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High Court of Judicature at Bombay
V.K. TAHILRAMANI & V.L. ACHLIYA, JJ.
The State of Maharashtra & Another
Versus
Dattatraya @ Datta Ambo Rokade & Another
Cri. Confirmation Case No. 6 of 2013 In Special Case No. 1 of 2013 With Criminal Appeal No. 1202 of 2013
Decided on: 25-03-2014
It is a requirement of the society and the law must respond to its need. The greatest virtue of law is its flexibility and its adaptability, it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day, in the present day society, crime is now considered a social problem and by reason therefore a tremendous change even conceptually is being seen in the legal horizon so far as the punishment is concerned. Looking to the new enactments like PCFSO Act and amendment to IPC in relation to rape which have taken place keeping in mind the rising graph of sexual offences and especially of sexual offences against children and public outcry in relation to the same, the sentencing policy also now needs to be shaped keeping all these aspects in mind. That awarding the death penalty in the present case takes into consideration all the four theories of punishment which can come into play in such cases. It satisfies the deterrent theory of punishment as it would deter would be wrong doers from committing similar crimes. It satisfies the preventive theory as it would physically prevent the present accused from committing such crimes in future. It satisfies the retributive theory as the accused is sufficiently punished for his crimes as well as society feels that justice is done. As far as the last theory is concerned that is reformative theory, the history and the age of the accused is such that he cannot be given benefit of this theory.
EVIDENCE ACT, 1872 - Section 27 - Evidence of recovery. - Recover from open or accessible place, if it is ordinarily not visible to others, is admissible in evidence. - In the case in hand, it is seen that the bag was kept in the debris and it was found only after the bag was taken out by the accused from the debris. In such circumstances, the prosecution has proved recovery of bag at the instance of the accused in which the clothes of the deceased were found. This is an. Additional circumstance against the accused.
Indian Penal Code, 1860 - Sections 376 and 376(2)(f) - Conviction for rape on minor. - If a person is convicted under Section 376(2)(f) of IPC he cannot be convicted for less aggravated offence under Section 376, IPC.
Indian Penal Code, 1860 - Sections 201, 302, 363, 364, 367, 376(2)(f) and 377 - Protection of Children from Sexual Offences Act, 2012, Sections 3 and 5(1), (i), (m) - Conviction under on basis of circumstantial evidence. - Since chain of circumstances is so complete that leads to conclude that accused and none else is guilty hence conviction of accused on basis of circumstantial evidence justified.
Indian Penal Code, 1860 - Sections 300, 376 and 377 - Offence of murder or culpable homicide. - Since accused intentionally killed deceased so as to leave no evidence of rape committed by him on deceased hence accused liable to be convicted under Section 302, IPC. - In the present case, the death of the victim girl is not caused only on account of head injury or due to smothering but it was on account of asphyxia due to smothering associated with head injury as well as sexual assault. The sexual assault of both rape and sodomy have caused extensive injuries which are reflected in the evidence of PW 13 Dr. Jain. The act of the accused of rape and sodomy on the victim girl caused a number of lacerations on the vaginal and anal region.
The lacerations on the vaginal region were multiple in number and they were muscle deep. It must have caused extensive injuries, which is seen from the fact that when postmortem was carried out the next day, blood was still oozing out which is seen from the evidence of Dr. Jain. Looking to the cumulative injuries caused by the accused, it can certainly be said that the case is covered by Section 300 of IPC. Even if the case does not fall under the first clause of Section 300, the case would certainly fall under the second clause of Section 300 that is if the act is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. The motive of a person in commission of crime always locks up in the mind of accused and it is difficult to unlock. Therefore, the intention of accused in commission of crime can be inferred only on the basis of the facts and circumstances of the case and the evidence adduced by the prosecution. It is pertinent to note that the victim girl was residing in room No. 3 of same building in which the accused was residing in Room No. 8. The accused was not stranger to victim girl. She was knowing the accused. After committing such heinous act of rape and sodomy, it was not safe for accused to let the victim girl to go to her house and to invite risk of disclosing incident to her family members. The cause of death of deceased was not only asphyxia but also found to be associated with head injury as well as injury to her private parts. Thus, in the light of facts and circumstances of the case as well as evidence on record the inference can be drawn that the accused has intentionally caused the death of deceased by banging her head on the hard object like bed or flooring of room so as to leave no scope for any evidence to remain against him.
V.K. Tahilramani, J.
1. The Confirmation Case No.6 of 2013 arises out of the Reference made by the learned Special Judge (PCFSO Act) Thane in Special Case No.1 of 2013 for confirmation of the death sentence awarded to the accused Dattatraya @ Datta Ambo Rokade. By judgment and order dated 07.06.2013 in Special Case No.1 of 2013, the learned Special Judge (PCFSO Act) Thane convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to capital punishment of death. By the very same judgment and order, the accused was also convicted under Sections 376, 376(2)(f), 377, 363, 364, 367 and 201 of IPC. The accused was also convicted under Section 3 punishable under Section 4 and Section 5(h),(i),(k),(l) and (m) Pg 2 punishable under Section 6 of the Protection of Children from Sexual offences Act (in short, 'PCFSO Act'). For the offence under Sections 376, 376(2)(f), 377 of IPC and offence under Section 3 punishable under Section 4 and offence under Section 5(h),(i),(k), (l) and (m) punishable under Section 6 of PCFSO Act, the accused was sentenced to suffer imprisonment for life. No separate sentence was awarded for the offences under Sections 363, 364, 367 and 201 of IPC. As sentence of death was imposed on the accused, the learned Special Judge made a reference to this Court for confirmation of death sentence. The appellant-original accused being aggrieved by the very same judgment and order, preferred Criminal Appeal No.1202 of 2013. As both the confirmation case and the appeal are directed against the very same judgment and order, hence, both these matters were heard together and decided together.
2. The prosecution case, briefly stated, is as under:-
(i) The complainant PW-1 Datta Gavali and his wife PW-2 Kavita Gavali were residing along with their children i.e son Mahesh aged about 9 years, daughter Manisha aged about 7 years and victim girl aged about 5 years in Room No.3 at ground floor of Om Sai Building near office of Shivsena at Koprigaon Datta was working as a labourer and his wife Kavita was working as a maid servant. Datta used to leave the house to go to work at 09.00 a.m. and used to come back at 07.00 p.m. His wife Kavita used to leave the house at about 10.00 a.m. and used to come back at 12 noon and thereafter, she again went for work at about 2.00 p.m. and returned home at about 4.30/5.00 p.m. The children of Datta and Kavita used to stay at home. At the time of the incident, the accused and his family members were also residing in Om Sai Building. They were residing in Room No.8 on the ground floor which was almost adjacent to the house of Datta. The accused was residing in that room along with his wife PW-18 Asha, sons Rupesh and PW 19 Mahendra, daughters Manisha and PW-20 Nisha and grandson Omkar. The accused was not doing any work and he was sitting idle at home since last four years. Omkar used to go to school from 12 noon to 6.00 p.m. All the other family members of the accused used to leave the house for attending their job and during the day, the accused alone used to remain present in his house.
(ii) On 22.01.2013, Kavita left her house at about 10.00 a.m. Before leaving the house, she cooked rice, dal and dish of sago. When she was leaving the house, her three children were present in the house i.e Mahesh, Manisha and the victim girl. She returned back at about 12 noon and served food to Mahesh, Manisha and the victim girl. Thereafter, Kavita went to the house of her parents at Nerul. Kavita returned home at about 02.00 p.m. At that time, she did not see her youngest daughter aged about 5 years i.e. the victim girl. Kavita did not give much attention thinking that she might be playing near the house. Kavita left the house at 2.15 p.m. She received a call from one Avaghade Mama at about 4.30/5.00 p.m. Avaghade Mama told her that her youngest daughter was not present at home. Kavita inquired with said Mama about her other two children. Mama then gave mobile to Mahe
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