TMI Blog1994 (1) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed by the High Court and the appellant was executed. Reference for confirmation of the death sentence was accordingly made to the High Court. The appellant also preferred an appeal against his conviction and sentence in the High Court. The criminal appeal filed by the appellant was dismissed and the sentence of death was confirmed by the High Court. On special leave being granted, the appellant, Dhananjay Chatterjee @ Dhana, has filed this appeal. 2. According to the prosecution case, the appellant Dhananjay was one of the security guards deputed to guard the building 'Anand Apartment' by M/s. Security and Investigating Bureau of which Mr. Shyam Karmakar PW 21 was the proprietor. On 2.3.1990, Hetal deceased complained to her mother Yashmoti Parekh PW 3 that the appellant had been teasing her on her way to and back from the school and had proposed to her on that day to accompany him to cinema hall to watch a movie. She had made complaints about the teasing by the appellant to her mother previously also. Yashmoti PW 3 told her husband Nagardas Parekh PW 4 on 3.3.1990 about the behaviour of the appellant towards their daughter, who in turn complained to Shyam Karmak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the intercom, there being no response from flat No. 3-A, he called out the name of the appellant, who appeared at the balcony of flat No. 3-A and on being told that PW 6, the supervisor had come and wanted to see him, told him that he would come down. The appellant after a little while came down by the stairs and even though the supervisor PW 6 and Dasarath PW 7 were waiting for him, he hurriedly went passed them and on being asked by PW 6 that he wanted to talk to him, told him to come outside the gate and speak to him. The appellant on inquiry by PW 6 as to why he had not obeyed the transfer order told him that due to some personal difficulty he could not report for duty at Paras Apartment. He was advised to take charge at Paras Apartment without fail the next day. The appellant thereafter left. 4. At about 6.05 p.m. Yashmoti PW 3 returned from the Temple. While going to her flat in the lift, she was told by Ramdhan Yadav PW 8, the lift operator, that the appellant had gone to her flat in her absence to make a telephone call to his office. She was annoyed on getting this information because of the complaint which the deceased had made to her earlier. On reaching her flat she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses were also recorded. 5. Search was made for the appellant by the police at different places during the night intervening 5th and 6th march 1990 but in vain. The appellant did not even visit his employers to collect his wages for the past 5 days. He did not report at 'Paras Apartment' either. Though he was also doing night duty at another place, he did not report for duty at another place, he did not report for duty there and did not collect his wages for four days service rendered with the other employer either. He was not traceable. Some raids were conducted in the village of the appellant at Kuludihi, within the jurisdiction of Chatna Police Station on different dates but ultimately it was only on 12.5.1990 that the appellant came to be arrested. Pursuant to a disclosure statement made by him under Section 27 of the Evidence Act, a 'Richo' wrist watch was recovered. Appellant also led to the recovery of his shirt and trouser wrapped in a newspaper from his house pursuant to a disclosure statement. At the trial the appellant pleaded innocence and alleged false implication 'due to quarrel with PW 4 over his transfer'. In his statement made at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate, appearing for the appellant, did not question the same either. We therefore, have to address ourselves to determine whether or not the appellant was the assailant who had raped and murdered the defenceless young girl. 7. It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinise the evidence lest suspicion takes the place of proof. Since, the instant case Ls based on circumstantial evidence and the sentence awarded by the trial cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the statement of PW 3 Yashmoti was recorded. Though initially Mr. Ganguli did try to support the finding of the High Court but in the face of the evidence on the record and more particularly in the absence of any challenge to the testimony of the investigating officer, in fairness to Mr. Ganguli, we just record that he rightly did not pursue that argument any further. We, therefore, find ourselves, unable to agree with the opinion of the High Court and hold that the statement of Yashmoti PW 3, recorded by the investigating officer PW 28, was rightly treated as FIR in this case by the prosecution and the trial court. 10. We shall now deal with and consider various circumstances relied upon by the prosecution which have been accepted as conclusively established both by the trial court and the High Court to connect the appellant with the crime. 1. Motive: In a case based on circumstantial evidence, the existence of motive assumes significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PW 9 has not been assailed during his cross-examination. From the prosecution evidence, the teasing of the deceased by the appellant, his invitation to her to accompany him to watch a movie on 2.3.1990 and the order of his transfer from 'Anand Apartment' made by PW 21 on the complaint of the deceased, through her father PW4, stand amply established on the record. It is pertinent to note that there has been no challenge worth the name to this part of the case of the prosecution during the cross-examination of various witnesses produced by the prosecution in its support. Mr. Ganguli however, submitted before as that the delay in the seizure of complaint Ex.4 and the transfer order, on 29.6.1990 were indicative of the fact that both the documents had come into existence subsequently as an after thought. We do not find any force in this submission. PW 4 who gave a written complaint to PW 21 and PW 9 who delivered the transfer order issued by PW 21 to the appellant were not challenged in the cross-examination about the same. Even the investigating officer was not asked for an explanation as to why the documents had been seized so late. In any event the seizure of the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him not only to satisfy his lust and teach a lesson to the deceased girl for spurning his offer but also as a measure of retaliation for being reported to his employer and being transferred from Anand Apartment to paras Apartment on the basis of the said complaint. The transfer of the appellant on grounds of his improper behaviour with the deceased was an aspersion on his character and that appears to have provided him the immediate motive for committing the crime in retaliation and even may be to remove the evidence of committing rape on the deceased. We are, therefore, of the opinion that the prosecution has successfully established the existence of motive on the part of the appellant to commit the crime. 2. Evidence relating to the appellant's visit to Flat 3-A: According to the prosecution case PW 3 Yashmoti, the mother of the unfortunate deceased, left for the Temple on 5.3.1990 at about 5.20 p.m. This was her daily routine and the appellant, who was a security guard at the apartment must be deemed to be aware of this routine practice of the mother and since the deceased had returned to her flat at about 1.00 p.m. after taking the examination, when the appellant on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. We have carefully considered the statement of PW 8 and find that he does afford corroboration regarding the presence of the appellant at the time of visit of PW 6 to Anand Apartment and his coming down the stairs from the third floor on being called by PW 7, the security guard on duty. On the return of Yashmoti PW 3, from the Temple, PW 8 the liftman told her that the appellant had gone to her flat to make a telephone call. Despite lengthy cross-examination, the testimony of PW 6 the supervisor and PW 7 on this aspect of the case has remained uashetlered. Their credibility has not been impeached at all. The submission of Mr. Ganguli that there was no need for the appellant to have disclosed to PW 7 that he was going to flat 3-A, if the appellant was going to commit a crime, has not impressed us because in the face of the order of transfer of the appellant from Anand Apartment to Paras Apartment, he had to given some explanation to the guard on duty for going to the third floor of the building. He could not have gone to the third floor unnoticed. Even if it be assumed that PW 7 was not aware of the transfer order, the appellant's duty was already over and without giving so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad body of Hetal was lying, they recovered a broken chain and a shirt button of cream colour with four holes from the bed room of PW3 and PW 4 besides the panty of the deceased from the living room which was torn and had blood stains. PW2S the investigating officer besides Bhawesh Parekh PW5 and Rajiv Bokharia PW10 have deposed to the seizure of these articles from the place of occurrence on 5.3.1990. All the Articles were secured in a parcel and sealed. According to PW7, the appellant was wearing a cream coloured shirt and gray trousers when he went to flat No. 3 A on the date of occurrence. The appellant, as already noticed, was arrested on 12.5.1950 Pursuant to a disclosure statement made by him, he brought out a packet, wrapped in a newspaper, containing one shirt and a pant which were seized vide seizure list Ex.16. The recovery of the wearing apparel on the disclosure statement of the appellant has been established by the testimony of Pranab Chatterjee and Debilal Mukherjee, who have corroborated the evidence of the investigating officer fully. Though, the entire statement made by the appellant before the police is inadmissible in evidence being hit by Sections 25 and 26 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h and was identical to the remaining three buttons on the shirt of the appellant. The evidence of the expert witness, therefore, clearly points out to the conclusion that the button found from the place of occurrence was the third button of too shirt of the appellant, which had fallen of and was found on the scene of crime. This piece of circumstantial evidence is quite specific and is of a crucial nature and undoubtedly connects the appellant with the crime. The discovery of the broken chain from the place of occurrence also connects the appellant with the crime. From the testimony of Gauranga Chandra PW11, it appears that the broken chain, recovered from the place of occurrence, had been given by the witness to the appellant about a month prior to the date of the incident. There was no cross-examination of this witness to challenge this part of his testimony. Of course, the defence did suggest during the cross-examination that such like chains are available in the market but that suggestion cannot detract from the reliability of the prosecution evidence. We agree with the finding of the High Court that the prosecution has successfully established that Gauranga PW11 had given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied that they unsuccessfully searched for the appellant from 5th to 8th March 1990 at different places or conducted raids at his village to apprehend him. The circumstance of absconding was put to the appellant in his statement under Section 313 Cr. P.C, but instead of giving a satisfactory explanation, he came forward with a plea of alibi. He stated that he left Anand Apartment to see a picture in a cinema hall after 2 p.m. and then returned to Manorma School and after collecting his belongings and purchasing some fruits left for his native place to participate in the sacred thread ceremony of his brother. No evidence was produced by the appellant in support of this belated plea of alibi. There is no material on the record to show that he went to any cinema or participated in any sacred thread ceremony of his brother or that even such a ceremony at all took place at his native village. Though it is not necessary for an accused to render an explanation to prove his innocence and even if he renders a false explanation, it cannot be used to support the prosecution case against him and that the entire case mast be proved by the prosecution itself but it is well settled that a plea of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apprised of the same in writing. Even though the communication to the police may be inadmissible in evidence, being hit by Section 162 Cr. P.C., there was no challenge to the testimony of PW3 that her 'Richo' wrist watch had been stolen on the date of. the occurrence and that material object Ex.18 was the same stolen wrist watch which had been recovered at the instance of the appellant from his house. We do not find any substance in the criticism levelled by Mr. Ganguli, to the effect that the absence of a cash memo or the cash register rendered the evidence of Fakruddin PW18 or PW3 doubtful. We have carefully perused the testimony of PW18 and do not find any blemish in the same. The non-seizure of the cash memo by the investigating agency cannot discredit the testimony of PW18 or PW3 and nothing has been brought to our notice from which any doubt can be cast on the testimony of PW18 regarding the sale of the watch to PW3. The testimony of the prosecution witnesses relating to the disclosure statement of the appellant and the seizure of the wrist watch pursuant thereto from the house coupled with the testimony of PW18 Fakruddin and the identification of the watch by PW3 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extreme penalty of death on the appellant and give him chance to become a reformed member of the society in keeping with the concern for the dignity of human life. Learned Counsel for the State has on the other hand canvassed for confirmation of the sentence of death so that it serves as a deterrent to similar depraved minds. According to the learned State counsel, there were no mitigating circumstances, and the case was undoubtedly 'rarest of the rare' cases where the sentence of death alone would meet the ends of justice. 13. We have given our anxious consideration to the question of sentence. Keeping in view the changed legislative policy which is patient from Section 354(3) Cr. P.C. We have also considered the observations of this Court in Bachan Singh's case, 1980 Crl. Law Journal 636. 14. In recent years, the rising crime rate-particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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