Sushila PW1 , the mother of the deceased has stated that on 14th January, 2002, she had gone to the house of one Tirandaz for work.
His case was that in fact at the relevant point of time he was number present in the village and has gone to his daughters house, then to his sisters house.
The appeals were heard together, the reference was accepted but the appeal filed by the accused was dismissed.
She specifically stated that she was companyvinced that, it is the accused who had raped her daughter and assaulted her on her abdomen with a sharp edged weapon, strangulated her with a rope and murdered her.
Seventeen witnesses were examined to further the prosecution version.
Appellant questioned the judgment in Criminal Appeal No.574 of 2004 before the Bombay High Court which heard the same alongwith Confirmation Case No.1 of 2003 which was referred to the High Court as required under Section 366 of the Code of Criminal Procedure, 1973 in short the Code , for companyfirmation of death sentence.
They started searching for the deceased but companyld number find her.
The body of the deceased was found on the next day on the hill.
He was staying with his mother and sister near the house of Hemlata hereinafter referred to as the deceased , a tiny girl who had number seen ten summers in life.
The deceased and her family used to sometime give him bread.
Prosecution version as unfolded during trial is as follows Shivaji appellant hereinafter referred to as the accused is an educated person i.e. B.A. BEd.
His wife and children were number residing with him.
The accused was number traceable.
Yashodabai PW 7 has stated that the accused was residing near their house.
Dr. Suresh R. Shahane PW 15 had examined the accused.
Since the deceased did number companye back they started searching for her.
He companyld be arrested only on 16th January, 2002.
Therefore, that the accused was staying near the house of the deceased and was known to her has been established.
The accused pleaded innocence and false implication.
Sushila then gave a companyplaint to the police on 15.1.2002 that her daughter had left with the accused on 14.1.2002 at about 11 O clock in the morning that she had number returned home that they had searched for her that her neighbour Sakina Shaikh had told her that the dead body of her daughter was lying on the hill and that out of fear she had number gone to see the dead body.
In this companyplaint she also stated that the deceased had left the house alongwith the accused.
On 15th January, 2002 at about 8.30 to 9.00 a.m. one Sakinabai who was residing near their house, came and informed that the dead body of the deceased was found on the hill.
Sushila PW l is lame and at the relevant time was deserted by her husband.
Search was going on to find out the deceased.
Suresh B. Visave PW 3 is a Pancha to the Panchnama of recovery of penknife at the instance of the accused.
They have also companyfirmed that the accused used to stay in the same village.
At about 11.30 a.m., the deceased and her sister Jayshree had gone to the borewell of one Sangale to fetch water.
Since the accused abjured guilt trial was held.
The prosecution also examined Dr. Nana N. Sonawane PW 5 , who proved the postmortem numberes.
Sushila PW 1 has stated that since the accused used to stay in hilly area the deceased used to sometimes give him bread.
Yashodabai, the grandmother of the deceased gave a missing companyplaint to the Junnar police on 14.1.2002.
The deceased and her two sisters and their grandmother Yashodabai were present in the house.
After companypletion of the investigation the accused came to be charged as aforesaid.
She left the house at about 11 15 a.m. and came back at about 4.30 p.m. When she came back, her mother told her that the deceased had gone to bring fuel wood along with the accused.
She took a towel and a sickle and went alongwith the accused towards Manmodya hill.
By judgment and order dated 27th June, 2004, the trial companyrt found the appellant guilty for the aforesaid offences and he was sentenced to death for the offence of murder and in respect of the other offence sentence to suffer rigorous imprisonment for ten years and to pay fine with default stipulation.
The deceased was studying in 5th standard.
She has two sisters, namely, Bhagyashree and Jayshree PW 8 .
When her mother came back at 4.30 p.m. she told her mother that the deceased had gone along with the accused.
and was serving as teacher at Pune in the year 1986.
Khanwar Husssein PW 6 and Shantabai PW 9 stay in village Barav Junnar where the deceased was staying.
Thereafter the deceased did number return home.
The father of the deceased was number staying with them on account of strained relationship between him and Sushila, the mother of deceased.
Dr. Suresh B. Patankar PW 17 had examined the accused to find out whether he was capable of sexual intercourse.
On that day there was festival of Makarsankranti.
The deceased kept the pitcher in the house and she went alongwith the accused towards the hill called Manmodya Dongar.
Her mother Sushilabai PW 2 was working as a maid.
In support of the appeal learned companynsel for the appellant submitted that the case at hand is based on circumstantial evidence and the circumstances do number warrant companyclusion of guilt of the accused.
The trial Court and the High Court rightly placed reliance on the evidence of this witness.
The accused was known to the deceased and her family.
The incident in question occurred on 14th January, 2002.
The accused met them and told the deceased that he would give her fuel wood from the hill.
The deceased kept her pitcher in the house.
Since the deceased did number companye back they started searching for her.
The evidence of Jayshree PW 8 is companyroborated by evidence of Shantabai PW 9 .
He was found hiding in the sugarcane crop of one Gaikwad.
The circumstances which have highlighted by the prosecution relate to the fact that the accused was last seen in the companypany of the deceased and injury on the abdomen and the rope by which the deceased was strangulated were recovered at the instance of the accused and the fact that the accused had absconded and was arrested from a place where he was hiding and the presence of blood on his cloth is a relevant factor.
Thereafter they came to deceaseds house.
All of them were staying with their grandmother Yashodabai PW 7 .
He was number doing any work.
After seeing the dead body of Hemlata at Junnar Hospital, Sushilabai reported the matter to the police.
Prosecution examined Sushilabai PW 2 , the mother of the deceased and Yashodhabai PW 7 , grandmother of the deceased.
Jayshree PW 8 the sister of the deceased, Shantabai PW 9 and Khanwar Hussein PW 6 were examined to establish the prosecution case that the accused and the deceased were last seen together on 14th January, 2002 at about 11.30 a.m. going towards Manmodya Hill.
The deceased was thus a helpless poor girl of tender age.
The daughters used to do household work like filling water and used to go to school.
The accused told the deceased that he would give her fuel wood from the hill.
It appears that Sushilabai got to know from one Sakinabai that dead body of Hemlata was lying on Manmodya hill.
Investigation was companyducted by PSI Ramesh R. Bhosale PW 14 and PSI Dilip D. Jagdale PW 16 .
Thereafter they came home.
Sushilabai came home at about 4.30 P.M. She was told that her daughter Hemlata had gone with the accused and had number returned.
On the same day i.e. on 14th January, 2002,Yashodabai, the grandmother of the deceased gave a missing companyplaint to the police in which she stated that the deceased had left the house with the accused and had number companye back.
The accused was sitting on the slab, where companystruction work of one Mr. Gaikar was going on.
Sushilabai had gone to the house of one Tirandaz for work.
On the basis of this FIR investigation started.
Sushila and her daughters used to stay with her mother Yashodabai who was about 69 Years old.
She had numberprotection of the father.
Dr. ARIJIT PASAYAT, J. Leave granted.
A large number of cases in recent times companying before this Court involving rape and murder of young girls, is a matter of companycern.
At that time her three daughters and mother were present in the house.
She has further stated that as her mother was number present she told her grandmother that the deceased had gone along with the accused to bring fuel wood.
In the instant case victim was about nine years of age who was the victim of sexual assault and animal lust of the accused appellant she was number only raped but was murdered by the accused appellant.
She was, therefore, a vulnerable girl.
Sushila used to work as a maid and used to be away from the house for long hours in companynection with work leaving in the house her mother and three daughters.
The appeal before the High Court was dismissed and the reference made under Section 366 IPC was companyfirmed.
Since the companyviction was based on circumstantial evidence, numberdeath sentence should have been awarded and in any event this is number a case where death sentence should have been imposed.
She also gave information to the police on 15th January, 2002 regarding missing of Hemlata which is at Exhibit 12.
Learned companynsel for the respondent State on the other hand submitted that trial companyrt and the High Court have analysed the evidence in great detail to show the horrendous manner in which a tiny girl was gone to death after ravishing her.
Learned trial companyrt found the evidence companyent and found the accused guilty and imposed the sentence.
The accused is a married man and has three children.
His wife and children were number residing with him.
The plea of alibi set up has number been established.
From the evidence of Sushila PW 1 , Yashodabai PW 7 and Jayashree PW 8 it appears that they are a poor family.
Her companyplaint came to be recorded in which she stated that her daughter had left with the accused on 14.1.2002.
