Tara PW.1 mother of Pooja, deceased, who had been away for work, on being informed came back and looked around but Pooja companyld number be traced.
Contusion right anterior triangle of neck 2 cm.
Khushal PW.10 had given information at the Police Station that his father appellant killed Pooja and put the dead body below the company in his house.
During search, Ashok PW.2 father of the deceased saw the dead body.
However, both the sentences were directed to run companycurrently.
Crescent marks on the labia majnora near the clitoris size 0.25 cm.
Tara PW.1 reached the police station at 9.30 p.m. to lodge the First Information Report hereinafter called the FIR .
Ashok PW.2 , father of Pooja, deceased has companyroborated the evidence of Deepak Jawahar Agarwal PW.8 fully to the extent that he was also at the police station when Khushal came and revealed the fact that his father had killed Pooja.
RIVAL SUBMISSIONS Shri D.N. Goburdhan, learned companynsel appearing for the appellant, has submitted that there is numberevidence on record to companynect the appellant with the crime.
The recovery of rope used in the crime has been disbelieved by the Trial Court on the ground that such ropes were easily available in the market.
The explanation furnished by the appellant that he had gone to liquor shop for drinks leaving his house open, had to be proved by him in view of the provisions of Section 106 of Indian Evidence Act, 1872, which he miserably failed and the companyrts below have disbelieved him.
27, 28 and 29 himself admitted that he was sitting outside his house when the police arrived.
Spot panchanama Ex.24 stood proved through panch witness Mohd.
As per the Chemical Analysis Report, Ex.49, these articles were having human blood.
The bed sheet as well as two cloth pieces having blood stains were seized by the police.
Hence, these appeals.
During play Pooja was found missing.
There is numberreason to disbelieve the above evidence factors.
When he numbericed that Pooja was number seen at the place of play he searched for her and asked in the neighbourhood and when he companyld number trace her, only then he went to inform his mother Smt.
It has companye on record that after finding Pooja missing, her brother Nitesh PW.3 searched for her.
Cloth pieces and bed sheet as well as the frock and knickers sent for chemical analysis.
He went to one Semabai and told her about it.
Such circumstance gives an opportunity to a person having evil design.
Tara PW.1 came and searched for her.
FACTS UNDISPUTED Indisputably, the dead body of Pooja was found inside the house of the appellant with blood stains under the company.
There is numbersufficient evidence on record on the basis of which companyviction of the appellant companyld be recorded.
Abrasion with radial from the labia minora behind and backwards numbered.
The information was given to the police in close vicinity at the time of companymission of the crime, though exact time of death is number known.
The evidence on this point particularly, is numberhere shakened during their cross examination.
P.C. , while answering Question Nos.
Tara PW.1 came back and searched for Pooja.
Tara PW.1 was still in the police station, Khushal PW.10 son of the appellant arrived at the police station and informed the police that the appellant, who was addicted to liquor, told him that he had killed Pooja, deceased and her dead body was lying under the company in his house.
There is number enough evidence on record to prove this circumstance against the appellant So far as the other part of this issue that Khushal PW.10 had informed the police that the dead body was lying below the company in his house, the companyrts below appreciated his evidence with full care and caution, being a hostile witness, as Khushal PW.10 denied that he had gone to the police station in the night and gave information.
Dr. P.D. Rokade PW.7 found following injuries on external examination Contused abrasion left frontal eminence size 0.25 x 0.25 cms.
There had been blood stains on the bed sheet and on the floor underneath the company.
Nothing companyld be brought to our numberice to companytradict the findings of the companyrts below.
Thus, appellant had an opportunity to take the victim Pooja inside the house.
The medical report revealed that she had been killed by strangulation after being subjected to sexual assault.
Both the companyrts below have appreciated the evidence on record particularly deposition of Nitesh PW.3 and held that appellant was present at the place of occurrence at the relevant time.
Appellant companyld number offer any explanation whatsoever as how the dead body of the victim girl companyld reach his house.
The High Court vide impugned judgment and order dated 11.1.2008 upheld the companyviction and enhanced the sentence to death penalty, while disposing of both the appeals.
It is admitted in view of the depositions of Ashok PW.2 , G.R. More PW.4 and Deepak Jawahar Agarwal PW.8 that the dead body of Pooja was recovered from the house of the appellant.
The second circumstance against the appellant had been that he was present at the place of occurrence when the children were playing.
Four chit the torn radially and bruised.
Panchanama also shows that the clothes were stained with blood.
Appellant has admitted the recovery of Poojas body from his house while answering Question No.29 in his examination under Section 313 Cr.
Tara PW.1 , Khushal PW.10 reached the police station crying and told them that his father had killed Pooja and kept the dead body below the company in his house.
Sharif.
Posterial companymisure torn.
According to Deepak Jawahar Agarwal PW.8 , he had gone to police station along with Smt.
The dead body of Pooja was recovered from the house of the appellant and panchnama was prepared.
Of companyrse, the Trial Court did number accept the evidence of Nitesh PW.3 , 12 years old child to the extent that the appellant had offered chocolates to him and Pooja, though Pooja had accepted it but Nitesh PW.3 did number accept the same.
The admitted fact remained that appellants mother and son, who were the other inmates of his house, had gone out to procure the medicines to cure his addiction and on the fateful day, appellant was alone in his house.
This witness has stated that there was a bed sheet on the company and it was having blood stains over it.
So far as the third circumstance is companycerned, admittedly, appellant had been living for a long long time in close vicinity of the house of Pooja, deceased and was very well acquainted with the victim as well as her family members.
The police had entered the house prior to Panchanama.
In the suggestion put to him, he has denied that he was deposing falsely.
There are material inconsistencies in the statements of the witnesses which go to the root of the case.
The Trial Court came to the companyclusion that evidence of Smt.
Hymen lacerated along 3 and 9 Oclock position.
More so, this part of the prosecution case has never been challenged by the defence and it stands proved that Pooja disappeared while playing in front of the house of the appellant that evening.
The companyrts below found the circumstance fully proved and we companycur with the said finding.
The appellant became annoyed as Khushal PW.10 put on the lights and so Khushal PW.10 put the lights off.
On receiving the information that Pooja was missing her mother Smt.
None of the aforesaid witnesses had any animosity with the appellant and thus, there companyld be numberreason to enrope him falsely.
When he again put on the lights the appellant became very angry, on this the appellants mother came in and at that time the appellant told them that he had companymitted the murder of Pooja and threatened them number to disclose to anybody.
Learned companynsel for the appellant companyld number point out any single evidence on the basis of which a companytrary inference can be drawn.
Circumstance No.6 relates to an extra judicial companyfession by the appellant before his mother and son Khushal PW.10 to the extent that he had killed Pooja.
According to the prosecution, Khushal PW.10 alongwith his grandmother had gone to Kalyan and returned in the night and found that the lights of the house were off and the appellant was present therein.
Similarly, G.R. More PW.4 , Head Constable had deposed in this regard that he entered the house of the appellant along with Ashok PW.2 and Deepak Jawahar Agarwal PW.8 .
So far as the eighth circumstance is companycerned, it relates to the recovery of the dead body of Pooja from the house of the appellant.
The appellant in his examination under Section 313 of Code of Criminal Procedure, 1973, hereinafter called Cr.
In such a fact situation, where people came to know about the disappearance of Pooja within a very short span of time, the culprit companyld number have had any opportunity to transfer the body from any other place to the appellants house.
INJURIES Dr. P.D. Rokade, PW 7, companyducted the post mortem examination on 25.10.1999 on the body of Pooja and found the following injuries Contused abrasion over the labia majora from the junction behind the backwards size 1 x 0.25 cm oblique.
Appellants mother was number examined.
Recovery of rope used in the crime at the instance of the appellant from his house.
Khushal PW.10 ran out of the house, went to the police station and revealed this fact.
So far as the first circumstance is companycerned, material on record reveals that Poojas dead body was found in the house of the appellant.
Circumstantial evidence was number to the effect that it would indicate towards the guilt of the appellant in exclusion of any hypothesis of innocence.
It was taken out and put on a handcart.
The fifth circumstance had been that Nitesh PW.3 saw Pooja in the house of the appellant and on being asked, the appellant denied her presence.
The alibi taken by the appellant that he had gone to a liquor shop for drinks leaving his house open remained unsubstantiated and was found to be false.
Moreover, this aspect has number been challenged by the appellant at any stage of the proceedings.
P.C. Thus, this circumstance to the extent that the dead body was recovered from the house of the appellant stood fully proved.
Clothes of the deceased were seized under panchanama Ex.20.
Ashok PW.2 who took out the dead body stated that the frock and knickers of the deceased were stained with blood.
The police acted on the information and reached the spot and found that a large number of persons had gathered there and the appellant was sitting outside his home.
Appellant was present at his house when the children were playing.
He has further deposed that they came with the police to the house of the appellant and entered his house.
The fact that blood was found on the bed sheet, on the company as well as on the floor below the company clearly indicates that the incident occurred there only.
The prosecution examined Khushal PW.10 , however, he was declared hostile.
Appellant had an opportunity to take Pooja inside the house.
Rope so recovered did number companytain any special mark for identification.
Nitesh PW.3 is a child witness as at the relevant time he was 12 years of age.
Discrepancy remained regarding acceptance of chocolate by Nitesh PW.3 , which of companyrse, is number relevant enough for the case taking into companysideration the other circumstances.
It is very unlikely that the culprit companymitted the heinous act elsewhere and then placed Poojas dead body in appellants house.
The appeals lack merit and are liable to be dismissed.
She was kept on a handcart.
Nitesh PW.3 asked the appellant about Pooja but he denied that she was there.
Tara PW.1 went to the police and Nitesh PW.3 stayed at home.
During the trial, the prosecution examined a large number of witnesses in support of its case and after companyclusion of the trial, the Trial Court vide judgment and order dated 19.9.2001 companyvicted the appellant and sentenced him to undergo life imprisonment under Section 302 IPC and 10 years imprisonment under Section 376 IPC.
Nitesh PW.3 deposed that as Pooja had disappeared he searched for her and as he companyld number find her out, he went to inform his mother Smt.
Up to this extent, the prosecution case has number been challenged by the appellant.
Being aggrieved, the State of Maharashtra preferred the appeal for enhancement of sentence and the appellant also filed an appeal against his companyviction.
Nitesh PW.3 has deposed that after his mother left for the police station, his friend came and told him that his sister was in the house of the appellant.
She was motionless.
Ravindera Pawar, PSI who companyducted this panchanama has also stated about this fact.
Tara PW.1 , who at that relevant time had been at Shagun Chowk.
x 0.5 cm.
All the injuries were ante mortem.
Semabai entered the house from the backside of the house of the appellant, however, companyld number see Pooja there.
Appellant was arrested and after companypleting the investigation, the chargesheet was filed against him under Sections 302 and 376 of the India Penal Code, 1860 hereinafter called IPC .
Death was caused by strangulation.
It was on the basis of the above that the companyrts below came to the companyclusion that Pooja was raped and murdered in the house of the appellant.
Tara PW.1 and it was in his presence that Khushal PW.10 has reached the police station and revealed that his father had killed Pooja and dead body was lying below the company.
Per companytra, Shri Arun R. Pednekar, learned companynsel appearing for the State, has opposed the appeals companytending that the companyrts below have taken into companysideration a large number of circumstances which stood proved to establish the guilt of the appellant.
Thus, the issue of extra judicial companyfession was number proved.
Tara PW.1 at Shagun Chowk and returned with her.
They both searched for Pooja and as they failed to find her out, Smt.
The companycurrent findings of facts recorded by the companyrts below on the basis of which the appellant has been companyvicted, do number require any interference.
Appellant was present in his house when police arrived there.
More so, there is numberhing on record to companytrovert the evidence of the doctor who companyducted the post mortem and opined that there had been sexual assault on the victim and she died of strangulation and there had been ligature marks on her neck.
The High Court while dealing with the evidence of Nitesh PW.3 held that the children had been playing in front of his house and the appellant had called them and given them chocolates.
The blood stains were also found below the company on the floor.
The police had searched his house and the dead body of Pooja lying below the company in his house was recovered.
He further deposed that he along with the policemen, entered the house of the appellant and recovered the dead body of his daughter, Pooja as it was lying below the company in the house of the appellant.
The fourth circumstance stood fully proved by the evidence on record, particularly by the depositions of Smt.
The appellant was standing in front of the house and the police caught him.
We do number see any companyent reason to interfere with finding of facts recorded by the companyrts below on this companynt.
The inconsistencies in the statements of the witnesses, if any, are of trivial nature.
Police Head Constable G.R. More PW.4 , Ashok PW.2 and Deepak Jawahar Agarwal PW.8 went to the house of the appellant and recovered the dead body of Pooja.
Thus, it was number possible in such a fact situation that every child companyld remain attentive on every moment about other children.
Person other than the appellant had numberopportunity to companymit the crime.
So, Nitesh PW.3 went there from the back side of the house and saw Pooja lying in the room.
Tara PW.1 , Ashok PW.2 , Deepak Jawahar Agarwal PW.8 , and G.R. More PW.4 were enough to establish that when police was recording the companyplaint of Smt.
The children had been busy in running here and there as they were playing hide and seek.
While Smt.
Tara PW.1 and Nitesh PW.3 .
We have companysidered the rival submissions made by learned companynsel for the parties and perused the record.
The dead body of Pooja, deceased, was recovered from the house of the appellant.
The medical evidence referred earlier as well as inquest panchanama, the admitted document, point out that Pooja was sexually assaulted before murder.
Explanation given by the appellant that he had gone to liquor shop for drinking leaving his house open was number found to be acceptable.
x 1.5 cm.
Appellant admitted before his mother and son Khushal PW.10 to have killed Pooja.
Nitesh PW.3 saw Pooja in the house of the appellant and asked him about it and he denied.
She was found missing by Nitesh PW.3 who searched for her but in vain.
on left and 1 cm.
Dr. B.S. CHAUHAN, J. These appeals have been preferred against the impugned judgment and order dated 11.1.2008 in Criminal Appeal Nos.1020/2001 and 401/2002 of the High Court of Bombay in which the High Court has companyfirmed the order of companyviction dated 19.9.2001 passed by the Additional Sessions Judge, Pune in Sessions Case No.41 of 2000 for the offences of rape and murder, however, altered the sentence of life imprisonment awarded by the Trial Court to death sentence while allowing the criminal appeal of the State for enhancement of punishment.
FACTS On 24.10.1999, Pooja, deceased, aged 10 years was playing on the road between her house and the house of the appellant at about 4 p.m. along with her brother Nitesh PW.3 and sister.
