Confirmation Case No. 1 of 2015 and Criminal Appeal No. 923 of 2015. Case: The State of Maharashtra Vs Vitthal Tukaram Atugade. High Court of Bombay (India)
| Case Number | Confirmation Case No. 1 of 2015 and Criminal Appeal No. 923 of 2015 |
| Counsel | For Appellant: G.P. Mulekar, APP and For Respondents: Abhaykumar Apte, Advocate |
| Judges | V. K. Tahilramani and A. S. Gadkari, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 164, 366, 368, 428; Indian Evidence Act, 1872 - Sections 24, 25, 26, 27; Indian Penal Code 1860, (IPC) - Sections 201, 302, 307, 363, 364, 366, 367, 376, 376(2)(f), 376(2)(g), 376(f); Protection of Children from Sexual Offences Act, 2012 - Sections 4, 6 |
| Judgement Date | March 14, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
A. S. Gadkari, J.
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The Confirmation No. 1 of 2015 arises out of the Reference made by the learned District Judge-1 and Additional Sessions Judge, Islampur, District-Sangli for confirmation of the death sentence awarded to the accused Vitthal Tukaram Atugade (hereinafter referred to as 'accused') by its judgment and order dated 18th April 2015 passed in Sessions Case No. 4 of 2014.
The learned Additional Sessions Judge, Islampur convicted the accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer death sentence and to pay fine of Rs. 2000/- and in default of payment of fine to further undergo simple imprisonment for one month. It is directed that the accused be hanged by neck till he is dead subject to confirmation of death sentence by the High Court under Section 368 of Cr. P.C.
By the aforesaid judgment and order, the accused is also convicted for the offence punishable under Section 376(2)(f) of the Indian Penal Code and is sentenced to suffer life imprisonment and to pay fine of Rs. 2000/-. In default of payment of fine, to further undergo simple imprisonment for one month.
The accused is further convicted for the offence punishable under Section 363 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000. In default of payment of fine, to further undergo simple imprisonment for 15 days.
The accused is convicted under Section 366 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/-. In default of payment of fine, to further undergo simple imprisonment for 15 days. The accused is also convicted for the offence punishable under section 201 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000. In default of payment of fine to undergo simple imprisonment for 15 days.
The accused is further convicted for the offence punishable under Section 4 of the Protection of Children From Sexual Offences Act and is sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 1000/-. In default of the fine, to undergo simple imprisonment for 15 days.
The accused is also convicted for the offence punishable under Section 6 of the Protection of Children From Sexual Offences Act and is sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1000/-. In default of payment of fine to undergo simple imprisonment for 15 days.
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The Trial Court has granted set off for pre-conviction detention period undergone by the accused since the date of his arrest i.e. for, 7.11.2013 till the date of passing of the order. As the sentence of death penalty is given to the accused, the learned Additional Sessions Judge, Islampur has made Reference as contemplated under Section 366 of the Code of Criminal Procedure to this Court for confirmation of the death sentence.
The accused being aggrieved by the same judgment and order dated 18th April 2015 passed in Sessions Case No. 4 of 2015 has preferred Criminal Appeal No. 923 of 2015. As both the confirmation and the appeal against confirmation are directed against the very same judgment and order dated 18th April 2015, both these matters are heard and decided together by the present judgment and order.
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The prosecution case as has been enumerated from the record can briefly be stated as under:
(i) The first informant Smt. Kavita Hanmant Shirsat (PW-1) is the mother of the victim minor girl Miss. Vaishnavi then aged 7 years She was residing at Shirsatwadi, Taluka Shirala, District - Sangli along with her two minor daughters. Her husband was serving at Mumbai. The parental house of the first informant was at Atugadewadi, Taluka Shirala, District-Sangli. That on 4.11.2013 PW-1 Smt. Kavita along with her two daughters had been to her parental house at Atugadewadi for celebrating Diwali festival.
(ii) The accused herein is the cousin brother of Smt. Kavita (PW-1). On 6.11.2013 at about 11.30 a.m. the victim girl i.e. the daughter of Smt. Kavita was playing in the courtyard of the parental house of the said Smt. Kavita. The accused was proceeding to Sayyadwadi for his hair-cut. The accused enquired with the victim girl Miss. Vaishnavi as to whether she would accompany him to Sayyadwadi. PW-1 Smt. Kavita, mother of the said victim minor girl thereafter sent her daughter along with the accused. That the accused and the said Miss. Vaishnavi did not return upto 1.00 p.m. to the house. Therefore Smt. Kavita (PW-1) tried to contact accused on his cellphone from the cellphone of her father. However, the accused could not be contacted as the cellphone of the accused was switched off. That as the accused and the victim minor girl did not return to the house of the said Smt. Kavita till 3.00 p.m., Smt. Kavita told the said fact to her father and other relatives. Smt. Kavita and her family members thereafter searched the accused and Miss Vaishnavi at Chavanwadi and Chormarwadi, but the accused and the victim Miss. Vaishnavi could not be traced out. Smt. Kavita waited for the accused and the victim minor girl till night. However, they did not return to the house and therefore Smt. Kavita went to Kokrud Police Station and lodged the missing report on 6.11.2013. Shri Balkrishna Y. Patil (PW-18) registered the said missing report as missing case No. 11 of 2013 dated 6.11.2013 at about 10.30 p.m.
(iii) On 7.11.2013 at about 9.30 a.m. Prathamesh S. Jadhav (PW-7) a friend of accused, saw him near village Ghogaon. He noticed that the accused was under fear and perhaps did not sleep through out the night. The accused was hungry and therefore Prathamesh (PW-7) gave him snacks to eat. Prathamesh Jadhav (PW-7) thereafter informed the said fact to Akaram @ Balaso Atugade (PW-13) who is the uncle of Smt. Kavita. Prathamesh (PW-7) informed Akaram @ Balaso Atugade (PW-13) that accused is at village Ghogaon. Thereafter Akaram @ Balaso Atugade (PW-13) went to the village Ghogaon for bringing the accused. Akaram @ Balaso Atugade (PW-13) thereafter brought the accused to Atugadewadi. However the victim girl was not with him. Therefore the mother of the victim Smt. Kavita (PW-1) asked the accused about her daughter.
(iv) In the meantime, the police from Kokrud Police Station also reached to the house of Smt. Kavita and enquired with the accused about the victim minor girl. The accused informed all the persons present there that on 6.11.2013 at about 11.30 a.m. the victim minor girl was accompanying him for going to Sayyadwadi. That he took her in the hilly area of village Enpe and committed rape on her in the grass land. As the accused was apprehensive of the fact that the victim girl would disclose the said fact to the relatives, he committed her murder by throttling. He also informed that he had buried the dead body of victim minor girl at the spot near road leading from Enpe to Kodaiwadi near one bush.
(v) That Smt. Kavita (PW-1), her father Laxman Dhondiba Atugade and uncle Akaram @ Balaso Atugade (PW-13) along with accused and police went to the road leading from Enpe to Kondaiwadi, by jeep. The accused showed the spot where he had buried the dead body of the victim girl. The fingers of the leg of the victim minor girl were protruding out from the earth. In the meantime, the police personnel from Kasegaon police station and the Tahsildar of Shirala Taluka namely Smt. Vijaya S. Yadav (PW-14) also came at the spot. The police took out the dead body by removing the earth on it. Smt. Kavita (PW-1) identified the said dead body as of her daughter, Miss. Vaishnavi. Abrasions were observed over the dead body of the victim girl and the blood was accumulated on the thigh in dried condition. The informant Smt. Kavita lodged the FIR with API Shri Waghmare. The FIR is at Exhibit-12. The FIR was carried by Police Constable Shri Jadhav to Kokrud Police station. Shri Dhondiram Kamble (PW-17) was on duty as PSO at Kokrud Police station. As per the said FIR, he registered the Crime No. 40 of 2013 under Sections 302, 376, 201, 363 and 366 of the IPC and under Section 4 of the Protection of Children from Sexual Offences Act, 2012. ASI Shri Dhondiram Kamble (PW-17) also sent copy of the said FIR to the Court of Judicial Magistrate First Class, Shirala. After the lodgment of the FIR, initial investigation was carried out by API Shri Waghmare and subsequently it was handed over to API Shri Bapusaheb Shinde (PW-19) then attached to Kasegaon Police station.
(vi) During the course of investigation, the Investigating Officer seized the articles which were found at the scene of offence and at other places. The Investigating Officer also recorded statements of various witnesses. He also collected necessary documents such as map of site/scene of offence, Postmortem notes, medical certificate and the reports from Chemical Analyser and after completion of the investigation, the Investigating Officer submitted chargesheet against the accused in the Court of J.M.F.C., Shirala, District-Sangli.
(vii) As the offence under Section 302 of the Indian Penal Code was exclusively triable by the Court of Sessions, J.M.F.C., Shirala committed the said case to the Court of Additional Sessions Judge, Islampur. After committal of the said case, the Additional Sessions Judge, Islampur framed charge below Exhibit-5 against the accused for the offences punishable under Sections 363, 367, 376(f), 302, 201 of the Indian Penal Code and under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012. That the contents of the said charge were read over and explained to the accused in Marathi vernacular language to which the accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial and false implication in the present crime. In support of its case, the prosecution examined in all 19 witnesses. The learned Trial Court...
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