Madhya Pradesh High Court
Arvind @ Chottu Thakur vs The State Of Madhya Pradesh on 15 July, 2014
Author: N.K.Gupta
Bench: N.K.Gupta
1
Criminal Reference No.8 of 2013
Criminal Appeal No.2728 of 2013
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Reference No.8/2013
In reference received from Sessions Judge, Narsinghpur
(M.P)
AFR
Vs.
Judge
Arvind alias Chhotu Thakur
Criminal Appeal No.2728/2013
Arvind alias Chhotu Thakur
Vs.
State of Madhya Pradesh
For the State : Shri Vijay Pandey, Deputy Advocate
General.
For the Accused : Shri Siddharth Gulatee, Advocate.
Present : HON'BLE MR. JUSTICE AJIT SINGH
HON'BLE MR.JUSTICE N.K.GUPTA, JJ.
J U D G M E N T
( 15.7.2014) The following judgment of the Court was delivered by:
N.K.Gupta, J. Since Criminal Reference No.8/2013 referred by the learned Sessions Judge, Narsinghpur and the Criminal Appeal No.2728/2013 filed by appellant Arvind alias Chhotu Thakur have arisen from the same judgment dated 30.9.2013 passed by the learned Sessions Judge, 2 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 Narsinghpur in ST No.86 of 2013, both the matters are hereby disposed off by a common judgment.
2. Vide judgment dated 30.9.2013 the learned Sessions Judge, Narsinghpur in S.T.No.86 of 2013 convicted the the appellant Arvind @ Chhotu Thakur for offences punishable under Sections 376-A, 302, 363, 201 of I.P.C and Section 6 of Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') death sentence was awarded for offence under Section 376- A and 302 of I.P.C whereas, five years rigorous imprisonment with fine of Rs.1000/- was inflicted for each count for remaining I.P.C offences and no separate sentence has been given for offence under Section 6 of 'POSCO Act'.
3. The prosecution's case in short is that the complainant Preeti @ Mona Thakur (PW1) was residing at Hanuman Ward, Kareli, District Narsinghpur. Since her husband had expired 1 ½ years prior to the incident, she was working at Milan Hotel as a servant. She had three children out of them one was a boy Shivam aged 11 years, second child was the deceased prosecutrix aged 10 years and the third child was a girl aged 6 years. The appellant is husband of one Mamta Bai, sister of the complainant and therefore, there were intimate relations between both the 3 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 families. In July 2013, the complainant Preeti Thakur had sent her daughters to her father Nanuram (PW7) at Village Paloha for their studies. On 26.2.2013, Nanuram (PW7) brought the girls to the house of the complainant at Kareli. At about 4.00 p.m the complainant Preeti Thakur went to the house of accused along with her girls and remained there up to 6.00 p.m. Thereafter, she went to work on her job. The girls and father resided in the house of the complainant. At about 10.00 p.m in the night when the complainant came to her house, she found the deceased prosecutrix was missing. She inquired with her father and other children but, she could not get any trace of the deceased prosecutrix. She inquired from various persons on that day and next day also. On 27.2.2013 the complainant Preeti had lodged a missing report Ex.P/1 at Police Station Kareli.
4. On 27.2.2013 Kishori Lal (PW2) went to the Police Station Kareli and lodged a merg intimation Ex.P/5 that the dead body of the deceased prosecutrix was lying in the field of Rajkumar Chouksey. Police recovered the dead body and sent for its post mortem. Initially the post mortem was performed at Primary Health Center, Amgaon by Dr. Vinay Thakur (PW18) and Dr. Rashi Patel. They found that blood 4 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 was oozing from the vagina of the deceased prosecutrix and froth was coming from her nostrils. However, they could not give any information about the cause of death and therefore, they referred the dead body of the deceased prosecutrix to Medical College, Jabalpur. Dr. Ashok Najan (PW22) along with a team of doctors performed the post mortem on the body of the deceased and he found that blood was oozing from her nostrils, there was blood in the vaginal opening. Nails were found cynosed, hymen was torn, laceration relating to hymen was 3 cm. inside the vaginal opening and upto 1 c.m deep. Blood was oozing from that wound. Slides of vaginal swab were prepared, clothing and sample of her hair etc. were collected and were handed over to the concerned Constable after sealing. Doctor found that the deceased died due to asphyxia.
5. In due investigation, it was found that the witness Dr. Rajesh Kori (PW5) saw the appellant with the deceased child who, was going towards the field of Vishnu Kuchbandiya. Witnesses Devendra Choudhary (PW3) and Birju Thakur (PW4) have stated that on 23.3.2013 at about 8.00 p.m in the night they saw one person coming from the field of Rajkumar Chouksey in a doubtful manner. He was trying to hide himself and a stone was thrown by the 5 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 witnesses then that person stood up and came out from behind the tree, he was appellant Arvind @ Chhotu Thakur. Chen Singh Lodhi (PW6) has also stated that the appellant confessed his guilt before him. The appellant was arrested and he was also sent for medico legal examination. His underwear was taken and sample for DNA test was also prepared. According to the DNA report Ex.P/37 on clothes of the deceased prosecutrix and vaginal swab, male DNA profile of the accused was found. After due investigation, the charge-sheet was filed before the concerned committal Court, who committed the case to the Sessions Judge, Narsinghpur.
6. The appellant abjured his guilt. He did not take any specific plea but he has stated that he was falsely implicated. However, no defence evidence was adduced.
7. The learned Sessions Judge after considering the prosecution's evidence, convicted and sentenced the appellant as mentioned above.
8. We have heard the learned counsel for the parties at length.
9.. After considering the submissions made by the learned counsel for the parties and looking to the evidence adduced by the prosecution, it appears that there is no 6 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 ocular evidence in the case and the entire case rests upon the circumstantial evidence. Therefore, all the circumstances, shall be considered one by one. The most important circumstance in the present case is the report given by the Forensic Science Laboratory, that in clothes of the deceased prosecutrix and her vaginal swab male Y chromosome STR DNA profile was found and on comparison with the DNA profile obtained from the blood sample of the appellant it was found to be same. The clothes of the deceased were collected by the Police from the concerned doctor and delivered the same to the Constable Raman Singh (PW10) after sealing them. Similarly the blood sample taken from the appellant was duly given by the concerned doctor after sealing to Constable Satish (PW19) and such samples were sealed and duly sent to the Forensic Science Laboratory. The learned counsel for the appellant could not establish any reason so that any doubt could be created in collecting the sample and their transmission to the Forensic Science Laboratory. Under such circumstances, it was found that the male profile which was found in the vaginal swab of the deceased prosecutrix and her clothes were of the appellant Arvind @ Chhotu Thakur. 7
Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013
10. The complainant Preeti @ Mona thakur (PW1) and Nanuram (PW7) have stated that since June 2012 the deceased prosecutrix and her sister were residing with Nanuram at Village Paloha. On 26.2.2013, Nanuram took the deceased prosecutrix and her sister to the house of the complainant at Kareli and thereafter, the complainant Preeti took her children to the house of her sister Mamta Bai and remained there for two hours. At about 4.00 p.m they came back to the house of the complainant. Preeti and Nanuram have stated that about about 10.00 p.m when Preeti Bai came to her house from her job, it was found that the deceased prosecutrix was missing. The complainant searched for the deceased prosecutrix and thereafter, a missing report Ex.P/1 was lodged on 27.2.2013. In that report it was mentioned that for the last time she was viewed in front of the house of the complainant and thereafter, she was missing. The complainant Preeti @ Mona Thakur and her father Nanuram could not imagine as to where the deceased prosecutrix might have gone. The witness Rajesh Kori (PW5) has stated that on the date of the incident he went out side of his house to play with his child, then he saw the appellant who, was accompanied with the deceased prosecutrix, going towards the field of Rajkumar 8 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 Chouksey. In the cross examination of this witness nothing could be brought so that it can be said that the witness was inimical towards the appellant or his testimony was not believable. Under such circumstances, the prosecution has proved the fact of last seen of the deceased prosecutrix with appellant Arvind.
11. The witnesses Devendra Choudhary (PW3) and Birju Thakur (PW4) have stated that on the date of the incident both were present in the house of Birju Thakur. They were cleaning utensils. Suddenly they saw that a person was coming from one side of the field of Rajkumar Chouksey who, had hidden behind the tree of Bamora. Devendra threw 2-3 stones and thereafter, he shouted that if that person would not come out, he would hit him by the stone. Thereafter, the person who stood behind the tree arose and told that he was Chhotu @ Arvind. The appellant was known to these witnesses and these witnesses have stated that it was the appellant who, was found coming at about 8-8.30 p.m from the side of Rajkumar Chouksey's field. In the cross examination of these two witnesses, nothing could be brought which may create a doubt in their testimony. No enmity with these witnesses could be established by the appellant and therefore, their testimony 9 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 is acceptable. By the statements of Devendra Choudhary (PW3) and Birju Thakur (PW4), it is established that soon after the incident the appellant was found coming back from the spot.
12. Kishorilal (PW2) has stated that he went in the field of Rajkumar Chouksey to remove a calf who entered the field and damaged the crop of masoor, then he saw that inside the wire fencing, the dead body of a girl was lying. Since he knew that the girl child of the complainant was missing, he went to inform the complainant and thereafter, he went to the Police Station and lodged a merg report Ex.P/
5. Testimony of this witness is duly corroborated by the document Ex.P/5 recorded by the Police at Police Station, Kareli. In this document, it is clearly mentioned that the complainant Preeti Bai identified the dead body of her girl child and thereafter, Kishorilal (PW2) lodged a merg intimation. Kishorilal (PW2), Preeti @ Mona Thakur (PW1) and Town Inspector Kaushal Singh (PW24) have stated that when they reached to the spot, they found the dead body of the deceased prosecutrix wearing a pink shirt and yellow pink trouser. The dead body of the deceased prosecutrix was identified by Preeti Bai that she was her daughter aged 10 years. Also the witnesses Rajesh Kori (PW5) and Shisir 10 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 Patel (PW8) have stated that when the police reached to the spot Inspector Kaushal Singh (PW24) has directed that nobody would touch the dead body as he had called a dog for search. When that information was told by the Inspector the accused/appellant immediately left the spot and he disappeared. When the dog smelled the dead body of the deceased prosecutrix, he rushed towards the house of the appellant and went inside the house. The proceedings of search done by the dog was not clearly placed on record by the prosecution. However, the conduct of the appellant is established by these two witnesses to show his guilty conscious that when he received an information that a dog was being called by the Police for smelling purpose, he immediately left the spot whereas, he was maternal uncle (mausa) of the deceased and it was expected from him to participate and co-operate in the investigation.
13. The witness Chen Singh Lodhi (PW6) has stated that he was coming on a motor cycle along with Mukesh Chouhan then he saw the accused in a disturbed condition and on asking, the appellant told the witness Chen Singh Lodhi that he committed a mistake and he killed the daughter of his co-brother in a field on the previous tuesday. In the cross examination, the witnesses could not give an 11 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 explanation as to why he did not inform about such confession to the Police or Kotwar but, he has stated that he did not want to indulge in any problem. However, this witness was examined under Section 164 of Cr.P.C and he denied before the Magistrate that the appellant gave any confessional statement before him. Looking to the conduct of the witness Chen Singh Lodhi, his testimony appears to be doubtful and therefore, the prosecution could not prove the extra judicial confession of the appellant.
14. After considering the aforesaid circumstances, it would be apparent that the appellant had an opportunity to be conversant with the deceased prosecutrix and it is established that soon before the incident he was found with the prosecutrix going towards the field. Soon after the incident, he was found coming from the side of a field of Rajkumar. During investigation when it was informed that Police would bring a dog for smelling purposes, he ran away from the spot. Ultimately, male profile from the clothes of the prosecutrix and her vaginal swab were found of the appellant and therefore, chain of circumstantial evidence is complete and it is established that it was the appellant who, committed rape upon the prosecutrix. After commission of rape, it would be apparent that the prosecutrix could not go 12 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 anywhere and her dead body was found lying in that field itself. According to the post mortem report given by Dr. Ashok Najan (PW22) and suggestions given to him in the cross examination, it would be apparent that the death of the deceased was homicidal and therefore, by aforesaid circumstances, the only conclusion can be drawn is that the appellant killed the deceased prosecutrix. Hence with the prosecution's evidence the learned Sessions Judge has rightly found that the appellant committed rape upon a 10 year old deceased prosecutrix and killed her.
15. The learned counsel for the appellant has stated that cause of death could not be ascertained by the various doctors and therefore, it cannot be said the appellant killed the deceased. If both the post mortem reports Ex.P/25 and P/28 proved by Dr.Vinay Thakur (PW18) and Dr. Ashok Najan (PW22) are considered, then it would be apparent that death of the deceased was caused by asphyxia. No doctor has opined that she died due to exposure caused to her in the night. No symptoms of exposure were found on her body in any of the post mortem reports. It is not opined by the doctors that the death was natural or due to cardiac arrest. Dr. Najan in his cross examination had categorically informed that it was a homicidal death. Dr. 13 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 Najan has given a finding that the deceased died due to asphyxia, blood was oozing from her nostrils and therefore, asphyxia would have been caused by smothering. When there is no other reason visible in the post mortem reports relating to the death of the deceased prosecutrix, then evidence of Dr. Najan is acceptable that the deceased died due to asphyxia due to smothering done by the appellant.
16. The learned counsel for the appellant has further submitted that the appellant had not intended to kill the deceased otherwise, external injuries relating to smothering would have been visible on the body of the deceased and it is possible that during the commission of intercourse, while the appellant was trying to stop the crying of the prosecutrix, suffocation would have been caused and the deceased died due to asphyxia. Hence the appellant had not intended to kill the deceased. The learned counsel for the appellant has placed his reliance upon the judgment passed by Hon'ble the Apex Court in the case of 'Ajit Singh Vs. State of Punjab' [(2011) SCC 9 462] in which it was mentioned that the incident took place in a spur of moment and it was not a premeditated assault. The deceased did not sustain such an injury which was sufficient to cause death in ordinary course of nature and therefore, no offence 14 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 under Section 302 of I.P.C is made out. At the most offence under Section 304 (Part I) of I.P.C shall be made out. Similarly, the learned counsel for the appellant has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of 'Yomeshbhai Pranshankar Bhatt Vs. State of Gujarat' [(2011) 6 SCC 312] in which is is laid that the appellant had no premeditation to kill the deceased or to cause any bodily injury so that the deceased would have died, then it would not be a case of intention. It is further held that in cases relating to circumstantial evidence the Court should examine the circumstances very carefully before arriving at a finding of guilt and if there is any doubt which is inconsistent with innocence of the accused, benefit thereof should go to the accused.
17. The learned counsel for the appellant has also placed his reliance upon the judgment passed by Hon'ble the Apex Court in the case of 'Manjeet Singh Vs. State of Himachal Pradesh' [(2014) 5 SCC 697] in which it is held that if the evidence on record does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death and the incident took place at the spur of the moment, during the heat of exchange of words, the accused caused injuries 15 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 on the body of the deceased which caused his death then the ingredients of murder as defined under Section 300 of I.P.C shall not be attracted. In such a case, offence of culpable homicide not amounting to murder under section 304 of I.P.C shall constitute. In the light of aforesaid judgments passed by Hon'ble the Apex Court, if the facts of the present case are considered then it would be apparent that no external injury was caused by the appellant to the deceased prosecutrix other than injury caused in her private part. Injury caused in the private part was a part of crime under Section 376 of I.P.C and it cannot be taken separately as injury caused by the appellant to the prosecutrix for offence under Section 302 of I.P.C because no doctor has stated that injury caused on private part of the deceased was fatal in nature. Possibility cannot be ruled out that the appellant kept his hand on the mouth of the prosecutrix, so that she would not cry but, in doing so he suffocated the prosecutrix and she died of asphyxia. Under such circumstances, it cannot be said that the appellant intended to kill the deceased. Hence in the light of aforesaid judgments passed by the Apex Court the crime committed by the appellant in the absence of any intention or causing fatal injury, falls within the purview of Section 304 (Part II) 16 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 of I.P.C. Hence the learned Sessions Judge has committed an error in convicting the appellant for offence under Section 302 of I.P.C.
18. The appellant is convicted for offence under Section 376-A of I.P.C. This provision has been recently introduced to punish severely offences of rape where injury is caused resulting into death of victim. It may be read as under :
"376-A. Punishment for causing death or resulting in persistent vegetative state of victim - Whoever, commits an offence punishable under sub-section (l) or sub¬section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death."
The learned counsel for the appellant has submitted that no visible injury was found to the prosecutrix, except the injury caused in her private part and therefore, it cannot be said that the appellant inflicted an injury which caused death of the woman. However, the contention advanced by the learned counsel for the appellant cannot be accepted, because in this provision it is no where mentioned that the 17 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 accused would have caused death of the prosecutrix with intention. Word "injury" is mentioned in that provision is defined in Section 44 of the I.P.C. Provision of Section 44 of I.P.C is reproduced as under :
'44. "Injury" - the word "injury"
denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.' According to that provision if someone harms illegally to any person in body, mind etc. then injury would be caused and therefore, when the appellant kept his hand on mouth of the prosecutrix, so that she should not shout and in that process if she died due to suffocation, then certainly the appellant caused an injury to the prosecutrix which caused the death of the prosecutrix and therefore, the offence of the appellant squarely falls within the purview of Section 376-A of I.P.C and therefore, the learned Sessions Judge has rightly convicted the appellant under Section 376-A of I.P.C.
19. According to the witnesses the appellant was found going towards the field of one Rajkumar along with the prosecutrix. It is duly proved that the age of the prosecutrix was 10 years. It was not in the knowledge of the parents of the prosecutrix that she was taken by the 18 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 appellant and therefore, a missing report Ex.P/1 was lodged by the mother of the deceased prosecutrix. Under such circumstances, it is duly established that the appellant kidnapped the deceased prosecutrix from her mother's guardianship without taking any permission from her guardians. Hence he committed an offence under Section 363 of I.P.C. The learned Sessions Judge has rightly convicted the appellant for offence under Section 363 of I.P.C.
20. As discussed above, the appellant is found guilty of offence under Section 376-A of I.P.C and since the deceased prosecutrix was aged 10 years then his offence is also covered with Section 6 of 'POSCO Act' and therefore, the learned Sessions Judge has rightly convicted the appellant for that offence also.
21. So far as the offence under Section 201 of I.P.C is concerned the charges were framed that the appellant threw the dead body of the deceased at a different place and tried to disappear the evidence against him. However, it is established by the evidence that he took the prosecutrix to the field of Rajkumar Chouksey and he was found coming back from that field by some witnesses. Hence, it is possible that the rape was committed upon the prosecutrix 19 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 at the same place where her dead body was found. Her underwear was also found near her body. Hence the prosecution could not establish the fact that the appellant killed the prosecutrix at a different place and threw her body at the spot where her body was found. By the prosecution's evidence it can be gathered that he committed rape upon the prosecutrix and caused her death but, there is no specific evidence produced by the prosecution to show that the appellant did something to disappear the evidence. It is true that when he heard that the SHO was calling a dog for smelling, then he ran away from the spot but, it may be the circumstance to show his conduct but, does not fall within the purview of disappearing of the evidence. Under such circumstances, the prosecution failed to prove that the appellant committed an offence under Section 201 of I.P.C.
22. So far as the sentence is concerned the learned counsel for the appellant has placed his reliance upon the judgments passed by Hon'ble the Apex Court in the cases of 'Rajkumar Vs. State of M.P' [(2014) 5 SCC 353], 'Dharam Deo Yadav Vs. State of U.P' [(2014) 5 SCC 509] and 'Ashok Debbarma @ Achak Debbarma Vs. State of Tripura' [(2014) 4 SCC 747] to show that in similar cases the Apex Court converted the death sentence into sentence 20 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 of life imprisonment. However, basically it is laid in all such cases that death sentence be given in rare of rarest case. On the other hand the learned Deputy Advocate General has submitted with a bunch of so many cases decided by the Hon'ble Apex Court since the year 1980 to 2013. However, in all of such cases it is held by the Apex Court that death sentence be given in rare of rarest case. The learned Deputy Advocate General has placed his reliance especially on the judgment passed by the Apex Court in the case of 'Rajendra Pralhadrao Wasnik Vs. State of Maharashtra' [(2012) 4 SCC 37] in which the death sentence directed to a culprit who, was guilty of rape upon a small child and killed her thereafter, was confirmed. In the present case, it would be apparent that it was not the intention of the appellant to kill the deceased prosecutrix. He is not found guilty of offence under Section 302 of I.P.C. Similarly if the appellant would have been found guilty of offence under Sections 376(1) or (2) of I.P.C. then, he would have been awarded a sentence of life imprisonment but, the offence is committed after introduction of provision of Section 376-A of I.P.C which provides a sentence of life imprisonment up to the natural life or with death. In the present case, when the crime committed by the appellant 21 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 falls within the purview of Section 376-A of I.P.C, then it is necessary that a severe sentence as directed in the provision of Section 376-A of I.P.C which is severe than the sentence of offence under Section 376(1) or (2) of I.P.C should be awarded. However, according to the factual position, the appellant did not kill the deceased intentionally but, while he stopped the prosecutrix from crying or shouting, suffocation was caused and the deceased prosecutrix died. However, rape with a girl of tender age is brutal on its own but, no death sentence is provided for offence under Section 376(1) or (2) of I.P.C therefore, due to that brutality, no death sentence can be directed. Under such circumstances, it cannot be said that it is a rare of rarest case and therefore, it would be proper not to award the death sentence to the appellant for offence under Section 376-A of I.P.C. It would be proper that he be sentenced for rigorous imprisonment for life which shall mean imprisonment for the remainder of that person's natural life. Similarly, he can be sentenced with 10 years rigorous imprisonment for offence under Section 304(Part II) of I.P.C Since the offence committed by the appellant under Section 6 of the 'POSCO Act' is parallel to the offence committed under Section 376-A of I.P.C therefore, in the light of the 22 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 provision under Section 42 of the 'POSCO Act' it would not be necessary to pass a separate sentence for offence under Section 6 of the 'POSCO Act' The trial Court has rightly inflicted a sentence of five years rigorous imprisonment with fine of Rs.1000/- for offence under Section 363 of I.P.C and therefore, there is no need to interfere in the sentence passed by the trial Court for that offence.
23. On the basis of aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. His conviction and sentence under Section 201 and 302 of I.P.C are hereby set aside whereas, conviction under Section 363 and 376-A of I.P.C is confirmed. He is acquitted of the charge of offence under Section 302 and 201 of I.P.C but, he is convicted for offence under Section 304 (Part II) of I.P.C under the head of charge under Section 302 of I.P.C. The appellant shall undergo 10 years rigorous imprisonment for offence under Section 304 (Part II) of I.P.C. Though the conviction for offence under Sections 376-A and 363 of I.P.C is maintained and also the sentence for offence under Section 363 of I.P.C is maintained but, death sentence awarded by the trial Court for offence under Section 376-A of I.P.C is hereby set aside and the appellant is sentenced for life imprisonment which shall mean imprisonment for 23 Criminal Reference No.8 of 2013 Criminal Appeal No.2728 of 2013 the remainder of that person's natural life for that offence. Since death sentence is not confirmed against the appellant for any offence therefore, reference sent by the learned Sessions Judge, Narsinghpur is not accepted and death sentence directed against the appellant is not confirmed. The reference is hereby disposed off with the aforesaid direction and the appeal filed by the appellant is also hereby disposed of with the aforesaid modification in conviction and sentence.
24. The appellant is in jail and office is directed to arrange for issuance of supersession warrant as intimated above.
25. Copy of the judgment be sent to the trial Court along with its record for information and compliance.
(AJIT SINGH) (N.K.GUPTA)
JUDGE JUDGE
15/7/2014 15/7/2014
bina