Allahabad High Court
State Of U.P. vs Guddu @ Gubbu on 31 May, 2022
Bench: Rajan Roy, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 16.02.2022 Delivered on: 31.05.2022 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW ) Case :- CAPITAL CASES No. - 1 of 2021 Appellant :- State of U.P. Respondent :- Guddu @ Gubbu Counsel for Appellant :- G.A. Counsel for Respondent :- Rajesh Kumar Dwivedi WITH Case :- JAIL APPEAL No. - 436 of 2021 Appellant :- Guddu @ Gubbu Respondent :- State of U.P. Counsel for Appellant :- Jail Appeal,Rajesh Kumar Dwivedi Counsel for Respondent :- G.A.,Naimish Raj Chauhan Hon'ble Rajan Roy,J.
Hon'ble Mrs. Saroj Yadav,J.
(Per Rajan Roy, J.) Heard.
This is an appeal under Section 374(2) Cr.P.C. by the convict bearing Jail Appeal No.436 of 2021 against the judgment dated 22.02.2021 passed by Additional Sessions Court No.14, Hardoi in Sessions Trial No.37 of 2014, CNRUPHR.1003251-2014, ID No-UP62-77 (Case Crime No.325/2014) under Sections 364, 302, 201, 376A I.P.C. and Section 5(m)/6 of the P.O.C.S.O. Act, 2012. Along with it is a Capital Case No.1 of 2021 sent by trial court under Section 366 Cr.P.C. for confirmation of sentence passed by the trial court with respect to the aforesaid appellant.
The prosecution case is that on 17.03.2014 at about 08:00 P.M., the victim who was a girl child aged about one and a half years and daughter of Ram Babu s/o Sunder Lal Prajapati, was playing outside her house in Village-Kantha Thok, P.S.-Kotwali Dehat, District-Hardoi when a resident of the same village, namely, Guddu @ Gubbu S/o Tulsi Kahar picked up the child and took her away. Mother of the child was inside the house at that time. Informant started looking for his daughter, when his brother namely, Balram S/o Sunder Lal Prajapati informed him that Guddu @ Gubbu had taken his daughter. Guddu had told him that he was just taking the child around. When the child did not return even after lapse of sufficient time, the informant and his brother Balram tried to look for them whereupon they met Ram Narain S/o Ram Bharose Kachi and Kalika Prasad @ Kallu Kumhar S/o Gayadeen on way, who told them about having seen his daughter with Guddu @ Gubbu. The informant along with other villagers tried to find the child but could not find her. Guddu @ Gubbu was found by the villagers at about 1:30 A.M. in the night outside the village where wood had been collected for Holi Bonfire. The villagers were agitated. On being asked, Guddu did not tell them the whereabouts of the child, therefore, the villagers beat him up. The informant took the accused-appellant Guddu to hospital and thereafter, he took Guddu with him and started looking for his daughter. Taking advantage of the dark, Guddu @ Gubbu slipped away. The informant lodged a report at P.S.-Kotwali Dehat, Hardoi on 18.03.2014 at 6:30 A.M. in the morning alleging that Guddu @ Gubbu had kidnapped his daughter with intent to kill her. The F.I.R. was lodged under Section 364 I.P.C. The F.I.R. was lodged as Case Crime No.325/2014 under Section 364 I.P.C. against the accused-appellant, namely, Guddu @ Gubbu by the father of the victim. The accused-appellant was arrested on 18.03.2014. The body of victim was found in the fields of Shiva Singh inside a pond situated on the said field.
Post-mortem was conducted on the body of the victim on 18.03.2014 at 04:05 P.M. to 04:40 P.M. The post-mortem report is Ex.Ka.15 and F.I.R. is Ex.Ka.13. Smear test was undertaken on 18.03.2014 and it is marked as Ex.Ka.16 in the records of trial court. Inquest Report (Ex.Ka.5) was prepared on 18.03.2014 from 06.30 A.M. to 11:10 A.M. On the arrest of accused on 18.03.2014, his clothes were recovered so were the clothes on the body of deceased and they were sent for forensic examination. Forensic report is Ex.Ka.17. Ex.Ka.4 is recovery memo pertaining to clothes of the accused-appellant. Siteplan with regard to place from where the deceased was picked-up by the accused is marked as Ex.Ka.2 and the siteplan pertaining to place where body of the deceased was recovered is Ex.Ka.3.
Based on the investigation conducted by the Investigating Officer of the case, namely, S.I.- Brijesh Kumar Tripathi (P.W.4), chargesheet was filed by him in the Court of Additional Sessions Judge, Court no.1, Hardoi on 11.06.2014 under Sections 364, 302, 201, 376A I.P.C. and Section 5(m)/6 POCSO Act, 2012.
Charge was framed against the accused-appellant under Sections 364, 302, 201, 376A I.P.C. as also Section 5(m)/6 POCSO Act, 2012 on 18.09.2014 by learned Addl. Sessions Judge, Court No.1, Hardoi. The accused denied the charges and demanded trial. He was accordingly put to trial.
The prosecution examined Ram Babu (P.W.1); Balram (P.W.2); Kalika Prasad (P.W.3); Sub-Inspector Brijesh Kumar Tripathi, the Investigating Officer of the case (P.W.4); S.I.-Balak Ram (P.W.5); Dr. Shashikant Verma, Autopsy Surgeon (P.W.6) and Dr. Naveen Prakash Srivastava, the doctor who conducted the smear test (P.W.7) in support of its case.
The case of the defence is one of denial and the defence did not led any evidence.
Statement of accused was recorded under Section 313 Cr.P.C. on 22.01.2021.
Learned Amicus, Sri Rajesh Kumar Dwivedi made the following submissions on behalf of the appellant:-
(1) There is an inordinate delay in lodging the F.I.R.
(2) The F.I.R/Spl. Report was not forwarded to Ilaqua Magistrate forth with.
(3) The F.I.R was lodged with embellishment after due deliberations and consultations with the police.
(4) The name of the scribe of the written report is not mentioned in the written report nor the scribe of the written report was produced in the witness box by the prosecution.
(5) No medical examination report of the accused/ appellant is on record.
(6) Medico-legal Expert Report (Smear Report) merely mentions that no presence of spermatozoa was seen in the Smear.
(7) The doctor who had conducted the smear test i.e. P.W.7 has nowhere stated in his testimony before the trial court that he received the sample of Penile swab of Guddu @ Gubbu for pathological examination on 18.03.2014 thereby creating a doubt on its veracity.
(8) The appellant was not medically examined in accordance with law. Had he been medically examined then abrasion and swelling would have been found on his genitals which could have been caused due to friction while committing rape on the child. Absence of any such injury makes the prosecution's story improbable.
(9) No DNA Test of the accused / appellant was conducted to match the blood group and Semen/Sperm found on the clothes which is violative of Sec. 53-A Cr.P.C. inserted by the Act 25 of 2004. In this context, he referred to decision reported in (2011) 7 SCC 130 - 'Krishan Kumar Malik Vs State of Haryana'.
(10) The prosecution failed to send the finger print and finger nail scraping of the accused-appellant to F.S.L. for chemical examination.
(11) No arrest memo of the accused/appellant is on record.
(12) There is no eye witness of the incident.
(13) The prosecution case is based entirely on the circumstantial evidence and the chain of circumstances is not complete so as to hold the appellant guilty of the offence alleged. He relied upon decision of Hon'ble the Supreme Court in 'Sharad Birdhichand Sarda Vs State of Maharashtra' reported in AIR 1984 Supreme Court 1622 in this regard.
(14) P.W. 1. & P.W. 2 are related, interested and inimical witnesses. There are variations, inconsistencies and major contradictions in the testimonies of P.Ws.
(15) Medical evidence does not corroborate the prosecution case.
(16) No motive has been established by the prosecution for appellant to commit the crime.
(17) It is nowhere mentioned as to on whose pointing out the dead body of the victim / deceased was recovered from the pond.
(18) In the Inquest Report, there is no mention that mud was found on the body of the victim/ deceased or on her apparels which makes the story of recovery of dead body from the pond highly improbable.
(19) The FSL Report was not produced before the Trial Court at the time of statement of the P.W. 4.
(20) Kalawa and neck thread found on the body of the victim / deceased is not mentioned in the FSL Report and no explanation has been offered by the prosecution in this regard. Kanthimala was not found on the person of the deceased in the Panchnama/ Inquest Report.
(21) The investigation of the case has been conducted in highly careless manner and the chargesheet has been filed by the Investigating Officer without collecting sufficient evidence in support there of.
(22) Learned trial court has failed to properly analyze and weigh the evidence in its right perspective and has committed a grave error in passing the judgment impugned.
(23) The appellant has been convicted by the trial court on the basis of surmises and conjectures.
(24) Learned trial court has not prepared a balance sheet of aggravating and mitigating circumstances to reach at a just conclusion to hold that the case is amongst the rarest of rare case in which capital punishment can be awarded.
(25) Learned trial court has completely ignored the possibility of reformation/ rehabilitation of the accused / appellant in society and there is no such material/ evidence available on record to be considered on this aspect, as such, in its absence, a wrong conclusion regarding imposition of death sentence has been reached by the learned Trial Court.
(26) The prosecution has miserably failed to prove its case beyond reasonable doubt.
(27) The prosecution has badly failed to bring on record the aggravating circumstances for awarding capital punishment to the accused / appellant.
(28) The accused/appellant is innocent as such he has committed no offence hence he deserves to be acquitted by this Court.
(29) The extreme penalty of death awarded to the accused/appellant by the learned Trial Court is too harsh and excessive and the alternative penalty imprisonment for life would meet the ends of justice if this Court arrives at a conclusion otherwise.
(30) He has relied upon the judgments rendered in AIR 1984 SC 1622: 1984 SCC (Cri) 487 'Sharad Birdhichand Sarda Vs State of Maharashtra' ;(2018) 2 SCC (Cri) 159: (2017) 16 SCC 353 'Ganpat Singh Vs State of Madhya Pradesh'; (2004) SCC (Cri) 1167 'Anil Kumar Singh Vs State of Bihar'; (2019) 9 SCC 738 'Gargi Vs State of Haryana'; (1976) 1 SCC 621 'Chandmal Vs State of Rajasthan'; (2000) 18 SCC 598 'State of UP vs Hari Mohan'; (2013) 5 SCC 722 'Raj Kumar Singh Vs State of Rajasthan'; (2019) 7 SCC 773 'Baiju Kumar Soni Vs State of Jharkhand'; (2019) 10 SCC 623 'Rajendra Vs State (NCT of Delhi)'; AIR 1990 SC 79 : 1990 ACC 32 (SC) 'Padala Veera Reddy Vs State of Andhra Pradesh'; AIR 1952 SC 343 'Hanumant Govind Nargundkar Vs State of M.P.'; (1973) 2 SCC 793 'Shivaji Shahabrao Bobade vs State of Maharashtra'; (2011) 3 SCC 109 'CBS Vs Mahender Singh Dahiya'; (2012) 5 SCC 777 'Ramesh Harijan Vs State of UP'; (2013) 12 SCC 406 'Sujit Biswas Vs State of Assam'; (2017) 14 SCC 359 'Anjan Kumar Sarma Vs State of Assam'; (1973) 2 SCC 808 'Kali Ram Vs State of Himachal Pradesh'; 1991 SCC (Cri) 905 : (1991) 3 SCC 609 'Harendra Narain Singh & others vs. State of Bihar'; 1980 SCC (Cri) 985 'Marudanal Augusti Vs State of Kerala'; AIR 1976 SC 2423 'Ishwar Singh Vs The State of Uttar Pradesh'; 2013 (3) JIC 548 (SC) 'Joydeb Patra & Ors Vs State of West Bengal'; AIR 1952 SC 343 'Hanumant Govind Nargund Kar Vs State of M.P.'; (2002) 8 SCC 18 'Gurpreet Singh Vs State of Haryana'; (2007) 3 SCC 1 'Ram Singh Vs Sonia' ; (2010) 2 SCC 748 'Musheer Khan Vs State of M.P.' ; (1981) 3 SCC 191 'Ram Chander Vs State of Haryana' ; 2019 (107) ACC 731 (SC) 'Vijay Kumar Vs State of J&K' ; 2020 (2) JIC 491 (SC) 'Manoj Suryavanshi Vs State of Chhattisgarh' and 2020 (3) JIC 125 (SC) 'Najeem Miyan Vs State of UP'.
Learned A.G.A. has taken us through the evidence on record and submitted that from the post-mortem report and medical opinion of P.W.6 as also report of forensic laboratory, rape and aggravated penetrative sexual assault on the body of the deceased, her murder and the attempt to destroy evidence by throwing her body in the pond is amply proved. The guilt of the accused-appellant is proved based on circumstantial evidence. The fact that accused-appellant has offered no explanation as to what happened after he took the child with him at 08:00 P.M. on 17.03.2014 itself is sufficient to convict him based on the theory of ''last seen'. According to him, it was a fit case for awarding death penalty considering the gruesome manner in which the crime has been committed that too with a minor child of one and a half years of age. According to him, death penalty should be confirmed by this Court and appeal of the appellant should be rejected.
Based on the evidence adduced during trial, the trial court has convicted the accused/ appellant under Section 302 I.P.C. and sentenced him to death with fine of Rupees One Lakh, in the event of failure to pay the fine the accused has to undergo two years' rigorous imprisonment. The trial court has also convicted him for the offence under Section 376 A and imposed death penalty on this count also. The accused-appellant has been found guilty of the offence under Section 364 I.P.C. for which he has been sentenced to life imprisonment and fine of Rupees Fifty Thousand. On failure to deposit the fine the accused-appellant has to undergo additional rigorous imprisonment of one year. He has also been found guilty for the offence under Section 201 I.P.C. for which he has been sentenced to seven years' rigorous imprisonment with fine of Rupees Fifty Thousand. On failure to deposit the fine he will have to undergo additional rigorous imprisonment for one year. All these sentences have been ordered to run concurrently. The period of incarceration is to be adjusted against the sentence awarded. 50% of the fine imposed upon the accused is to be paid to the natural father of victim.
The post-mortem report i.e. Ex.Ka.15 has been proved by P.W.6, namely, Dr. Shashikant Verma. The post-mortem report mentions under the heading 'Natural Orifices' as under:-
"(1) Posterior Fornix of vagina tear, himen ruptured, about 10 ML of blood present in vaginal introitus blood spots seen on medial aspect of both side of thigh. Vaginal swab taken from vaginal introitus and slide mode.
(2) Contusion on upper lip 4.0 cm x 1.0 cm (3) Contusion on lower lip 3.0cm x 1.0 cm (4) Nail mark on left side of face 2.5 cm"
Under the heading ''External General Appearance' it mentions ''Cyanosis present on Nails, tongue and lips'. Under the heading ''Genital Organs', it mentions -Posterior fornix, vagina lacerated. The immediate cause of death is mentioned as Ashphyxia. The cause of death is mentioned as 'Antemortem Smothering'.
In his testimony, the Autopsy Surgeon i.e. P.W.6 has testified that there was every possibility of rape having been committed on the body of deceased and she being put to death by smothering. In cross-examination, he has stated that the wounds on upper and lower lips appear to have been caused on account of smothering. He has stated that no symptoms of death by drowning were detected during post-mortem. The rear part of vagina had been torn. He has denied the possibility of death having taken place on 18.03.2014 at 02:00 A.M. in the night. The cause of death has been mentioned by him as smothering. The defence in cross-examination has not extracted anything from P.W.6 which could bely the post-mortem report and medical opinion expressed by him so as to disbelieve the prosecution case.
The Medico-Legal Ex. Report (Smear Test) Ex.Ka.16 mentions ''smear examined microscopically. No presence of spermatozoa seen in smear. Smear reveals, however, presence of RBCs and OCC Epithelial cells. The doctor who conducted smear test, namely, Dr. N.P. Srivastava (i.e. P.W.7) has testified about the smear test having been conducted by him after receiving a sealed envelope containing name of ''X' (victim) from post-mortem house with reference to Post-Mortem No.219/2014 on 20.03.2014. He has deposed about not discovering spermatozoa in the sample but had detected RBCs and occasional Epithelial cells. He has proved Ex.Ka.16. In his examination-in-chief, he has opined that ordinarily in vagina of a one and a half year child, RBCs are not found. If penis is inserted forcibly in the vagina of the deceased then RBC could occur. His testimony has remained intact in cross-examination. He has stated that he cannot express any opinion on the question of rape as he had only conducted the smear test. As far as report of Medico-legal Expert Report based on smear test is concerned, merely because no presence of spermatozoa was found this by itself does not enure to the benefit of the accused-appellant considering the age of the victim and the fact that all her organs including vagina would be small.
Medical evidence supports the prosecution case that the victim was raped and murdered.
Inquest report mentions that the deceased body had a coloured frock, a kalava on the left hand and black thread in neck and nothing else. No other cloth was found on her body. The post-mortem report also mentions about the same. Inquest report mentions about blood on nose and mouth so does the post-mortem report.
Forensic report pertaining to the clothes and other items from the accused and the victims is Ex.Ka.17. The kurta and underwear recovered from the accused are marked in the said report as Item (1) and (2) respectively. With regard to these items, the report mentions that Shukranu (sperm) was detected on Item no.(2) i.e. underwear of the accused. The clothes recovered from the body of the deceased / minor victim are Items (3) and (4). Item (3) is frock of the deceased and Item (4) is the Kanthimala of the victim. In respect thereof, it is mentioned that Virya (semen) was detected on Items (3) i.e. frock of the victim. As per note to the forensic report, DNA test was recommended for matching of blood and semen. This, however, was never done. It is a lapse on the part of the investigation, which by itself, cannot enure to the benefit of the appellant, especially, in view of other reliable evidence on record. Reference may be made in this regard to decision of Hon'ble the Supreme Court in the case of ''Pattu Rajan vs. State of Tamil Nadu' 2019 (109) ACC 257 Supreme Court. The forensic report, therefore, proves presence of Shukranu (sperm) on underwear of the accused and Virya (semen) on the frock of the victim. Blood was also found on all the four items i.e. kurta and underwear of the accused and frock and Kanthimala of the victim. On Items (1) to (3), human blood was found but the origin of blood found on Item (4) could not be detected due to its disintegration.
Based on the post-mortem report, medical opinion of P.W.6 i.e. the Autopsy Surgeon and the forensic report which was not challenged before the trial court and the circumstances in which the body of the victim was recovered from a pond after she went missing the previous night, it is proved beyond doubt that victim was subjected to rape and aggravated penetrative sexual assault and that she was murdered.
Now, the question is whether the appellant before us committed the aforesaid crime or not. For this, we have to look into the oral evidence led by prosecution.
It is a case of circumstantial evidence as nobody has seen the commission of crime.
P.W.1 is the informant and father of the victim, interalia, he has proved lodging of F.I.R. by him and has supported the prosecution story.
By his testimony, he has proved that victim went missing at about 8:00 P.M. on 17.03.2014. She was a girl child aged about one and a half years. His brother and uncle of the victim, namely, Balram informed him that he had seen the accused taking away the victim ''X'. He has also testified that when he and his brother Balram (P.W.2) were looking for her girl child, Ram Narain and Kalika Prasad informed them that they had seen the accused carrying the girl with him. He has deposed that Guddu @ Gubbu was found at about 1:00 A.M. to 2:00 A.M. in the night outside the village where the Holi bonfire was lit. He was asked by the villagers about whereabouts of ''X' but he did not reveal anything whereupon the villagers beat him up. He got the accused-appellant treated in a hospital and then took him along with others to find his daughter but the accused-appellant Guddu @ Gubbu slipped away in the dark. On this he became sure that the accused had kidnapped her girl and murdered her after assaulting her and had hid the body whereupon he informed the police. He has proved Ex.Ka.1 which is the written report (Tehrir) given by him to police. He has also identified his signature on the Panchayatnama. He has stated that body of deceased-victim was found in the pond situated in agricultural fields of Shiva Singh from where which the same had been taken out by the police and Panchayatnama was got done in his presence.
He has testified in his cross-examination that the accused was aged about 40 to 45 years, he did not reside with his brothers but resided separately. The house of accused was about half kilometer away from his house. He had not seen the villagers beating up the accused and on reaching the spot, he found that deceased had wounds on his body and blood on his clothes. He had not taken the accused to police station after having found him as he had to look for his daughter. He kept looking along with others till 2:00 A.M. to 2:30 A.M. in the night when Guddu slipped away taking advantage of darkness. He along with others had kept looking for the child the entire night. He had informed the police about the incident at 05:30 A.M. in the morning of 18.03.2014. He has deposed in his cross-examination that the villagers had informed the police about the body of deceased. He has denied false implication of the accused on mere saying of the villagers.
P.W.1 has thus supported the prosecution story and his testimony has not been dislodged by the defence so as to persuade the Court to disbelieve the case of prosecution. P.W.1 is a labourer and has deposed that he has not studied much but only knows to sign. His testimony is natural and bereft of any such inconsistency as to make it unreliable. In the cross-examination, no plausible reason has been suggested as to why he would falsely implicate the accused in the case.
It is not out of place to mention that P.W.1 had informed the police in the morning of 18.03.2014 at about 05:30 A.M. that body of the victim had not been recovered, therefore, F.I.R. was lodged under Section 364 I.P.C. against the appellant. After the body was recovered, other sections of I.P.C. etc were added. Slight variation in narration of facts in this regard by P.W.1 is not very material considering he is an illiterate villager.
P.W.2 i.e. Balram is brother of the informant and uncle of the deceased-victim. He has clearly stated that he had seen the accused carrying the victim in his arms. He thought that he was entertaining the child. The accused told him that he was taking her around and will bring her back shortly. P.W.2 has testified that he went to his brother Ram Babu and when he found him looking for her child he informed him that accused-appellant was carrying her and going towards East of the village. He has deposed that when the girl did not return for long then they became worried and both the brothers went to look for her, whereupon they met Ram Narain S/o Ram Bharose Kachi and Kalika Prasad @ Kallu Kumhar S/o Gayadeen who told them that the accused was going towards East of the village in the dark carrying the victim and they had seen him. This information spread like wildfire in the village and all the people started looking for the accused and the victim. At around 1:00 A.M.- 1:30 A.M. in the night, the accused was found at the place where Holi bonfire was lit and on being asked he informed that he had left the victim outside the house from where he had picked her up whereupon all the villagers started beating him up. He was then taken to hospital and was treated. He was taken by the villagers to look for the victim, when, he slipped away.
In the cross-examination also, P.W. 2 has deposed that his house is situated barely 1000 to 1500 meters away from the house of his brother Ram Babu i.e. the informant. He was going for Holi Milan when he saw the accused carrying the victim and confronted him whereupon the accused informed him that he was taking her to provide her some biscuits. On reaching the house of his brother, he told him that such a small child should not be sent with a stranger. He had looked for the child but could not find her.
P.W.2 has thus reiterated his version in examination-in-chief and the defence has not been able to dislodge his testimony in any manner so as to make it unreliable. He has supported the prosecution story wholeheartedly. His testimony tallies with the testimony of P.W.3 who had also seen the accused carrying the deceased at the relevant time i.e. at about 8:00 P.M. of 17.03.2014. Testimony of P.W.2 clearly proves that victim was lastly seen with the accused at about 8:30 P.M. on 17.03.2014 and thereafter she was not seen till her body was recovered on the next day in the morning. His testimony also corroborates the version of P.W.1 and supports the prosecution story.
Although, P.W.1 and P.W.2 are related to the victim, this by itself is no ground for disbelieving their statement. There is no reason why they will falsely implicate the appellant. The contention of the appellant's counsel to the contrary is rejected.
P.W.3- Kalika Prasad @ Kallu Kumhar S/o Gayadeen is an independent witness who is not related to family of the victim and is a resident of the same village. By his testimony, P.W.3, has clearly proved that he had seen the accused carrying the deceased-victim at about 8:00 P.M. on 17.03.2014 i.e. on the day of Holi. He has deposed that he, Ram Narain and other villagers were sitting at a trijunction on the road when at about 8:00 P.M. on 17.03.2017, he had seen the accused carrying the victim in his arms and going towards East of the village. He thought that he was taking the small child around the village. He also deposed that he had informed the victim's father and his uncle (P.W.2) about the aforesaid fact when they came looking for the child. He has also testified about looking for the child along with others. He has supported the testimony of P.W.1 and 2. He has mentioned about seeing the dead body of the victim in the morning and that blood was oozing from her private parts. According to him, on seeing the body, it appeared that she had been sexually assaulted and then murdered. He has also deposed that the accused was unmarried and was having ill-intentions that is why his brothers had thrown him out of the house.
In the cross-examination, P.Ws' testimony aforesaid, has remained intact. He has mentioned that body of the deceased was taken out from the pond in his presence. The siteplan pertaining to recovery of the body had been prepared as per his information. He has stated that he had not signed the inquest report but the same had been signed by P.W.2 i.e. Balram. No doubt, he stated that Guddu had been handed over to the police but this minor discrepancy does not materially affect the prosecution's case as it has come in the testimony of P.W.1 that Guddu had been taken to hospital for treatment, therefore, may be that P.W.3 had the impression that he had been handed over to the police. It is important to mention that name of P.W.3 i.e. Kalika Prasad finds mention in the written report (Tehrir) submitted by the informant on 18.03.2014 at about 5:30 A.M., based on which, the F.I.R. was lodged at about 6:30 A.M. after the child went missing at 08:00 P.M. on 17.03.2014. It has come in the testimony of the witnesses that the villagers kept looking for the victim the whole night and F.I.R. was lodged in the morning, therefore, sufficient explanation for lodging of the F.I.R. in the morning, where name of P.W.3 is mentioned, has been given. In cross-examination, the defence has not been able to bring out anything which could show any reason as to why P.W.3 would implicate the accused falsely if he had not seen him carrying the child at the relevant time. His testimony with regard to blood oozing out of her private parts tallies with the medical evidence already referred. The testimony of P.W.3 supports the prosecution's case and corroborates the testimony of P.W.1 and P.W.2. He being an independent witness, his testimony has to be given due weightage.
We at this stage would consider a question which could reasonably arise in the mind of any prudent person, as to why, if the accused did not have a good reputation as stated by P.W.1, P.W.2 and P.W.3, he was not stopped and why the child was not taken away from him by P.W.2 or P.W.3. No such suggestion or question was put to P.W.2 and P.W.3 in this regard by the defence in their cross-examination, therefore, this plea is not available before us, nevertheless, it can be reasonably said that nobody could imagine that such a crime could be committed by the accused, who was of the same village, on a one and a half years old child whom he was carrying. This explains this aspect.
P.W.4 is the Investigating Officer i.e. S.I.-Brijesh Kumar Tripathi. He has proved Ex.Ka.2 and Ex.Ka.3 as the siteplans already referred earlier. He has testified about arrest of the accused on 18.03.2014. He has also testified about recovering kurta and undergarments from the body of the accused on 18.03.2014 as also having prepared the recovery memo in this regard in the presence of witnesses i.e. Ex.Ka.4. He has proved Ex.Ka.4 as the recovery memo. He has testified about sending the clothes recovered from the accused and the victim to the forensic laboratory for examination. After conducting the investigation, he submitted the chargesheet on 14.05.2014 and has proved the same. He has testified that after lodging of the report, he had visited the place where body of the deceased was lying. The body was in the pond. He had got the body taken out from the pond and sent it for post-mortem. He has stated that he had prepared the siteplan on the information of the informant. He has proved the siteplan was prepared by him. He has identified the clothes from body of the accused i.e. light grey kurta, stripped underwear, before the trial court, as being those he had recovered from the accused which had been sent by him for forensic examination. He has also identified the clothes which were found on the body of the deceased as those which he had recovered and with regard to which he had prepared the recovery memo. He has thus proved Ex.Ka.3 and 4.
S.I.-Balak Ram (P.W.5) is the Constable-Clerk posted at Thana-Kotwali Dehat, District-Hardoi at the relevant time. He has proved that F.I.R. report was lodged at 06:30 A.M. on written Tehrir of the informant i.e. P.W.1. He has proved Ex.Ka.13 i.e. the Chic F.I.R.
As already stated, rape and aggravated penetrative sexual assault on the body of the deceased as also her murder is amply proved from the post-mortem report and medical opinion expressed by P.W.6 as also the forensic report considered hereinabove. As regards the question as to whether it is the appellant who has committed the aforesaid barbaric act, based on a discussion of aforesaid oral evidence, we are of the opinion that it is the accused-appellant who was last seen with the victim at about 8:00 P.M. on 17.03.2014 thereafter, the victim was never seen again till her body was recovered on the next day in the morning. Therefore, it was for the appellant-accused to discharge his burden and offer an explanation as is envisaged under Section 106 of the Evidence Act, 1872. However, on a perusal of his statement recorded under Section 313 Cr.P.C., we do not find any such explanation, especially, in response to question nos.2, 4 and 5 wherein he had been confronted with the testimonies of P.W.1, PW.2 and P.W.3 about he having been seen by P.W.2 and P.W.3 carrying the victim at about 08:00 P.M. of 17.03.2014. The accused-appellant has also offered no explanation about presence of semen on his underwear when a question was asked about Exhibit Ka-17 (Forensic Report) which was shown to him while recording of statement under Section 313 Cr.P.C.
The following chain of events have been proved beyond reasonable doubt:-
(1) The child was taken away by the appellant at about 08:00 P.M. on 17.03.2014 from her house and there are eye-witnesses (P.W.2 and P.W.3) including independent witnesses (P.W.3) who saw the appellant carrying the minor victim in his arms at the same time and taking her towards East of the village.
(2) All efforts by the villagers including P.W.1, P.W.2 and P.W.3 to find the minor victim in the night of 17.03.2014 did not bear any result.
(3) The appellant was caught at about 1:00 A.M. to 1:30 A.M. in the night intervening 17/18-03-2014 and on being asked, he did not divulge the whereabouts of the child.
(4) When the child could not be found, her father (P.W.1) informed the police in the morning at about 05:30 A.M. and as the body had not been recovered by then, F.I.R. was lodged U/s 364 I.P.C. The F.I.R. was lodged at 06:30 A.M. on 18.03.2014 after all efforts to find the child in the night failed (5) The minor victim's body was recovered in the early morning from the pond situated in Shiva Singh's agricultural field. The body of the accused bore apparent marks of sexual assault and rape (bleeding from her private parts). After discovery of body of the victim other offences were added.
(6) The post-mortem report establishes aggravated penetrative sexual assault and rape on the body of minor victim, apart from murder by smothering. The report has been proved by P.W.6 i.e. the Autopsy Surgeon.
(7) The appellant was arrested on 18.03.2014 and on the clothes recovered from his body, there was semen/ sperm present on the undergarments and the convict/ appellant did not offer any explanation when he was put a question about the Forensic Report which is Ex.Ka.17 while recording his statement under Section 313 Cr.P.C.
(8) The body of the child was recovered from the pond situated on agricultural field of Shiva Singh after lodging of F.I.R. that is why the F.I.R. was lodged under Section 364 I.P.C. against the appellant and after investigation other offences were added. Police took out the body from the pond. P.W.3 saw the dead body.
(9) Based on the theory of ''Last Seen', as the appellant was the last person to be seen with her at about 08:00 P.M. on 17.03.2014 when she went missing and her dead body was recovered in the early hours of the next day, the burden was on the appellant to offer explanation in this regard in terms of Section 106 of the Evidence Act, 1982. He did not do so, therefore, this is a circumstance which goes against him.
(10) As regards, the time gap between the point of time when the appellant and the deceased were seen together at 08:00 P.M. on 17.03.2014 and recovery of body of the victim in the morning of 18.03.2014 after F.I.R. was lodged at 06:30 A.M, there was only the intervening night, during which the villagers including the father of the deceased and others kept looking for the child and the appellant was found on the outskirts of the village but he did not divulge the whereabouts of the child. In such circumstances, the possibility of any person other than the accused-appellant being the perpetrator of the crime is ruled out in the absence of any explanation being offered by the appellant in this regard and any evidence having being led in his defence. A child of one and a half years could not have gone so far on her own.
(11) The motive of crime in such cases is satisfaction of carnal and perverse desires which is established from the manner the body of victim, who was only one and a half years of age, was sexually assaulted to the extent of tearing of rear part of her vagina as is borne out from the post-mortem report and medical opinion of P.W.6 i.e. the Autopsy Surgeon which show presence of 10ML blood also in her vagina.
The chain of events is complete and has been proved. The chain of events is complete starting from the factum of the accused-appellant carrying away the child from outside the house of the informant as seen by eye-witnesses, the child missing throughout the night, recovery of body of the child in the morning of next day, arrest of accused-appellant on the next day i.e. on 18.03.2014 and discovery of clothes from his body containing semen and blood, discovery of blood and semen on the clothes on body of the deceased, injuries on her body as noticed during post-mortem. All of these evidences point only in one direction i.e. the accused-appellant committed the barbaric act of rape and aggravated penetrative sexual assault on a minor child aged one and a half years and thereafter murdered her and threw her in the pond to destroy evidence. In the facts and circumstances of the case and based on the evidence on record, the possibility of any other intervening factor having played a role so as to absolve the accused-appellant from the guilt is ruled out. Silence of the accused-appellant as noticed hereinabove speaks volume.
These chain of events and circumstances point only in one direction that the deceased-victim was taken away from outside her home, she was subjected to rape and aggravated penetrative sexual assault by the accused-appellant in the Evening/ Night of 17.03.2014 and he thereafter murdered her and threw her body in a pond to destroy evidence and hide his crime. There is sufficient evidence on record to prove beyond reasonable doubt that it is the accused-appellant who had carried the deceased-victim with him towards the East of the village at about 08:00 P.M. on 17.03.2014. Although P.W.2 in his testimony has stated that on being confronted by the villagers in the night when he was found outside the village, the accused had stated that he had left the child outside her house but the accused-appellant did not offer any such explanation before the trial court under Section 313 Cr.P.C. The accused appellant has offered no explanation to discharge him of the burden imposed upon him under Section 106 of the Evidence Act, 1872. The prosecution has discharged its burden of proving the fact that accused-appellant was the person last seen with the victim, the whereabouts of the victim, who was aged one and a half years old, were not known throughout night inspite of villagers having looked for her, the accused/ appellant having been accosted by the villagers did not reveal her whereabouts and that her dead body was found in the morning of 18.03.2014 which bore marks of sexual assault and that the accused-appellant on being arrested was wearing the clothes which had semen which is also corroborated by the forensic report, therefore, all these facts and evidence including the oral evidence clearly establish the guilt of the accused-appellant. In these circumstances, the burden was upon the accused-appellant to offer explanation in terms of Section 106 Evidence Act, 1872 which he has failed. His failure to offer any explanation what to say of an acceptable explanation adds weight to the evidence produced by prosecution and points towards only one direction/ hypothesis i.e. his guilt beyond doubt of having committed the offence punishable under Section 364, 201, 376A, 302 I.P.C. and Section 5(m)/6 of the POCSO Act, 2012 based on circumstantial evidence discussed hereinabove.
In view of the above discussion, the submissions of learned Amicus for the appellant do not help his cause. Considering the facts of the case already discussed, the F.I.R. cannot be said to be delayed as it was lodged in the morning of 18.03.2014 after all efforts to find the child in the night intervening 17.03.2014 and 18.03.2014 failed. As regards non-forwarding of the F.I.R./ Spl. Report to Ilaka Magistrate, the Court does not find any such question being put to the I.O. of the case in cross-examination and even otherwise, the law is very well settled that on this count, the prosecution case would not be disbelieved especially in the facts of this case as the F.I.R. cannot be said to be delayed by any imagination nor it can be said that it has been lodged after due deliberations and consultations. The facts and circumstance of the case do not suggest any such eventuality. P.W.1 has proved submission of written report (Tehrir) by him in the morning of 18.03.2014. P.W.5 has also proved submission of such Tehrir by P.W.1-Informant. The assertion that the appellant was not medically examined is factually incorrect as medical report dated 18.03.2014 is on record but it has not been exhibited. This omission is not of much relevance in the facts of the case considering other reliable evidence on record. Reference may be made in this regard to the law declared by the Supreme Court in the case of 'Veerendra vs. State of Madhya Pradesh' Criminal Appeal No.5 & 6 of 2018 decided on 13.05.2022; 'Sunil vs. State of Madhya Pradesh' (2017) 4 SCC 393 apart from the judgment in Pattu Rajan (supra). The fact that P.W.7 has not deposed receiving of sample for smear test on 18.03.2014 would not make much of a difference in the facts of the case especially as conviction of the appellant is not based merely on the medico-legal expert report submitted by him but even independent of it, the conviction stands in view of the evidence available as discussed. The fact that D.N.A. test was not conducted, as already stated, is a lapse on the part of investigation and this again for the reasons already stated earlier does not enure to the benefit of the appellant. The fact the Investigating Officer did not send the finger prints and finger nail scrapping of the appellant to F.S.L. report for chemical examination, it being a case of rape, also does not by itself enure to the benefit of the appellant so as to result in his acquittal as this again is a mere lapse on the part of investigation which does not materially and adversely affect the prosecution's case. The Investigating Officer i.e. P.W.7 has clearly mentioned about arrest of the appellant on 18.03.2014 itself and in this context, Exhibit Ka-4 is relevant. Recovery of dead body or any other item which may be relevant in this case is not on the pointing of the appellant, therefore, merely because arrest memo has not been exhibited and it is not on file of trial court, it does not help the appellant's case especially as P.W.4, the I.O., was not confronted on this issue in cross-examination. Merely because P.W.1 is father and P.W.2 is uncle of the victim respectively does not make their testimonies unreliable for the reasons already discussed. Moreover, P.W.3 has also testified and he is a witness unrelated to the family and not in any manner an interested witness. The medical evidence clearly proves commission of crime and it supports the prosecution's case. Motive as already discussed in such cases is satisfaction of pervert and carnal desires which is self-evident. The fact that no specific name has been mentioned on whose pointing the dead body was recovered is also inconsequential as it is mentioned that on pointing of the villagers the body was recovered from the pond which is situated in the agricultural field as the body was inside the pond. The fact that mud is not found any mention in the Panchayatnama i.e. the Inquest report would not make much of a difference as no suggestions/ questions were put by the appellant on this count to the witnesses before the trial court and otherwise also as there is sufficient evidence on record to show recovery of dead body from the pond especially the testimony of P.W.3 and the Investigating Officer. The fact that victim was murdered is amply proved. The F.S.L. report was never challenged by the appellant before the trial court. The appellant cannot benefit from the lapses of Investigating Officer. As regards other submissions of learned Amicus on the question of death sentence, the same would be taken into consideration hereinafter. In view of the above discussion, none of the arguments of learned Amicus are acceptable in favour of the appellant and the authorities relied by him do not help his cause.
We have also gone through the judgment of trial court and in view of discussion already made, we find that trial court has rightly held the accused-appellant guilty and convicted for the offences under Section 201,302, 364, 376A I.P.C. and Section 5(m)/ 6 of the POCSO Act, 2012. We accordingly affirm the trial court's decision of holding accused-appellant guilty of having committed the offences under the aforesaid provisions of law.
Now, as regards question of sentence is concerned, we have no doubt in our mind that the trial court has rightly sentenced the accused-appellant to undergo imprisonment for life with fine of Rupees Fifty Thousand, failing which, additional rigorous imprisonment of one year under Section 364 I.P.C. Likewise, sentence of seven years rigorous imprisonment with fine of Rupees Fifty Thousand failing which additional rigorous imprisonment of one year has rightly been awarded under Section 201 I.P.C.
Now, as regards the death penalty awarded by the trial court for the offence under Section 302 and 376 A I.P.C., we have considered the reference made by the said Court and also the submission on behalf of the appellant in this regard.
The court below has imposed death penalty and in doing so has considered the aggravating and mitigating circumstances in the light of various pronouncements of Hon'ble the Supreme Court and after comparing the aforesaid two circumstances, it has also considered as to whether the case at hand falls within the category of ''rarest of rare cases'. It has expressed its final opinion wherein it has concluded that aggravating circumstances far out weigh the mitigating circumstances and has held the case to be amongst rarest of rare cases and has imposed death penalty for the offences punishable under Section 302, 376A I.P.C. It has taken into consideration the provisions of Section 5(m)/ 6 of the POCSO Act, 2012 and the punishment prescribed for the offence under Section 376A I.PC. and finding the sentence under the latter provision to be higher and being permissible, has awarded the same.
In this context, we may refer to landmark judgment of Hon'ble the Supreme Court in the case of ''Bachan Singh vs. State of Punjab' (1980) 2 SCC 684. In para no.164 of the majority judgment, it has been held as under in the majority verdict:-
"164. Attuned to the legislative policy delineated in Sections 354(3) and 235(2), propositions (iv) (a) and (v) (b) in Jagmohan, shall have to be recast and may be stated as below:
(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for the offence of murder under Section 302, Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence."
In Para no.202 of Bachan Singh' case (supra), Hon'ble the Supreme Court referred to the aggravating factors as suggested by Dr. Chitale which were as under:-
"202. Drawing upon the penal statutes of the States in U. S. A. framed after Furman v. Georgia, in general, and Clauses 2(a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances":
Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed-
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
In Para no.203, it observed as under:-
"203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other."
In para no.206, it referred to the mitigating circumstances suggested by Dr. Chitale as under:-
"206. Dr. Chitale has suggested these mitigating factors:
Mitigating circumstances:- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
The question of imposing death penalty and the factors to be taken into consideration in this regard again came up for consideration before Hon'ble the Supreme Court in the case of ''Machhi Singh & Ors. vs. State of Punjab' AIR (1983) Supreme Court 957. In para nos.32 and 33, Hon'ble the Supreme Court laid down the factors to be taken into consideration in this regard.
"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence in no case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime such as for instance:
I Manner of Commission of Murder When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance
(i) When the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II Motive for commission of murder When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward; (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust; (c) a murder is committed in the course for betrayal of the motherland.
III Anti-social or socially abhorrent nature of the crime.
(a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of 'bride burning' and what are known as 'dowry-deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
IV Magnitude of crime When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V Personality of victim of murder When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age on infirmity. (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust. (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
33. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh's case:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime';
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
After referring to the feelings of the community and its desires for self-preservation, Hon'ble the Supreme Court opined that the community may well withdraw the protection by sanctioning death penalty. But the community will not do so in every case. It may do so 'in rarest of rare cases' when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. It has observed that the community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, magnitude of crime, personality of victim of murder. It then went on to give instances in this regard as already quoted hereinabove. One of the factors mentioned by Hon'ble the Supreme Court was that victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder.
Thereafter, Hon'ble the Supreme Court opined that following questions were required to be asked and answered while applying the guidelines laid down by it.
"34. In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ? "
These questions are the test for rarest of rare cases.
The legal position in this regard was again reiterated in ''Devendra Pal Singh vs. State of N.C.T. of Delhi' (2002) 5 SCC 234, paragraph no.58 of the said report reads as under:-
"58. From Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed:
The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-à-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."
Even when both the aggravating and mitigating factors are satisfied against the accused then the Court has to apply 'the rarest of rare cases' test.
In ''Gurvail Singh Alias Gala vs. State of Punjab' 2013 (2) SCC 713, Hon'ble the Supreme Court considered the factors to be borne while considering the award of death sentence. It opined that to award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test (R-R Test), which depends on the perception of the society and not "judge-centric", that is whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls etc. It opined that Courts award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people, and not Judge centric.
In the light of the aforesaid, the aggravating circumstances of this case are as under:-
1) The victim was a girl child only one and a half years old when she was subjected to rape followed by her murder. An innocent child of such an age could not have provided any excuse, much less a provocation for sexual assault and murder. The child was of such a tender age that she was not in a position to express her feeling nor protest against such an abuse of her body except may be cry and undergo shock during its commission.
2) The crime was committed in the most abhorrent and dibolical manner as is evident from the injuries found on the body of the minor child during post-mortem. Both her hymen and vagina were torn/ ruptured. Rear of the vagina was torn 10 ml blood was also found in the vagina. Blood spots were present on side of thighs. She had contusions/ blue marks on upper and lower lip, nail marks on the left side of the face. Considering the age of the victim, one hardly needs to say anything more as far as extreme brutality with which her body was subjected and the exceptional depravity which was demonstrated during commission of the crime evoking extreme and intense indignation of the community.
3) The motive of crime was satisfaction of perverse carnal desires of the appellant that too on a minor child of only one and a half year old which evinces total depravity and meanness.
4) The appellant was determined and had planned to commit the crime which is evident from the fact that after he picked up the child from outside her house when P.W.2-Balram asked him, he befooled him on the pretext of taking the child for a stroll in village and/ or to get her biscuits. He did not stop and think about the consequence of his crime. Further, not only the appellant raped and murdered her but she threw her body into a pond to destroy evidence and cover-up commission of the crime. The appellant who was resident of same village had a relationship of trust with other villagers especially with minors but he destroyed the trust and his cruel act would have the effect of creating mistrust amongst the villagers towards each other especially mistrust in the minds of small children towards elders which affects the moral fabric of society which is based on good human conduct towards each other. The deceased was the only child of her parents at the relevant time. The crime was such as to arouse extreme indignation of the community.
The mitigating circumstances of this case are as under:-
1) The appellant has mentioned his age as 60 years whereas the prosecution witnesses have mentioned his age as 40 to 45 years. The trial court opined that his age is somewhere around 50 to 55 years and crime had been committed seven years ago.
2) The appellant is unmarried. He does not have a family of his own. He has three brothers but does not reside with them, rather they had ousted him from their house.
3) The trial court observed the appellant appears to belong to a lower middle class family. Nobody from his family is available for doing Pairvi of the case and an Advocate had to be provided from Legal Aid Services Authority. He is a villager. There is no evidence to show that he is literate.
4) There is no evidence that the appellant committed the crime under extreme mental or emotional disturbance or extreme provocation. In fact, there could be no provocation from a one and a half years old child.
(5) The trial court has found the conduct of the appellant during trial as satisfactory.
6) The appellant does not have any prior criminal history. His booking under the National Security Act as noticed by the trial court, appears to be as a consequence of the case at hand and not in any other case.
7) As regards the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society, the trial court has opined that considering the criminal psychology of the accused he is a menace to society. No doubt, the extreme depravity and brutality displayed by him could lead us to such a conclusion. However, there is no such medical or psychological analysis of the appellant by any expert on record to support this conclusion. As per Bachan Singh 's case (supra), the State is under obligation to establish this aspect based on evidence. There is a report dated 20.02.2021 of the local police containing statement of some villagers mostly labourers which was submitted two days prior to the order of sentence. It has not been exhibited. The villagers have stated that it was a gruesome crime for which death penalty should be inflicted.
(8) No such evidence has been led by the State to demonstrate that the appellant is beyond reform and rehabilitation. Here again, there is no such medical or psychological assessment of the appellant by any expert nor has any such evidence been led by the State. There is a report dated 20.02.2021 of the local police, as already referred.
Having considered the aggravating and mitigating circumstances as discussed hereinabove and also as discussed and considered by the trial court in its judgment, we are of the opinion that the crime committed by the appellant no doubt is one of the most grotesque and brutal one and it was committed on a child of tender age. Such a crime draws a feeling of aversion and repulsion amongst all against the perpetrator of crime. It no doubt shocks the collective conscience of society. Having said so keeping in mind the parameters laid down in Bachan Singh's case (supra) especially with regard to mitigating circumstances at point no.(iv) regarding possibility of reformation and rehabilitation and the obligation imposed in this regard upon the State to lead evidence to show that there is no such probability, we find that no such evidence has been led by the State which could persuade us to hold that the appellant inspite of his abominable crime, is beyond reform. There is one unexhibited report (paper no.39b) dated 20.02.2021 on the record of trial court which was submitted two days prior to order of sentence on 22.02.2021. This report contains statement of certain alleged villagers mostly labourers that appellant was a drunkard who had committed a horrible act for which death sentence alone will suffice. The report without reference to any specific villager states that other villagers had stated that he was an addict, a drunkard with a criminal mindset. There is no medical or psychological analysis of the appellant by any expert as to whether there is scope for reform in him or not. The conclusion arrived at by the trial court that considering the criminal psychology/ mindset of the appellant there are no chances of reformation in future, in our respectful opinion, is not in accordance with the decision in Bachan Singh's case (supra) which enjoins upon the State to lead evidence showing that the accused/ appellant is beyond reformation. We do not find any such evidence in the facts of the case. The report dated 20.02.2021 (paper no.39b) is not sufficient by itself. Merely because of the depraved condition of the appellant or for that matter absence of any remorse on his face after his conviction, as observed by the trial court, which of course would be only one moment in his life, it does not mean that the requirements of law laid down in Bachan Singh's case (supra) in this regard, and as has been reiterated thereafter in various decisions, stand satisfied. The conclusion drawn by the trial court in this regard is not in accordance with law. In taking this view, we are supported by a recent judgment of Hon'ble the Supreme Court rendered on 20.05.2022, Criminal Appeal No.248-250 of 2015 'Manoj & Ors. vs. State of Madhya Pradesh'. In the absence of any evidence led by the State as aforesaid it can't be said that the appellant is beyond reform. This is a mitigating circumstance in favour of the appellant. We may in this context once again refer to decision of Hon'ble the Supreme Court in Gurvail Singh's case (supra) wherein it has been opined that to award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. In this case, while the aggravating circumstances (crime test) are fully satisfied but in the absence of any evidence led by the State to show that the appellant is beyond reform, it is not a case where there are no mitigating circumstances (criminal test) favouring the accused. We are of the opinion that this is not a case where it could be said that there is no alternative but to impose death sentence upon the appellant. We are of the opinion that imprisonment for the rest of his natural span of life, till his death, without any premature release or remission, would be an appropriate sentence and it would balance the scales of retributive justice vis-a-vis restorative and reformative justice. In imposing this sentence we have taken into consideration the law declared by the Supreme Court in the case of 'Swamy Shraddhananda vs. State of Karnataka' (2008) 13 SCC 767 and the case of 'Union of India vs. V. Sriharan' (2016) 7 SCC 1.
We, accordingly answer the reference made to us by the trial court bearing Capital Case No.1 of 2021 in the negative. We decline to confirm the death sentence imposed by it upon the appellant under Sections 302 and 376A I.P.C. Instead of death sentence, we modify the sentence to one of imprisonment for rest of his natural span of life, till his death, without any premature release or remission, for the offences committed by the appellant under Sections 302 and 376A I.P.C. We, however, reiterate the fine of Rupees One Lakh for the offence U/s 302 I.P.C, failing which, appellant will have to undergo two years rigorous imprisonment, as also, the fine of Rupees Fifty Thousand for the offence under Section 376A I.P.C, failing which, he will undergo additional rigorous imprisonment of one year.
As already stated other sentences shall remain as have been imposed by the trial court.
Accordingly, the appeal is allowed in part i.e. only on the point of death sentence. Capital Case No.1 of 2021 is answered accordingly in the negative.
Let a copy of this judgment along with original record of the trial court be sent back to the trial court concerned for information and necessary action.
A copy of this judgment shall also be forwarded to the appellant who is in jail through the trial court.
Before we part with the case, we appreciate the assistance rendered by Sri Rajesh Kumar Dwivedi, as Amicus in the matter. He shall be entitled to Rs.25,000/- (Rupees Twenty Five Thousand Only) as fee for his services, from the High Court.
(Mrs. Saroj Yadav,J.) (Rajan Roy,J.) Order Date :-31.05.2022 Shanu/-