L. Case No. DNA AM-15/19.

109. Exh.10 is the DNA report. Results of the analysis are as under :

“- DNA extracted from blood detected on Ex.1 Top, Ex.2 Full lower pant, Ex.5 Underwear, Ex.6 Full jeans pant, Ex.7 Full T-shirt, Ex.8 Underwear in BAM- 1309/19, Semen detected on Ex.2 Full lower pant in BAM-1309/19, Exh.1 prepared blood stain, Ex.4 Vaginal swab and Ex.5 Urethral swab of “victim” (…name…) in BAM-1310/19 and Exh.1 prepared blood stain of Sagar Vishwanath Borkar in BAM- 1311/19 and Exh.1 Prepared blood stain of Nikhil Shivaji Golait in BAM-1312/19 was typed at 15 STR LOCI and gender specific Amelogenin locus using PCR Amplification technique.

– Ex.2 Prepared blood stain of “victim” (..name…) in BAM-1310/19, Ex.2 Prepared Blood stain of Sagar Vishwanath Borkar in BAM-1311/19 and Ex.2 Prepared blood stain of Nikhil Shivaji Golait in BAM-

82 1312/19 are control samples.

– No amplifiable DNA is obtained from blood detected on Ex.6 Full jeans pant in BAM-1309/19.

After the results of analysis of DNA examination, the Assistant Chemical Analyser gave Interpretation, which are as under :

1. DNA profile obtained from blood detected on Ex.1 Top, Ex.2 Full lower pant, Ex.7 Full T-shirt, Ex.8 underwear is identical and from one and the same source of female origin and matched with DNA profile obtained from Ex.1 Prepared blood stain of “victim” (…name..)

2. Mixed DNA profile obtained from blood detected on Ex.5 Underwear matched with DNA profile obtained from Ex.1 Prepared blood stain of “victim” (..name..) and Ex.1 Prepared blood stain of Sagar Vishwanath Borkar.

3. Mixed DNA profile obtained from semen detected on Ex.2 Full lower pant (Stain 1, Stain 2 and Stain

3) matched with DNA profile obtained from Ex.1 Prepared blood stain of “victim” (..name..) and Ex.1 Prepared blood stain of Nikhil Shivaji Golait.

4. DNA profile obtained from semen detected on Ex.2 Full lower pant (Stain 4) matched with DNA profile obtained from Ex.1 Prepared blood stain of Nikhil Shivaji Golait.

5. DNA profile obtained from Ex.4 Vaginal swab and Ex.5 Urethral swab of “victim” (..name..) is of female origin and matched with the DNA profile obtained from Ex.1 Prepared blood stain of “victim” (..name..).”

110. From the interpretation, it is clear that DNA profile 83 obtained from the blood detected on top, full lower pant (salwar) of the “victim: and full T-shirt and underwear of accused no.2 was identical and from one and the same source of female origin and matched.

Similarly, blood detected on underwear of accused no.1 Sagar matched with the DNA profile obtained and prepared from blood detected on Ex.1 Top of the “victim”. So also it was found that semen on the cloths after DNA examination from the blood stain of accused no.2 Nikhil was his semen.

111. At this stage, it would be useful to note that, both C.A. examination as well as DNA examination were done by Dr. Santosh R. Kote, Assistant Chemical Analyser, RFSL, Amravati. In view of this fact, the reliance placed on Nagesh Somayya Made’s case (supra) is clearly distinguished on the facts itself because in that case, CA report and the DNA report were prepared by two different Assistant Chemical Analysers. In that context and in view of other facts as appearing, the Court was of the view that in order to remove the ambiguity, examination of scientific expert ought to have been done though it was not mandatory. Insofar as reliance placed on Ganesh 84 Laxman Madane’s case (supra), the said case is of little help to the learned counsel because in paragraph 38 of the said report, it was specifically observed that though there is DNA report, the nicker of the victim was all the time exposed and therefore, contamination is not completely ruled out.

In the present case, right from obtaining samples, their seizure and seizing of the clothes of the “victim” as well as both the accused persons, those were properly sealed. During the trial also nothing could be brought on record by the defence that there was any chance of tampering with the samples and the clothes of the “victim” as well as accused nos.1 & 2.

112. DNA is predominant forensic technique for identifying criminals with the help of biological tissues. Importance and authenticity of DNA report is already well settled by the Hon’ble Apex Court in the case of Mukesh and another .vs. State , reported at 2019(2) Mh.L.J. (Cri.)(SC) 52. In this authoritative pronouncement, the Hon’ble Apex Court has observed that –

“From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non-

85 acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of the samples, the DNA test report is to be accepted.”

113. In absence of any contrary, we have no hesitation in our mind to record a finding that the prosecution has proved about the quality control and quality assurance in respect of examination of samples. We are of the view, which can be deduced from the available evidence itself that the clothes and samples of the victim as well as both the accused persons were properly sealed and those were not tampered at any point of time. In our view, therefore, the learned Special Judge, before whom the trial was conducted, has rightly accepted both C.A. report and DNA report.

114. It would be useful to make a reference here that during the course of submissions, both the learned counsel for the accused pointed out that though CA report and DNA report were used by the learned Special Judge while holding the accused guilty and awarding punishment, specific questions in that behalf were not put to them when they were examined under Section 313 of the Code of Criminal Procedure and thus an opportunity was not given to them to offer 86 their explanation. They submitted that the questions were put to them generally. Even the learned Additional Public Prosecutor Mr. Doifode fairly submitted that the specific questions were not put to them.

115. The question whether at the appellate stage incriminating material can be brought to the notice of the convicts in order to give them an opportunity to offer their explanation is not in res integra in view of the authoritative pronouncement of the Hon’ble Apex Court in Nar Singh .vs. State of Haryana , reported in (2015) 1 SCC 496 and more specifically it is settled in paragraph 23 of the said judgment. Paragraph 23 from the said report is reproduced herein below :

“23. When such objection as to omission to put the question under Section 313 CrPC is raised by the accused in the appellate court and prejudice is also shown to have been caused to the accused, then what are the courses available to the appellate Court ? The appellate court may examine the convict or call upon the counsel for the accused to show that what explanation the accused has as regards the circumstances established against him but not put to him under Section 313 CrPC and the said answer can be taken into consideration.”

116. In view of this authoritative pronouncement, on 05.8.2021, this Court proposed to examine both the accused persons under Section 313 of the Code of Criminal Procedure by recording their further statement in order to given them an opportunity to offer explanation, if they wish, to the incriminating evidence used against them in trial.

117. Both the accused persons used to be brought before this Court right from the first day of hearing from jail custody, it being the confirmation of their death sentence. On 05.8.2021, in presence of their respective counsel, this Court brought to the notice of both the accused the incriminating evidence appearing against them in C.A. report (Exh.135) and DNA report (Exh.10) by putting them questions in ‘Marathi’. This Court also gave an understanding to them that it is not compulsory on them to answer the questions in a particular fashion or manner.

118. Neither of the accused offered any explanation to the question put to them. On the contrary, their replies were that the CA report (Exh.135) and DNA report (Exh.10) are false. Their 88 vernacular answers were taken in the handwriting of one of us and both the accused replied only “[kksVs vkgs-” Thus, though an opportunity was given to both of them, they did not offer any explanation, but state that everything is false.

119. In our view, oral evidence of the “victim”, which is otherwise also found to be trustworthy and inspiring confidence about the sexual assault made on her by to the accused, found corroboration from the scientific evidence i.e. CA report (Exh.135) and DNA report (Exh.10) and therefore, we are recording finding to that effect accordingly.

G] ADMISSIBILITY OF ELECTRONIC EVIDENCE :-

120. Sections 65A and 65B of the Evidence Act, 1872 deal with the admissibility and contents of evidence of information contained in electronic records. The Apex Court in the case of Anwar P. V. vs P. K. Basheer, reported in (2014) 10 SCC 473 has held that these two sections are a complete Code in themselves on the admissibility of evidence of information contained in electronic records.

121. Section 65B(1) differentiates between –

i) the “original document” – the electronic record on the device in which the original information is first stored (qualifying it as primary evidence), and

ii) the output from such device which contains information originating from the original document, i.e. a copy made therefrom (being secondary evidence) [Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, (2020) 7 SCC 1].

122. The Hon’ble Apex Court has in Arjun Panditrao Khotkar (supra), in para 73.2, expounded the law on admissibility of primary and secondary evidence in electronic form in the following words-

“73.2. The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 90 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.”
[Emphasis supplied]

123. It is necessary to note that the Hon’ble Apex Court in Anwar P. V. (supra) has clarified its position on primary evidence holding that if an electronic record is used as primary evidence under Section 62 of the Evidence Act, it may be admissible in evidence without any compliance of conditions under S. 65B. Arjun Panditrao Khotkar (supra) held this position to be good law when read without the words, “under Section 62 of the Evidence Act” , while placing its derivation in S.65B(1). The Hon’ble Apex Court held that the certificate under S. 65B(4) is unnecessary if the “original document”

itself is produced, since it is being used as primary evidence of the information contained in the electronic record. This can be done by the owner of the device (on which the original electronic record is first stored) by proving that it is owned and/or operated by him.

124. Commonly, the original electronic record of a CCTV footage is stored on a memory chip/CD/DVD/hard drive or any 91 similar device on a computer, DVR or NVR wherein the footage is recorded. The original electronic record stored on a memory chip/CD/DVD/hard drive, being the place where the electronic record is first stored, is said to be the original document, qualifying it as primary evidence. Such information can be led as evidence by producing the hard drive, wherein the original document is first stored, before the Court. In order to prove the information contained in such electronic record, the memory chip/CD/DVD/hard drive on which the electronic record was first stored can be produced before the Court. Similarly, in cases where the device happens to be a part of a “computer system” or “computer network”, such system or network or server can be produced before the Court, if it is possible. In case where the device happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of proving information contained therein can be, as specified above is, “in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).”

125. The prosecution has relied upon the CCTV footage from 92 camera no. 2 covering the area of the main gate of the office of APMC Market, Chikhli. The prosecution has examined PI Gulabrao Wagh (PW14) and Dy.S.P. Baburao Mahamuni (PW15) in order to prove the said CCTV footage. From the evidence of Dy.S.P. Mahamuni (PW15), it appears that the prosecution has brought on record the CCTV footage copied in pendrive (Article-M). It is stated by Dy.S.P. Mahamuni (PW15), that its Hash value was taken by NPC Sharad Giri and accordingly certificate under Section 65B of the Evidence Act (Exhibit 112) was taken. Though evidence of PI Wagh (PW14) and Dy.S.P. Mahamuni (PW15) has been corroborated by panch witness Subhash Bhalerao (PW2) regarding CCTV footage, it appears that the prosecution has failed to adduce evidence of a person occupying responsible official position in relation to the operation or the management of the activities in relation to CCTV in the APMC Market, Chikhli. Since the prosecution has failed to bring on record the primary evidence in relation to CCTV footage in the form of hard disc of the said CCTV footage wherein the footage was stored, it was necessary for the prosecution to satisfy the ingredients of Sub-Section (4) of Section 65B of the Evidence Act. Merely because the CCTV footage has been exhibited by the trial Court and no objection was 93 raised on behalf of the accused, the CCTV footage cannot be read in evidence. The said issue is no longer res-integra in view of the judgment of the Hon’ble Apex Court in Arjun Panditrao Khotkar (supra). We are, therefore, of the considered opinion that in absence of compliance of Sub-Section (4) of Section 65B of the Evidence Act, the CCTV footage from camera no.2 covering the area of main gate of the office of APMC Market, Chikhli cannot be relied upon as admissible evidence of the prosecution.

126. In addition to the evidence of CCTV footage, the prosecution sought to rely upon SDR, CDR and tower location of the accused. Mahamuni (PW15) has stated in his evidence that as per his letter issued to Superintendent of Police, Buldhana, he received four papers which were marked as Exh. 125. He stated in his evidence that from CDR and SDR, he came to know about the location of the accused at the time of incident. He identified the contents of the said letter which were marked as Exhs. 126 and 127. Learned trial Court refused to place reliance upon SDR, CDR and tower location of the accused as the said electronic evidence were not supported by certificate under Section 65B (4) of the Evidence Act. In our opinion, 94 the learned trial Court has rightly refused to rely upon the electronic evidence placed on record by the prosecution in the form of CCTV footage, CDR, SDR and tower location of the accused for non- compliance of Section 65B (4) of the Evidence Act.

H] FINDINGS :-

127. In the preceding paragraphs in the body of this judgment, we have elaborately not only discussed the prosecution case, but also evaluated the same. We have also considered various defences raised by the learned counsel for both the accused not only during trial but also before us.

128. On re-appreciation of entire prosecution case, we reached to the conclusion independently that the learned Judge before whom trial was conducted has rightly convicted both the accused under Section 363 read with Section 34 of the Indian Penal Code inasmuch as both the accused persons had removed the victim, a minor girl from the lawful guardianship of her parents and without their consent, one of whom i.e. “father” was examined during trial.

We have elaborately discussed the evidence of four Doctors, who examined the victim at three different places i.e. Rural 95 Hospital, Chikhli, Civil Hospital, Buldhana and Government Medical College, Aurangabad which is also known as Ghati Hospital commonly. Under head “Medical Evidence”, we have discussed in detail the evidence of each of the Doctors, who unequivocally stated that the minor girl (victim) suffered as many as six injuries on her private part. Not only that, she was required to be removed from Chikhli to Buldhana and from Buldhana to Aurangabad for her proper health management. Evidence also shows that at private part stitches were applied at Buldhana and ultimately she was required to be operated upon at Aurangabad.

129. Evidence of the “victim” according to us is trustworthy. It inspires confidence in our mind about the sexual atrocities committed on her. We have no hesitation in our mind to record our finding that both the accused persons are responsible for committing rape on her. We firmly accept and believe the testimony of the victim in view of she identifying accused no.2 Nikhil during the course of investigation i.e. test identification parade. We also fully accept the evidence of the victim as trustworthy regarding she identifying both the accused from the witness box during her substantive evidence.
96 Therefore, there is no iota of doubt in our mind that both the accused have committed offence punishable under Section 376(2)

(m) read with Section 34 of the Indian Penal Code.

130. The victim had given her date of birth when she was examined in the Court as 27.01.2009. The prosecution has also independently proved the said date of birth through PW9 Raju Deshmukh, who proved birth certificate (Exh.55) of the “victim” to show that her date of birth is 27.01.2009. The incident in question is dated 27.04.2019. Thus, on the date of the incident, her age was 10 years and 3 months. Section 376-DB deals with the punishment for gang rape on a woman under 12 years of age. Since, it is proved that at the time of occurrence, age of the victim was below 12 years, surely the accused persons who were two in numbers will be liable for punishment under Section 376-DB and the learned Special Judge has rightly convicted them and we affirm their conviction. We also affirm the conviction recorded by the learned Special Judge for the offence punisahble under Sec. 506 read with Section 34 of the Indian Penal Code considering the evidence of the victim that threats were extended to her by both the accused after committing rape on her.
97

131. Only accused No.2 Nikhil was convicted for the penal provisions under the Atrocities Act i.e. Section 3(1)(w)(1) and 3(1) (w)(ii). A plain reading of said penal provisions show that accused must know that the woman belong to the Scheduled Caste or Scheduled Tribe. He is also convicted for the offence punishable under Section 3(2)(v) of the Atrocities Act.

These two penal provisions show that at the time of commission of the offence, the accused must have knowledge that the victim belongs to either Scheduled Caste or Scheduled Tribe and in spite of the knowledge, he commits the acts which are punishable.

132. As per the Caste Certificate (Exh.21) of the victim, she belong to the caste which is a Scheduled Caste. Similarly, it is proved on record that accused no.2 is not belonging to Scheduled Caste. Accused no.1 was belonging to Scheduled Caste.

133. After a careful scrutiny of the evidence of the “victim” as well as “father”, there is noting on record to show that accused no.2 was knowing and/or having knowledge that family of the victim belong to Scheduled Caste. Even learned Additional Public 98 Prosecutor for the State could not point out to us that aspect. If that be so, we are of the view that the learned Special Judge ought not to have convicted accused no.2 Nikhil for the penal provisions under the Atrocities Act.

I] PUNISHMENT :-

134. The learned Judge of the trial Court imposed various punishments. Though, the learned Judge has convicted both the accused for the offence punishable under Section 6 of the POCSO Act, both the accused were sentenced under Section 376-DB read with Section 34 of the Indian Penal Code and imposed death punishment. In view of imposition of death penalty, the learned Judge made a reference to this Court for its confirmation.

135. Section 376-DB of the IPC reads as under :

“376-DB – Punishment for gang rape on woman under twelve years of age :-

Where a woman under twelve years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean 99 imprisonment for the remainder of that person’s natural life, and with fine, or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.”

136. Plain reading of this Section would show that after being found guilty for committing gang rape on a woman under twelve years of age, the punishment is provided i.e. imprisonment for life which shall mean imprisonment for remainder of that person’s natural life and with fine or with death.

Thus, it is clear that death sentence is not the only punishment provided for the offence punishable under Section 376- DB of IPC.

137. The Constitution Bench of the Hon’ble Apex Court in Bachan Singh .vs. State of Punjab , reported in (1980) 2 SCC 684 in paragraph 202 has ruled as under :

“202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v, Georgia, in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code (Amendment) Bill passed in 100 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these “aggravating circumstances”: Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed –

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”

Similarly, paragraph 206 of the said report reads as under :

“206. Dr. Chitaley has suggested these mitigating factors:

Mitigating circumstances:- In the exercise of its discretion in the above cases, the Court shall take 101 into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated.

The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.”

138. In this case, from the Roznama it is clear that on 11.08.2020. the learned Special Judge found both the accused guilty of serious offences and therefore, the Court found it necessary to hear learned Prosecutor and the learned Advocate for the accused in view of the mandate of Section 235 of the Code of Criminal Procedure and therefore, the judgment was suspended to hear the 102 accused persons on the point of sentence. Roznama of the said trial would show that the case was then posted on 13.08.2020. In paragraph 132 of the judgment delivered by the learned Special Judge, it is mentioned that accused no.1 said nothing on the point of sentence, whereas accused no.2 prayed for minimum sentence. Learned Advocate for accused no.1 made a submission before trial Court that accused no.1 is married having small daughter as well as his sick mother.

139. The learned Special Judge, after considering the plea of both the accused and considering the submission of the learned learned Prosecutor, imposed the extreme penalty of death, of course, by giving reasons.

140. In paragraph 206 of Bachan Singh’s case (supra), the Hon’ble Apex Court has laid down that it is for the State to adduce evidence to prove that the case does not satisfy condition nos.3 and

4. In the present case, no such evidence was adduced on behalf of the State.

141. In one of the recent decisions of the Hon’ble Apex Court 103 in Dattatray @ Datta Ambo Rokade .vs. State of Maharashtra , reported in 2020 All M.R. (Cri.) 36 (SC), the Hon’ble Apex Court has taken survey of this issue by considering various decisions including Bachan Singh .vs. State of Punjab (supra) ; Macchi Singh and others .vs. State of Punjab [(1983) 3 SCC 470] etc. It would be useful to reproduce herein below relevant paragraph of the Judgment in Dattatraya’s case (supra).

“100. In Rajesh Kumar vs. State (through Govt. of NCT of Delhi), (2011) 13 SCC 706 : [2011 ALL SCR 2670] this Court observed:-

“83. The ratio in Bachan Singh has received approval by the international legal community and has been very favourably referred to by David Pannick in Judicial Review of the Death Penalty: Duckworth (see pp. 104-05). Roger Hood and Carolyn Hoyle in their treatise on The Death Penalty, 4th Edn. (Oxford) have also very much appreciated the Bachan Singh ratio (see p. 285). The concept of “rarest of rare” which has been evolved in Bachan Singh by this Court is also the internationally accepted standard in cases of death penalty.

84. Reference in this connection may also be made to the right based approach in exercising discretion in death penalty as suggested by Edward Fitzgerald, the British Barrister. [Edward Fitzgerald: The Mitigating Exercise in Capital Cases in Death Penalty Conference (3-5 June), Barbados: Conference Papers and Recommendations.] It has been suggested therein that right approach towards exercising discretion in capital cases is to start from a strong presumption against the death penalty. It is argued that “the presence of any significant mitigating 104 factor justifies exemption from the death penalty even in the most gruesome cases” and Fitzgerald argues:
“Such a restrictive approach can be summarised as follows: The normal sentence should be life imprisonment. The death sentence should only be imposed instead of the life sentence in the ‘rarest of rare’ cases where the crime or crimes are of exceptional heinousness and the individual has no significant mitigation and is considered beyond reformation.”
(Quoted in The Death Penalty, Roger Hood and Hoyle, 4th Edna., Oxford, p. 285.)

86. Taking an overall view of the facts in these appeals and for the reasons discussed above, we hold that death sentence cannot be inflicted on the appellant since the dictum of the Constitution Bench in Bachan Singh is that the legislative policy in Section 354 (3) of the 1973 Code is that for a person convicted of murder, life imprisonment is the rule and death sentence, an exception, and the mitigating circumstances must be given due consideration. Bachan Singh further mandates that in considering the question of sentence the court must show a real and abiding concern for the dignity of human life which must postulate resistance to taking life through law’s instrumentality. Except in the “rarest of rare cases” and for “special reasons” death sentence cannot be imposed as an alternative option to the imposition of life sentence”.

142. On going through this, Hon’ble Apex Court has ruled that Bachan Singh (supra) mandates that in considering the question of sentence the court must show a real and abiding concern for the dignity of human life which must postulate resistance to taking life through law’s instrumentality. (emphasis supplied).

143. We are of the opinion that in view of the aforesaid law laid down by the Hon’ble Apex Court death sentence is not the only penalty for the offence under Section 376(DB) of IPC. The law as laid down by the Hon’ble Apex Court states that on previous occasion also the accused must be convicted for the heinous offence, which is not the present case. Further, as we have already noted that no evidence is recorded by the State to show that the accused persons are menace to the society, we find ourselves disagreeing with the said punishment imposed by the learned Special Judge. The conspectus of all the discussion in this judgment, allows us to pass the following order :

ORDER

1. Reference made by the learned Special Judge, Buldhana for confirmation of death sentence of accused No.1 – Sagar Vishwanath Borkar and accused no.2 Nikhil Shivaji Golait for the offence punishable under Section 376DB read with Section 34 of the Indian Penal Code, as awarded to them in Special POCSO Case No. 27 of 2019, decided on 13.08.2020, is answered in negative.

2. Instead, accused no.1 Sagar Borkar and accused no.2 Nikhil Golait are sentenced to suffer rigorous imprisonment for life, which shall mean imprisonment for the remainder of their natural life and without any remission.

3. Criminal Appeal No. 423/2020 filed by accused no.1 Sagar Vishwanath Borkar is dismissed.

4. Criminal Appeal No. 370/2020 filed by accused no.2 Nikhil Shivaji Golait is partly allowed.

5. Accused no.2 Nikhil Golait is acquitted of the offence punishable under Sections 3(1)(w)(i), 3(1) (w)(ii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Rest of the conviction and punishment is confirmed.

6. All proceedings are disposed of as such.

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