Rajasthan High Court - Jaipur
State Of Rajasthan Through Pp vs Vinod Kumar S/O Roopsingh B/C Banjara on 3 December, 2018
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Death Reference No. 4/2018
State of Rajasthan through PP, Rajasthan
----Petitioner
Versus
Vinod Kumar S/o Roopsingh, B/c Banjara, Aged About 22 Years,
R/o Alipur Tan Mahriya, Police Thana - Mundawari, District -
Dausa, Rajasthan
----Respondent
Connected With D.B. Criminal Appeal (DB) No. 351/2018 Vinod Kumar S/o Roop Singh B/c Banjara, Aged About 22 Years, R/o Alipur Tan Mahariya, Police Station Mundawari, District Dausa, Raj.
(At Present Accused Petitioner is confined in the District Jail, Jhunjhunu).
--- Accused-Appellant
Versus
State of Rajasthan through PP
----Respondent
For Petitioner(s) : Mr Manish Gupta
Mr Anil Upman
For Respondent(s) : Mrs Sonia Shandilya, PP - for the
State
HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA JUDGMENT 03/12/2018 This judgment will answer the Reference of Death sentence given by the Special Judge, Protection of Children from (2 of 17) [CRLDR-4/2018] Sexual Offences Act, 2012 and Commission for Protection of Child Right Act, 2005, Jhunjhunu, in Sessions Case No.168/2018. The trial court has convicted accused Vinod Kumar for offence under sections 376AB, 450 IPC apart from section 3/4 of the Protection of Children from Sexual Offences Act, 2012 (for short the POCSO Act) and sentenced as under -
Section 376AB IPC - Accused appellant Vinod Kumar has been given death sentence.
Section 450 IPC - Ten years rigorous imprisonment with a fine of Rs.5,000/-, in default to pay fine, to further undergo one year's rigorous imprisonment.
Section 3/4 of the POCSO Act - Life imprisonment with fine of Rs.5,000/-, in default to pay fine, to further undergo one year's rigorous imprisonment.
Since accused Vinod Kumar has been given death sentence, learned trial court has referred it to the High Court for its confirmation in view of section 366 CrPC. The accused appellant has also preferred criminal appeal hence both the cases were taken together for hearing and are disposed of by this common judgment.
BRIEF FACTS OF THE CASE It is a case where an FIR No.85/2018 was registered by Police Station - Malsisar, Jhunjhunu for offence under section 450 (3 of 17) [CRLDR-4/2018] and 376 IPC and section 3/4 of the POCSO Act. The complainant- Prabhati Devi along with her brother-in-law - Subhash Chandra and victim girl, at the age of 3 years, made a written report that her daughter-Bala came to stay with her. It was along with daughter at the age of three years. On 1.8.2018, daughter-Bala went to meet her brother-in-law-Richhpal at Chirawa. The complainant and her grand daughter were at the residence. On 2.8.2018 at around 10.00 AM, Prabhati Devi went to get butter- milk from his brother-in-law Subhash Chandra leaving her grand daughter alone at the residence. When she returned back to her house, seen blood oozing out from private part of grand daughter. She had seen the accused, who was selling utensils, going out of her house on a motorcycle.
Based on the FIR, police made investigation and finding a case against the accused, filed a charge sheet for offence under section 450, 376 IPC and section 3/4 of the POCSO Act.
The trial court framed charges for the offence under section 450, 376AB IPC and section 3/4 of the POCSO Act. It was explained to the accused. He did not plead guilty rather claimed trial.
During trial, prosecution produced nineteen witnesses apart from nineteen documents to prove their case. The statement of the accused was recorded under section 313 CrPC. He did not produce any evidence in defence.
(4 of 17) [CRLDR-4/2018] The trial court found that prosecution has successfully proved the case beyond doubt for offence under section 450, 376AB IPC and section 3/4 of the POCSO Act, thus it convicted accused Vinod Kumar for the offence under section 450, 376AB IPC and section 3/4 of the POCSO Act and sentenced him, as stated above.
ARGUMENTS OF LEARNED COUNSEL FOR ACCUSED APPELLANT Learned counsel for accused appellant has contended that the accused has been falsely implicated in the case. There is no evidence to connect him with the crime. There exists no eye witness to the occurrence. He has been implicated based on suspicion. The complainant had seen him going out of her house on motorcycle but she had not seen the accused causing offence. In view of the aforesaid, the prosecution failed to bring evidence to prove their case beyond doubt.
It is also stated that if the conviction of the accused for the offence under section 376AB IPC and section 3/4 of the POCSO Act is maintained, interference may be caused in the order of sentence. The trial court has given death sentence to the accused though incidence does not fall in the category of 'rarest of rare case'. The trial court failed to appreciate the judgment of the Apex Court cited by the accused. The Apex Court, has laid down the law as to in what cases, death sentence can be given.
(5 of 17) [CRLDR-4/2018] The case in hand does not fall in any of the categories given by the Apex Court to justify death sentence. The prayer is, accordingly, to answer the Death Reference by interfering in the sentence of death penalty while maintaining the conviction. It may be substituted with lesser sentence.
ARGUMENTS OF THE SIDE OPPOSITE Learned PP Mrs Sonia Shandilya has opposed the criminal appeal and prayed for confirming the death sentence while answering the Reference. It is stated that prosecution could prove its case beyond doubt. The evidence available on record show that the appellant committed the offence under section 450, 376AB IPC and section 3/4 of the POCSO Act on the minor girl at the age of 3 years. It is when she was alone at the residence.
Reference of the recent amendment made by the State of Rajasthan for the sentence has been given where, now, minimum sentence for the offence under section 376 IPC is 20 years rigorous imprisonment and, otherwise, life imprisonment for whole of life of the accused and, lastly, death sentence.
It is submitted that looking to the intention of the Legislature and facts of this case, death sentence given to the accused may be confirmed and reference be answered accordingly. The appeal preferred by the accused appellant may be dismissed, having no merit.
(6 of 17) [CRLDR-4/2018] At this stage, learned counsel for accused appellant emphasised for the interference in the sentence, thereby, he has not pressed for challenge to the order of conviction for the offence under section 376AB IPC and section 3/4 of the POCSO Act.
FINDING OF THE COURT We have considered rival submissions of the parties and scanned the matter carefully.
The facts available on record show that after the charge sheet by the police, the trial court framed charges against the accused for the offence under section 450, 376AB IPC and section 3/4 of the POCSO Act. The prosecution led evidence to prove their case.
Learned counsel for the accused has argued for challenge to the order of conviction, however, appeal has been pressed against the sentence for the offence under section 376AB IPC and section 3/4 of the POCSO Act. He thereby did not press challenge to the order of conviction.
To appreciate the arguments, we need to refer facts of the case. An FIR was lodged by Prabhati Devi, grand mother of the victim girl and was produced in evidence as PW-2. It is stated that on the day of occurrence, she and her grand daughter were at the residence. She had gone to take butter-milk from her brother-in-law thus grand daughter, at the age of three years, was (7 of 17) [CRLDR-4/2018] alone at the residence. When she returned to her house, saw that blood is oozing out from private part of victim girl. The accused was seen going out of her house.
The statement of the said witness has been corroborated by PW-9-Sarita. She has stated that on 1.8.2018 she went to Chirawa. When she returned back, description of the incidence was given by her mother (PW-2). She immediately went to inform about it to her uncle Subhash Chandra and his wife. It is also stated that blood was coming from the private parts of the victim girl due to the rape caused by the accused.
From the place of occurrence, the Investigating Officer
- Smt Mamta Saraswat -PW-19, recovered blood stained 'banian' of the accused. She had also recovered blood stained bed-sheet. She has also supported the prosecution case not only for recovery but also medical as well as FSL reports Ex.P-34 and 38.
The evidence about the foot prints has been given by the IO and PW-13-Raj Kumar. It has been corroborated by PW-19- Smt Mamta Saraswat. The foot print at the place of occurrence has also supported the story given by PW-2-Prabhati Devi and PW- 9-Sarita.
The trial court has discussed other evidence to record its satisfaction about proof of the offence committed by the accused and, accordingly, we find no reason to cause interference in the order of conviction for the offence under section 450, 376AB IPC and section 3/4 of the POCSO Act. The challenge to the (8 of 17) [CRLDR-4/2018] conviction has not otherwise been pressed by learned counsel for the accused appellant looking to the evidence on record.
We are, accordingly, addressing the issue in reference to the sentence given to the accused for the offence under section 376AB IPC and section 3/4 of the POCSO Act.
Learned trial court has given death sentence to the accused after referring the judgment of the Apex Court in the case of "Machhi Singh & ors versus State of Punjab", (1983) 3 SCC 470. The Apex Court has laid down as to in what cases death sentence can be given to the accused.
The evidence available on record shows that prosecution could prove its case beyond doubt for conviction of the accused for the offence under section 450, 376AB IPC and section 3/4 of the POCSO Act. The prosecution had recovered clothes of the accused. The blood was found on the right side of the shirt and even other places, which were seized and sent for FSL report. The prosecution even seized 'chappal' of the accused. Its prints were taken in the presence of PW-13-Raj Kumar and PW-7-Asharam. The FSL report has shown human blood on the clothes and even foot prints of accused were proved.
The statements of PW-8-Dr Aman and PW-18-Dr Snehlata prove injuries to the victim girl at the age of 3 years. The statement of the victim girl has been recorded as PW-12. She has also proved the incidence. The issue for our consideration is as to whether this falls in the category of 'rarest of rare cases' so as to (9 of 17) [CRLDR-4/2018] award death penalty. The issue aforesaid needs to be examined in reference of the judgments of the Apex Court.
The death sentence is considered to be an extreme penalty thus before giving it, the court should look into mitigating circumstances. It is also that other sentences, which includes even life imprisonment, would be altogether an inadequate punishment. The balance sheet of gravity and mitigating circumstances has to be drawn. The death sentence should be given in rarest of rare cases. It is an exception.
If the facts of this case are taken into consideration, appellant was at the age of 20 years. He has not acted perpetually so as to give him extreme punishment, rather, mitigating circumstances suggest for lesser sentence. It cannot be that other sentence would be highly inadequate in this case.
Before recording our final word on the sentence, we may give reference of few judgments of the Apex Court where the issue has been elaborately dealt with. The guidelines about the death sentence have been given and are referred in next few paras.
The guidelines about death sentence were laid down by the Supreme Court in the case of Bachan Singh Vs. State of Punjab - (1980) 2 SCC 684. Therein, validity of Section 302 IPC (which authorises imposition of death sentence) was upheld while concurring with the view expressed by it in earlier judgment in Ediga Annamma Vs. State of Andhra Pradesh - (1974) 4 SCC 443, (10 of 17) [CRLDR-4/2018] laying down the principle. It is adhered to till date, which are that
(i) 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. 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, and (iv) a balance sheet of aggravating and mitigating circumstances has to be drawn and, in doing so, the mitigating circumstances have to be accorded full weightage. A just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised.
The principles laid down by the Supreme Court in the case of Bachan Singh(supra), were best summarised in Machhi Singh v. State of Punjab - (1983) 3 SCC 470. Para 38 of the judgment aforesaid, is reproduced as under:-
"38. 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 (supra):
(11 of 17) [CRLDR-4/2018]
(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 have 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."
The Supreme Court in Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234, while detailing out the circumstances and the relevant principles by revisiting Bachan Singh's case and Machhi Singh's case, observed in Para 58 as under:-
"58. From Bachan Singh's case (supra) and Machhi Singh's case (supra) 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 (12 of 17) [CRLDR-4/2018] 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-a-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-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
In Rameshbhai Chandubhai Rathod Vs. State of Gujarat, (2009) 5 SCC 740, judgment of High Court confirming death sentence awarded to the appellant was challenged before the Supreme Court. The appellant in that case was convicted for offence under Sections 363, 366, 376, 397 and 302 IPC. The matter was laid before two-Judges Bench of the Supreme Court. The Hon'ble Judges though upheld conviction of the accused but (13 of 17) [CRLDR-4/2018] differed on the question of sentence. The matter was, therefore, referred to a Larger Bench. A three judge Bench of the Supreme Court in the case of "Rameshbhai Chandubhai Rathod (2) Vs. State of Gujarat", (2011) 2 SCC 764, answered the reference. It relied on earlier two judgments in the case of "Ramraj Vs. State of Chhattisgarh", (2010) 1 SCC 573 and "Mulla and Another Vs. State of Uttar Pradesh", (2010) 3 SCC 508. The death sentence awarded to the accused was commuted to life imprisonment to the full life of the appellant, subject to any remission or commutation at the instance of the Government for good and sufficient reasons.
The Apex Court held that life imprisonment is a rule and death sentence is an exception. Apart from guidelines in Bachan Singh's case, referred to above, the Supreme Court in Machhi Singh's case (supra), in Para 33 and 34 additionally observed that in making a choice between the death penalty and that of life imprisonment, the court shall always take into consideration manner and motive of commission of murder. Para 33 and 34 of the judgment in the case of Machhi Singh(supra) are reproduced hereasunder-
"I. Manner of Commission of Murder
33. 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.
(14 of 17) [CRLDR-4/2018]
(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
34. When the murder is committed for a motive which evince 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-avis 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."
The Apex Court in the case of "Swamy Shraddananda Vs. State of Karnataka", AIR 2008 SC 3040, was dealing with a case of murder convict. The case just fell short of the rarest of the rare category thus the court was reluctant in endorsing the death sentence, but, at the same time, having regard to the nature of the crime, found sentence of life imprisonment, which, subject to remission, normally works out to a term of 14 years, would be grossly disproportionate and inadequate. The Supreme Court held that in such a case, just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, i.e., the vast hiatus between 14 years imprisonment and death. The Court can substitute death sentence by life imprisonment for rest of life of convict or by a term in excess of fourteen years and further to direct that the convict would not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be. The Supreme Court, therefore, while commuting the death sentence, directed that the convict would (15 of 17) [CRLDR-4/2018] not be released from the prison for the rest of his life or for the actual term as specified in the order.
In the case of "Neel Kumar @ Anil Kumar Vs. State of Haryana", (2012) 5 SCC 766, accused was convicted for rape and murder of his four years old daughter. In the facts and circumstances of the case, the Supreme Court did not find the same to be a rarest of rare case. Considering, however, the nature of the offence, age and relationship of the victim with the convict and gravity of injuries caused to the victim, the Supreme Court did not find that to be a fit case to award lenient punishment to the convict and he was sentenced for a term of 30 years without remission before consideration of his case for premature release.
In "Shankar Kisanrao Khade Vs. State of Maharashtra", 2013 Cri.L.J. 2595, the death sentence was commuted to life imprisonment with a direction that he shall not be released for rest of his life. It was a case of repeated rape and sodomisation and then murder by strangulation of a minor girl of 11 years with intellectual disability by a men of 52 years. The Supreme Court held that rarest of rare case test must be based on perception of society and must not be judge-centric and that special reasons are required to be recorded for awarding death sentence but no special reasons are required to be recorded for awarding life imprisonment. The death sentence awarded to the accused was commuted to life imprisonment with direction that he shall not be released for rest of his life.
(16 of 17) [CRLDR-4/2018] The judgments referred above deal with the issue as to in what cases death sentence can be given. If we draw balance sheet of this case then find that the accused-appellant committed offence when he was at the age of 20 years. It was when the girl alone was available in the house. We do not find it to be brutal. It is taking into consideration medical report of the victim girl.
It is the consistent view of the Apex Court that while life imprisonment is the rule, death sentence is an exception. We do not find exceptional circumstances to endorse the death penalty in this case.
In view of the above, we find reasons to cause interference in the order of sentence. The death penalty is commuted to that of twenty years rigorous imprisonment as per the amended provisions of the State of Rajasthan for the offence under section 376AB IPC where the life imprisonment is now for whole of the life thus would be too harsh for a boy at the age of 20 years as he would not be entitled for permanent parole after 14 years.
The conviction and sentence for the offence under section 450 IPC is maintained.
The sentence for the offence under section 3/4 of the POCSO Act is also interfered from that of life imprisonment to twenty years rigorous imprisonment.
(17 of 17) [CRLDR-4/2018] The order for fine for each offence is maintained. All the sentences shall run concurrently.
With substitution of the sentence, the Reference is answered accordingly. The criminal appeal preferred by the accused stands partly allowed.
A copy of this judgment be placed in connected file. (BANWARI LAL SHARMA),J (MN BHANDARI),J bnsharma Powered by TCPDF (www.tcpdf.org)