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IN THE HIGH COURT OF BOMBAY AT AURANGABAD
RAVINDRA V. GHUGE, B.U. DEBADWAR, JJ.
Sakharam - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 91 of 2017
Decided On : 10-09-2020
CRIMINAL APPEAL - CONVICTION FOR OFFENCES PUNISHABLE U/S 376 & 302 OF THE INDIAN PENAL CODE - CHAIN OF CIRCUMSTANTIAL EVIDENCE - APPRECIATION OF EVIDENCE - DELAY IN RECORDING STATEMENTS OF WITNESSES - DEFECTIVE INVESTIGATION - HELD, CONVICTION FOR OFFENCE U/S 376 IPC NOT SUSTAINABLE, HOWEVER, CONVICTION FOR ATTEMPT TO COMMIT RAPE U/S 511 IPC SUSTAINABLE - SENTENCE REDUCED ACCORDINGLY.
Fact of the Case:
The appellant was convicted by the trial court for offences punishable u/s 376 and 302 of the Indian Penal Code (IPC) and sentenced to rigorous imprisonment for seven years and a fine of Rs. 500/- for the offence u/s 376 IPC, and life imprisonment and a fine of Rs. 500/- for the offence u/s 302 IPC. The appellant challenged the conviction and sentence on the grounds of faulty investigation, delay in recording statements of witnesses, and insufficient evidence to prove the offence of rape.
Finding of the Court:
The court found that the evidence on record, including the testimony of witnesses, the medical report, and the circumstantial evidence, established the guilt of the accused beyond reasonable doubt. The court held that the delay in recording the statements of witnesses did not render the evidence inadmissible or unreliable. The court also found that the investigation, though not flawless, was not so defective as to vitiate the entire prosecution case.
Issues: 1. Whether the circumstantial evidence was sufficient to prove the guilt of the accused beyond reasonable doubt? 2. Whether the delay in recording the statements of witnesses rendered the evidence inadmissible or unreliable? 3. Whether the investigation was so defective as to vitiate the entire prosecution case?
Ratio Decidendi: 1. The court held that the circumstantial evidence, including the testimony of witnesses, the medical report, and the recovery of the necklace from the accused, was sufficient to prove the guilt of the accused beyond reasonable doubt. 2. The court held that the delay in recording the statements of witnesses did not render the evidence inadmissible or unreliable, as there was no evidence of tutoring or manipulation of the witnesses. 3. The court held that the investigation, though not flawless, was not so defective as to vitiate the entire prosecution case.
Final Decision: The court partly allowed the appeal, setting aside the conviction for the offence of rape u/s 376 IPC and reducing the sentence for the offence of attempt to commit rape u/s 511 IPC to half of the original sentence. The sentence for the offence of murder u/s 302 IPC was maintained.
JUDGMENT :
Ravindra V. Ghuge, J.
1. The appellant/accused is before this Court in view of his conviction by the impugned Judgment & Order dated 21-02-2012 delivered by the learned Additional Sessions Judge, Hingoli in Sessions Trial Case No. 72/2010 for having committed offences punishable u/s 376 & 302 of the Indian Penal Code (hereinafter referred to as “IPC”). He is directed to suffer rigorous imprisonment or seven years and pay a fine of Rs. 500/-, in default suffer rigorous imprisonment for three months, for the offence committed u/s 376 of the IPC. He has also been convicted for the offence committed u/s 302 of the IPC and is directed to suffer imprisonment for life and pay a fine of Rs. 500/-, in default suffer rigorous imprisonment for three months. Both the sentences are to run concurrently and time spent by the accused in Jail owing to his arrest on 30-03-2009, is directed to be set off.
2. We have heard the learned advocate for the appellant and the learned APP on 08-09-2020, 09-09-2020 and 10-09-2020. With their assistance, we have gone though the appeal paper-book threadbare and the judgments cited.
3. The case put up by the prosecution before the Trial Court can be summarized as under:
b. The daughter of the complainant, PW3 Kalpana, informed him that the deceased had gone to the forest adjoining the village at about 02:00 pm., for collecting firewood. Since she did not return for quite sometime till evening, she contacted her closest friend Ms. Bali, PW4 to go searching for her. They found the deceased with head injuries inflicted by stones and her face and skull smashed. The complainant therefore informed the Police Post at Dongarkada, which is within the jurisdiction of the Akhada Balapur Police Station.
c. Later on, after the FIR was registered, Kalpana told the complainant that Sakharam, present appellant, was seen by Kalpana and Bali near a pit adjacent to the Odha/Streamlet. He was pelting stones in the pit. These two girls saw him within a distance of about 100 ft. and as he belonged to the same small village, they could identify him. When Sakharam saw these two girls, he hurriedly left the area and fled. These two girls proceeded searchingly and on reaching the pit, they found that the deceased was lying in the pit with stones having been hit on her head. Both were terrified and ran back to the village to inform the relatives and the villagers. Being in a state of shock, these two girls found it difficult to correlate the presence of Sakharam, instantaneously as the only information that they gave to the relatives was that Ranjana was found dead.
d. The police began investigation and a sniffer dog from the Dog Squad available, was brought to the spot. A stick (Gahari Tree) which had blood stains and a large stone which was used for smashing the skull of the deceased with blood stains, were found. The dog handler guided the dog to smell the said articles at the spot and after the dog had sniffed around, he started sniffing a path from the Nala and went to one Akhada nearby. An Akhada in rural areas in this part of the state is a sort of a small hut used for storing agricultural equipments and as a residence for a servant working for the agriculture field owner. One wooden cot was lying in front of the hut. The sniffer dog reached the Akhada, sniffed around, intensely sniffed the cot and started barki
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