Case Note & Summary
This judgment arises from a confirmation reference under Section 366(1) of the Code of Criminal Procedure, 1973, submitted by the Additional Sessions Judge, Thane, following the conviction and death sentence of two accused in Sessions Case No. 599 of 2012 for the gang rape and murder of a 28-year-old woman and the gang rape and assault of a 19-year-old woman, both rag pickers. The prosecution case was that on 9 May 2012, the accused, Rahimuddin Mohfuz Shaikh @ John Anthony D'Souza and Sandip Samadhan Shirsath, lured the victims with promises of employment, took them to a bridge in CBD Belapur, offered them cold drinks and liquor, and then raped them. When the victims resisted, the accused attacked them with a hacksaw blade and a knife, causing the death of one and severe injuries to the other. The survivor escaped and fell, sustaining a head injury, and was found unconscious by a rickshaw driver who alerted the police. The dead body was discovered the next day by a watchman. The survivor regained consciousness on 10 May 2012 and gave a statement leading to the registration of FIR under Sections 302, 376(2)(g) read with 34 IPC. The accused were arrested on 14 May 2012. The trial court examined eleven witnesses and convicted both accused, sentencing them to death for murder under Section 302 r/w 34 IPC, life imprisonment for gang rape under Section 376(2)(g) IPC, and rigorous imprisonment for ten years under Section 326 r/w 34 IPC, with fines. The proceedings were forwarded to the High Court for confirmation of the death sentence. Before the confirmation hearing, a Division Bench of the High Court, by an oral judgment dated 22 October 2019, discharged accused No. 2, Sandip Shirsath, on the ground that he was a juvenile at the time of the offence, quashing his conviction and directing that he be produced before the Juvenile Justice Board under the Juvenile Justice (Care and Protection of Children) Act, 2015. The confirmation case proceeded against accused No. 1, Rahimuddin Shaikh. At the hearing, the State argued that the survivor's direct testimony, corroborated by medical evidence and her identification of the accused in the test identification parade and during trial, proved guilt beyond reasonable doubt. The defence raised several objections: the identity of the deceased was not conclusively proved; the FIR was belated and fabricated; the survivor's psychological condition rendered her testimony unreliable; the test identification parade was not properly conducted; the trial was vitiated because evidence was recorded in English without following the Criminal Manual and the CrPC, and the accused were not produced in court during the recording of some evidence; and the extra judicial confession lacked details and was insufficient to establish guilt. The court's reasoning on these contentions is not included in the provided excerpt, which ends mid-argument. The judgment was pronounced on 25 November 2021, but the final operative portion is not available in the supplied text.
Issue of Consideration
Whether the conviction and death sentence imposed on the accused should be confirmed under Section 366(1) of the Code of Criminal Procedure
Law Points
- Confirmation of death sentence under Section 366(1) CrPC
- Juvenility and discharge of juvenile accused
- Test Identification Parade
- Recording of evidence in English
- Delay in lodging FIR
- Admissibility of extra judicial confession
Case Details
2021 LawText (BOM) (11) 37
Confirmation Case No. 1 of 2017
Smt. Sadhana S. Jadhav, Prithviraj K. Chavan
Ms. M.M. Deshmukh, Ms. Rebecca Gonsalvez
1. Rahimuddin Mohfuz Shaikh @ John Anthony D'Souza @ Babu @ Baba, 2. Sandip Samadhan Shirsath @ Raghu Rokda
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Nature of Litigation
Confirmation case for death sentence under Section 366(1) of the Code of Criminal Procedure, 1973.
Remedy Sought
The State sought confirmation of the death sentence imposed on accused No. 1 by the trial court; the accused sought acquittal or commutation of sentence.
Filing Reason
The trial court having convicted the accused and sentenced them to death, the proceedings were submitted to the High Court for confirmation as required under Section 366(1) of the Code of Criminal Procedure.
Previous Decisions
The Additional Sessions Judge, Thane, in Sessions Case No. 599 of 2012 convicted both accused and sentenced them to death, life imprisonment, and rigorous imprisonment. On 22 October 2019, a Division Bench of this Court discharged accused No. 2, a juvenile, quashing his conviction and directing that he be produced before the Juvenile Justice Board under the Juvenile Justice (Care and Protection of Children) Act, 2015. The confirmation case now proceeded only against accused No. 1.
Issues
Whether the identity of the deceased was conclusively proved?
Whether the delay in registration of FIR was fatal to the prosecution case?
Whether the survivor's testimony was reliable given her psychological condition and the circumstances?
Whether the test identification parade was properly conducted?
Whether the trial was vitiated by recording evidence in English in breach of the Criminal Manual and the Code of Criminal Procedure?
Whether the accused were properly identified as the perpetrators?
Whether the extra judicial confession was admissible and reliable?
Submissions/Arguments
The State argued that the survivor's testimony was direct evidence, corroborated by medical evidence, and that she identified the accused in the test identification parade and during trial. The social background of the survivor as an illiterate rag picker should be considered in assessing her testimony.
The accused contended that the identity of the deceased was not proved; the FIR was delayed and fabricated; the survivor's testimony was unreliable due to her psychological state; the test identification parade was not properly conducted; the trial was vitiated because evidence was recorded in English without compliance with procedures and the accused were not produced during some evidence; the extra judicial confession was vague and lacked details; and the prosecution failed to prove guilt beyond reasonable doubt.
Judgment Excerpts
This again is a sordid story of two poor, helpless and hapless victims who had not only been raped but one of them had been brutally murdered.
Survivor-Y was roofless and hence, the railway platform of Vashi station was her night abode.
the accused raped survivor-Y and deceased-X. When deceased-X and survivor-Y resisted, both the accused assaulted them with hacksaw blade and a knife.
It has been vehemently argued by the learned Counsel that in fact, the trial has been vitiated for the reason that the learned Additional Sessions Judge had recorded the evidence of the prosecution witnesses only in English by accepting pursis ( Exhibit 19 ) by showing as if the Additional Public Prosecutor and the defence Counsel had no objection which is in total breach of the provisions of the Criminal Manual and the Code of Criminal Procedure.
Procedural History
The Sessions Case No. 599 of 2012 was tried by the Additional Sessions Judge, Thane. By judgment dated 11 May 2017, the accused were convicted under Sections 376(2)(g), 302, 326 r/w 34 IPC and sentenced to death, life imprisonment, and rigorous imprisonment with fines. The proceedings were submitted to the High Court under Section 366(1) CrPC for confirmation of death sentence. On 22 October 2019, a Division Bench of this Court discharged accused No. 2 (Sandip Shirsath, a juvenile) and quashed his conviction, directing his production before the Juvenile Justice Board under the Juvenile Justice (Care and Protection of Children) Act, 2015. The confirmation case now proceeded only against accused No. 1 (Rahimuddin Shaikh). The High Court heard arguments from the State and the accused and reserved judgment on 18 November 2021.
Acts & Sections
- Indian Penal Code, 1860: 302, 376(2)(g), 326, 34
- Code of Criminal Procedure, 1973: 366(1), 164
- Juvenile Justice (Care and Protection of Children) Act, 2015:
