Madhya Pradesh High Court
Rakesh vs The State Of Madhya Pradesh on 15 July, 2014
Author: N.K.Gupta
Bench: N.K.Gupta
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
CRIMINAL REFERENCE NO.9/2013
In reference received from the Sessions Judge, Seoni.
Vs.
Mohd. Firoz.
CRIMINAL APPEAL NO.2920/2013
Mohd. Firoz.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.3132/2013
Rakesh.
Vs.
State of Madhya Pradesh.
For the State: Shri Vijay Pandey, Dy. Advocate General.
For the accused: Shri Aditya Adhikari, Advocate for the
appellant Mohd. Firoz in Cr.A.No.2920/2013 and Shri M.
Shafiqullah, Advocate for the appellant Rakesh in Cr.A.
No.3132/2013.
PRESENT: Hon'ble Mr. Justice Ajit Singh
&
Hon'ble Mr. Justice N.K.Gupta, JJ.
JUDGMENT
(15/7/2014) The following judgment of the Court was delivered by:
N.K.Gupta,J:
Since both the criminal appeals and criminal reference arose from a common impugned judgment 2 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 dated 26.10.2013 passed by the learned Sessions Judge, Seoni in Special Case No.11/2013, and therefore these cases are decided by the present common judgment.
2. Vide judgment dated 26.10.2013 the learned Sessions Judge, Seoni in Special Case No.11/2013 convicted and sentenced the present appellants as under:
Appellant Conviction Sentence
Mohd. Firoz u/s
302 of IPC Death sentence
363 of IPC R.I. for 7 years with fine of
Rs.2000/-.
366 of IPC R.I. for 10 years with fine of
Rs.2000/-.
376(2)(i) of Life imprisonment with fine of IPC Rs.2000/-.
376(2)(m) Life imprisonment with fine of
of IPC Rs.2000/-.
5(i) r/w 6 Life imprisonment with fine of
of POCSO Rs.2000/-.
Act
5(m) r/w 6 Life imprisonment with fine of of POCSO Rs.2000/-.
Act
Appellant 363/34 of R.I. for 7 years with fine of
Rakesh IPC Rs.2000/-.
366/34 of R.I. for 10 years with fine of
IPC Rs.2000/-.
109 of IPC Life imprisonment with fine of Rs.2000/-.
16/17 of Life imprisonment with fine of
POCSO Rs.2000/-.
Act.
Default sentences were also
prescribed by the learned
Sessions Judge, Seoni.
Since the death sentence was directed to the appellant Mohd. Firoz, therefore a reference was made to this 3 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 Court by the learned Sessions Judge, Seoni, whereas the appellants have preferred the criminal appeals.
3. The prosecution case, in short, is that on 17.4.2013 at about 6:30 PM the appellant Rakesh Choudhary went with an unknown person to the house of the complainant Ramkumari (PW-1) situated at Village Ghansore (Police Station Ghansore District Seoni) on a pretext that the said unknown person was friend of her brother Shyam and he may be given some space in the house of Ramkumari and her mother Himma Bai (PW-6). Various children were playing in the courtyard. Himma Bai refused to provide the space to that unknown person, and therefore Rakesh Choudhary and his companion left the premises. After sometime it was found that the deceased-prosecutrix aged four years was missing. Ramkumari at about 8:35 PM lodged a missing report before the Police Station Ghansore. On 18.4.2013 some visitors found that one girl child was lying unconscious in the field of Badri Yadav. On getting information the witness Shyam Yadav went to the spot and found that the deceased-prosecutrix was lying unconscious and blood was oozing from her nostril. Her underwear was found lying in the side and skins of three bananas were also lying there. Shyam Yadav took the deceased-prosecutrix to the Government Hospital Ghansore. She was examined 4 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 by Dr. Bharti Sonkeshriya, who sent an intimation Ex.P-37 to the Police Station Ghansore. Thereafter with permission of mother of the deceased-prosecutrix and the SDM Ghanshore, the deceased-prosecutrix was examined by Dr. Bharti Sonkeshriya and thereafter she was referred to the Medical College, Jabalpur. The deceased- prosecutrix was unconscious and she was not able to give any evidence. In the Medical College, Jabalpur Dr. Bharti Sahu examined the deceased-prosecutrix and gave her report Ex.P-40. Dr. Hemant and Dr. P. Dhirawani had also examined the deceased-prosecutrix and treated her. They gave a report Ex.P-41. It was confirmed that rape was committed with the deceased-prosecutrix, and therefore the case was registered. Thereafter the deceased-prosecutrix was sent to the Care Hospital Nagpur so that her life could be saved, but on 29.4.2013 she expired at Care Hospital, Nagpur. Dr. Dipak Ramratan Goyal, who treated the deceased-prosecutrix found that due to pressure caused on the mouth and throat of the deceased, oxygen could not reach in the brain, and also due to contusion in the private part of the deceased-prosecutrix, she died due to cardiorespiratory arrest. Thereafter Dr. Pradeep Gangadhar Dixit did the postmortem on the body of the deceased at the Medical College, Nagpur and gave his report Ex.P-46. He also 5 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 found that the deceased-prosecutrix died due to bronchopneumonia and cerebral hypoxia owing to smothering. The various samples were sent to the Forensic Science Laboratory and investigation was done by the Investigation Officer. After much effort the appellant Mohd. Firoz was arrested. The identification parade was arranged with the help of Tahsildar Sudhir Jain (PW-16). Appellant Mohd. Firoz was duly identified by the complainant Ramkumari (PW-1), Ku. Priti Yadav (PW-7), Nitin Namdeo (PW-4) and Himma Bai (PW-6). Thereafter the clothings etc. of appellant Mohd. Firoz were recovered. His bag left in the house of Himma Bai was also seized and his various identity cards etc. were seized from that bag. Some of the documents relating to his identification were recovered from the room in which he was residing prior to the incident. After due investigation, the charge sheet was filed. The case was duly committed to the Sessions Judge, Seoni being Special Judge under Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act").
4. The appellants-accused abjured their guilt. They did not take any specific plea. No defence evidence was adduced from the side of appellant Mohd. Firoz whereas one Virendra Choudhary (DW-1) was examined from the side of appellant Rakesh Choudhary to show his 6 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 presence in the shop of Virendra Choudhary on that particular day.
5. After considering the evidence adduced by the parties before the trial Court, the learned Sessions Judge, Seoni has convicted and sentenced the present appellants in the aforesaid manner.
6. We have heard learned counsel for the parties at length.
7. In the present case if the entire evidence is considered, then it would be apparent that the Investigation Officer had recorded the confessional statement of appellant Mohd. Firoz and videography was done to that effect. However, no confession is admissible before the Investigation Officer under Section 24 of the Evidence Act. A little portion of that confession may be accepted, which is admissible under Section 27 of the Evidence Act. There is no ocular evidence relating to offence of murder, rape and offence relating to POCSO Act. The entire case depends upon the circumstantial evidence. The circumstances proved by the prosecution may be considered one by one. Witnesses Ramkumari (PW-1), Madhu Yadav (PW-2), Himma Bai (PW-6), Ku. Priti Yadav (PW-7) and Ramkishan Yadav (PW-31) have stated that the appellant Rakesh Choudhary along with appellant Mohd. Firoz went to the house of complainant 7 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 Ramkumari and Rakesh Choudhary told Himma Bai that Mohd. Firoz would stay in the house, but Himma Bai did not permit them. Mohd. Firoz remained in the courtyard seated in a chair for a longer period and various children including Puja, Madhu, Ramkishan and Nilesh were playing near by him. Thereafter various witnesses have stated that the appellants disappeared from the house of Ramkumari and children Ramkishan and the deceased- prosecutrix were also missing. After sometime Ramkishan came back to the house. He informed that from the fruit vendor shop appellant Mohd. Firoz purchased six bananas. He gave three bananas to Ramkishan in a plastic bag and told him to go to his house and thereafter he took the deceased-prosecutrix with a plastic bag of remaining three bananas. The entire evidence proves the fact of last seen of appellant Mohd. Firoz with the deceased-prosecutrix.
8. Appellant Mohd. Firoz was not known to any of the above witnesses, and therefore there was no enmity between appellant Mohd. Firoz and aforesaid witnesses. Hence there is no possibility that appellant Mohd. Firoz would have been falsely implicated by these witnesses. To prove the fact of last seen, it is true that appellant Mohd. Firoz was not known to the various witnesses, but after arrest of Mohd. Firoz the police had arranged 8 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 identification parade with the help of Tahsildar Sudhir Jain (PW-16). Such parade was arranged for four different witnesses one by one in the office room of Headmaster in the Primary School Nagjhar. Sudhir Jain (PW-16) has stated that appellant Mohd. Firoz was permitted to choose his position in the line of 4-5 persons. Their entire body was covered with blankets and thereafter Ramkishan was called to identify appellant Mohd. Firoz and memo Ex.P-3 was recorded. Thereafter appellant Mohd. Firoz was permitted to change his position and Ku. Priti was called, who also identified appellant Mohd. Firoz and memo Ex.P-6 was recorded. Similarly, the fruit vendor Nitin Namdeo was called and after due identification a memo Ex.P-5 was recorded. Lastly, Himma Bai (PW-6) had identified appellant Mohd. Firoz in the test identification parade and a memo Ex.P-35 was recorded. After considering the evidence of Tahsildar Sudhir Jain and the witnesses Ramkishan, Himma Bai, Ku. Priti and Nitin Namdeo, it would be apparent that there is no illegality or perversity crapped up in the various identification parades arranged by the Tahsildar Sudhir Jain (PW-16). There was no police official present. There was no clue that witnesses could see appellant Mohd. Firoz prior to arrangement of test identification parade. Tahsildar Sudhir Jain permitted appellant Mohd. 9 Cr.Reference No.9/2013
Cr.A.No.2920/13 & Cr.A.No.3132/13 Firoz to change his position every time in the line and four similar persons were called by the Tahsildar Sudhir Jain. Under such circumstances, the memos of identification parade are duly proved by these witnesses including Tahsildar Sudhir Jain (PW-16). It is proved beyond doubt that appellant Rakesh Choudhary took the appellant Mohd. Firoz to the house of complainant Ramkumari and thereafter he was the person who took the children Ramkishan and the deceased-prosecutrix.
9. Nitin Namdeo (PW-4), fruit vendor has also identified the appellant Mohd. Firoz and he has categorically stated that appellant Mohd. Firoz purchased six bananas. Out of them three bananas were kept in a plastic packet, which was handed over to the witness Ramkishan and he was sent back to his house, whereas appellant Mohd. Firoz took the deceased-prosecutrix and plastic bag having three bananas in it. Under such circumstances, it is duly established that it was the appellant Mohd. Firoz, who was in the company of the deceased-prosecutrix soon before the incident and though he was not related with the children. He kidnapped the deceased-prosecutrix by giving promise to provide some fruits etc.
10. Second circumstance which is proved by the prosecution is that a rape was committed with the minor 10 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 prosecutrix and she died due to activities done by the person, who committed rape. In that respect the prosecution examined series of doctors who examined the prosecutrix from time to time including Dr. Bharti Sonkeshriya (PW-17). Dr. Bharti Sonkeshriya examined the prosecutrix and gave a report Ex.P-36. She has mentioned that blood was oozing from her nostril and surrounding of vagina was red. Looking to bad condition of the patient, she referred the patient immediately to the Medical College, Jabalpur and also sent an intimation to the police concerned. Dr. Bharti Sahu (PW-20) examined the deceased-prosecutrix at the Medical College, Jabalpur and gave a report Ex.P-40. She found that the deceased- prosecutrix was unconscious and in her arms and legs she was getting convulsions. There was redness on labia minora and abrasions on the surface on both sides. Hymen was torn for a length of 1cm at 6 o'clock position. She prepared the slides of her vaginal swab. She also took the frock of the child and thereafter handed over all such samples to the concerned Constable after their sealing. Dr. Hemant (PW-21), who treated the deceased- prosecutrix has found that the condition of the patient was bad. In the CT scan it was found that there was swelling on her brain. When medicine for reduction of swelling was given, she was getting convulsions and she 11 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 was feeling difficulty in taking breath. On 20.4.2013 the prosecutrix was discharged and referred to the Hospital of Nagpur. The physical condition of the prosecutrix- deceased could not be brought on record by such treating doctors because she was unconscious and she was unable to inform about the other injuries. But detail of various injuries etc. was given Dr. Pradeep Gangadhar Dixit (PW-24), who did the postmortem on the body of the deceased. He found that right upper central incisor tooth and left upper lateral tooth were missing. Upper left central incisor tooth was shaken and gums near those teeth were swollen and of blue colour. Labia majora and Labia minora were contused and swollen having blue colour. Wall of the vagina was broken at 6 o'clock position and also it was broken from various places. There was swelling on vaginal wall. Hymen was broken at 3, 6 and 7 o'clock position. Its opening was dilated. Swelling and bruise were found on her vagina. Dr. Pradeep Gangadhar Dixit found the following 13 injuries on the body of the deceased-prosecutrix, which are as under:-
(i) A lacerated wound 0.2cm x 0.2cm muscle deep was found at centre of upper lip and limited portion of that lip was contused and blue.12
Cr.Reference No.9/2013
Cr.A.No.2920/13 & Cr.A.No.3132/13
(ii) A lacerated wound 0.2cm x 0.2cm muscle deep was found in the centre of lower lip. The connected portion of that lip was contused and blue.
(iii) Abrasion 2cm x 2cm of dark brown colour on outer portion of right neck and 3cm on mastoil bone.
(iv) Abrasion 2cm x 0.3cm found below the injury No.3.
(v) Abrasion 0.3cmx 0.3cm found on right side of submandibular region.
(vi) Abrasion 0.4cm x 0.4cm on right side of back neck at the level of Vartiba C-7.
(vii) Abrasion 0.2cm x 0.2cm on right back.
(viii) Abrasion 1.5cm x 0.5cm on left back.
(ix) Multiple abrasions of various sizes 0.3cm x 0.2cm, 0.2cm x 0.1cm found on the right side of the abdomen.
(x) Multiple linear was found on the back of left thigh having dimension 4cm x 3cm, 4cm x 0.2cm.
(xi) In front of neck a stitched wound was found which was opening done during her treatment for tracheostomy.
(xii) A whole was found in right side of the neck which was created to know central venous pressure.
(xiii) There were several puncture marks relating to provide I.V. fluids on both elbows and writs of both hands and legs.
On opening of the body, the symptoms of pneumonia were also found. In internal muscle of neck, blood was 13 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 deposited and all such organs were found congested. Edema was found in the brain, and therefore some portion of vaginal and uterine swab was preserved for various chemical examinations and histopathology. According to the opinion of Dr. Dixit and his companions, the deceased died due to bronchopneumonia caused due to smothering. He found that the injuries No.11 to 13 were not the injuries but those were caused during the treatment of the deceased-prosecutrix.
11. After considering the evidence of various doctors, it would be apparent that forceful rape was committed with the deceased-prosecutrix and she died due to smothering. Hence the prosecution has successfully proved that the deceased-prosecutrix died due to smothering and looking to her injuries, penetration was done by the person concerned. The learned counsel for the appellant Mohd. Firoz has submitted that in the forensic science report Ex.P-72 no semen was found in the vaginal or uterine swab of the deceased-prosecutrix, and therefore it cannot be said that rape was committed with her. The submission made by the learned counsel for the appellant Mohd. Firoz cannot be accepted, because the Investigation Officer did not send the vaginal swab of the deceased-prosecutrix collected by Dr.Bharti Sahu (PW-20), who prepared two 14 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 slides of vagina smear on 18.4.2013. Dr. Pradeep Gangadhar Dixit (PW-24) had also prepared the slides of vaginal swab of the prosecutrix on 30.4.2013 which was sent to the FSL. The deceased-prosecutrix remained unconscious for 12-13 days, who was suffering from convulsions, therefore her vaginal liquid would have discharged the entire portion of semen etc. in those 13 days. If the slides prepared by Dr.Bharti Sahu could be timely sent to the FSL, then the positive report relating to presence of semen would have been found, and therefore if in the FSL report Ex.P-72 no semen particles were found in the vaginal swab of the deceased-prosecutrix, then it makes no difference. Looking to the reports of various doctors and Dr. Dixit, who performed the postmortem on the body of the deceased-prosecutrix, it would be apparent that rape was committed with the deceased-prosecutrix and thereafter smothering was done to her. Hence the death of the deceased was homicidal which was caused after committing rape upon her. This is the second circumstance proved by the prosecution beyond doubt.
12. So far as the motive is concerned, it would be apparent that initially the appellant Mohd. Firoz was not known to any of the family members of the complainant Ramkumari and he did not know about the family 15 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 members of Ramkumari or Himma Bai. Therefore, when the appellants went to the house of Ramkumari, it cannot be said that the appellants had any motive to do such a crime. However, when it is proved that the appellant Mohd. Firoz took the children Ramkishan and the deceased-prosecutrix with him and thereafter he had sent the child Ramkishan back and kidnapped the deceased- prosecutrix, then by such overt-act, his motive was clear that he wanted to commit intercourse with the prosecutrix otherwise there was no reason to take an unknown girl with him, and therefore the motive of the appellant Mohd. Firoz is also established by the prosecution.
13. Shyam Yadav (PW-5) brother of complainant Ramkumari has stated that he was not residing with his mother Himma Bai in those days, but Ramkumari was residing with Himma Bai and he was not informed about the incident initially. On the next day of the incident, the Kotwar Santosh visited him with the intimation that one girl child was lying in a field. Witness Shyam Yadav went to the field along with the Kotwar Santosh and found that it was the deceased-prosecutrix, who was daughter of his sister. Underwear of the deceased-prosecutrix was lying in the side and skins of three bananas were also found near right hand of the deceased. A currency note of 16 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 Rs.20/- and a coin of Rs.5 were also found. Thereafter he took the deceased Puja to the Police Station Ghansore and at that time she was alive, and therefore she was taken to Ghansore Hospital and referred to the Medical College, Jabalpur. The statement of Shyam Yadav is duly proved by Dr.Bharti Sonkeshriya (PW-17), who has stated that the deceased-prosecutrix was taken to the Primary Health Centre, Ghansore by Constable Niyaz Ahmed No.196. She also gave an intimation Ex.P-37 to the police that the prosecutrix was brought to the hospital. Under such circumstances, it is duly proved that the deceased- prosecutrix was found lying in a field. Her underwear was removed and skins of three bananas were also found near her body. Also sum of Rs.25/- was found near her body. The recovery of unconscious injured prosecutrix from an open place with such other things, along with injuries on her private parts clearly indicates that she was given three bananas and sum of Rs.25/- and thereafter rape was committed with her.
14. According to the evidence of the prosecution the prosecutrix was found in deadly condition within 10-12 hours of her kidnapping. If the accused would have kidnapped her for demand of ransom, then such demand would have been made. If he had handed over the prosecutrix to someone else for money or otherwise then 17 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 she would not have been killed in the same night. If penetration would have been caused by any other object except penis then such deep injuries could not be caused on her private part. There was no need to the accused to kill her by smothering. Hence on the basis of the aforesaid discussion, it would be clear that the rape was committed upon her.
15. Investigation Officer R.N.Parteti and ASI Mohd. Sultan have stated that from the spot they have seized the skins of bananas and piece of earth containing some hair. Nothing has been brought in the cross examination of these witnesses to show that they were not believable. That piece of earth including hair was sent for forensic science analysis. Dr. Pankaj Shrivastav (PW-25), Scientist Officer of FSL Sagar has stated that after examining the various samples, he gave DNA report Ex.P-47. According to him the DNA from hair found on the spot in the piece of earth was the same as the DNA obtained from the blood of the appellant Mohd. Firoz. This is also the circumstance against the appellant Mohd. Firoz.
16. Sub Inspector S. Ram Maravi (PW-30) has stated as to how he arrested the appellant Mohd. Firoz. According to him, they went to District Bhagalpur and traced the appellant Mohd. Firoz in District Banka of Bihar State but he was not found. Thereafter they 18 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 contacted aunt of appellant Mohd. Firoz who informed that appellant Mohd. Firoz went with a fresh mobile SIM. With the help of the call details, he was located. The local police of Bhagalpur District was also requested to assist in the arrest of appellant Mohd. Firoz. When Sub Inspector S. Ram Maravi was coming back to Supol District, he was informed that appellant Mohd. Firoz was staying in a big mosque near the house of his aunt and ultimately Mohd. Firoz was arrested and memo Ex.P-54 was prepared. According to the police, appellant Mohd. Firoz also changed his mobile SIM after the incident. In that respect, there is no need to discus about the various SIMs in detail. However, it is proved beyond doubt that the appellant Mohd. Firoz who was expected to do his job in the premises of that institution where he was employed and had a room, but on the contrary he absconded and he could be traced with difficulty. He changed the mobile SIM so that he could not be located by the police, and therefore his conduct of absconding and changing the mobile SIM is also the circumstance against him for the present case.
17. If the aforesaid circumstances are considered simultaneously, then it would be apparent that from the statement of fruit vendor Nitin Namdeo (PW-4) and Ramkishan that the appellant Mohd. Firoz took the 19 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 deceased-prosecutrix and Ramkishan was returned back, the offence under Section 363 of IPC is duly established against the appellant Mohd. Firoz. If the factual position relating to unconscious body of the deceased-prosecutrix is also considered, then it would be apparent that the appellant had kidnapped the deceased-prosecutrix with an intention that she would be compelled for forced illicit intercourse, and therefore offence under Section 366 of IPC is also established against the appellant Mohd. Firoz. Looking to the symptoms of the unconscious prosecutrix, it was apparent that forceful penetration was done with her, though in her vaginal swab no male profile was found, but it is possible that her vaginal swab was taken much after the incident, and therefore the male profile in the vaginal swab could not be obtained. If penetration was done by any one to the prosecutrix by any other hard and blunt object, then there was no possibility that hair of the accused would have been found on the earth of the spot. By recovery of such hair, it would be apparent that a forceful rape was committed with the deceased and since that sample of hair was of the appellant Mohd. Firoz, then it is established beyond doubt that it was the appellant Mohd. Firoz, who committed rape upon the prosecutrix. The learned Special Judge did not frame the charge of Section 376-A of IPC though the crime was 20 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 committed after amendment of that provision, and therefore at this stage it cannot be considered as to whether offence under Section 376-A of IPC is made out or not. However, the learned Special Judge has framed the charges of Section 376(2)(i) and 376(2)(m) of IPC. It is apparent from the various medical reports and the statement of complainant that the deceased was aged only four years, therefore offence under Section 376(2)(i) of IPC is made out against the appellant Mohd. Firoz.
18. Dr. Pradeep Gangadhar Dixit (PW-24), who did the postmortem on the body of the deceased-prosecutrix has found that as many as 13 injuries and out of them three injuries were caused during her treatment, and therefore he found as many as 10 injuries on the body of the deceased-prosecutrix caused in the incident. After considering the nature of such injuries, it would be apparent that an offence of smothering was found and according to the opinion of Dr. Pradeep Dixit the deceased died due to consequence of smothering, and therefore it is also established that appellant Mohd. Firoz while committing rape, caused such endanger to the life of the deceased-prosecutrix by causing such injuries and smothering upon her, hence offence under Section 376(2)
(m) of IPC is also established against the appellant Mohd. Firoz.
21Cr.Reference No.9/2013
Cr.A.No.2920/13 & Cr.A.No.3132/13
19. After considering the various injuries etc. and circumstances proved by the prosecution, it would be apparent that the appellant Mohd. Firoz had intended to kill the deceased-prosecutrix. The learned counsel for the appellant Mohd. Firoz has submitted that the appellant Mohd. Firoz never intended to kill the deceased during the intercourse. He tried to stop the crying of the prosecutrix, and therefore she sustained fatal injuries. However, she died after 12-13 days after the incident. The submission made by the learned counsel for the appellant Mohd. Firoz cannot be accepted, because the appellant Mohd. Firoz was not in a position to leave the prosecutrix-deceased alive, because neither the prosecutrix was known to him prior to the incident nor he was known to the family of the prosecutrix prior to the incident, and therefore after committing the crime of rape, it was for the prosecutrix to inform about the incident to her family members, and therefore the appellant Mohd. Firoz could not leave the prosecutrix being alive. He must have left the prosecutrix with the presumption that due to smothering she had expired. If the appellant Mohd. Firoz was not intended to kill the prosecutrix, then such injuries could not be caused on the lips of the prosecutrix. Various abrasions found on the neck also indicate that the appellant Mohd. Firoz tried to 22 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 commit throttling and thereafter left the body of the deceased at the spot. But since the deceased survived for 12-13 days, therefore apparent symptoms of throttling had disappeared and due to her survival she could breath for more days. If suffocation was caused during the course of rape, then certainly there was no question so that the prosecutrix would have received such injuries on her lips as well as on her neck. Dr. Pradeep Gangadhar Dixit (PW-24) has also found that the prosecutrix got two teeth broken and the gums near those teeth had turned blue and swelling was found. Such type of injury indicates that a heavy pressure was put on the mouth of the deceased-prosecutrix and due to that pressure she lost her teeth, and therefore her gums were found blue and swollen. Under such circumstances, looking to the factual position of the dead body of the deceased, it is established beyond doubt that the appellant Mohd. Firoz had intended to kill the deceased-prosecutrix. And he had smothered her so forcefully so that she would die on the spot. But the prosecutrix remained unconscious for 12-13 days. Swelling was found on her brain and other respiratory parts. Ultimately it was found by the various doctors that due to suffocation caused sufficient oxygen could not reach to her brain and such symptoms were developed and ultimately she died. Under such 23 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 circumstances, if the prosecutrix died after 12-13 days, then it does not mean that the injuries caused by the appellant Mohd. Firoz were not sufficient to cause her death in a routine course of her life. She survived for 12-13 days due to the best medical aid given to her by the State, otherwise she would have in all probability died in the field itself. Looking to the injuries caused to the deceased, it would be apparent that the appellant Mohd. Firoz had intended to kill the deceased, and therefore he smothered the deceased-prosecutrix till end and he left her when he thought that she has expired. Under such circumstances, where the murder was committed with intention, offence under Section 302 of IPC is established against the appellant Mohd. Firoz.
20. On the basis of the aforesaid discussion where the chain of circumstantial evidence is complete, there is no reasonable doubt in favour of the appellant Mohd. Firoz and when he is found guilty of offence under Section 376(2)(i) and 376(2)(m) of IPC, then it is needless to say that he is guilty of parallel offence of Section 5(i) read with Section 6 of POCSO Act and Section 5(m) read with Section 6 of POCSO Act.
21. So far as the crime of appellant Rakesh Choudhary is concerned, it would be apparent from the statement of Ramkumari, Himma Bai etc. that Rakesh 24 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 took the co-appellant Mohd. Firoz with him so that co- appellant Mohd. Firoz could get a shelter in the house of Shyam Yadav. Shyam Yadav has stated that in those days, he was not residing with his mother, and therefore according to Himma Bai she did not permit the co- appellant Mohd. Firoz to reside in the house. However, co-appellant Mohd. Firoz left his bag in the house of Himma Bai with the request that he would come back in the evening and thereafter the appellant Rakesh Choudhary was disappeared. There is no evidence that thereafter he even met with the co-appellant Mohd. Firoz. In this context, the statement of fruit vendor Nitin Namdeo (PW-4) is acceptable that when the co-appellant Mohd. Firoz went to his shop and purchased bananas and he was accompanied by Ramkishan and the deceased- prosecutrix and Ramkishan was returned back by the co- appellant Mohd. Firoz, but the fruit vendor did not mention the attendance of appellant Rakesh Choudhary. It is true that Rakesh Choudhary took the co-appellant Mohd. Firoz to the house of Himma Bai, but Rakesh Choudhary as well as Mohd. Firoz were not aware about the family members of Shyam Yadav or Himma Bai, therefore it cannot be said that prior to leaving the house of Himma Bai, there was a conspiracy of accused persons that the deceased-prosecutrix would be kidnapped and 25 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 the co-appellant Mohd. Firoz would commit rape upon the deceased-prosecutrix. Under such circumstances, it cannot be said that the appellant Rakesh Choudhary took the co-appellant Mohd. Firoz to the house of Himma Bai with a plan that the deceased-prosecutrix would be kidnapped and further she would be subjected for other crime. Therefore, there is no evidence of any conspiracy between the appellants. It would be apparent that when Himma Bai refused to provide some space to the co- appellant Mohd. Firoz, then Rakesh Choudhary immediately went away and thereafter entire crime was initiated by the co-appellant Mohd. Firoz. He tried to give some money to the children to attract them and thereafter he took two children with him out of four children to provide some fruits etc. Under such circumstances, the prosecution has failed to prove that either the appellant Rakesh Choudhary abetted the co- appellant Mohd. Firoz to do such crime or he had any common intention with the co-appellant Mohd. Firoz. Hence no conduct of the appellant Rakesh Choudhary was established by the prosecution to show that he committed something which amounts the offence of Sections 363, 366 of IPC or other offences for which he was charged. Similarly, the prosecution has failed to prove that his overt-act relating to criminal conspiracy, 26 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 abettment or his common with the co-appellant Mohd. Firoz. Under such circumstances, it appears that the appellant Rakesh Choudhary is convicted for various offences with the help of Section 34, 109, 120-B of IPC without any basis, and therefore conviction and sentence directed against the appellant Rakesh Choudhary cannot be sustained.
22. So far as the sentence is concerned, the learned counsel for the appellant Mohd. Firoz has submitted that in various cases Hon'ble the Apex Court took the view that in such cases death sentence is not required. In support of his contention, he has placed his reliance upon the judgments of Hon'ble the Apex Court in the case of "Ediga Anamma Vs. State of AP" [(1971) 4 SCC 443], Machhi Singh Vs. State of Punjab", [(1983) 3 SCC 470], Shankar Kisanrao Khade Vs. State of Maharashtra", [(2013) 5 SCC 546], Sushil Sharma Vs. State-NCT of Delhi", [(2014) 4 SCC 317] and "Sunil Damodar Gaikwad Vs. State of Maharashtra", [(2014) 1 SCC 129]. In all such cases Hon'ble the Apex Court has laid that death sentence should be awarded in rare of rarest cases according to the factual position of that case. The learned counsel for the State has relied upon the judgment of Hon'ble the Apex Court in the case of "Rajendra Pralhadrao 27 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 Wasnik Vs. State of Maharashtra" [(2012) 4 SCC 37] in which Hon'ble the Apex Court found the trial Court to be fully justified in awarding extreme penalty of death for an offence under Section 302 of IPC where the prosecutrix was killed after committing rape. In the present case, if the factual position is considered, then it would be apparent that the commission of rape to four years old girl is brutal and inhumane. Thereafter killing the girl child so that she would not make any complaint about the crime to anyone, then it even chosen the limit of extreme brutality. Under such circumstances, in the light of the judgment of Hon'ble the Apex Court in the case of Rajendra Pralhadrao Wasnik (supra), we are of the considered view that the crime committed by the appellant Mohd. Firoz satisfies the test of "rare of rarest case". We, therefore, uphold the death sentence and also other sentences imposed upon the appellant Mohd. Firoz by the trial Court.
23. On the basis of the aforesaid discussion, the Criminal Appeal No.3132/2013 filed by the appellant Rakesh Choudhary is accepted in toto. His conviction and sentence directed against him for the various offences are hereby set aside. He is acquitted from all the charges appended against him. He would be entitled to get the fine amount back, if he has deposited the same before the 28 Cr.Reference No.9/2013 Cr.A.No.2920/13 & Cr.A.No.3132/13 trial Court. Whereas the Criminal Appeal No.2920/2013 filed by the appellant Mohd. Firoz is hereby dismissed and the death sentence awarded to appellant Mohd. Firoz is hereby confirmed.
24. At present the appellant Rakesh Choudhary is in jail, therefore the Registry is directed to issue a release warrant forthwith, so that he may be released without any delay.
25. A copy of this judgment be sent to the trial Court along with its record as per the provisions of Section 371 of Cr.P.C. Also one copy of the judgment be provided to the appellant Mohd. Firoz through the concerned Jail Authorities.
(Ajit Singh) (N.K.Gupta)
Judge Judge
15/07/2014 15/07/2014.
Ansari.