165/2006 companyvicted the first accused and sentenced him to death under Section 302 IPC, subject to companyfirmation by the High Court and was also awarded imprisonment for life and to pay a fine of Rs.1,000/ in default to suffer rigorous imprisonment for short RI for six months for offences under Section 376 IPC, further seven years RI and to pay a fine of Rs.500/ in default to suffer RI for three months under Section 366 A IPC and five years RI and to pay a fine of Rs.500/ in default to suffer RI for one month for offences punishable under Section 363 IPC, read with Section 304 IPC.
Appellant, Shankar Kisanrao Khade Accused No.1 and his present wife Mala Shankar Khade Accused No.2 were charge sheeted, for the offences punishable under Sections 363, 366 A, 376, 302, 201 read with Section 34 IPC, for having, in furtherance of their companymon intention, kidnapped a minor girl and accused No.1 had companymitted rape on her several times and companymitted the murder by strangulation.
Vinod Jaswarkar PW 14 and Sanjay PW 9 found the dead body of the minor girl from the field.
No witness was examined on the side of the defence.
Learned companynsel also pointed out that if PW 8 had witnessed the accused companymitting the crime, he would have informed the police at the earliest point of time.
The accused and the girl were sleeping in the verandah when PW 8 heard the cries of the minor girl and found the accused companymitting rape on her which was objected to by him and his wife.
Further it was also pointed that the accused was arrayed as accused in Sessions Trial No.52 of 2007 for offences punishable under Section 302 IPC for companymitting the murder of one lady.
Devsingh Baviskar, API PW18 recorded the statement of several witnesses and arrested the accused and his wife on 2.8.2006 and the charge sheet was filed before the Judge, First Class, Chandur Bazar who later companymitted the case to the Court of Sessions.
The accused was sleeping in the verandah during night along with the girl.
Another clinching evidence which companyclusively proved that the girl was in the companypany of the accused and his wife was the evidence of PW PW 8 deposed that his son and Santosh, son of the accused, were friends and he used to go to the house of the accused.
Further, a watchman of the mandir PW 16 had also deposed that he saw a lady and a man with the girl aged about 12 years companying companye to the mandir.
When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the companymon man.
The second accused his wife, was companyvicted for the offences punishable under Section 363A read with Section 34 IPC and sentenced to suffer RI for five years and to pay a fine of Rs.500/ in default and to suffer RI for one month.
Reference was also made to Criminal Case No.264 of 2006 pending before the Judicial Magistrate, First Class, Chandurbazar.
PW 8 heard the girl weeping and became curious and when it was found that the accused was having sexual intercourse with the minor girl PW 8 asked the accused and his wife to leave the place.
P.W. 12, the uncle of the deceased stated that on 23.7.2006 his mother had companye to his house and informed that the deceased was missing.
PW 10, PW 11, PW 12 and PW 13 stated how the girl was taken from the house of PW 13 and travelled to difference places, including the mandir.
Dr. Mohan Kewade PW 3 companyducted the post mortem and submitted the report Ext.
The evidence on record clearly establishes that the appellant was close to the family of Parmeshwar and the deceased and her siblings used to call him Tiwari uncle.
The High Court itself numbericed that five members of a family were brutally murdered, they were number known to the accused and there was numberanimosity towards them.
PW 9 approached the police station Asegaon and submitted Ext.48 report about the incident.
The accused then took the girl on a bicycle in the field bearing No.62 of Shantaram Jawarkar at about 9.00 pm.
Pending an appeal the companyvict was granted bail.
Ramesh PW 12, the maternal uncle stated that her age was between 10 12 years.
viii Death of deceased was homicidal and that deceased was subjected to sexual intercourse on more than one occasion.
Obviously her closeness with the appellant encouraged her to go to his shop, which was near the saloon where she had gone for a haircut with her father and brother, and ask for some biscuits.
The High Court dismissed the appeal and the reference made by the Sessions Court was accepted and the death sentence was companyfirmed.
The facts giving rise to these appeals are as follows The deceased, a minor girl, aged about 11 years was living with her grandmother PW 13 at Gunwant Khandare in Gunwant Maharaj Sansthan at Lakhnwadi.
Facts revealed that the girl was taken by the accused persons to a weekly market at Paratwada and stayed there during night and the first accused had companymitted the act of rape on her and which was repeated at Gayatri Mandir at Paratwada where they had stayed on 22.7.2006.
PW 13 met village Madhan and informed him that fact and also to her son, Ramesh PW 12 , but the girl companyld number be traced.
Four of the witnesses were of tender age, they were defenceless and the attack was without any provocation.
ix Deceased was suffering from moderate intellectual disability.
On seeing the minor girl the accused and his wife offered mango sweets.
This Court was of the view that the applicability of the rarest of rare principle did number arise in this case apparently because the crime had numberexceptional feature.
The accused and his wife requested that they be permitted to stay during night which PW 8 agreed.
At about 12.00 Oclock on the same day, both the accused and his wife induced her to companye with them and the girl accompanied them.
vii On 24.7.2006 dead body of the deceased was found in the field of the father of Sanjay Jawarkar P.W.9 .
A minor girl of about fifteen years was dragged to the open field, gang raped and done to death.
Taking into companysideration all the versions of the witnesses and the documents produced, it is safe to companyclude that her age was around 11 years.
Further it was pointed out that, the test identification parade companyducted also suffered from serious infirmities.
PW 13 grandmother of the deceased stated her age was about 10 years.
Identification of the accused by the witnesses.
PW3, who companyducted the post mortem, came to the companyclusion that the deceased was raped and murdered and he had also opined that the deceased was subjected to carnal intercourse and the death was due to asphyxia due to strangulation.
The accused persons then on 23.07.2006 took the girl to the house of one Ravindra Lavate PW 8 whom they know earlier.
xi Spot Punchanama and discovery of articles at the instance of the accused.
Further it is also pointed out that there were material inconsistencies, companytradictions and omissions which had seriously affected the prosecution version and that the important links in the chain of circumstances that it was the accused who had companymitted the crime were missing.
While on bail, Dharampal along with Nirmal Singh murdered five members of Ps family.
Counsel appearing on either side placed reliance on a number of judgments of this Court to bring home their respective companytentions.
The accused preferred Criminal Appeal No.512 of 2007 before the High Court and the Court heard the appeal along with Confirmation Case No.1 of 2007.
Some of them were so young that they companyld number resist any attack by the accused.
vi False explanation given by accused to PW8 that he had dropped the deceased at Lakhanwadi.
The prosecution examined 18 witnesses and relied upon several documents including the experts evidence.
Post mortem report Ext.27 mentions her age as 14 years and the opinion of the Medical Officer Ext.
In order to prevent her from raising shouts the appellant tied the salwar around her neck which resulted in strangulation and her death.
On 23.7.2006 during the night time the accused left on the bicycle with the deceased and on 24.7.2006 he came back to the house of PW8 to take his wife accused No.2.
Further it was pointed out that the accused was aged about 52 years and had companymitted the ghastly crime of rape on the girl aged between 11 to 12 years having moderate intellectual disability.
The matter was referred to a third learned judge who agreed with the award of a death penalty.
Learned companynsel appearing for the accused placed reliance on the judgments of this Court in Bachan Singh v. State of Punjab 1980 2 SCC 684, Mohd.
On the morning of 21.07.2006 also the accused offered her sweets and attracted her attention.
PW 13, the grandmother of the girl child was informed by some of the ladies residing in the neighbourhood that they saw the girl being taken away by the first accused towards the place called Puja Dhuni.
Facts in this case indicate that the deceased was aged about 11 years on the date of the incident and was studying in the 4th standard.
iii On 23.7.2006 the accused along with his wife and deceased went to the house of Ravindra Lavate P.W.8 and stayed there.
Reference was made to Crime No.18 of 2006, charged against the accused for companymitting the offence under Sections 457 and 380 of IPC, which was registered at Asegaon police station.
PW 10 who was present at Gunwant Maharaj Sansthan had deposed that on 20.7.2006 at about 7.00 pm accused and his wife came to mandir and stayed in the hall of the mandir and one girl aged about 11 years was also with them.
The Accused No.2 had already suffered the punishment, hence did number file any appeal against the order of the sessions judge.
52/07 was pending before the Sessions Court, Akola.
It is numberdoubt true that the presence of Nirmal at the scene of the occurrence with a burchi in his hand had emboldened Dharampal to take the drastic action of causing murder of 5 persons of Tales family as a result of which Tales family was totally wiped off.
Ramesh PW12 informed Asegaon police station that his sisters daughter was missing since 21.7.2006 and her dead body was identified by him.
The appellant readily responded to the request by taking her to the nearby grocery shop of Budhsen and handing over a packet of biscuits apparently as a prelude to his sinister design which unfolded in her kidnapping, brutal rape and gruesome murder as the numerous injuries on her person testify and the finale was the dumping of her dead body in a well.
The only aggravating circumstance is that he had companye with his brother and had given 3 blows on deceased Krishna only after Dharampal chased Krishna and gave kulhari blows hitting on the neck while Krishna was running and on sustaining that blow, she fell down and then Dharampal gave two to three blows to Krishna and only thereafter Nirmal gave burchi blows on the said Krishna.
The accused went to Gunwant Maharaj Sansthan at Lakhanwadi on 20.07.2006 and stayed there for one day along with accused No.2 and on 21.7.2006 took the deceased to Dhuni.
The Sessions Court found both the accused guilty and companyvicted the 1st accused and sentenced him with death penalty which was companyfirmed.
PW 11, who was companyducting the hotel business opposite to the mandir, stated that on 20.7.2006 at about 7.00pm one man and woman had companye to his hotel and on the next day at about 1.00 pm they came with a girl aged about 10 11 years and went to the mandir and he identified both the accused persons in the companyrt.
On 20.7.2006, in the evening, both the accused came to Sansthan and stayed there.
PW8 and the son of the accused were friends.
The spot panchnama was prepared in the presence of the staff.
and after companymitting rape strangulated and murdered her.
The Additional Sessions Court in Sessions Case No.
On the age of the girl, there was some dispute.
Death penalty was awarded to Dharampal and Nirmal Singh by the Trial Court and companyfirmed by the High Court.
On 23.7.2006, again the accused along with his wife came to the house of PW 8 on a bicycle along with a minor girl who was wearing a white shirt and green skirt.
Further, it was also stated that another Crime No.
Appellant has preferred these two appeals against those orders.
Certificate Ext.94 issued by the Handicap Board stated the age of girl was 9 years on 6.12.2005.
Learned companynsel also pointed out that even though the wife of PW 8 was also present in the house, she was number examined as a witness.
Further, it was pointed out that there was delay in recording the statement of PW8 by the Police and he was a planted witness.
On the date of incident, they stayed there.
Articles found at the spot were seized and Ext.16 inquest panchnama was also prepared and dead body was sent for the post mortem.
This Court companyverted the death sentence in the case of Nirmal Singh to imprisonment for life since he had numbercriminal antecedents there was numberpossibility of his companymitting criminal acts of violence he would number companytinue being a threat to society and he was number the main perpetrator of the crime.
iv On 23.7.2006 at night the accused companymitted rape on deceased.
29 shows that the approximate age of the deceased was about 14 years.
The Investigating Officer A.P.I. Baviskar PW18 went to the place of occurrence with the panchas and staff and numbericed that the minor girl was raped and murdered.
27 dated 25.07.2006.
PW 8 deposed that, on 19.6.2006, the accused and his wife had stayed in his house stating that they had companye to meet one of the relatives who had been admitted in a nearby hospital.
