2010 Supreme(Bom) 1724

High Court of Judicature at Bombay
THE HONOURABLE MRS. JUSTICE RANJANA DESAI & THE HONOURABLE MRS. JUSTICE V.K. TAHILRAMANI
The State of Maharashtra & Another
Versus
Babu alias Ravindra Suresh Kamble & Another
CRI. CONFIRMATION CASE NO. 1 OF 2009 (REFERENCE MADE BY ADDL. SESSIONS JUDGE, KOLHAPUR) IN SESSIONS CASE NO. 73 OF 2008 WITH CRIMINAL APPEAL NO. 78 OF 2010
Decided on : 10-12-2010

Headnote:Criminal Procedure Code, 1973-Section 161-Statement of witness-Delayed examination of witness-Witness not given his statement on very same day-Cannot be a sufficient ground to discredit his testimony.-On the point of delay in recording statements, Court may make useful reference to a decision of the Supreme Court in State of Uttar Pradesh v. Satish, AIR 2005 SC 1000, wherein it is observed as under :

       "As regards delayed examined of certain witnesses this Court in several decision has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same is plausible there is no reason to interfere with the conclusion."

       Court may also refer to the case of Raju Raghunath v. State of Maharashtra, reported in 2008 All MR (Cri) 2160 wherein it is observed that "merely because witness had not come forward to give his statement on the very same day that would not be a sufficient ground to discredit his testimony."

       Evidence Act, 1872 - Section 3-Appreciation of evidence-Circumstantial evidence-Entire case hinges on circumstantial evidence-Held-Great care must be taken in evaluating circumstantial evidence to ensure that circumstances on which prosecution relies wholly consistent with sole hypothesis of guilt of accused.-Where the entire case hinges on circumstantial evidence great care must be taken in evaluating circumstantial evidence to ensure that the circumstances on which the prosecution relies are wholly consistent which the sole hypothesis of the guilt of the accused. When a case rests on circumstantial evidence such evidence must satisfy oft quoted tests viz. (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should unerringly point towards the guilt of the accused; (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence.

       Evidence Act, 1872 - Section 3-Penal Code, 1860, Sections 376 and 302-Appreciation of evidence-Evidence of Dog Tracking-Effect of-Held-Dog tracking evidence can be one of circumstances-May lend to connect accused with crime.-Judicial thinking worldwide even in the U.K. has undergone a complete change and later judicial decisions from all over indicate that the Courts have taken cognizance of certain other factors the first of them being that as far as the tracker dog is concerned, it happens to be an animal of a particular pedigree which is selected on its special qualities such as skill, alertness and intelligence. It is not that any and every dog is picked up by the police for these purposes. There are special rules which prescribe the manner in which the dog is required to be selected. In this context, Court may refer to the Maharashtra State Police Dog Squad Manual a perusal of this indicates that not only is the dog very carefully selected but that it goes through a rigorous process of training at the hand of experts. Its training takes place over a period of time where the dog is made absolutely proficient in the finer points of detection by experts in the field on the basis of well settled principles of training. Even after the skills are communicated to the dog, it is put through rigous process of exercise in order to satisfy the police authorities that the dog has not only learnt but is able to carry out these skills with a high degree of precision and that it does not go wrong under any circumstances. In the course of daily training the dog is put through regular exercises in order to eliminate any possibility of an error. Court need to also observe that judicial notice must be taken of the fact that the training skills and special qualities that are found in the Police Dogs are now universally being recognized as being of such a high caliber that in cases such as detection of explosives, drugs etc. they are found superior and more effective than the most sophisticated instruments. In this back-ground, one needs to take cognizance of the fact that for a purpose of tracking down a criminal, special faculties, qualities and skills of the dog are aspects of which note must be taken. One needs to take cognizance of this factor. It would be extremely difficult under these circumstances and on this ground to brush aside this evidence. Court need to record in this context that Court are not placing complete and implicit reliance with regard to the identification of accused only on the dog tracking evidence. Court have accepted this last head of evidence in addition to the earlier evidence in so far as it completely supports the same.

       Indian Penal Code, 1860 - Section 53-Punishment-Award of-Principle of criminal justice-Held-Principle of proportion between crime and punishment is a principle of just desert-Serves as foundation of every criminal sentence that is justifiable-Not allows punishment of innocent-Award of punishment is outcome of cool deliberation and screening of material in Court room.-A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes always the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the Court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the sentence. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed the requirement that punishment not be disproportionately great which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.

       The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime yet in practice sentence are determined largely by other considerations. Some times it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation.

       Indian Penal Code, 1860 - Sections 201, 302, 363 and 376(2)(f)-Conviction and sentence under-Death sentence-Accused aged 23 years, a poor labourer having no criminal antecedents-Would not be a menace to society in future-Held-Case not falls within category of "rarest of rare cases"-Conviction of accused maintained-Sentence of death penalty commuted to life imprisonment-Sentence of life imprisonment under Sections 302 and 376, Indian Penal Code made consecutive.-Court does not think that this is a "rarest of rare cases" in which death penalty should be imposed on the appellant. Court say so because the case of the appellant and Rahul is identical. The appellant was aged 23 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously. The appellant is a poor labourer and living in impecunious circumstances which can be seen from the fact that as he could not afford a lawyer he was provided one at State expense from the legal aid panel. No material is placed before Court to draw a conclusion that he would be a menace to society in future. Hence Court does not think that the death penalty is warranted in this case. Court confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302, Indian Penal Code is commuted to life imprisonment.

       Though Court is not inclined to confirm the sentence of death and are instead inclined to commute it to life imprisonment however, Court is inclined to make the sentences of imprisonment under Sections 302 and 37 consecutive. While taking this view Court may refer to a decision of the Supreme Court in case of Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, reported in AIR 2008 SC 3040 : 2008 All SCR 2381. In the said case also the accused had been sentenced to death. The Supreme Court felt that it was not a fit case to award a death sentence but the Supreme Court observed that a sentence of life imprisonment which, subject to remission, normally works out to a term of 14 years would be grossly disproportionate and inadequate. The Supreme Court further observed that in such case, the Court’s option is limited only to two punishments one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death in which case the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, i.e. the vast hiatus between 14 years imprisonment and death. The Court therefore can substitute a death sentence by life imprisonment for rest of life of convict or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual terms as specified in the order, as the case may be. Observing thus the Supreme Court substituted the death sentence by imprisonment for life and directed the accused shall not be released from prison till the rest of his life.

       Indian Penal Code, 1860 - Section 376-Offence of rape-Injury found on private part of body of accused-Effect of-Held-Such injury, a corroborative piece of evidence against accused.-The prosecution has examined PW 18 Dr. Mrunalini Patil who has examined the accused and issued the report Exh. 44 where in she has opined that the accused is capable of sexual intercourse, she has further observed that she notice one old scar admeasuring 0.3 x 0.1 over penis of accused and which might be 4 to 7 days old. It may be noted that victim was missing since the night of 24.10.2007 and the accused was medically examined after his arrest on 29.10.2007. The accused is man of 24 years where victim was a small girl of about 5 years. In such case, if rape is committed by him on victim there is every possibility of injury to his private part. Though Dr. Patil has not given any specific opinion whether that scar was the result of the rape, but a 4 to 7 days old scar in the light of the other evidence on record suggests that the accused must have committed rape on victim on 24.10.2007. This injury on the private part of the accused is another corroborative piece of evidence against the accused.

       Indian Penal Code, 1860 - Section 376-Rape-Absence of spermatozoa-Effect of-Held-Presence of semen not necessary-Even partial penetration amounts to an offence of rape.-Mr. Apte submitted that no or the deceased. So also no semen was found on the clothes of the accused or the deceased. So also no semen was found in the vaginal smear, swab and the nail clippings of victim. Those the prosecution case that rape was committed on victim is totally false. As far as offence of rape is concerned, it is not necessary that there should be presence of any semen. Even partial penetration amounts to an offence of rape. In a decision in State of U.P. v. Babul Nath, (1994) 6 SCC 29. It is held that "ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached there to require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with omission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Section 375 and 376". So also in State of Himachal Pradesh v. Raghubir Singh, (1993) 2 SCC 622, the Supreme Court observed in para 6 that the absence of spermatozoa could not be at all said to be a circumstances in favour of the accused.