IMPORTANT POINTS
If evidence of witnesses is reliable, recovery of dead body of victim and cloths are recovered at instance of accused and the accused has not offered any explanation to incriminating circumstances; conviction cannot be faulted merely because TI Parade was not held.
Unless the case falls in the category of rarest of rare cases, death sentence cannot be awarded.

JUDGMENT :

Mohan M. Shantanagoudar, J.

Leave granted in SLP (Crl.) Nos. 541617/2015.

2. The instant appeals have been filed against the final common judgment and order dated 16.02.2015 of the High Court of Bombay in Confirmation Case No. 3 of 2014 with Criminal Appeal No. 760 of 2014 whereby the learned High Court confirmed the death sentence awarded to the appellant herein.

By the impugned judgment, the High Court dismissed the aforementioned confirmation case and criminal appeal arising out of the judgment and order of conviction and sentence dated 25.06.2014 of the Additional Sessions Judge, Mangaon, Raigad, in Sessions Case No. 8 of 2013. The Sessions Court had convicted the appellant Viran Gyanlal Rajput for the offences punishable under Sections 302 and 201 of the Indian Penal Code, and under Sections 10 and 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) for the kidnapping, rape and murder of a 13yearold girl, and causing disappearance of evidence. The appellant was sentenced to death for the offence under S. 302, IPC; R.I. for 10 years and a fine of Rs. 200 (1 year’s R.I. in default) under S. 366, IPC; R.I. for 7 years and a fine of Rs. 200 (1 year’s R.I. in default) under S. 10, POCSO Act; imprisonment for life and a fine of Rs. 500 (2 years’ R.I. in default) under S. 4, POCSO Act; and R.I. for 7 years and a fine of Rs. 200 (1 year’s R.I. in default) under S. 201, IPC. Except for overturning the appellant’s conviction under Section 10, POCSO Act, lacking a specific charge for the same, the judgment and order of conviction and sentence rendered by the Sessions Court was maintained by the High Court.

3. The case for the prosecution in brief is that on 17.10.2012, when the victim did not return home from school at the usual time in the evening, a search was undertaken. The next day, some of her belongings were found in the jungle area adjoining the village. A complaint (Exh. 14) regarding missing of the girl was lodged around 8.30 a.m. by PW3, Samir Parab, the victim’s cousin. In the meantime, PW4, Vijay Parab, the victim’s uncle, who had seen the victim being followed the last evening on the way back from school by an unknown person wearing a red T-shirt, and PW5 Abhijit Chavan (a resident of the neighbouring Toranpada village), who had later seen the same person running towards Toranpada village, went to the adjoining settlement of Paradhis (a nomadic community) along with some other villagers, suspecting him to be there. The person, none other than the appellant herein, was apprehended by the villagers and was being brought to Avandhe village (a neighbouring area). At that time, they were accosted by the police who were proceeding to undertake investigation with respect to the missing person’s complaint. The police thereupon took custody of the appellant. Around this time, the first information pertaining to the offence of murder was given to the police by PW3. The dead body of the victim was recovered in a naked condition, at the instance of the appellant, from a field near Kamthekarwadi village (the village where the victim resided) and subsequently her clothes were recovered at his instance as well.

As per the post mortem report (Exh. 35) and the evidence of the doctor who conducted it (PW13), the probable cause of death was opined as asphyxia with cardiorespiratory arrest due to strangulation. It was also found that the deceased had been forcibly subjected to sexual intercourse.

4. The Trial Court as well as the High Court found the following incriminating circumstances against the appellant, namely, the deceased was last seen with him while she was walking home from school; the appellant was seen running alone towards Toranpada later in the evening; the recovery of the dead body and incriminating articles (importantly, the clothes of the victim) at the instance of the appellant; mud stains on the pants of the appellant which matched with the mud seized from the spot of recovery of the victim