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Sec. 376, 450 and sec.302 of I.P.C – rape and murder of minor girl – death awarded converted in to life imprisonment – high court confirmed the same – Apex court converted the sentence from death to life imprisonment and held that the appellant must serve a minimum of 35 years in jail without remission, before consideration of his case for pre-mature release. However, it would be subject to clemency power of the Executive.- as it is not a rarest of rare case though heinous crime = Rajkumar …Appellant Versus State of M.P. …Respondent= 2014(Feb.Part) judis.nic.in/supremecourt/filename=41252

Sec. 376, 450 and sec.302 of I.P.C – rape and murder of minor girl – death awarded converted in to  life imprisonment – high court confirmed the same – Apex court converted the sentence from death to life imprisonment and held that the appellant must serve a minimum of 35 years  in  jail without remission, before consideration of  his  case  for  pre-mature release. However, it  would  be  subject  to  clemency  power  of  the Executive.- as it is not a rarest of rare case though heinous crime =

 

These appeals have been preferred against the impugned  judgment

      and order dated 27.6.2013 passed in Criminal Reference No. 01 of  2013

      and Criminal Appeal No. 397 of 2013 passed by the High Court of Madhya

      Pradesh at Jabalpur affirming the conviction of  the  appellant  under

      Sections 376 and 450 of  the  Indian  Penal  Code,  1860  (hereinafter

      referred to as the `IPC’) as well as  confirming  the  death  sentence

      awarded for the offence  under Section 302 IPC by the trial court vide

      judgment and order dated 5.2.2013 passed in Sessions Trial No.  20  of

      2013.=

 

A three-Judge Bench of  this  Court  in  Swami  Shraddananda   @

      Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC 3040, wherein

      considering the facts of the case, the Court set aside the sentence of

      death penalty and awarded life  imprisonment,  but  further  explained

      that in order to serve the ends  of  justice,  the  appellant  therein

      would not be released from prison till the end of his life.

 

 

      21.   Thus, taking into consideration the aforesaid judgments, we  are

      of the view that in spite of the fact that the appellant had committed

      a heinous crime and raped an innocent, helpless and defenceless  minor

      girl who was in his custody, he is liable to be punished severely  but

      it is not a case which falls within  a  category  of  rarest  of  rare

      cases.  Hence,  we  set  aside  the  death  sentence  and  award  life

      imprisonment. The appellant must serve a minimum of 35 years  in  jail

      without remission, before consideration of  his  case  for  pre-mature

      release. However, it  would  be  subject  to  clemency  power  of  the

      Executive.

           The appeals stand disposed of.

           Before we part, we would like to note with appreciation that  in

      the instant case investigation and all judicial proceedings upto  this

      Court stood  concluded  in  less  than  8  months  from  the  date  of

      incidence. Thus, it is an exemplar of expeditious justice  in  country

      of chronic delay by smooth functioning of investigating agency, courts

      and the members of legal fraternity.  We expect such  prompt  disposal

      of cases specifically in cases of such grave nature.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41252

B.S. CHAUHAN, M.Y. EQBAL

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1419-1420 of 2013

 
Rajkumar …Appellant

 
Versus

 
State of M.P.
…Respondent

 

 
J U D G M E N T

 
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned judgment
and order dated 27.6.2013 passed in Criminal Reference No. 01 of 2013
and Criminal Appeal No. 397 of 2013 passed by the High Court of Madhya
Pradesh at Jabalpur affirming the conviction of the appellant under
Sections 376 and 450 of the Indian Penal Code, 1860 (hereinafter
referred to as the `IPC’) as well as confirming the death sentence
awarded for the offence under Section 302 IPC by the trial court vide
judgment and order dated 5.2.2013 passed in Sessions Trial No. 20 of
2013.
2. Facts and circumstances giving rise to these appeals as per the
prosecution are that:
A. On 26.12.2012, the appellant, aged 32 years, came to the house
of his neighbour Iknis Jojo (PW.1) and stayed with his four children
as Iknis Jojo (PW.1) and his wife Albisiya had gone to irrigate
agricultural fields in the night. The appellant was on visiting terms
with the family and the children used to call him “Mama” i.e. maternal
uncle. On the said night, he had taken liquor and meals in the
complainant’s house and when retiring for the night, the appellant
asked the prosecutrix Gounjhi, aged 14 years not to sleep with her
three siblings i.e. Sushma, Sanchit and Aric, rather to sleep at some
distance from them. Around midnight, he raped prosecutrix Gounjhi.
While committing rape, he caused some grievous injuries and
consequently she died. The incident was witnessed by Sanchit (PW.2),
brother of the prosecutrix, however, out of fear, he could not raise
any hue and cry. After committing the crime, the appellant left the
place of occurrence. In the morning, Iknis Jojo (PW.1) alongwith his
wife Albisiya came from their fields and found the children sleeping.
They woke them up and also tried to wake the prosecutrix when they
realised that she was dead. Sanchit (PW.2) narrated the incident that
had occurred in the night.
B. Iknis Jojo (PW.1) immediately went to the police station and
lodged the complaint, on the basis of which Crime No. 294 of 2012 was
registered for the offence under Sections 302 and 450 IPC. Shri K.S.
Thakur, Inspector of Police, Police Station: Nainpur, District Mandla,
Madhya Pradesh started the investigation. He came to the spot,
recovered the dead body, prepared the Panchnama, also recovered the
blackish brown colour purse and clothes lying near the place of
occurrence. Some coins and a small packet of tobacoo were also
recovered. Some hair were found lying near the dead body of the
prosecutrix and one sky blue coloured shawl was also recovered from
the place of occurrence which had blood stains and some other kind of
stains at various places. The earth of that place having some fluid
material thereon was also recovered. The investigating officer
prepared the site plan in presence of the witnesses and dead body of
the prosecutrix was sent for postmortem and the appellant was
arrested.
C. Dr. Surendra Barkare (PW.6) alongwith lady Dr. (Smt.) Prahba
Pipre (PW.7) conducted the postmortem of the prosecutrix and submitted
the report. As per the postmortem report, rape had been committed
upon the deceased and, thus, Sections 376 and 511 IPC were also added
in the case.
D. After taking permission from the Judicial Magistrate, the
specimen blood of the appellant was obtained to conduct his DNA finger
printing which was sent for analysis to State Forensic Science
Laboratory, Sagar. All the materials sent for chemical analysis were
analysed and the report was submitted and on the basis of which the
chargesheet was filed and the appellant was put to trial. Appellant
denied his involvement in the offence, thus trial commenced.
E. Dr. Surendra Barkare (PW.6) deposed and proved the postmortem
report and deposed that the prosecutrix died of asphyxia as a result
of strangulation and her death was homicidal in nature.
F. Iknis Jojo (PW.1), father of the deceased, deposed while giving
the version as mentioned in the FIR and admitted that the appellant
used to come to his house occasionally and he was referred to by his
children as “Mama” and sometimes he used to stay in the house though
his house was only half a kilometer away from his house and he was
already married having a child.
G. Sanchit (PW.2), a 10 years old boy, supported the case of the
prosecution and deposed that his “Mama” had come to their house. He
consumed liquor and was served rice and water by the deceased.
Appellant asked the prosecutrix to sleep at some distance from her
siblings. The appellant slept with other three children and it was
about 11-12 in the night that he heard the shrieks of his sister and
saw that the appellant had pressed her neck and he got so much scared
that he could not even raise the voice. All this was disclosed by
PW.2 to his parents in the morning on their returning from the fields.
H. Dr. (Smt.) Prabha Pipre (PW.7) deposed about the conduct of the
postmortem of the body of the deceased alongwith Dr. Surendra Barkare
(PW.6). They further deposed that hymen of the deceased was torn and
blood was oozing out from her private parts. Some blood was present
in the cavity of the private part and some blood was also present in
the cavity of her uterus. Her vagina accommodated one finger and it
accommodated two fingers with difficulty. On the basis of the above,
she had opined that deceased had been subjected to rape before murder.

 
I. The deceased was 14 years of age and a student in sixth standard
which was proved from the school register and the statement of her
father Iknis Jojo (PW.1). Her age has also been mentioned in the FIR
as 14 years. So far as medical evidence is concerned, it was
mentioned that the deceased prosecutrix was about 16 years of age.
J. So far as the analysis report of the material sent and the DNA
report is concerned, it revealed that semen of the appellant was found
on the vaginal swab of the deceased. The clothes of the deceased were
also found having appellant’s semen spots. The hair which were found
near the place of occurrence were found to be that of the appellant.
K. The trial court after considering the entire evidence on record,
recorded the following findings of fact:
i) The evidence of Sanchit Jojo (PW.2), a child witness was
worth placing reliance and it duly supported the case of
the prosecution;
ii) His deposition corroborates medical evidence;
iii) The hymen of the deceased was found torn;
iv) Semen of the appellant was found on the slide prepared from
the vaginal swab of the prosecutrix as proved by the DNA
report;
v) The shawl of the deceased was also found having semen
stains which were of the appellant;
vi) The hair found near the body of the prosecutrix were found
to be of the appellant as per the DNA report;
vii) The appellant did not take any defence in his statement
under Section 313 Cr.P.C. except that he had been falsely
implicated by the family of the deceased at the instance of
the police and that the appellant did not lead any evidence
in his defence.

L. Considering all the aforementioned circumstances and evidence of
the relationship with the family of the deceased, the trial court
treated it to be a case of extreme culpability and a rarest of rare
case awarding death sentence under Section 302 IPC with a fine of Rs.
3,000/-. Under Section 376 IPC, the appellant was awarded rigorous
life imprisonment and a fine of Rs.3,000/-; in default of making
payment on both counts, sentence of one year on each count was also
awarded. For the offence punishable under Section 450 IPC, the
appellant was awarded 10 years rigorous imprisonment with a fine of
Rs.3,000/- and in default, a rigorous imprisonment for one year.
However, it was directed that all the sentences would run
concurrently.
M. The trial court made a reference to the High Court for
affirming the death sentence. The appellant, being aggrieved, also
preferred an appeal against his conviction and sentence before the
High Court. The appeal and the reference were heard together.
N. The High Court recorded the same findings after re- appreciation
of evidence and came to the conclusion that prosecutrix was 14 years
of age at the time of incident. The appellant was admittedly present
in the house but he furnished no explanation whatsoever about the
injuries received by the deceased. As the appellant has committed
rape upon an innocent and helpless child and then killed her brutally,
it has shocked not only the judicial conscience but even the
conscience of society as well. The High Court also recorded the
finding that the offence had been committed in pre-mediated manner.
The death sentence was affirmed and the appeal was dismissed.
Hence, these appeals.
3. Ms. A. Sumathi, learned counsel appearing on behalf of the
appellant, has submitted that the appellant had falsely been
implicated by the family members of the deceased at the instance of
the police. There is no eye-witness in the case. Sanchit Jojo
(PW.2), brother of the prosecutrix, is a child witness and cannot be
relied upon simply for the reason that after seeing the incident and
knowing well that his sister had been killed, he did not raise any
alarm even after the accused had left the spot. Even in the morning,
he did not tell his parents when they came back from the agricultural
fields as what had happened. Therefore, the courts below have
committed a grave error while placing reliance upon the deposition of
the child witness. It is a clear cut case of circumstantial evidence
for which the prosecution could not furnish explanation on various
counts and it cannot be held that appellant had committed rape upon
prosecutrix and, subsequently, killed her. The facts and circumstances
of the case did not warrant death sentence as awarded by the courts
below, and hence, the appeals deserve to be allowed.
4. Per contra, Ms. Vanshaja Shukla, learned counsel appearing on
behalf of the State, has vehemently opposed the appeals contending
that the appellant had a pre-meditated intention to commit the offence
and that is why he asked the prosecutrix to sleep separately. The
chemical analysis report as well as the DNA report make it crystal
clear that no other person except the appellant had committed the
offence and the manner in which the offence had been committed and the
gravity of the offence warrant nothing less than the death sentence
and, thus, the appeals lack merit and are liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
6. We have been taken through the impugned judgments rendered by
the High Court as well as the trial court and the evidence on record.
In view of the concurrent findings of fact recorded by the courts
below, particularly in respect of the DNA report to the extent that
the semen of the appellant was found in the vagina swab of the
prosecutrix and that she died of asphyxia caused by strangulation, we
affirm the findings of fact recorded by the courts below.
7. Sanchit Jojo (PW.2), who is an eye-witness, was a child as he
was 10 years of age at the time of incident. The courts below have
found him worth reliance as he has understood the questions put to him
and he was able to answer the same. The issue regarding the
admissibility of evidence of a child witness is no more res intergra.
8. It is a settled legal proposition of law that every witness is
competent to depose unless the court considers that he is prevented
from understanding the question put to him, or from giving rational
answers by reason of tender age or extreme old age or disease or
because of his mental or physical condition. Therefore, a court has to
form an opinion from the circumstances as to whether the witness is
able to understand the duty of speaking the truth, and further in case
of a child witness, the court has to ascertain that the witness might
have not been tutored. Thus, the evidence of a child witness must be
evaluated more carefully and with greater circumspection because a
child is susceptible to be swayed by what others tell him. The trial
court must ascertain as to whether a child is able to discern between
right or wrong and it may be ascertained only by putting the questions
to him.
9. This Court in State of Madhya Pradesh v. Ramesh & Anr., (2011) 4
SCC 786, after considering a large number of its judgments came to the
conclusion as under:
“In view of the above, the law on the issue can be summarized to
the effect that the deposition of a child witness may require
corroboration, but in case his deposition inspires the
confidence of the court and there is no embellishment or
improvement therein, the court may rely upon his evidence. The
evidence of a child witness must be evaluated more carefully
with greater circumspection because he is susceptible to
tutoring. Only in case there is evidence on record to show that
a child has been tutored, the Court can reject his statement
partly or fully. However, an inference as to whether child has
been tutored or not, can be drawn from the contents of his
deposition.”
(See also: Suryanarayana v. State of Karnataka, AIR 2001 SC 482).
10. In view of the above, as the courts below have found the child
witness worth reliance, we do not see any cogent reason to take a view
contrary to the same.
11. Admittedly, the appellant did not take any defence while making
his statement under Section 313 Cr.P.C., rather boldly alleged that
the family of the deceased had roped him falsely at the instance of
the police. However, appellant could not reveal as for what reasons
the police was by any means inimical to him.
12. The accused has a duty to furnish an explanation in his
statement under Section 313 Cr.P.C. regarding any incriminating
material that has been produced against him. If the accused has been
given the freedom to remain silent during the investigation as well as
before the court, then the accused may choose to maintain silence or
even remain in complete denial when his statement under Section 313
Cr.P.C. is being recorded. However, in such an event, the court would
be entitled to draw an inference, including such adverse inference
against the accused as may be permissible in accordance with law.
(Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC 1357;
Munish Mubar v. State of Haryana, AIR 2013 SC 912; and Raj Kumar Singh
alias Raju @ Batya v. State of Rajasthan, AIR 2013 SC 3150).
In the instant case, as the appellant did not take any defence
or furnish any explanation as to any of the incriminating material
placed by the trial court, the courts below have rightly drawn an
adverse inference against him.
13. The appellant has not denied his presence in the house on that
night. When the children were left in the custody of the appellant, he
was bound to explain as under what circumstances Gounjhi died.
14. In Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1
SCC 10, this Court relying on its earlier judgment in State of W.B. v.
Mir Mohammad Omar, AIR 2000 SC 2988, held as under:
“….. if fact is especially in the knowledge of any person, then
burden of proving that fact is upon him. It is impossible for
the prosecution to prove certain facts particularly within the
knowledge of the accused. Section 106 is not intended to relieve
the prosecution of its burden to prove the guilt of the accused
beyond reasonable doubt. But the section would apply to cases
where the prosecution has succeeded in proving facts from which
a reasonable inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of his special
knowledge regarding such facts, failed to offer any explanation
which might drive the court to draw a different inference.
Section 106 of the Evidence Act is designed to meet certain
exceptional cases, in which, it would be impossible for the
prosecution to establish certain facts which are particularly
within the knowledge of the accused.”
(See also: Neel Kumar alias Anil Kumar v. State of Haryana, (2012) 5
SCC 766; and Gian Chand & Ors. v. State of Haryana, AIR 2013 SC 3395).
15. This Court in Prajeet Kumar Singh v. State of Bihar, (2008) 4
SCC 434 had confirmed the death sentence awarded by the High Court
observing that accused had been living as a family member of the
victim and had been provided with shelter and meals, despite which he
committed ghastly and brutal murder of three defenceless children
without any provocation.
16. In a similarly situated case in Kamta Tiwari v. State of M.P.,
AIR 1996 SC 2800, this Court found that the accused was close to the
family of the deceased. The deceased and her siblings used to call
the accused uncle and her closeness with the appellant encouraged her
to trust him and when the accused had committed the rape and gruesome
murder causing numerous injuries on her body, this Court found it to
be a fit case for awarding death sentence. The Court observed as
under:
“When an innocent hapless girl of 7 years was subjected to such
barbaric treatment by a person who was in a position of her
trust his culpability assumes the proportion of extreme
depravity and arouses a sense of revulsion in the mind of the
common man. In fine, the motivation of the perpetrator, the
vulnerability of the victim, the enormity of the crime, the
execution thereof persuade us to hold that this is a “rarest of
rare” cases where the sentence of death is eminently desirable
not only to deter others from committing such atrocious crimes
but also to give emphatic expression to society’s abhorrence of
such crimes.”
(See also: Dhananjoy Chatterjee @ Dhana v. State of W.B., (1994) 2 SCC
220)
17. However, in Bantu @ Naresh Giri v. State of M.P., AIR 2002 SC
70, while dealing with the case of rape and murder of a six years old
girl, this Court found that the case was not one of the ‘rarest of
rare case’. The Court noticed that, accused was less than 22 years at
the time of commission of the offence, there were no injuries on the
body of the deceased and the death probably occurred as a result of
gagging of the nostril by the accused. Thus, the Court while noticing
that the crime was heinous, commuted the sentence of death to one of
life imprisonment.
18. In Mohinder Singh v. State of Punjab, AIR 2013 SC 3622, this
Court dealt with the case of death sentence observing:
“In this context, we are only reminded of the Tamil proverb
“[pic]” which means in English “when the fence eats the crops”.
When the father himself happens to be the assailant in the
commission of such beastly crime, one can visualise the pathetic
situation in which the girl would have been placed and that too
when such a shameless act was committed in the presence of her
own mother. When the daughter and the mother were able to get
their grievances redressed by getting the appellant convicted
for the said offence of rape one would have in the normal course
expected the appellant to have displayed a conduct of remorse.
Unfortunately, the subsequent conduct of the appellant when he
was on parole disclosed that he approached the victims in a far
more vengeful manner by assaulting the hapless victims which
resulted in filing of an FIR once in the year 2005 and
subsequently when he was on parole in the year 2006. The
monstrous mindset of the appellant appears to have not subsided
by mere assault on the victims who ultimately displayed his
extreme inhuman behaviour by eliminating his daughter and wife
in such a gruesome manner in which he committed the murder by
inflicting the injuries on the vital parts of the body of the
deceased and that too with all vengeance at his command in order
to ensure that they met with instantaneous death. The nature of
injuries as described in the post-mortem report speaks for
itself as to the vengeance with which the appellant attacked the
hapless victims. He was not even prepared to spare his younger
daughter viz. PW 2 who, however, escaped the wrath of the
appellant by bolting herself inside a room after she witnessed
the grotesque manner in which the appellant took away the life
of his wife and daughter.”

 

However, the Court concluded that applying various principles
culled out from earlier judgments of this Court, the case did not fall
within the category of “rarest of rare case”, though it called for a
stringent punishment.

19. The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability. Before opting for the death
penalty the circumstances of the offender also require to be taken
into consideration alongwith the circumstances of the crime for the
reason that life imprisonment is the rule and death sentence is an
exception. The penalty of death sentence may be warranted only in a
case where the court comes to the conclusion that imposition of life
imprisonment is totally inadequate having regard to the relevant
circumstances of the crime. The balance sheet of aggravating and
mitigating circumstances has to be drawn up and in doing so, the
mitigating circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and mitigating
circumstances before option is exercised.
Thus, it is evident that for awarding the death sentence, there
must be existence of aggravating circumstances and the consequential
absence of mitigating circumstances. As to whether death sentence
should be awarded, would depend upon the factual scenario of the case
in hand.
20. A three-Judge Bench of this Court in Swami Shraddananda @
Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC 3040, wherein
considering the facts of the case, the Court set aside the sentence of
death penalty and awarded life imprisonment, but further explained
that in order to serve the ends of justice, the appellant therein
would not be released from prison till the end of his life.
21. Thus, taking into consideration the aforesaid judgments, we are
of the view that in spite of the fact that the appellant had committed
a heinous crime and raped an innocent, helpless and defenceless minor
girl who was in his custody, he is liable to be punished severely but
it is not a case which falls within a category of rarest of rare
cases. Hence, we set aside the death sentence and award life
imprisonment. The appellant must serve a minimum of 35 years in jail
without remission, before consideration of his case for pre-mature
release. However, it would be subject to clemency power of the
Executive.
The appeals stand disposed of.
Before we part, we would like to note with appreciation that in
the instant case investigation and all judicial proceedings upto this
Court stood concluded in less than 8 months from the date of
incidence. Thus, it is an exemplar of expeditious justice in country
of chronic delay by smooth functioning of investigating agency, courts
and the members of legal fraternity. We expect such prompt disposal
of cases specifically in cases of such grave nature.
…..………………………… J.
(Dr. B.S. CHAUHAN)

 
…..………………………… J.
(M.Y. EQBAL)

 
NEW DELHI
FEBRUARY 25, 2014

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