for the accused criticized the manner in which the finger prints
and the photographs were taken, so also the approach of
Supervising Officers, who approved the report of finger prints as
that of accused no.2Nitin. We quote the evidence of PW18
Devidas, which reads thus:
“.....I then compared the finger prints of the accused
with the fit chance print. The chance print which
was found fit when I compared with the prints of
the hands of accused sent by the police, I found that
the chance print tallied with the left print palm of
accused Nitin. I then prepared my opinion on 247
2008. Exh.124 is the same. My opinion has been
approved by Deputy Director Finger Prints, Nagpur.
To that effect, I received a letter. That letter was
addressed to police station Gadge Nagar and copy
was given to me. The copy which I received is
marked at Exh.125. At the office of Deputy Director
Finger Prints, Nagpur as per procedure my opinion
was reexamined and thereafter the Deputy Director
approved my opinion. The committee approved my
opinion. The endorsement to that effect is on
Exh.124. While comparing the chance prints and
the impressions of the hands of accused I took the
enlargement thereof. I have produced those
enlargements. They are marked at Exhs. 126 and
127. I marked the characteristic thereon. I had
shown nine characteristic in the enlargements by
giving number. I have prepared the statement of
reasoning thereon which is marked at Exh.128. As
per my opinion the print of accused Nitin tallied
with the chance print.
(2) It is my say that the finger prints of one
person never tally with the finger prints of any
another person. These finger prints of a person
never change.”
33. We have perused the crossexamination of this witness.
We have also applied our mind to the expert opinion on the finger
prints. We do not find anything in the crossexamination to reject
the evidence of this witness on the proof of finger prints of
accused no.2Nitin. The minor nature of discrepancy in the
certification by higher authorities after examination pointed to us
by counsel for the accused persons also does not impress us since
there is no material discrepancy in the drawing of finger prints and
examination thereof and the conclusion arrived at namely that the
finger prints collected from the spot matched with accused no.2
Nitin's finger prints. The submission that no injuries were
mentioned in the arrest Panchanama of accused persons also does
not impress us since for independently recording the finger prints
that would not be relevant and it is clear that by itself would not
create any doubt.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Criminal Confirmation Case No. 1/2013
State of Maharashtra,
thr. PSO Gadge, Nagar,
Amravati, Tq. Dist. Amravati. ...APPELLANT
...V E R S U S...
Ajay Dayaram Gopnarayan,
CORAM: A. B. CHAUDHARI & Z. A. HAQ, JJ.
Date of Pronouncing the Judgment: 17.01.2014
1. This is a Criminal Reference Registration No.1/2013 for
confirmation of death sentence against accused no.1Ajay
Dayaram Gopnarayan.
2. Both the accused persons Ajay Dayaram Gopnarayan
and Nitin Nandkishor Gudadhe have also preferred Criminal
Appeal No.225/2013 praying for acquittal against judgment of
conviction for offences punishable under section 302 and 392 of
I.P.C. and accused no.1Ajay is sentenced to death while accused
no.2Nitin Gudadhe is sentenced to life imprisonment and to pay a
fine of Rs.1000/ in default to suffer rigorous imprisonment for six
months.
Both the matters are taken up together for hearing and
disposal. Hence, this common judgment.
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F A C T S:
3. The prosecution case is that the deceased Vijayatai
Vitthalrao Pund aged about 75 years, who was mother of PW1
Sunil Vitthalrao Pund, a practicing lawyer by profession at
Amravati was residing in Venus Park area of Kanta Nagar,
Amravati. The house was constructed by PW1Sunil about 67
years before the date of incident by engaging a building contractor
PW2Dilip Lade and during the construction activity, accused no.1
Ajay and accused no.2 Nitin in turn were engaged by Dilip as
Labourers. After construction of the house, accused no.1Ajay on
his request to PW1Sunil, started residing in one room at one end
of his house and was also doing the work of cleaning the
courtyard, gardening work in the house, so also the sundry works
like payments of electricity bills etc. He resided for about 1¼
month. During the said period accused no.1Ajay also used to
earn by driving auto rickshaw and used to park his auto rickshaw
in front of the house of PW1Sunil. But then, he stayed only for
1¼ month, 10 months prior to the date of incident and left the
house. At the relevant time, PW1Sunil's wife and son were
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residing at Nagpur. On the date of incident namely on
17.07.2008, PW1Sunil came from the Court at about 2.30 p.m.,
took lunch and left for his village Porgavan, Tq. Morshi, Dist.
Amravati with his driver in the car. Deceased Vijayatai was alone
at home. PW1Sunil locked the main gate of the compound
though small gate beside it was open. PW3Sunita went to the
house of Vijayatai at about 3.30 p.m. as instructed by the
neighbour Smt. Chaudhari and rung the door bell and gave calls to
Vijayatai but she did not receive any response and at that time she
saw one Luna parked in front of the house and a pair of footwear
in front of the main door of the house. She then went back. At
about 6.00 pm she met Tulsabai and told her about 'no response'
and, therefore, both of them went and knocked the door and rung
the bell but there was no response from inside. Tulsabai,
therefore, went to rear side of the house to find that the backside
door was open. She went inside from that door to see Vijayatai
lying in a pool of blood and as such opened the door of the hall
and started shouting and crying in frightened condition. Both of
them informed the neighbourers, Shri Nagalkar and Shri Adhao
and informed them about it. At about 6.55 p.m. PW1Sunil came
back from village Porgavhan to see that the crowd had gathered in
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front of his house. He went inside the house to find his mother
lying in pool of blood with several injuries on neck, throat and
head. He saw handle of the cupboard of his wife was bent though
the cupboard was closed. He then lodged the report at Police
Station Gadge Nagar. Dog squad was called, finger print expert
was also called with photographer who took photographs. Inquest
Panchanama and spot panchanama was conducted. The dead
body was, thereafter, sent for post mortem. Investigation started
and finally both the accused were traced and arrested and the
evidence was collected. The chargesheet was filed in the Court.
The trial was held. As many as 19 witnesses were examined by
the prosecution. The defence was of total denial. The trial court
heard the parties, framed points for determination and recorded
his findings holding that though there was no eye witness to the
incident, the chain of circumstances was complete and as a result,
recorded the judgment of conviction of both the accused persons.
The trial Court found accused no.1Ajay to be the person of
unscrupulous character, who according to the trial court, took the
advantage of the trust of the lady in him who for his intention to
commit theft and robbery, committed brutal murder of the
deceased Vijayatai. The trial Court, therefore, held him to be the
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person deserving death sentence and accused no.2Nitin deserving
life sentence. Hence this reference and appeal.
SUBMISSIONS:
4. Mr. S.S. Doifode, the learned A.P.P., in support of the
reference for confirmation of death sentence and in his opposition
to the appeal preferred by both the accused persons against the
impugned judgment and order of conviction and sentence, made
the following submissions.
(i) The judgment and order recorded by the trial court is
fully supportable and justified on evidence and the findings
recorded by the trial court for convicting the accused persons.
There is no infirmity whatsoever in the impugned judgment and,
therefore, the same is liable to be confirmed.
(ii) The learned A.P.P. as well as counsel for the
respondentsaccused took us through the entire evidence of the
prosecution witnesses PW1 to PW19 that was tendered before the
trial Court.
(iii) The prosecution proved the chain of circumstances
beginning with accused nos.1 and 2 working as labourers with
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contractor PW2Dilip when the house of PW1 Sunil was under
construction in 2004. Accused no.1Ajay, 10 months prior to the
date of incident, resided in a room in the house of PW1Sunil for
about 1 ¼ month and was doing domestic work. The prosecution
also established the commission of theft of Luna bearing no. MH
27/M4204 owned by PW9Ravindra Gadari from the Treasury
Office inasmuch as the said Luna was found at the house of the
sister of the accused no.1Ajay, upon discovery memorandum
made by him.
(iv) The fact that the accused no.1Ajay and accused no.2
Nitin had, at about 3.40 to 4.00 pm, were seen with Luna being
parked by them near the compound of gate of PW1Sunil and that
they went inside the house upon the deceased opening the front
door of the house in response to the ringing of bell has been firmly
established by PW4Balkrishna.
(v) The fact that the PW3Sunita at about 4.00 pm went to
the house of the deceased and rang the bell but there was no
response and while going out, she found Luna parked in front of
the house of the deceased, has been proved by her.
(vi) The fact that finger prints were found on the spot of the
incident of accused no.2Nitin Gudadhe, has also been established.
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So also, the recovery of pass books and cheques belonging to PW1
Sunil from accused no.2Nitin Gudadhe was proved.
(vii) The recovery of stolen articles from both the accused
persons were duly proved by the prosecution without any element
of doubt.
(viii) The recovery of clothes belonging to PW1Sunil from
accused no.1Ajay on 20.07.2008 was proved. There was further
recovery of clothes of accused on which in one case human blood
of group 'A' of deceased Vijayatai on the clothes of accused no.1
Ajay was found.
(ix) The learned A.P.P. contended that the prosecution
completely linked the circumstances and thus both the accused
have rightly been found guilty for the offence of murder and
robbery.
(x) With reference to the confirmation of death sentence,
the learned A.P.P. argued that the observations made by the trial
court in the judgment about the heinous crime committed by
accused no.1 clearly indicate that the case at hand is the rarest of
rare in the sense that accused no.1 Ajay destroyed the faith
reposed by deceased Vijayatai in him since he was working as a
domestic servant and committed her murder in a brutal manner.
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He, therefore, prayed for confirmation of death sentence to
accused no.1 and life sentence to accused no.2. He also prayed for
dismissal of appeal preferred by respondents accused nos. 1 and 2.
(xi) The learned A.P.P. relied on judgments in Sandeep
..vs.. State of Uttar Pradesh; (2012) 3 SCC (Cri) 18;
Earabhadrappa Alias Krishnappa ..vs.. State of Maharashtra;
(1983) 2 SCC 330 and Ram Singh ..vs.. State; AIR 1960
Allahabad 748 (V 47 C 214).
5. Per contra, Mr. R.J. Mundhada, learned counsel for the
respondentsaccused persons, submitted the written notes of
arguments in support of his appeal and in opposition to the
criminal reference for confirmation of death sentence and also
filed copies of decisions of various courts. He made the following
submissions:
(i) There is no direct evidence with the prosecution and
reliance is placed by the prosecution only on the circumstantial
evidence.
(ii) The circumstantial evidence tendered by the
prosecution is very very weak and no conclusion of guilt of the
accused persons can be drawn thereupon. The prosecution failed
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to complete the chain of circumstances which are required to be
proved to the satisfaction of the Court in the light of several
decisions of the Supreme Court on the said issue. The evidence of
PW1Sunil Pund, Advocate ought to have been rejected since he
contradicted Exh.48 spot panchanama about two ladies purses
lying on the bed and he admitted in the crossexamination
whether four bangles and rings were stained with blood or not.
The FIR lodged by PW1Sunil Exh.35 had the scoring of words
with intention to commit theft therein at his instance thereby
showing tampering of the FIR. In nutshell, the inference ought to
have been drawn that nothing was stolen from the house of PW1
Sunil.
(iii) The learned counsel for the respondentaccused nos. 1
and 2 invited our attention to various omissions in the crossexamination
of PW1Sunil and argued that the material portion of
his evidence in the examinationinchief was by way of omission
amounting to contradiction and was, therefore, liable to be
rejected but the trial Court did not take care to give importance to
the said discrepancy clearly demolishing the prosecution case.
(iv) The trial Court committed an error in holding that the
articles allegedly recovered as stolen property were never proved
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to be the articles recovered at the instance of any of the accused
persons. The evidence tendered by the prosecution for proving the
alleged discovery/recovery does not establish recovery of articles
allegedly stolen. The FIR did not state what articles were stolen
and whether six cheque books were missing from his house and,
therefore, there was clear improvement made by PW1Sunil and
the prosecution in order to rope the accused persons in the crime.
(v) Exh.85 is a document prepared by the prosecution
contrary to the truth. The alleged theft of two pants and two
shirts of PW1Sunil is also unbelievable since the same was an
omission in the police statement and it is impossible to believe that
the robbers would take away the clothes of PW1Sunil.
(vi) The evidence of other witnesses and in particular PW4
Balkrishna, claiming to be the person who has last seen accused
persons entering the house of the deceased, is the neighbour and
cannot be relied upon. There are material omissions in the
evidence which have been ignored by the trial court. The evidence
of this witness, who appears to be the star witness of the
prosecution, has totally been shaken in the crossexamination but
the trial court has not carefully seen his evidence and in fact ought
to have rejected the same. The trial Court has ignored the ratio of
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the judgment cited before the Court for rejecting the prosecution
case on all the counts. Learned counsel for the respondentsaccused
then urged this Court to peruse the written notes of
arguments filed by him.
Finally he prayed for acquittal of the respondent nos. 1
and 2.
CONSIDERATION:
6. We have perused and reappreciated the entire evidence
of PW1 to PW19 so also all the documents proved by the
prosecution. We have seen the impugned judgment and order of
conviction and the reasons therefor. We have heard learned
counsel for the rival parties at length. We have perused the
written notes of arguments filed by the learned counsel for the
respondents. We have also gone through the various decisions
filed by counsel for both the parties. We proceed to deal with the
present proceedings keeping in mind the principles laid down by
the apex Court in the matter of conviction based on circumstantial
evidence and the other relevant aspects arising in the present case.
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7. PW1Sunil deposed before the Court that on the date of
incident, as usual he went to the court when his mother deceasedVijayatai
was alone in the house. He came back from the court at
about 2.15 pm and went to his village at about 2.30 pm by motor
car with his driver, leaving his mother alone in the house. At
about 7.00 pm, he saw crowd in front of his house and saw his
mother dead with bleeding injuries. He lodged the FIR with Police
Station at Exh.35. Prima facie, he found theft in his house and
articles missing. He found some ornaments; gold chain (Kanthi)
weighing 3 Tola and pendant missing. His mother deceased
Vijayatai used to wear the same on her person. We quote the
following material from the evidence of PW1 Sunil.
“.....Gold Kanthi which my mother used to war is
appearing in her photograph. I can identify gold
Kanthi which my mother used to war. Gold Kanthi
and P endol from the Muddemal property at
Sr.No.18 is now shown to me belongs to my mother,
it is now marked at Article No.11. Gold Kanthi at
Article No.11 now shown to me and the Kanthi
appearing in the photograph at Article No.10 is the
same . I can identify my shirts and pant those were
stolen. Two half Manila of white colour at
Sr.Nos.14 and 17 from Muddemal prperty now
shown to me they belong to me. Those half Manila
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are now marked at Article Nos. 12 and 13. My
missing pant was of white colour, but it is not there
in the Muddemal prperty. I know Accused no.1
Ajay, he used to work with me. The construction of
my house commenced in the year 2004, that time
Accused no.1 Ajay was working with the contractor.
After construction of my house commenced in the
year 2004 that time Accused no.1 Ajay was working
with the contractor. After construction of my house
Accused no.1 Ajay used to come at my house
intermittently. AT that time he used to clean the
courtyard of my house as well as he used to do the
work of gardening. Ten months prior to this
incident Accused no.1 Ajay had come to my house.
He was in need of shelter and work. I provided one
room to Accused no.1 Ajay for his residence. He
used to do the sundry work at my house. The room
given to Accused no.1 Ajay was adjoining to my
Deoghar and it was h aving a door opening towards
the courtyard. Accused no.1 Ajay stayed in my
room for about 1 and one 1/4th month. He used to
carry our electric bills for payment. Accused no.1
Ajay used to drive his Autorickshaw and he used to
keep his Autorickshaw in front in my house. One
pair of footwear was found near my house but it
was not belonging to me or my family. Accused
No.1 Ajay is present in the Court today.”
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8. We have perused the crossexamination of this witness
very carefully. We find that the omissions brought in the crossexamination
mostly relate to the statements in the FIR. Since, it
is the well settled law that the FIR is not an encyclopedia and
since the report Exh.35 was immediately lodged with Police
Station after his arrival at his house from his village, we do not
expect him to tell each and every details in the FIR. We,
thereafter, reject the submissions made by learned counsel for the
respondentaccused about the omissions in his FIR brought in the
crossexamination. However, insofar as the important portion of
his evidence about accused no.1 working in his house during the
construction of house and thereafter for about 1 ¼ month and
missing of several articles as quoted by us above duly identified by
him before the Court and missing from the person of the deceased
is an evidence which is fully believable and we do not find any
discrepancy in the evidence of PW1 Sunil. At any rate, PW1Sunil
is not an eye witness. He deposed before the Court and is the
most natural witness insofar as the circumstances, which were
required to be proved by him have been duly proved. We have no
doubt that whatever is deposed by PW1Sunil, is worth and is with
full credence and relevant for finding out the complicity of
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respondentsaccused. The FIR Exh.35 which was lodged
immediately after the incident, fully corroborates his evidence
before the Court.
9. The next witness is PW2Dilip, the building contractor
who deposed thus:
“I know Accused No.1 Ajay and Accused No.2 Nitin.
They worked with me. Accused nos. 1 and 2 are not
before the court today. Accused Nos.1 and 2 worked
as labourers with me. I know Dr. Tote from
Amravati. The construction of his hospital was done
by me. At that time Accused No.1 Ajay worked with
me as a labourer. I know Advocate Sunil Pund.
Before five to six years I constructed his house. At
that time Accused No.1 Ajay and Accused No.2 Nitin
worked with me as labourers.”
10. The aforesaid evidence of PW2Dilip is very material
evidence about accused no.1Ajay and accused no.2Nitin working
with him as labourers. He has clearly deposed that when
construction of the house of PW1Sunil was being carried out,
both the accused nos.1 and 2 were working with him as labourers.
We have perused the crossexamination of this witness. We find
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that the said material evidence, which we have quoted, has not at
all been shaken by the defence. This clearly shows that accused
nos.1 and 2 were working on the site of construction of the house
of PW1Sunil. The evidence of PW1Sunil is also corroborated by
this witness, who is an independent witness.
11. The next witness examined by the prosecution is PW3
Sunita. She deposed that she does household work in the colony.
The deceased Vijayatai had come to the house of neighbour, Smt.
Chaudhari and had kept a message for Sunita to visit her. At
about 3.20 pm, she went to the house of Vijayatai. She went
inside through the compound gate and rang the door bell and also
gave a call to Vijayatai, however, she did not receive any response.
She saw one Luna in front of the gate of the compound wall and a
pair of footwear. As she did not get any response, she went back.
At about 6.00 pm she met Tulsabai, cook of Vijayatai the deceased
and both of them went to the house of Vijayatai and again rang
the door bell and also knocked the door but none opened the door
and there was no response. Tulsabai, thereafter, went to the rear
side of the house and entered from the rear door and raised a cry
and rushed towards the road. From the evidence of this witness, it
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is clearly established that Luna was parked in front of the gate of
the compound wall and a pair of the footwear was lying and that
there was no response despite door being knocked and the bell
being rung. It is also established that the rear side gate was
opened and Tulsabai made entry from that gate to find the
deceased lying. We have perused the crossexamination of this
witness. The material evidence about the parking of Luna in front
of the gate and the compound wall is intact and has not been
shaken in the crossexamination i.e. all the circumstances which
this witness has firmly proved.
12. The next witness PW4Balkrishna is the most important
witness of the prosecution and, therefore, we have carefully
reappreciated his evidence. He is resident of the same colony and
he knows PW1Sunil Pund since his house is at a distance of 5060
ft. of his house or rather his house is in front of the house of this
witness. He then deposed thus in his crossexamination:
“2. Incident is dated 1772008. My office
hours are from 10.30 a.m. to 4.30 p.m. On the day
of incident I returned home in between 3.45 pm.
And 4.00 p.m. I was to collect some documents as I
being a patient of diabetes I returned home for
taking food. When I rearched to the gate of my
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house I saw two young persons proceeding away by
the Luna of green colour. They kept their Luna near
the compound gate of Adv. Pund. Then they went
inside the premises of Adv. Pund and they had
pushed the door bell of Adv. Pund. Mother of Adv.
Pund had opened the door of the house. Thereafter,
they went inside the house of Adv. Pund.
3. …..Out of those two young persons I can
identify Gopnarayan. The witness has identified
Accused No.1 Gopnarayan sitting in the court.
Before 10 to 11 months of this incident Accused
No.1 Gopnarayan was residing in the house of Adv.
Pund. Accused No.1 was having autorickshaw and
at that time he used to keep his autorickshaw near
the house of Adv. Pund. Accused No.1 used to clean
the courtyard of the house of Adv. Pund, therefore,
he was known to me. The witness had identified
Accused No.2 and he says that Accused No.2 is
amongst those two young persons. I can identify
Luna used by those two young persons that day if
shown to me.”
13. The above evidence is material evidence. This witness
has recognised both the accused persons as the persons who
entered the house of the deceased in the afternoon between 3.45
to 4.00 pm. On the deceased Vijayatai opening the door of the
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house in response to the bell being rung by them. We have
perused the crossexamination of this witness on the aforesaid very
material evidence about the accused persons entering the house
after parking the Luna bike at the house of the deceased. The
crossexamination does not show any discrepancy to demolish the
aforesaid portion which is very material. On the contrary, minor
omissions as to the exact time of return at home from his college
or about he being a patient of diabetes cannot be the reason for
rejecting the sworn testimony which is otherwise believable.
Merely because he is a neighbour, he cannot be disbelieved. On
the contrary, he is the most natural witness who happened to
come to his home at the relevant time. The evidence that he had
come back to his house in the afternoon at about 4.00 pm and saw
both the accused persons going on Luna and then parking the
same in front of the house of PW1Sunil and then entering the
house by pressing the door bell and the deceased Vijayatai
opening the door both of them entering the house through the
door was all seen by this witness and that part is not an omission
as contended by learned counsel for the respondentsaccused
persons. It is only about the time of the omissions that has been
brought but that is also not correct since the time mentioned is
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4.00 pm for return at the house and that he had come for
collecting some important documents which is also not an
omission as we have checked the same from the record. There is
whatsoever no explanation in the statement under section 313
Cr.P.C. by both the accused persons as to why they entered the
house by pressing doorbell because within a short time thereafter
Vijayatai was found brutally murdered.
14. To sum up, the evidence of PW4Balkrishna as
aforesaid has not at all been shaken and we are satisfied about the
credibility of the evidence who is the immediate neighbour and
saw both the accused persons and identified both of them in the
court in his evidence as quoted by us above. We have no manner
of doubt that the evidence of this witness must be believed.
15. The next witness is PW5Tulsabai. PW5Tulsabai is a
witness who did not get any response when she went with Sunita
and thus entered the house from the rear side to find the deceased
lying.
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16. PW6 Vijay Chandak, is also an important witness on the
question of the discovery made by accused no.1Ajay. We quote
relevant portion from his evidence as under:
“.....It was about 2.45 to 3.00 p.m. Police Inspector,
two constables and one other person were there. I
was asked to hear the statement of the said person
to act as panch. I gave consent to it. Other panch
had also come there. On interrogation, said person
told his name as Ajay Gopnarayan. He disclosed
that he kept the bag containing clothes at the house
of his sister sitauted at Naya Akola dn he would
point out the said bag. The statement made by said
person was recorded by police in my presence. His
statement now shown to me is the same, it bears my
signature, it is at Exh.57. It is also signed by Ajay
Gopnarayan and other panc witness. Thereafter,
myself, other panch, Ajay Gopnarayan and police
went to Naya Akola by a Jeep. We reached Naya
Akola within 10 to 12 minutes. Ajay Gopnarayan
showed house of his sister. He gave call to his sister,
accordingly his sister came out of the house. He had
asked his sister to bring the bag kept by him inside
her house. Accordingly, she brought the bag and
gave it to Ajay Gopnarayan. Ajay Gopnarayan took
out clothes from the said bag and they were handed
over to police. Three white shirts, three Pants, one
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23 conf1.13.odt
Lungi were in the said bag. I can identify those
clothes if shown to me. Those clothes were seized
and sealed by police. Two Shirts and one Pant were
having blood stains. Seizure panchanama was
prepared by police, and it bears my signature.
Siezure panchanama now shown to me is the same,
it is at Exh.58. The witness has identified Accused
Ajay Gopnarayan sitting in the court. A Shirt at
Sr.No.27 in Muddemal invoice, which is at Article
No.14 and Pants at Sr.No. 28 and 29 in Muddemal
invoice, which are at Article No. 15 and 16 are the
same. The Shirts at Sr.No.14 and 17 in Muddemal
invoice which are marked at Article No.12 and 13
are the same. The bag at Sr.No. 30 in Muddemal
invoice, and the Lungi at Sr.No. 26 in Muddemal
invoice are the same. They are now marked as
Article No. 21 and 22 respectively.”
17. The above evidence of this witness in clear terms shows
that there was discovery by accused no.1Ajay of the very
important articles clearly establishing the complicity of accused
no.1Ajay. PW6Vijay is an independent witness and has nothing
to do with the either side. He travelled with police party and
accused no.1Ajay to the house of his sister in Naya Akola and at
his instance, the articles were discovered. We have perused cross
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24 conf1.13.odt
examination of this witness and we find that the evidence of this
independent witness has not been shattered and on the contrary,
the clothes discovered by him were seized by police. The
submission made by learned counsel for the accused that the
process of sealing was done at Gadge Nagar Police Station and,
therefore, this Panchanama should be disbelieved does not appeal
to us. We have carefully examined the submissions made by the
counsel for respondentsaccused persons. We find that all the
articles which were found upon discovery made by accused
persons, were brought to the Police Station and documents were
scribed and sealing was done. That may be an irregularity error
but then we do not think that the same should be taken as if the
documents were manipulated and sealing was not done. We do
not find force in the said submission. Upon reading the recovery
panchanama Exh.58 read with Exh.69 carefully we find that the
same stolen Luna was attached from the house of his sister Sau.
Suryakanta Sawai situated at Naya Akola where accused no.1Ajay
took them upon making discovery memorandum statement. These
documents Exh.58 and 69 cannot be read in isolation to hold that
discovery/recovery was not proved as contended by the learned
counsel for the accused.
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18. PW7Rajendra Baitule is the next witness who is a
goldsmith. Though, this witness hesitantly supported the
prosecution but whatsoever worth; his evidence can be believed.
The portion from his evidence in the examinationinchief that the
accused Nitin was brought by police to his shop and identified that
he was the very person who had come to his shop earlier but since
he had no receipt of the ornaments, which he wanted to sell, he
had not purchased the same is not shaken in the crossexamination.
He agreed that he had not purchased the articles
from the accused for want of receipt and, therefore, the accused
approached the another goldsmith. The evidence that it was
accused no.2, who offered to sell the ornaments to him and that
he had refused to purchase the ornaments from him because he
had no receipt of the ornaments, inspires confidence. We have
checked crossexamination of this witness and we do not find that
the material evidence has at all been shaken in the crossexamination.
From his evidence, it is clear that accused no.2Nitin
had visited the shop of this witness offering to sell ornaments with
him but since he had no receipt, this witness declined to purchase
the ornaments from him and that was in the month of July2008.
This evidence having gone unchallenged, it was for the accused
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26 conf1.13.odt
no.2Nitin to give a satisfactory explanation to this evidence in his
statement under Section 313 of the Cr.P.C., which he did not do.
19. We have then PW8Vinod, a Motor Mechanic, who
deposed about Luna being brought at his shop for repairs.
Accused no.1Ajay then confirmed the possession of Luna with
accused no.1Ajay and nothing more.
20. PW9Ravindra Gadari, is owner of the said Luna which
was stolen from the Treasury Office. He identified the Luna about
which he had lodged the report of theft with Police Station. We
quote his evidence from para (1) thus:
“1. I am doing service in Agricultural Office,
Amravati. I used to attend my office by using Luna.
I had purcahsed the said Luna in the year 2000.
The documents of said Luna are with me. Said
Luna is of green colour and having the number MH
27/M4204. My Luna was stolen during last three
years. On 17.7.2008, I went to treasury office for
submitting bills of my office. I went to treasury
office with my Luna at 11.00 a.m. After keeping
Luna at the stand of treasury ofice, I went inside the
treasury office. I came out of treasury office at 4.00
p.m. I did not see my Luna at the stand of treasury
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office. I made inquiry in the vicinity and I went to
Police Station on the next day. Police had asked me
to make inquiry regarding Luna for two days. Then
I lodged report to Gadge Nagar Police Station on
19th. Said Luna is now with me. Today, I have
brought said Luna in the Court.
2. & 3.
4. I had taken my Luna on supratnana
from the court. I had submitted copies of
documents regarding my Luna in the court. Form
No. 23 from the remand paper is shown to the
witnesses. This document is referred by the defence
counsel in crossexamination, therefore, it has been
marked at Exh.67. Witness says that chassis and
engine number of his Luna are there in Exh.67. In
my Police statement I have stated that chassis
number of my Luna as BK03023041 and engine
nubmer as BK13027978....”
The Luna that was seized at the instance of the accused
no.1Ajay from the house of his sister on discovery, was clearly
identified by this witness which is clear from para 4 of the cross
examination with the same Engine No. and Chassis No. It is, thus,
clear that accused Ajay had committed theft of the said Luna
belonging to this witness and post commission of the offences had
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gone to the house of his sister at Naya Akola stands firmly
established by the prosecution.
We have perused his crossexamination. The
submission that the report in respect of that Luna was lodged after
the incident of murder does not appeal to us because there is
evidence to show that the Police Station Officer had asked him to
search the Luna for two days and then lodge report with Police
Station and that he had actually searched his Luna with his friend
but could not find it and hence he lodged the report. We do not
think this witness would lodge a false report about the theft of his
Luna in order to involve the accused persons in the absence of any
enmity against them nor there is any suggestion to the effect that
he was influenced by police to do so.
21. The next witness is PW10 Nandkumar who deposed
about the personal search of both accused persons. This witness
proved document Exh.69 about which we have already made a
discussion that though the documentation was made in the Crime
Branch Office in respect of both accused persons; the same was in
consequence to the discovery memorandum and the visit to the
site where incriminating articles against them were found upon
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their personal search. At any rate, he is an independent witness.
Exh69 describes the injury on the person of accused no.1Ajay,
which were found upon his personal search. We quote the
following portion of the injuries from the said document Exh.69
thus:
“On making minute inspection of person of above
accused, it is observed that there are injuries at three
places on the left neck and at one place below the left
ear. A mark like that of scratch is visible on the left
side portion below the jaw. Similarly, mark of
abrasion is visible on his left elbow. A cut injury to
the extent of two centimeters is visible on inner
portion of first phalange of his right thumb.
Similarly, a scratchmark is visible on the portion
between the said thumb and forefinger.”
22. Exh.70 is another document in respect of the injuries.
We quote following portion from the said document in respect of
the accused no.2Nitin about injury:
“(1) Mark of injuries visible (on his person),
viz. On the left cheek on the portion below the right
ear, below left ear, on the left side portion below the
jaw, on the left elbow on right thumb and on middle
portion of fore finger. The medical examination is
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30 conf1.13.odt
being done in order to know as to with what object
and before what period the said injuries are caused.”
23. PW11Dr. Pallawi examined both the accused persons
and issued certificate Exh.73 and 74 about injury. Though,
injuries are in the nature of abrasion on the person and were
examined on the date of arrest itself namely on 19.07.2008, the
accused persons did not say a word in their statement under
Section 313 of the Cr.P.C. about the cause of the injuries. The
learned counsel for the accused invited our attention to the injury
certificate Exh.135, 136 and contended that on 20.07.2008, there
were no injuries on the person of the accused persons. We have
examined the said submission and we find that the evidence about
their medical examination on 19.07.2008 by PW11 Dr. Pallavi has
not been seriously challenged. The examination after more than
24 hours on 20.07.2008 of both the accused showing no injuries
may not show the presence of abrasions due to softening of the
abrasions or for want of careful examination thereof. This is all
the more so because the accused no.2 was examined by PW11Dr.
Pallavi on the very date of arrest and she found abrasions and
noted the same. There is no reason why her sworn testimony
should be disbelieved.
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24. PW13Ashish Raut also discovered the articles at the
instance of accused no.2Nitin Gudadhe which he had hidden. We
quote his evidence as under:
“1. Before two years I was called by Police to
act as a panch. Accordingly, I went to Gadge Nagar
Police Station. Police and one person were present
there. Said person was interrogated by Police in my
presence. He has admitted to point out gold Kanthi
that was kept by him in the rear side of his house
situated at Reosa. Said person told his name as
Nitin Gudadhe resident of Reosa. Said person made
the said statement in my presence and in presence of
Sudhakar Wighe. His statement was recorded by
Police and they obtained our signatures on it. His
statement was also signed by him and the Police
Inspector. Memorandum statement now shown to
me is the same, it bears my signature, it is at
Exh.78. Thereafter, myself another panch, Nitin
Gudadhe and Police went to Reosa by jeep. After
going to village Reosa Nitin Gudadhe has asked to
stop the jeep. Thereafter, he took us to his house by
foot. He then went to the rear side of his house and
he took out a plastic packet kept under the heap of
stones. One gold Kanthi and two gold Chains were
in the said plastic packet. One Pearl Necklace was
also there in the plastic packet.
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2. Those articles were seized by Police in my
presence. The description of those articles given in
seizure panchanama is correct. Seizure panchanama
now shown to me is the same, it is signed by me and
another panch. The seizure panchanama is at
Exh.79. I can identify those articles. Gold Kanthi at
Article No.11 and the ornaments of Bentac at Article
No. 18 before the Court now shown to me are the
same. Pearl Necklace includes in the ornaments of
Bentac at Article No. 18. After the seizure of those
articles we went to Police Station. On the way to
Police Station, Police were interrogating Nitin
Gudadhe. At that time Nitin Gudadhe told that he
had thrown one Purse near Power House situated on
Morshi road. He admitted to point out the said
Purse. After going to Police Station his
memorandum statement was accordingly recorded
by Police. His memorandum statement bears my
signature. His memorandum statement is at Exh.80.
Memorandum statement was recorded by Police as
per his version.
3. Thereafter, myself, Sudhakar Wighe,
Nitin Gudadhe and Police went to Power House
sitauted on Morshi road. Nitin Gudadhe pointed
out the spot in front of Power House. Purse was not
found on the said spot, however, two bank
passbooks and one cheque book were found there.
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Those bank passbooks and cheque book were seized
by Police. Seizure panchanama now shown to me is
the same, it bears my signature, it is at Exh.81.
Bank passbooks and cheque book before the Court
at Article no.17 are the same. Person who made the
memorandum statements that day is present in the
Court, he is the Accused No.2 in this case. Then we
went to Police Station. In the Police Police Station
the clothes worn by Nitin Gudadhe were seized.
Seizure panchanama of his clothes was prepared by
Police in my presence. Seizure panchanama of his
clothes bears my signature, it is at Exh.82. I can
identify those clothes if shown to me.”
25. We have perused the crossexamination of this witness
and we do not find any infirmity in the evidence of this witness
who has deposed honestly on the discovery of various articles from
accused no.2Nitin though the Panchanama was ultimately
prepared at the Police Station but then we have already found that
only the documentation was done at the police station which does
not mean that the accused were not taken to the spot where the
discovery was made under the recovery Panchanama
Exhs. 81 and 82.
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26. The report of the Chemical Analyser shows that the
blood group of the deceased Vijayatai was “A”, from the various
blood stained articles seized from the spot. The report Exh.105
shows article 14 seized from the accused no.1 with human blood
and articles 15 and 16 seized from accused no.2 were also having
human blood. Article 16 is having blood group “A” of the
deceased. The blood group of the accused no.2 Nitin has not been
determined. The blood group of accused no.1Ajay Exh.107 is
“A”. It is not the case of accused no.1Ajay that there was
bleeding injury at any point of time from his person on any of the
articles seized from him. It was for him to explain the existence of
human blood on article 14 seized from him so also for accused
no.1Nitin from whom articles 15 and 16 both blood stained were
seized. They did not explain anything.
27. The learned counsel for the respondentaccused invited
our attention to Exh.88, which was admitted by accused persons
and thus exhibited. They were issued pursuant to Exh.87
requisition given by police officer to the Medical Officer, General
Hospital, Amravati. On perusal of these two documents, which are
purportedly showing the blood group reports of accused no.1 Ajay
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35 conf1.13.odt
and Nitin as “O” positive and “B” positive respectively, we find that
these two reports Exh.88 or two pieces of papers at record page
nos. 168 and 170 are almost of the size of 1/8th of the full scape
paper torn out of the printed form in the hospital that too in
different handwriting and without any endorsement or signature
or certification from anybody mentioning the blood groups of
accused persons as aforesaid. There is no stamp of hospital
anywhere nor any details as to who determined their blood groups
and how. They are torn pieces of the printed papers. It is true
that these two pieces of printed paper were produced by the
prosecution with Exh.77 but then it is for the Court whether to
accept or not the same as legal evidence. The reason is that it is
not clear who determined blood group and whose handwriting it
is. These two pieces of papers have been admitted by the defence
and, therefore, exhibited purportedly with reference to Section
294 of Cr.P.C. in a most casual manner.
28. Section 294 of the Cr.P.C. reads thus:
“294. No formal proof of certain documents (1)
Where any document is filed before any Court by
the prosecution or the accused, the particulars of
every such document shall be included in a list and
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the prosecution or the accused, as the case may be,
or the pleader for the prosecution or the accused, if
any, shall be called upon to admit or deny the
genuineness of each such document.
(2) The list of documents shall be in such form
as may be prescribed by the State Government.
(3) Where the genuineness of any document is
not disputed, such document may be read in
evidence in any inquiry, trial or other proceeding
under this Code without proof of the signature of
the person by whom it purports to be signed:
Provided that the Court may, in its
discretion, require such signature to be proved.”
The aforesaid section was introduced by amendment
after year 1970. Section 294 Cr.P.C. was enacted with a view that
the prosecution evidence may be shortened and the prosecution
may not be required to prove the documents which are admitted
by accused persons. The intention of the Legislature was not to
bind the accused persons or force him to admit or deny the
genuineness of the documents produced by the prosecution that is
why the Court would not be justified in passing the order directing
accused to admit or deny the documents, obviously since it would
violate Article 20 (3) of the Constitution of India. Be that as it
may, the question that arises for our consideration relates to the
procedure, which must be followed while insisting for admission
or denial of the genuineness of the documents. To our mind,
Section 294 (1) in particular providing for insertion of the
description of the document in the list to be prepared either by the
prosecution or the accused for calling upon either party to admit
or deny the genuineness of the documents must be held to be
mandatory. In other words, for making use of or for asking for
effective operation of section 294 (1), (2) or (3), the particulars of
such documents must be included in the list. In other words, the
documents which are not included in the list contemplated by
Section 294 (1) cannot be put forth for admission or denial nor
can be exhibited or read in evidence without proof as
contemplated by Section 294 (3) of the Cr.P.C. This is to prevent
either the prosecution or the accused to push a document for
clandestinely exhibiting it by admission and then read in evidence.
We, therefore, reiterate that under section 294 (1), (2) and (3),
only the documents included in the list either by the prosecution
or the accused and submitted for admission or denial can be
processed for putting the sanctity as legal evidence contemplated
by Section 294 (3) and not the documents which are not included
in the list by either of the party.
Let us now turn to the case at hand. The case at hand
is typical example of such lapse on the part of the Presiding Officer
as well as ministerial staff of the Sessions Court. The documents
Exh.87 and 88 were never included in the list Exh.22 submitted
by the prosecution under section 294 (1) of the Cr.P.C. that was
given to the accused for admission or denial. We have carefully
perused the list, which was prepared and submitted to the Court
by the prosecution with a notice to the accused for admission and
denial under section 294 Cr.P.C. but we find that the documents
Exh.87 and 88 (two pages) are not to be found in the list.
Perusal of the record clearly shows that the Presiding Officer or
the ministerial staff of the Court exhibited Exhs.87 and 88
without verifying whether Exh.87 and 88 were included in the list
filed by the prosecution merely because counsel for the accused
admitted Exhs. 87 and 88. Thus, there is a blatant violation of
the aforesaid procedure elucidated by us above. It is said, the
prosecution is a 'handmaid' of justice. In our opinion, that is not
always so, as in the instant case, the provisions of Section 294 (1)
and (2) being mandatory. To sum up, we hold that Exhs.87 and
88 cannot be read in evidence as contemplated by Section 294 (3)
and, therefore, we reject these documents Exh.87 and 88.
29. This Court has observed in large number of Sessions
Trials having perused the original records of the cases that the
notice under section 294 (1) is given by the prosecutors before the
Court in a format prepared by them as per their whims. It is also
found that such applications are also tendered handwritten and
lists are submitted to the Court and the Court has been accepting
the said lists mechanically and going ahead with the hearing and
orders on Section 294 (1) application. Thus, both the prosecutor
as well as Presiding Officer of the Court, ministerial staff and in
cases where counsel for the accused gives such application, none
cares to see that the format of list under section Section 294(2)
has been prescribed. In Criminal Manual Chapter VI para 32, such
a form is prescribed which reads thus:
“Admission of certain documents directly in
evidence without formal proof.
32. Attention of the Magistrates and Judges is
invited to Section 294 of the Code of Criminal
Procedure, 1973, according to which the particulars
of the documents filed before the Court shall be
included in a list, in the prescribed form given
below, and the prosecution or the accused, as the
case may be, or the pleader for the prosecution or
the accused, if any, shall be called upon to admit or
deny the genuineness of each such documents and if
the genuineness of any document is not disputed
such document may be read in evidence in any
inquiry, trial or other proceedings, without proof of
the signature of the person to whom it purports to
be signed which, however, the Court may in List of
documents filed before …......Court
*Prosecution
By the *accused.
Sr
No
Particulars of the
documents with
dates
Pages Whether
original
certified copy
By whom
prepared
Names of attesting
persons whether
they are cited as
witnesses
Remarks if
any
30. We are not only amazed but are anxious since the said
format prescribed by para 32 quoted above is not at all being used
either by prosecution or by accused or by the Presiding Officer of
the Court and that is the reason why the prosecution or the
counsel for the accused have been preparing format and the list
contemplated by Section 294 (1) as per their own whims. We
deprecate such a practice since according to us the format
provided by para 32 is prescribed with precision and none of the
parties should be allowed to have the format of their own. We
also deprecate the practice of exhibiting the documents not
included in the list under Section 294 (2) and in this case Exhs.87
and 88 which were not included in the list Exh.22 contemplated
by Section 294 (2) Cr.P.C.
We direct the Registry to send the copy of paras 27 to
29 with cover page of this judgment to the Registrar General for
being circulated to the Magistrates and the trial Judges. We also
direct the Registry to send the copy thereof to the Principal
Secretary, Law and Judiciary, Mantralaya, Mumbai who may
supply the printed format of list u/s 294 (2) Cr.P.C. to the
prosecutors in the courts of Magistrates and the Judges, also by
putting on website.
31. At any rate, according to us, these documents Exhs. 87
and 88 cannot be said to have been proved in accordance with law
and will have to be ignored. Even if these documents under Exh.
87 and 88 are taken into consideration, they are of no help to the
defence inasmuch as they show different blood groups than the
blood group “A” of the deceased and, therefore, no foundation can
be laid by the defence on the basis of Exh.88 which would, in no
manner, support the defence. We, therefore, find that the forensic
evidence has been duly proved and it shows the clear cut
complicity of both the accused persons.
32. PW18Devidas is Finger Print Expert. Learned counsel
for the accused criticized the manner in which the finger prints
and the photographs were taken, so also the approach of
Supervising Officers, who approved the report of finger prints as
that of accused no.2Nitin. We quote the evidence of PW18
Devidas, which reads thus:
“.....I then compared the finger prints of the accused
with the fit chance print. The chance print which
was found fit when I compared with the prints of
the hands of accused sent by the police, I found that
the chance print tallied with the left print palm of
accused Nitin. I then prepared my opinion on 247
2008. Exh.124 is the same. My opinion has been
approved by Deputy Director Finger Prints, Nagpur.
To that effect, I received a letter. That letter was
addressed to police station Gadge Nagar and copy
was given to me. The copy which I received is
marked at Exh.125. At the office of Deputy Director
Finger Prints, Nagpur as per procedure my opinion
was reexamined and thereafter the Deputy Director
approved my opinion. The committee approved my
opinion. The endorsement to that effect is on
Exh.124. While comparing the chance prints and
the impressions of the hands of accused I took the
enlargement thereof. I have produced those
enlargements. They are marked at Exhs. 126 and
127. I marked the characteristic thereon. I had
shown nine characteristic in the enlargements by
giving number. I have prepared the statement of
reasoning thereon which is marked at Exh.128. As
per my opinion the print of accused Nitin tallied
with the chance print.
(2) It is my say that the finger prints of one
person never tally with the finger prints of any
another person. These finger prints of a person
never change.”
33. We have perused the crossexamination of this witness.
We have also applied our mind to the expert opinion on the finger
prints. We do not find anything in the crossexamination to reject
the evidence of this witness on the proof of finger prints of
accused no.2Nitin. The minor nature of discrepancy in the
certification by higher authorities after examination pointed to us
by counsel for the accused persons also does not impress us since
there is no material discrepancy in the drawing of finger prints and
examination thereof and the conclusion arrived at namely that the
finger prints collected from the spot matched with accused no.2
Nitin's finger prints. The submission that no injuries were
mentioned in the arrest Panchanama of accused persons also does
not impress us since for independently recording the finger prints
that would not be relevant and it is clear that by itself would not
create any doubt. At any rate, there is evidence of PW4Balkrishna
and recovery of bloodstained articles as against accused no.2
Nitin which we have believed.
34. To conclude, upon making detailed reappreciation of
the evidence and discussion as above, we find that the following
list of circumstances have been duly established by the prosecution
without leaving any manner of doubt and which have been rightly
culled out by the trial Court and we quote the same as under:
“(1) Accused No.1 was seen on 16.7.2008
passing through the nearby vicinity of the house of
complainant.
(2) Accused No.1 and 2 were seen by PW4
when he came to his home at around 3.45 to 4.00
p.m. The accused were seen lastly parking Luna in
front the house of complainant entering in the
premises, ringing the door bell and opening of the
door by the deceased, who took the accused persons
inside the house.
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(3) PW5 went to the house of deceased and
saw Luna was standing near compound gate and
she got no response from inside.
(4) At around 6.00 to 6.30 p.m. deceased
was found lying dead in a pool of blood by PW3
and 5.
(5) The idol of god was lying on the way in
back door when PW5 entered inside the house.
(6) The idols were also found scattered on
the back side open space of the house of
complainant.
(7) PW8 motor mechanic corroborated that
the Accused No.1 had brought Luna to him in
repairy.
(8) P.W.9 was the owner of the Luna used
by the accused in the crime.
(9) The blood stained clothes of the accused
persons seized from them.
(10) The blood stained Kanthi seized at the
instance of the Accused No.2 and the recovery of
pass books, cheque books from the place shown by
the Accused No.2.
(11) The chance print collected from steel
almirah from inside the house of complainant
tallied with those of the palm print impression of
the Accused No.2.
(12) Accused No.2 had gone to Daryapur to
the shop of PW7 to sell some golden ornaments.
(13) Accused not explaining incriminating
circumstances as proved by the prosecution.
The circumstances show that when
P.W.5 went to the house of deceased the accused
were inside the house and by noticing somebody
ringing the door bell they ran away from the back
door hurriedly, however prior to that the deceased
was already killed. P.M. report explains the time of
death after 34 hours of meal. Thus the accused in
the afternoon at around 4.00 p.m. after having
lunch by the deceased killed her. Thereafter there is
no evidence of entry of any body else inside the
house besides the entry of P.W.5 who noticed
deceased in a pool of blood.”
We are in full agreement with the conclusions drawn by
the trial court about the aforesaid chain of the circumstances being
duly proved and that the prosecution succeeded in proving its case
beyond any doubt.
35. We have no manner of doubt that it were the accused
persons who committed such a heinous crime of robbery and
murder for petty gains. We are fully convinced that it were
accused Ajay and Nitin, who fully knowing the timings of the
loneliness of the deceased Vijayatai in the house in the afternoon
made a plan and entered the house taking advantage of accused
Ajay's proximity with the family of the deceased Vijayatai. By
betraying the trust reposed in Ajay, they entered her house, the
deceased having no slightest inclination about their intention to
commit robbery and her murder. We, therefore, hold both
accused guilty of commission of offence under section 392 and
302 of the I.P.C.
36. The next question is about the confirmation of
imposition of sentence of death to accused no.1 awarded by the
trial Court. We have carefully examined the said issue about
sentence in the light of the various decisions cited by learned
counsel for the rival parties.
37. We find that the learned trial Judge has referred to
several decisions for infliction of death sentence on accused no.1
Ajay. We have perused those decisions. The reasons furnished by
trial court for inflicting the death sentence are to be found in para
111. We quote the same as under:
“(111) There are no mitigating circumstances
coming before the court as against the Accused
No.1. He is an adult, was 32 years old at the time
of offence, made the deceased to trust him. Nothing
about his mental or financial status is shown, no
enmity or rivalry is seen, instigating him to commit
murder. To sum up the Accused no.1.
(1) has committed the murder along with
Accused No.2 in extremely brutal, gruesome,
diabolic manner so as to arouse intense and extreme
indignation of the community.
(2) has murdered deceased for his gain
evincing total depravity and meanness.
(3) has murdered an old, unprotected
helpless woman who trusted him and who was a
well known eminent personality respected by the
community.
(4) had cooked plan, and executed in broad
day light.
(5) created terror in the society.
Murder is a heinous crime. If offence is
proved punishment is imprisonment for life. The
law has again categorized the murders in common
and uncommon categories. Uncommonness depends
upon the factual matrix of each case, but it must be
affecting the community. Judicial notice of the fact
can be taken that the state machinery is trying to
take measures for the safety of old citizens inside
their homes.”
38. We have perused the latest decisions of the apex Court
in the case of Sandeep ..vs.. State of Uttar Pradesh; (2012) 3
SCC (Cri) 18. We quote para 71 and 72 from the said decision
thus:
“71. In order to appreciate the principle in a
nutshell, what is stated in Haresh Mohandas Rajput
(supra) can be usefully referred to which reads as
under: (SCC pp. 6364, para 20)
“20. The rarest of rare case” comes when a convict
would be a menace and threat to the harmonious
and peaceful coexistence of the society. The crime
may be heinous or brutal but may not be in the
category of “the rarest of the rare case”. There must
be no reason to believe that the accused cannot be
reformed or rehabilitated and that he is likely to
continue criminal acts of violence as would
constitute a continuing threat to the society. The
accused may be a menace to the society and would
continue to be so, threatening its peaceful and
harmonious coexistence. The manner in which the
crime is committed must be such that it may result
in intense and extreme indignation of the
community and shock the collective conscience of
the society. Where an accused does not act on any
spurofthe moment provocation and indulges
himself in a deliberately planned crime and
meticulously executes it, the death sentence may be
the most appropriate punishment for such a ghastly
crime. The death sentence may be warranted where
the victims are innocent children and helpless
women. Thus, in case the crime is committed in a
most cruel and inhuman manner which is an
extremely brutal, grotesque diabolical, revolting and
dastardly manner, where his act affects the entire
moral fibre of the society e.g. crime committed for
power of political ambition or indulging in
organized criminal activities, death sentence should
be awarded.”
72. It is, therefore, wellsettled that
awarding of life sentence is the rule, death is an
exception. The application of the ‘rarest of rare case’
principle is dependent upon and differs from case to
case. However, the principles laid down earlier and
restated in the various decisions of this Court
referred to above can be broadly stated that in a
deliberately planned crime, executed meticulously in
a diabolic manner, exhibiting inhuman conduct in a
ghastly manner touching the conscience of everyone
and thereby disturb the moral fibre of the society
would call for imposition of capital punishment in
order to ensure that it acts as a deterrent.”
39. We then find that though we are convinced that the
case of the prosecution based on the evidence displayed,
established the commission of offences by the accused nos. 1 and
2, without any iota of doubt; we are of the considered opinion,
that still the case at hand does not fall within the four corners of
the principle of the ‘rarest of the rare' case. Such incidents of
murder of old persons take place for robbery. But then it is not
the case of the prosecution that accused no.1Ajay is a professional
robberer or that there are any criminal antecedents with him.
There is nothing on record to show that besides committing
robbery, he had any intention or any other special interest to kill
the old lady, the deceased Vijayatai. Further, there is nothing to
show that he would be a menace to the society. At the same time
considering the plight of the helpless old woman of about 75
years, who was brutally killed and the manner in which she was
done to death by causing multiple injuries on vital parts of her
body with a big knife, respondent no.1 does not deserve any
leniency particularly because he enjoyed the position of trust of
the deceased Vijayatai but still committed the robbery and murder.
40. In the case of Swamy Shraddananda ..vs.. State of
Karnataka; (2008) 13 SCC 767 while setting aside the sentence
of death penalty and awarding life imprisonment, it was ordained
that in order to serve the ends of justice, the appellant therein
should not be released from the prison till the end of his life.
41. In Ramraj ..vs.. State of Chattisgarh; (2010) 1 SCC
573, while setting aside the death sentence, the Supreme Court
directed that the accused therein shall serve minimum sentence for
a period of 20 years including remission and would not be
released on completion of 14 years imprisonment.
42. We, on similar lines, strongly feel that the appellantaccused
no.1 Ajay should serve minimum sentence of 30 years
with remissions while the accused no.2Nitin should serve
minimum period of 20 years with remissions.
43. We, therefore, pass the following order.
O R D E R
(i) Criminal Appeal No. 225/2013 filed by
accused no.1 Ajay Dayaram Gopnarayan and
accused no.2 Nitin Nadkishor Gudadhe is dismissed.
(ii) Criminal Confirmation Case No. 1/2013
for confirmation of death sentence is answered as
follows:
(a) The judgment and order of trial court
dated 01.03.2013 holding the appellantsaccused
no.1Ajay Dayaram Gopnarayan and accused no.2
Nitin Nandkishore Gudadhe, guilty for the offences
punishable under sections 302 and 392 of the I.P.C.
and convicting accused nos. 1 and 2 for the offences
punishable under sections 302 and 392 of the IPC is
confirmed.
(b) The award of death sentence to accused
no.1Ajay Dayaram Gopnarayan, imposed by the
trial court is set aside and in its place, it is ordered
that the accused no.1Ajay Dayaram Gopnarayan
shall undergo imprisonment for a period of 30 years
with remissions.
(c) Accused no.2Nitin Nandkishore
Gudadhe, is sentenced to undergo imprisonment for
life and shall undergo sentence of minimum 20
years with remissions for both the offences
punishable under sections 302 and 392 of the I.P.C.
(iii) All the sentences shall run concurrently
for all the aforesaid offences.
(iv) Both the accused persons are entitled to
set off under section 428 of the Code of Criminal
Procedure.
JUDGE JUDGE
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