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BOMBAY HIGH COURT
Sadhana S. Jadhav and Prithviraj K. Chavan, JJ.
State of Maharashtra – Appellant
versus
Mohammad Aabed
Mohammad Ajmir Shaikh – Respondent
Criminal Confirmation Case No.2 of 2019
Decided on 8.2.2022
(A) Protection of Children from Sexual Offences Act, 2012 – Sections 4, 8 and 10 – Indian Penal Code, 1860 – Sections 363, 364, 366-A, 302 and 201 – Criminal Procedure Code, 1973 – Sections 354(3) and 366(1) – Kidnapping and murder of girl child – Death sentence – Accused has confessed that he had killed the girl by throttling in order to satisfy his vendetta against father of deceased – Motive was known to accused alone – Confession was made voluntarily, free from threat and inducement and it carries with it presumption of truth – Abscondence by itself would not be an incriminating circumstance and certainly cannot form a foundation for conviction – Some people escape from scene of offence or run away from public view after they apprehend unwarranted suspicion – That could be a case of self-preservation, especially when there is an apprehension that one may be falsely implicated – But, in a case like a present one, there was no occasion to falsely implicate accused – Accused was not harbouring under cloud of suspicion – He was one who by his extra-Judicial confession brought motive to light and voluntarily admitted before his friend that he had committed offence – Accused under Section 313 of Code of Criminal Procedure, 1973 has also not given any plausible explanation for his disappearance over night – There was no question of self-preservation, much less, complainant had suspected accused of having committed offence – It becomes one of determining links in completing chain of circumstantial evidence – Upon external and internal examination opinion of sexual assault could not be given – Accused may have throttled her and pushed her into bushes and she must have fallen on her head – Accused is an young man – At the time of commission of offence, accused was hardly 20 years of age – Satisfaction of personal vendetta had overpowered him momentarily and in that moment of deprivation of self control, he had committed offence – It is incumbent upon courts to take into consideration reformation, rehabilitation and reintegration of convict into society – There is no material to show that he was over-powered by lust – There is no evidence of sexual assault – It not being rarest of rare case, death sentence commuted to life sentence and fine. (Paras 53, 58, 59, 60, 65, 72, 75, 77
and 85)
(B) Indian Evidence Act, 1872 – Section 25 – Extra judicial confession – Extra judicial confession is considered as a weak piece of evidence by itself – All that is required is that said confession should be voluntary – It should be truthful, it should inspire confidence of court – It should not suffer from any inherent probabilities or suffer from material discrepancies and it should be supported by cogent circumstance – An arithmetical exactitude cannot be read into an extra judicial confession – All that needs to be seen is that, it was not induced by threat or coercion or any compulsion to divulge commission of an offence. (Paras 52 and 61)
Result: Death Reference answered in negative. Death sentence commuted to life sentence.
JUDGMENT
Sadhana S. Jadhav, J.—The stone of a grave had crushed the candle before it could spread light or its aura could be seen.
The tragic death of the child Miss. “X” came to light on 4th April, 2018, when her almost decomposed body was found in an abandoned state in the thorny bushes of an open land, which was used by the locals for defecating.
2. The State has filed this Case for confirming the death sentence awarded against the Respondent-Accused vide Judgment and Order dated 8th March, 2019 passed by the Additional Sessions Judge & Special Judge under POCSO Act, Thane in Special Case (Child Protection) No. 159 of 2018. The operative order reads as under:
“1. Accused Mohammad Aabed Mohammad Ajmir Shaikh, aged 20 years is hereby convicted as per section 235(2) of the Code of Criminal Procedure for the offence punishable under sections 363, 364, 366-A, 302, 201 of Indian Penal Code and offence punishable under sections 4, 8 and 10 of the Protection of Children from Sexual Offences Act, 2012.
2. Accused is hereby convicted as per section 235(2) of the Code of Criminal Procedure Code for the offence punishable under section 302 of Indian Penal Code and be hanged by the neck till he is dead.
3. Accused is hereby sentenced to suffer rigorous imprisonment for life which shall mean imprisonment for the remainder of his natural life and to pay fine of Rs. 5,000 (Rupees Five Thousand only) for the offence punishable under section 376(2)(i) of Indian Penal Code. In default of payment of fine, shall suffer rigorous imprisonment for one year.
4. Accused is sentenced to suffer rigorous imprisonment for 5 years and shall pay fine of Rs. 5,000/-(Rupees Five Thousand only) for the offence punishable under section 363 of IPC. In default of payment of fine, shall suffer rigorous imprisonment for 6 months.
5. Accused is sentenced to suffer rigorous imprisonment for 5 years and shall pay fine of Rs. 5000/-(Rupees Five Thousand only) for the offence punishable under section 364 of IPC. In default of payment of fine, shall suffer rigorous imprisonment for 6 months.
6. Accused is sentenced to suffer rigorous imprisonment for 5 years and shall pay fine of Rs. 5,000/- (Rupees Five Thousand only) for the offence punishable under section 366-A of IPC. In default of payment of fine, shall suffer rigorous imprisonment for 6 months.
7. Accused is sentenced to suffer rigorous imprisonment for 3 years and shall pay fine of Rs. 5,000/- (Rupees Five Thousand only) for the offence punishable under section 201 of IPC. In default of payment of fine, shall suffer rigorous imprisonment for 6 months.
8. All the substantive sentences for imprisonment of the accused shall run concurrently.
9. After realization of the amount, it shall be given to the parents of deceased girl after appeal period is over.
10. Accused is in jail. Hence, he is entitled for set off under section 428 of the Code of Criminal Procedure for the period already undergone in jail for the punishments of the offences except for the punishment under section 376(2)(i) as it implies that life imprisonment shall mean the imprisonment for remainder of life.
11. In view of section 28(2) of Cr. P.C. the sentence of death shall be subject to the confirmation by the Hon’ble High Court. Hence, entire proceeding be sent to the Hon’ble High Court at the earliest.
12. Muddemal property being worthless be destroyed after appeal period is over.
13. The District Legal Service, Thane is hereby requested to award compensation to the parents of deceased girl, as per rule.
14. Judgment declared in open court.
15. Copy of this Judgment be given to the accused free of costs.”
3. The facts of the case in nutshell are as under:
On 2nd April, 2018 early morning PW.1 lodged a missing report at Bhoiwada Police station alleging therein that on 1st April, 2018 he left his house at about 4.00 p.m after his afternoon break and went to his pan stall. At about 6.00 p.m, his elder son Ajay visited the pan
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