JUDGEMENT
Ravindra V. Ghuge,J. -
(1.)The accused in Special Case (POCSO) No. 02/2017, Shri. Vishnu Madan Gore, has been convicted for having committed the offence punishable u/s 376-A and Section 302 of the Indian Penal Code along with Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO' Act). He has also been held guilty of committing the offence punishable u/s 201, 363 and 364 of the IPC. He has been awarded the sentence of hanging by the neck till he is dead u/s 354(5) of the Code of Criminal Procedure. As such, the trial Court has forwarded the said case under Section 363 of the Code of Criminal Procedure for confirmation, to this Court. So also, the accused has preferred Criminal Appeal No. 402 of 2020 praying for quashing the impugned Judgment and, consequentially, for acquittal.
(2.)The case put forth by the prosecution against the accused, is as follows : -
[a] The informant is PW1 - Prabhakar Shamrao Gaiwal, who is the grandfather of the deceased minor victim girl, who was aged about 5 years. Her name is not set out in this order. The informant had three sons and three married daughters. His elder son Sham, who is the biological father of the deceased, died of a heart attack within eight years of his marriage. The deceased was the only daughter born from the said marriage. After the death of Sham, his wife remarried and left the deceased daughter with the informant.
[b] On 27.10.2016, at about 08:30 am, PW1, along with his wife (grandmother of the deceased), left for reaping Soyabean crop in the agricultural field belonging to a villager. The deceased and the minor biological son of PW1, i.e. PW3 Krishna, were in the house. When they returned back at about 04:00 pm, the deceased was found missing and hence, the grandparents started searching for her. Despite searching in the village and also in the neighbouring villages, the deceased was not found. Fearing for the worst, PW1 registered a missing complaint with the concerned Police Station on 29.10.2016. A crime came to be registered as C.R. No. 199 of 2016 and the investigation in the crime was handed over to the Investigating Officer.
[c] On 31.10.2016, during the course of investigation, the Police Patil of village Shelgaon informed the Police Station as regards a dead body of a minor girl having been found floating in a well in the agricultural field of Vishwambhar Ganpatrao Londhe, PW7. The Police arrived at the scene and prepared a spot panchanama (Exh.32), the inquest panchanama (Exh.25) and a letter (Exh. 80) was issued to the Medical Officer, Government Hospital, Gangakhed for conducting post-mortem of the said body. Statements of witnesses were recorded and on 02.11.2016 and the I.O. prepared a seizure panchanama vide Exh. 45, having found a quilt with reddish colour stains within the premises of the house of the accused.
[d] The I.O. sent the seized muddemal articles and blood samples for chemical analysis along with letters (Exh. 81 and 82). On 05.11.2016, he issued a letter Exh. 83 to the Forensic Science Laboratory, Santacruz, Mumbai for a DNA test. On 06.11.2016, letter (Exh. 64) was issued as a questionnaire. Under the directions of the Superintendent of Police, Parbhani, the investigation was handed over to PW23, Sub-Divisional Police Officer Shri. Shirgaonkar.
[e] The investigation revealed, that PW2 Shesherao Haribhau Dandane had seen the accused taking away the deceased to his house on 27.10.2016 at about 1:30 pm. The minor uncle of the deceased, PW3 deposed that around 2:30 pm, when he left for bringing water from the well, the victim was at home with him. PW4, a Pan stall owner - Ratnakar Digambar Dukre had seen the accused at 10:00 am. PW13 - Govind Ranba Datar, a Grocery Shop Owner stated that the deceased had been to his shop around 12:30 noon to purchase chocolates. In all, 23 witnesses were examined.
[f] During investigation, it was also revealed that the accused was a married person and a girl child was born from the said marriage. His wife Ashwini had left him as she did not approve of his wayward and atrocious behaviour.
[g] The naked body of the victim was found in a gunny bag wrapped with a piece of a lungi, a nylon rope having been tightened around her neck and with a few stones, in the sack, which were brought out from the well of PW7.
[h] A sniffer dog was pressed into service and the said dog, in the course of investigation, is said to have travelled quite close to the house of the accused situated on a hilltop commonly known as [1] in Marathi. Since the sniffer dog stood on the road barking towards the homes on the opposite side, that the police suspected a few persons from the said village. After interrogating several persons from the said village, the accused was arrested from a place called as Ooncha, State of Karnataka where he had reached along with his mother and brother as a part of the sugarcane cutting toli (the english word used for 'toli' is 'gang of sugarcane cutters').
[i] Having been arrested on 20.11.2016, the accused is said to have issued a memorandum statement (Exh.72) dated 22.11.2016, under Section 27 of the Indian Evidence Act. Since he expressed a desire to point out the place where he had allegedly committed the crime, the police travelled in the said direction as per the instructions of the accused who eventually showed them the same house in which direction the sniffer dog was barking. A seizure panchanama was drawn, (Exh.73). The door of the room in the house was opened by using the key seized by the police on 20.11.2016 from the accused while arresting him. He showed a piece of a nylon string (85 cms.), which was seized. It was placed in a packet and by drawing a panchnama Exh. 73, the signatures of the panch witnesses and the deceased were obtained on the paper.
[j] The accused was produced before the competent Court on 20.11.2016 at Sonpeth and since then, he is behind bars. After a complete trial, the accused was found guilty of having ravished a minor girl aged about 5 years and having strangulated her to death. He was convicted of the charge of raping and murdering the deceased and attempting to destroy evidence.
[k] The learned trial Court found that a heinous crime was committed by the accused in cold-blood and had heard the learned Advocate for the accused on the quantum of the sentence. Finally the accused, as noted in the opening paragraph, was sentenced to suffer death by hanging.
(3.)We have extensively heard the submissions of the learned Prosecutor and the learned Advocate for the accused on 01.02.2021, 02.02.2021, 03.02.2021, 04.02.2021 and 05.02.2021, who have referred to the appeal paper-book, the record and proceedings and the muddemal.