Observing that there was enough evidence to nail the guilty, the Bombay High Court has upheld the life imprisonment awarded to a Pune resident for raping and killing his minor niece eight years ago.
A Pune sessions court had awarded life imprisonment to Bhiva Chapte on two separate counts of rape and murder of the victim.
He was also handed down 7 years jail term for causing disappearance of evidence.
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All the three sentences were to run concurrently. The high court, hearing the appeal filed by Chapte against his conviction, found him guilty on all the three counts and observed that there was enough evidence to connect him with the crime.
The Bombay High Court. File pic
It was prosecution's case that the appellant, a resident of village in Pune district, had lured the 11-year-old daughter of his cousin to a nearby forest on February 15, 2005 under the pretext of giving her money to buy sweets and raped her there before throttling her, which caused her death.
The body of the girl was found on the next day i.e on February 16. Chapte had denied his involvement in the crime, saying he was falsely implicated in the case.
However, police had recovered his blood-stained shirt and undergarments at the time of his arrest. The case was based entirely on circumstantial evidence and there was no eye witness.
"After giving our anxious consideration to the facts and circumstances of the case, we are of the opinion that the appellant committed rape on the victim girl and thereafter, he caused her death by throttling her", observed Justices Vijaya Tahilramani and P D Kode last week.
The Judges also relied upon the statement of the victim's sister who said that the appellant had taken the girl to a nearby jungle on the pretext that he would give her money to buy sweets.
"In such a case, the burden is on the accused to prove that he is not guilty", the bench said.
"In a case resting purely on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him", the bench observed.
The judges noted that at the time of the appellant's arrest the shirt on his person was found blood stained.
The shirt was sent to chemical analyst and as per the report, it was found to be stained with semen and the blood matched the blood group of the appellant.
The judges further said that the evidence of a doctor, who conducted postmortem of the girl, indicated extensive injuries on the private parts of the victim which showed that the motive for the offence was to satisfy sexual lust of the appellant.
"In the opinion of Dr Kasabe, the girl died due to asphyxia due to throttling with alleged rape. In his opinion, the injuries sustained by the victim girl are sufficient in the normal course of nature to cause death", the bench observed.
The last circumstance on which the prosecution had relied was judicial confession made by the appellant to a magistrate.
No doubt, the magistrate who recorded confession has not been examined, however, in the case of Madi Ganga Vs State of Orissa, the Supreme Court has held that section 80 of Evidence Act makes the examination of the magistrate to prove the confession recorded by him unnecessary, the judges observed.
"Where the magistrate had put to the accused all the necessary questions to satisfy himself that the confession was voluntary and he had also appended the necessary certificate, it could be rightly acted upon without examining magistrate in absence of any circumstance justifying the calling of the magistrate as a witness", the bench observed.
"We find no procedural flaw in the confession relied on by the prosecution in this case. Proper procedure has been followed while recording the confession of the accused.
The accused has voluntarily given the confession and therefore, we do not find any impediment in reading the same in evidence", the court said while upholding Chapte's conviction.
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