Paragraph numbers below are the court’s original numbering, recovered from the source text.
21. The second circumstance against the appellant had HARESH MOHANDAS RAJPUT v. STATE OF MAHARASHTRA [DR. 8.S. CHAUHAN, J.] · been that he was present: atthe pface bf occurrence when the · A children were playing. Both the courts below have appreciated the evidence on record particularly deposition of Nitesh (PW.3) ·· and held that appellant was present at the place of occurrence at the relevant time. Nothing could be brought to our notice to contradict the findings of the courts below. Of course. the Trial Court did not accept the evidence of Nitesh (PW.3), 12 years old child to the extent that the appellant had offered chocolates to him ,and Pooja; though Pooja had accepted it but Nitesh (PW.3) did not accept the same. The High Court while dealing with the evidence of Nitesh (PW.3) held that the children had c been playing .in front of his house and the appellant had called them and given them chocolates. Discrepancy remained regarding acceptance of chocolate by Nitesh (PW.3), which of course, is not relevant enough for the case taking into consideration the other circumstances.
22. So far as the third· circumstance is concerned, . · admittedly, ~ppellant had been living for along lorig time in close . vicinity of the. house of Po<;>ja, deceased and was very well · acquainted withJhe victim as well as herfamily members . .the . · admitted fact remainedthat appellant's mother andsori, who were the other inmates of his house, had gone out to procure the medicines to cure his addiction and on the fateful day, . appellant was alone in his house. The children had been busy in running here and there as they were playing hide and seek . . Thus, it was not possible in such a fact-situation that every child could remain attentive on every moment about other children. Such circumstance gives an opportunity to a person having evil design. Thus, appellant had an opportunity to take the victim Pooja inside the house.
23. The fourth circumstance stood fully proved by the evidence on record, particularly by the depositions of Smt. Tara (PW.1) and Nitesh (PW.3). Nitesh (PW.3) deposed that~~ Pooja had disappeared he searched for her and as he could not find her out, he went to inform his mother Smt. Tara (PW.1 ), A who at that relevant time had been at Shagun Chowk. Smt. Tara (PW.1) came back and searched for Pooja. More so, this part of the prosecution case has never been challenged by the defence and it stands proved that Pooja disappeared while playing in front of the house of the appellant that evening.
24. The fifth circumstance had been that Nitesh (PW.3) saw Pooja in the house of the appellant and on being asked, the appellant denied her presence. Nitesh (PW.3) is a child witness as at the relevant time he was 12 years of age. When he noticed that Pooja was not seen at the place of play he C searched for her and asked in the neighbourhood and when he could not trace her, only then he went to inform his mother Smt. Tara (PW.1) at Shagun Chowk and returned with her. They both searched for Pooja and as they failed to find her out, Smt. Tara (PW.1) went to the police and Nitesh (PW.3) stayed at D home. Up to this extent, the prosecution case has not been challenged by the appellant. Nitesh (PW.3) has deposed that after his mother left for the police station, his friend came and told him that his sister was in the house of the appellant. So, Nitesh (PW.3) went there from the back side of the house and E saw Pooja lying in the room. He went to one Semabai and told her about it. Semabai entered the house from the backside of the house of the appellant, however, could not see Pooja there. Nitesh (PW.3) asked the appellant about Pooja but he denied that she was there. The Trial Court after appreciating the entire F evidence on the issue came to the conclusion that it was nothing but an imagination of Nitesh (PW.3) and this circumstance was not proved. We have examined the evidence of Nitesh (PW.3) on this issue and we are of the considered opinion that conclusion reached by the Trial Court on the issue is correct G and does not require any interference.
25. Circumstance No.6 relates to an extr;:i-judicial confession by the appellant before his mother and son Khushal (PW.10) to the extent that he had killed Pooja. According to the H prosecution, Khushal (PW.10) alongwith his grandmother had HARESH MOHANDAS RAJPUT v. STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.J gone to Kalyan and returned in the night and found that the lights of the house were off and the appellant was present therein~ The appellant became annoyed as Khushal (PW:10) put on the lights and so Khushal (PW.10) put the lights off. When he again put on the lights the appellant became very angry, on this the appellant's mother came in and at that time the appellant told s them that he had committed the murder of Pooja and threatened them not to disclose to anybody. Khushal (PW.10) ran out of the house, went to the police station and revealed this fact. The prosecution examined Khushal (PW.10), however, he was declared hostile. Appellant's mother was not examined. c Thus, the issue of extra-judicial confession was not proved. There is not enough evidence on record to prove this circumstance against the appellant.
26. So far as the other part of this Issue that Khushal (PW.10) had informed the police that the dead. body was lying D below the cot in his house, the courts below appreciated his evidence with full care and caution, being a hostile witness, as Khushal (PW.1 O~,denied that he had gone to the police station in the night and gave information. The Trial Court came to the conclusion that evidence of Smt. Tara (PW.1 ), Ashok (PW.2), · E Deepak Jawahar Agarwal {PW.8), and G.R. More (PW.4) were enough to establish that when police was recording the complaint of Smt. Tara (PW.1), Khushal (PW.10) reached the police station crying and told them that his father had killed Pooja and kept the dead body below the cot in his house. None of the aforesaid witnesses had any animosity with the appellant and thus, there could be no reason to enrope him falsely. The evidence on this point particularly, is nowhere shakened during their cross-examination. The information was given to the police in close vicinity at the time of commission of the crime, though G exact time of death is not known. The courts below found the circumstance fully proved and we concur with the said finding.
27. So far as the eighth circumstance is concerned, it relates to the recovery of the dead body of Pooja from the house H of the appellant. It is admitted in view of the depositions of Ashok (PW.2), G.R. More (PW.4) and Deepak Jawahar Agarwal (PW.8) that the dead body of Pooja was recovered from the house of the appellant. According to Deepak Jawahar Agarwal (PW.8), he had gone to police static..n along with Smt. Tara (PW .1) and it was in his presence that Khushal (PW.10) has reached the police station and revealed that his father had killed Pooja and .dead body was lying below the cot. He has further deposed that they came with the police to the house of the appellant and entered his house. During search, Ashok (PW.2) father of the deceased saw the dead body. It was taken out and put on a handcart. The appellant was standing in front of the house and the police caught him. In the suggestion put to him, he has denied that he was deposing falsely.
Ashok (PW.2), father of Pooja, deceased has corroborated the evidence of Deepak Jawahar Agarwal (PW.8) fully to the extent that he was also at the police station when Khushal came and revealed the fact that his father had killed Pooja. He further deposed that he along with the policemen, entered the house of the appellant and recovered the dead body of his daughter, Pooja as it was lying below the cot in the house of the appellant. Similarly, G.R. More (PW.4), Head Constable had deposed in this regard that he entered the house of the appellant along with Ashok (PW.2) and Deepak Jawahar Agarwal (PW.8). They searched the house and saw that a girl was lying below the cot therein. Ashok (PW.2) had taken her out. She was motionless. She was kept on a handcart. Appellant has admitted the recovery of Pooja's body from his house while answering Question No.29 in his examination under Section 313 Cr.P.C.
Thus, this circumstance to the extent that the dead body was recovered from the house of the appellant stood fully proved. The explanation furnished by the appellant that he had gone to liquor shop for drinks leaving his house open, had to be proved by him in view of the provisions of Section 106 of Indian Evidence Act, 1872, which he miserably failed and the courts below have disbelieved him. Learned counsel for the HARESH MOHANDAS RAJPUT v. STATE OF · 943 MAHARASHTRA [DR 8.S. CHAUHAN, J.] appellant could not point out any single evidence on the basis A of which a contrary inference can be drawn.
28. The recovery of rope used in the crime has been disbelieved by the Trial Court on the ground that such ropes were easily available in the market. Rope so recovered did not 8 contain any special mark for identification. The police had entered the house prior to Panchanama. Therefore, it could not be established that the same rope had been used wi1ile committing the crime. Death was caused by strangulation. Though the High Court has found sufficient material to believe C the recovery of the rope but in view of the fact that there was nothing on record to show that same rope had been used for committing the crime, the finding so recorded by the High Court loses significance.
29. This brings us to the next circumstance as to whether D any other person had an opportunity to commit the crime. The dead body was found from the house of the appellant. Any outsider may not know that the appellant'& mother and son had gone out and they would not return till night. The outsider must not have an idea that house was lying open and no person was present inside. It is not probable that a person having no concern with such a house would dare to take a girl inside the house to fulfill lust and to kill her. The rape was committed on the cot that is why blood stains were found on it. No outsider could have committed rape so comfortably usir.g the cot in someone else's house. The de2d body wan round below the cot that indicates that the accusEd attempted to con~eal the body. Had any outsider done it, after comll'itting the crime he would have run away leaving the dead body on the cot itself as he would have no reason to be afraid of search and trace of G the dead body. In fact, such a fear exists in the mind of a person to whom the house belongs. The outsider would not make any attempt to conceal the dead body, as his prime concern remains to run away after commission of the crime. The evidence led by the prosecution clearly establishes the aforesaid circumstances.
30. Out of the aforesaid circumstances, only a very few which are immaterial and are not vital to determine the case, stood fully proved against the appellant. In such a fact-situation, we do not find any cogent reason to interfere with the well- reasoned judgments of the courts below so far as the conviction of the appellant is concerned, and we affirm his conviction under Sections 302 and 376 IPC. So far as the sentence part is concerned, in view of the law referred to hereihabove, we are of the considered opinion that the case does not fall within the "rarest of rare cases". The High Court was not justified in enhancing the punishment. Thus, in the facts and circumstances of the case, we set aside the D punishment of death sentence awarded by the High Court and restore the sentence of life imprisonment awarded by the Trial Court. With this modification, the appeals stand disposed of. E B.B.B. Appeals disposed of.