STATE OF MAHARASHTRA Vs. SURYAKANT DATTATRAYA BHABAL

JUDGEMENT

(1.) THE appellant in the above appeal along with his wife -original Accused No. 2 were prosecuted in Sessions Case No. 695 of 1993 for offences under Section 376 and under Section 302 read with Section 34 of IPC. The learned Additional Sessions Judge, Greater Bombay who tried the above Sessions Case had convicted the appellant, original accused No. 1 for offence of rape under Section 376 of IPC committed on a girl by name Soni, the daughter of P.W. 1, hardly 11 years of age and sentenced him to undergo RI for 10 years. The said accused was also convicted under Section 302 of IPC for the murder of the said girl after committing rape on her and was sentenced to death by her Judgment and Order dated 3rd September, 1997. The said sentence of death has been submitted to this Court for the purpose of confirmation as per the provisions of Section 366 of Cr.P.C. The accused No. 2, wife of accused No. 1 was convicted under Section 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/ - in default to undergo RI for 10 days. The accused No. 2 has not filed appeal against the order of her conviction and sentence. However, the accused No. 1 who was sentenced to capital punishment has filed the appeal challenging the order of conviction as well as the sentence recorded against him by the Trial Court. Accordingly both the confirmation case as well as appeal preferred by the original accused No. 1 (hereinafter called 'the accused') have been heard by us together and are being disposed of by a common judgment.

(2.) THE facts leading to the aforesaid conviction and sentence of the Accused are as follows : The victim girl deceased Soni, aged about 11 years, was residing with her parents, both of whom were working, and her elder brother by name Shobhi aged about 13 years, examined as P.W. 6, in CGS Colony, Building No. 60, flat No. 2580, Antop hill, Bombay. The said flat is situated on the second floor of the said building along with three more flats. The accused along with his wife, original accused No. 2 and their children was also residing In the same flat but in the front portion of the said flat i.e. the hall. The family of the victim girl was residing in the rear portion of the said flat which is a kitchen room. The entrance to the said flat is only from the hall in occupation of the accused and his family. The date of the incident is 3rd April, 1993 between 11 a.m. to about 12.30 in the noon. On the date of the incident the parents of the victim girl had, as usual, left for their place of work. Her father John Thomas (P.W. 1) left his house for work at 8.30 a.m. as usual while his wife i.e. the mother of the victim girl left at about 10.30 a.m. The said tenement consisted only of two rooms i.e. hall at the entrance of the said tenement and kitchen which was situated on the rear side. In between these two rooms occupied by these two families lay a bathroom and a toilet. In order to go to the kitchen i. e. the room occupied by the family of the deceased one had to enter the hall occupied by the accused and pass through the rear door and passage in front of the toilet and bathroom to reach the kitchen room. The rear door of the hall and the door of the kitchen were opening in the common passage in front of the toilet and the bathroom and were in the opposite direction. As there was holiday for school on that day, the deceased and her brother by name Shobhi (P.W. 6) were in the house. The brother of the deceased, Shobhi who was studying in 7th standard left the house leaving Soni alone in the house and went to the house of his friend by name Rakesh who was residing in nearby area for the purpose of study in order to prepare for annual examination. He returned home at about 1 p.m. when the front door of the said tenement was closed and, therefore, he knocked the Main door which was opened by the accused No. 2 i.e. the wife of the present accused. Accused No. 2 after opening the door gave Shobhi Rs. 2/ - and asked him to bring chilly powder. Shobhi purchased the chilly powder from the shop in the vicinity and came back and handed over the same to the accused No. 2. When he was proceeding towards their room, which was on the rear side, accused No. 2 told him that Soni was sleeping and he should not disturb her. He saw the door of the room in their occupation was closed. He, therefore, went and sat on the staircase of their building. After some time maid servant of neighbour P.W. 5 Mrs. Bindar by name Sahira saw him sitting on the staircase and, therefore, enquired of him as to why he was sitting outside his house. Shobhi told her that accused No. 2, informed him that Soni was sleeping and, therefore, he was sitting there. When P.W. 5, Mrs. Bindar came from outside along with her husband she also enquired of him as to why he was sitting on the staircase to which he replied that as Soni was sleeping he was sitting there. After some time accused came from outside. That must be around 2.30 p.m. Shobhi asked accused, whom he called Suryakant uncle, to open the door. But he refused to open the door and asked him to call his aunty by name Yelsamma who resided in the nearby building No. 137 but as Shobhi knew that his aunt was not at home he did not go to call her. He, therefore, again went and sat on the staircase when Sahirabanu, the maid servant of P.W. 5 came and told him that she would try to open the door. When Shobhi went towards their room along with Sahirabanu accused No. 2 warned Sahirabanu that if police arrived and anything happened she would be answerable. Shobhi climbed the stool near the door of their room and threw his compass box in the room through the small opening above the door. Yet there was no response. The maid servant Sahirabanu called out 'Soni' by name but there was no response. Sahirabanu also peeped into the kitchen standing on the stool but she too could not see Soni in that room. When Sahirabanu said that she is not visible in the kitchen, accused No. 1 told her that Soni must be in the mori. When the maid servant asked accused as to how he knew that Soni was in mori, accused No. 2 stated that they knew about it. That time P.W. 5 also came there and climbed on the stool and peeped into the kitchen and found that Soni was not visible in the kitchen room. At about 4.30 p.m. P.W. 5 told Shobhi to call his aunty by name Yelsamma, P.W. 9, Shobhi then went to his aunt's house when aunt Yelsamma and her husband Bosspaul were at home whom he told about Soni sleeping in the room and not opening the door and about accused not assisting him in opening the door. Bosspaul and Yelsamma thereafter followed Shobhi. At that time it was about 5.30 p.m. when P.W. 1, father of the victim girl also returned from his work. P.W. 1 opened the door of the kitchen by pushing it by force and on entering the room they noticed that Soni was tied with Dupatta to the rods of the kitchen window above mori and was in standing position. One end of the Dupatta was tied around her neck and the other end was tied to the window. P.W. 1 removed the Dupatta and laid the victim girl on the cot in their room. There were injuries on the person of the victim girl and blood near her mouth and also on her clothes. P.W. 1 changed the clothes of the deceased and asked Bosspaul to call the doctor. When doctor Nair P.W. 11 arrived he declared the girl dead and, therefore, P.W. 1 asked Bosspaul to inform the police. The police arrived and the spot panchanama Exhibit 13 and Inquest Panchnama were drawn by PSI P.W. 13. The deceased was then taken to Rajawadi Hospital for postmortem. On 4.4.1993 clothes of the victim girl were attached vide panchanama (Ex. 20). The Police, inspite of obvious injuries and marks of violence and the marks of rape on the body of the victim girl, did not register the offence, until 6.4.1993 after the statement of Sahirabanu was recorded.

(3.) THE investigation was taken over thereafter by D.C.B., C.I.D. on 14.4.93 and the statements of other witnesses came to be recorded. On 26.5.93, the accused No. 1 was again interrogated and he volunteered to produce the cassettes of blue film and magazine which were recovered at his instance from his house and produced as Articles 25 and 26 which were attached under the panchanama. The clothes of the deceased and the accused were sent to the Chemical Analyser. The reports of the Chemical Analyser are Exhibits 26 to 30. After completion of the investigation the charge -sheet came to be submitted on 16.6.93 in the Metropolitan Magistrate's 19th Court at Esplanade, Bombay and thereafter the case was committed to sessions Court on 19.7.93.