Rajasthan High Court - Jaipur
Mod Singh @ Mor Singh @ Langda vs State Of Rajasthan Through Pp on 3 January, 2019
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Death Reference No. 5/2018
State Of Rajasthan Through Pp, Rajasthan.
----Petitioner
Versus
Mod Singh @ Morsingh @ Langda S/o Kalulal B/c Bheel, Aged
About 24 Years, R/o Chhoti Raipur Thana Kotwali, Jhalawar, Raj.
----Respondent
Connected With
D.B. Criminal Appeal (Db) No. 318/2018
Mod Singh @ Mor Singh @ Langda, Aged About 24 Years,
Rajasthan.
----Petitioner
Versus
State Of Rajasthan Through Pp, Rajasthan.
----Respondent
For Petitioner(s) : Ms.Sonia Shandilya, Public Prosecutor
For Respondent(s) : Mr.Deepak Soni - for accused HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA Judgment 03/01/2019 This judgment would answer the reference sent by the Court of Special Judge, Protection of Children from Sexual Offences No.1, Jhalawar (Rajasthan) for confirmation of death sentence. Since, the accused has also preferred an appeal, thus while hearing death reference, the appeal was also heard and is decided by this common judgment. The accused has been convicted and sentenced by the trial Court as under : (Downloaded on 05/06/2021 at 07:20:32 PM)
(2 of 26) [CRLDR-5/2018] "For offence under Section 363 IPC -
Seven years rigorous imprisonment with fine of Rs.10,000/-, in case of default to pay fine, to further undergo one year rigorous imprisonment.
For offence under Section 366A IPC - Ten years rigorous imprisonment with fine of Rs.20,000/-, in case of default to pay fine, to further undergo two years rigorous imprisonment.
For offence under Section 376(2)(i) IPC -
Life imprisonment for remainder of his life with fine of Rs.20,000/-, in case of default to pay fine, to further undergo two years rigorous imprisonment.
For offence under Section 376A IPC -
Death sentence For offence under Section 302 IPC - Death Sentence with fine of Rs. 20,000/-, in case of default of payment of fine, to further undergo two years rigorous imprisonment."
Since death penalty has been given to the accused, it has been referred to the High Court for confirmation as per Section 366 Cr.P.C.
Brief facts of the case :
An FIR was registered by the Police Station Kotwali, Jhalawar on a written report of Rajesh s/o Devi Lal. In the written report dated 14th February, 2018, it was mentioned that the complainant Rajesh went to attend a programme in a temple while his children went to a "Mela". The complainant came back to Jhalawar. His daughter, at the age of six years, was found missing. The complainant and his relatives made search of the daughter but she was not found and, accordingly, the report was made. The (Downloaded on 05/06/2021 at 07:20:32 PM) (3 of 26) [CRLDR-5/2018] delay in making report was explained, as the complainant was making search of the daughter at his own and when she could not be traced out, the report was made.
The FIR was initially registered for the offence under Section 363 IPC. A day after registration of FIR, the dead body of the girl was recovered and, accordingly, the investigation was made for the offence under Sections 363, 366A, 376, 376A and 302 IPC apart from Section 5 (i,m)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act"). After the investigation, charge sheet was filed for the offence under Sections 363, 366A, 376, 376A and 302 IPC apart from Section 5 (i,m)/6 of the POCSO Act. After taking cognizance, the matter was remitted. The trial Court, thereupon, framed charges for the offence under Sections 363, 366A, 376, 376A and 302 IPC apart from Section 5 (i,m)/6 of the POCSO Act.
The charges were explained to the accused, which were denied by him, thus the trial commenced. The prosecution produced twenty five witnesses apart from fifty two documents to prove their case. The statement of the accused was recorded under Section 313 Cr.P.C. After marshalling the evidence, the trial Court convicted the accused and sentenced him, as described earlier.
The complainant Rajesh was examined by the prosecution as PW - 1. It was stated that he is a resident of "Chhoti Raipur". On 14th February, 2018, there was a festival of "Shivratri", thus he went to a temple while his two daughters, out of which one was at the age of six years, went to a "Mela". The daughter of the complainant, who was at the age of six years, did not return. They made a search of the girl but she could not be traced out. In between the accused Modsingh met, who had given (Downloaded on 05/06/2021 at 07:20:32 PM) (4 of 26) [CRLDR-5/2018] money to him for liquor and both of them consumed it. When the girl could not be traced out, a report was made to the police. The dead body of the girl was thereupon recovered on the next morning in the agricultural field of Mohan Lal. The police was accordingly informed. A blood stained cement plastic bag (Katta) was lying near the dead body. The deceased was having injuries on different part of the body and she was otherwise in semi-nude condition. The blood was coming out from her private parts apart from other parts of the body.
It was also stated that the police had taken help of the dog squad to trace out the culprit. The dog went to many places but stopped at the residence of the accused Modsingh. One slipper of the deceased was also recovered at the residence of the accused. The accused Modsingh used to give chocolates to the girl, as reported by the deceased herself on many occasions. The prosecution had produced other witnesses to prove the conduct of the accused. It is mainly to show that he used to lure children by distributing chocolates to them and this was seen by many villagers. PW - 8 Puri Lal, PW - 9 Prabhu Lal and PW - 10 Radheyshyam have corroborated the statement of PW - 1 Rajesh regarding distribution of chocolates by the accused.
The police had recovered the clothes of the deceased, underwear of the accused and two blood stained pillow covers from the residence of the accused apart from a blood stained Kota stone. They were sent for the FSL where the blood on the underwear of the accused so as on the pillow covers, recovered from his residence, was matching to the blood group of the deceased, which was found on the jeans seized from the place where the body was found. The plastic bag (Katta) recovered from (Downloaded on 05/06/2021 at 07:20:32 PM) (5 of 26) [CRLDR-5/2018] the spot was also found blood stained and matching to the blood group of the deceased. The aforesaid was taken to be strong evidence to connect the accused with the crime, as it was a case of circumstantial evidence.
The prosecution had even produced the evidence of last seen. A boy Vishal, at the age of eight years, said to have seen the deceased with accused on the day of occurrence. He was not produced in evidence, but, statements of PW - 17 Chhagan Singh Rathore and PW - 23 Girraj Bai were recorded, to whom, Vishal disclosed about last seen of the deceased with accused, thus the trial Court has rightly relied on the evidence of last seen and otherwise, the evidence available on record shows that the prosecution could prove its case beyond doubt.
Learned counsel for the accused Modsingh submits that the prosecution has failed to prove the case against the accused. There is no witness to the occurrence. In a case of circumstantial evidence, a chain of circumstances has to be brought. In the instant case, the prosecution failed to bring evidence of last seen, which is the first ingredient in the case of circumstantial evidence. It even failed to prove commission of rape by the accused, as semen from the clothes or private parts of the deceased was not recovered. The allegation of commission of offence under Section 302 IPC is also not made out because recovery is only of a stone. It is not such an evidence, which can connect accused with the crime.
A reference of Dioxyribo Nucleic Acid (DNA) test has also been given. It is stated that initially when samples were sent for testing, it gave negative report. It was again sent for DNA test without permission of the Court. On the second occasion, it was (Downloaded on 05/06/2021 at 07:20:32 PM) (6 of 26) [CRLDR-5/2018] adverse to the accused. The report should not have been relied by the trial Court as DNA report was not taken with permission of the Court. The aforesaid aspect has been ignored by the trial Court and otherwise, there is no evidence to show that the accused committed rape and, thereupon, killed the girl, at the age of six years. Only on the basis of recovery of clothes, a case cannot be said to have proved against the accused, rather, he should have been given benefit of doubt.
Learned counsel for the accused has further submitted that if conviction for different offences is maintained, interference in the sentence may be made. The accused has been given death penalty for the offence under Section 376A and 302 IPC while giving life imprisonment for remainder of his life for the offence under Section 376(2)(i) IPC. Since, sentence given to the accused is greater than what has been provided in the POCSO Act, separate punishment for the offence under the POCSO Act has not been given.
Both sentences have been given ignoring the mitigating circumstances. The accused is suffering from polio of left leg. It is also that he has not committed any such offence in the past. It is not a case where a minor girl was killed brutally. All these aspects have been ignored by the trial Court and otherwise, the case is not falling in the category of rarest of rare case so as to give death sentence. The Court was expected to consider mitigating circumstances while giving punishment to the accused.
Learned counsel has made reference of the judgment of the Apex Court in the case of Shankar Kisanrao Khade Vs. State of Maharashtra, 2013(5) SCC 546 apart from the judgment of Madhya Pradesh High Court in the case of State of (Downloaded on 05/06/2021 at 07:20:32 PM) (7 of 26) [CRLDR-5/2018] MP Vs. Sunil Adiwasi, Criminal Reference No.5/2018 decided by the Principal Seat at Jabalpur vide its order dated 17 th August, 2018 to support his arguments. Therein, interference was made in death sentence. The death sentence was commuted to life imprisonment. It is accordingly, prayed that if conviction of the accused is maintained, death penalty may be commuted to life imprisonment.
Learned Public Prosecutor has opposed the arguments raised by learned counsel for the accused. Referring to the facts of the case, prayer is made to confirm the death sentence by answering the reference in favour of the State Government.
It is stated that the prosecution could prove its case beyond doubt. In the case of circumstantial evidence, they could bring a chain of evidence. The reference of the evidence given by learned Public Prosecutor would be referred while discussing the evidence led by both the parties. It is, however, submitted that the way, crime in the case has been committed, not only conviction be maintained but no interference in the sentence be made. The trial Court has rightly given death sentence to the accused.
Learned Public Prosecutor has referred to the circumstances, which bring present case in the category of rarest of rare case. She has referred to the injuries received by deceased, who was at the age of six years. Even a reference of premeditation to cause offence has been given. The accused was otherwise known to the victim's father. The offence against the victim girl is serious, as in the present case, not only that a girl at the age of six years was raped by the accused but she was subjected to brutal murder thereupon. The accused has taken (Downloaded on 05/06/2021 at 07:20:32 PM) (8 of 26) [CRLDR-5/2018] advantage of his position for commission of the offence. It is after consumption of liquor with none-else but victim's father. The interference in the sentences should not be made on the ground of age of the accused. It is moreso when, his act was wild not only for commission of rape but murder of the girl victim.
Reference of the following judgments has been given where different High Courts and even the Supreme Court has confirmed death sentence :
(i) Bantu Vs. State of Uttar Pradesh, (2008) 11 SCC 113
(ii) Dhananjoy Chatterjee alias Dhana Vs. State of W.B., (1994) 2 SCC 220
(iii) Purshottam Dashrath Borate & Anr. Vs. State of Maharshtra, (2015) 6 SCC 652
(iv) Satya Narayan Tiwari @ Jolly & Anr. Vs. State of UP, 2010 (13) SCC 689
(v) Sukhdev Singh & Anr. VS. State of Punjab, 2010(13) SCC 656 Emphasis has been made on the recent judgment of the Bombay High Court in the case of the State of Maharashtra Vs. Chandrabhan Sudam Sanap, Criminal Appeal No.111/2015 decided vide order dated 20 th December, 2018 where death penalty given by the trial Court was confirmed on a reference. In the said case, judgments of the Apex Court have been referred. The prayer is accordingly to maintain the conviction so as the sentence of the accused, thereby, reference may be answered accordingly while dismissing the appeal preferred by the accused.
(Downloaded on 05/06/2021 at 07:20:32 PM)
(9 of 26) [CRLDR-5/2018] We have considered rival submissions made by learned counsel for the parties and scanned the record carefully.
It is a case where a girl, at the age of six years, was subjected to rape after taking her away from lawful custody of the parents and, thereupon, killed. The allegation for commission of rape and murder exists on the accused Modsingh. To prove the allegation aforesaid, the prosecution produced twenty five witnesses apart from fifty two documents, whereas, statement of the accused was recorded under Section 313 Cr.P.C.
The case was registered on a written report of PW - 1 Rajesh, who had stated about missing of the girl on the eve of "Shivratri". The victim girl was searched but could not be traced out. Her body was found in the agricultural field on the next day and, accordingly, the police registered a case with addition of the offence under Sections 376A, 302, 366A and 376 IPC, as initially it was registered only for the offence under Section 363 IPC.
In a case of circumstantial evidence, the prosecution produced evidence of last seen apart from other evidence to connect the accused with the crime. The evidence for last seen was of a boy at the age of eight years, however, the boy Vishal was not produced in evidence by the prosecution. PW - 17 Chhagan Singh Rathore made investigation of the case. As per his statement, he did not record the statement of Vishal and, accordingly, he was not produced in evidence. The information given by Vishal has been stated by PW - 17 Chhagan Singh Rathore, the Investigating Officer and has been corroborated by PW - 23 Girraj Bai. It is, however, a hearsay evidence, thus could not have been relied by the trial Court for the purpose of conviction of the accused.
(Downloaded on 05/06/2021 at 07:20:32 PM)
(10 of 26) [CRLDR-5/2018] The prosecution has produced other evidence to prove their case and, for that, it would be relevant to refer the recovery of clothes of the accused as well as deceased girl. The seizure memo of one Jeans pant and T-shirt of the deceased was made vide Exhibit P - 7, whereas, by P - 6 is seizure memo of one blood smeared plastic bag. The blood smeared soil and sample of soil apart from plastic slipper of the deceased were also taken.
Exhibit P - 15 is recovery memo of blood smeared two pillow covers and one plastic slipper, recovered on disclosure of the accused Modsingh. Exhibit P - 16 is site plan of the place of recovery with its description. Exhibit P - 17 is the seizure and recovery memo of a sharp piece of kota stone, which was used for causing head injury to the deceased. It was again recovered at the instance of the accused. The site plan for recovery of piece of kota stone is Exhibit P - 18. Exhibit P - 20 is seizure memo of underwear of the accused, wherein, description of the underwear has been given, which includes, colour and spots found on it. In the seizure memo, blood on it has not been specifically mentioned. It is for the reason that colour of the underwear was dark brown, which was matching to the colour of blood. The prosecution further produced letters sent to the Director, FSL, Kota vide Exhibit P - 21 and P - 22 and P - 23 is acknowledgment by the Director, FSL, Kota.
In the similar manner, Exhibit P - 24, Exhibit P - 25, Exhibit P - 26 and Exhibit P - 27 were produced. It is the letters sent to the Director, FSL, Kota followed by acknowledgment Exhibit P - 28 and Exhibit P - 29. The FSL report is Exhibit P - 40 to P - 42. The aforesaid has been relied by the trial Court for conviction of the accused. It is apart from Exhibit P - 44 and (Downloaded on 05/06/2021 at 07:20:32 PM) (11 of 26) [CRLDR-5/2018] Exhibit P - 45 where not only blood was found on underwear of the accused but matching to the blood group of the deceased. The blood of the same group was found on the pillow covers recovered from residence of the accused where rape and murder was committed. The blood was found even on the plastic bag (Katta) and again it was matching to the blood group of the deceased. The piece of kota stone was also having blood matching to the blood group of the deceased.
The aforesaid evidence has been taken by the trial Court to connect the accused with the crime. It is to prove that after commission of rape, blood of deceased came on underwear of the accused and even it came on pillow covers and was on kota stone as well. The deceased was then carried in the "Katta", which was found close to the dead body. The blood on the "Katta" was also matching to the blood group of the deceased. Accordingly, the trial Court has relied on the said evidence because recover of the articles was made on disclosure of the accused.
The disclosure of the place of incident by the accused was also made under Section 27 of the Indian Evidence Act, 1872 (for short "the Act of 1872"). The recovery of blood stained pillow covers and slipper was also on disclosure of the accused under Section 27 of the Act of 1872. One slipper of the deceased was found near the dead body and other was found at residence of the accused. On the slipper also, blood was found. Even the recovery of kota stone was on disclosure of the accused under Section 27 of the Act of 1872 vide Exhibit P - 37.
The prosecution has even produced the postmortem report (Exhibit P - 39) to show the cause of death and even other injuries caused to the deceased. The accused caused head injury (Downloaded on 05/06/2021 at 07:20:32 PM) (12 of 26) [CRLDR-5/2018] to the deceased and she died out of it. It is apart from number of other injuries on different parts of the body, as described in the postmortem report (Exhibit P - 39).
The prosecution even produced the DNA report to corroborate the evidence led by them. The DNA report was after taking blood samples of parents of the deceased and it was matching to the blood on the articles recovered at the instance of the accused.
Learned counsel for the accused has raised objection against DNA report because initially the report was received with negative report and subsequently, the report was obtained by the prosecution at their own without permission of the Court. We, however, find an order of the Court for DNA report.
The case of the prosecution has been proved by PW - 1 Rajesh, who made the written report and at whose instance, the case was registered. He has stated about missing of the victim girl and she was thereupon found dead in the agricultural field. It is stated that the police used dog squad to trace out the culprit and, therein, the dogs went to many places and stopped at residence of the accused. It is also stated that one slipper of the deceased was found at residence of the accused, who called the deceased by offering chocolates and, in fact, the accused was in habit of offering chocolates to girl children. The statement of the complainant has been corroborated by PW - 8 Puri Lal, PW - 9 Prabhu Lal and PW - 10 Radheyshyam.
It is stated by PW - 10 Radheyshyam that they made search of the girl but she could not be traced out, thus the case was registered. On the next day, the victim girl was found in the agricultural field of his father-in-law Mohan Lal. The victim girl was (Downloaded on 05/06/2021 at 07:20:32 PM) (13 of 26) [CRLDR-5/2018] in semi-nude condition. A blood stained plastic bag (katta) was lying near the dead body. He had seen many injuries on private parts as well as other parts of the body. The police had used dog squad to search the accused. He has also stated that one slipper of the victim girl was found at the residence of the accused. The accused used to call children by offering the chocolates.
PW - 17 Chhagan Singh Rathore has also supported the prosecution case. He made investigation of the case. He has stated that after the written report made by the complainant PW - 1 Rajesh, investigation was caused. He has supported DNA report (Exhibit P - 43). It was obtained after taking blood samples of victim girl's parents (PW - 1 Rajesh and PW - 23 Girraj Bai). It is stated that an application for DNA test was made in the Court and after obtaining the order, it was caused.
In view of the above, the argument of learned counsel for the accused that DNA report could not have been relied in evidence, cannot be accepted. PW - 17 Chhagan Singh Rathore has proved Exhibit P - 46 and Exhibit P - 47 apart from Exhibit P
- 48 and Exhibit P - 49. Exhibit P - 43 to Exhibit P - 45 (DNA and FSL report). The FSL report shows that blood found on two pillow covers, recovered from the residence of the accused is of the same blood group, which was found on jeans-pant of the deceased. In view of the above, the FSL report also supports the prosecution case to connect the accused with the crime. The DNA test has also given positive report.
PW - 17 Chhagan Singh Rathore has even made a reference of use of dog squad. It was called along with trainer (Downloaded on 05/06/2021 at 07:20:32 PM) (14 of 26) [CRLDR-5/2018] from Kota. The trainer Ravi Kumar first took the dog to the place, where the dead body was lying. The dog thereafter went to many places but stopped at residence of the accused Modsingh. He has also stated about statement of Vishal, who had stated about last seen of the deceased with the accused. The said witness was cross-examined. It is admitted that at the time when dog reached to the place of the accused, no objectionable article was recovered but then it was explained that dog was brought to find out the accused and once, he stopped at the residence of accused, further investigation was made. On disclosure of the accused, pillow covers, underwear and many other articles were recovered. His statement could not be demolished in the cross-examination. It was admitted that in the recovery memo of the underwear, blood spots have not been shown, but, it has been thoroughly explained by learned Public Prosecutor and otherwise, the FSL report confirmed the blood on underwear, that too, matching to the blood group of the deceased.
PW - 23 Girraj Bai has also given corroborative evidence. She is mother of the deceased and stated as to how the incident took place. The prosecution even produced the witness of recovery and they proved memos of recovery, by which, clothes of the deceased as well as accused were recovered apart from other articles, which includes, piece of kota stone having blood on it.
PW - 2 Balwant has given corroborative evidence for the aforesaid. He has stated that on 15th February, 2018, a dead body was found and near it, a plastic bag (katta) was found having blood on it. The deceased was having injuries on different parts of the body and even blood was coming from the private (Downloaded on 05/06/2021 at 07:20:32 PM) (15 of 26) [CRLDR-5/2018] parts. He proved Exhibit P - 7, recovery memo of T-shirt and Jeans pant of the deceased apart from photographs Exhibit P - 3 and Exhibit P - 9 to Exhibit P - 14. The site plan Exhibit P - 5 has also been proved by the said witness.
PW - 3 Kanhaiya Lal has also given corroborative evidence. He has not only proved the documents Exhibit P - 9 to Exhibit P - 14 but Exhibit P - 3 memo of photography of dead body of deceased apart from Exhibit P - 6 seizure memo of one blood smeared plastic bag, blood smeared soil and simple soil apart from slipper of deceased taken from the place of incident and Exhibit P - 7 seizure memo of one jeans pant and one t-shirt of deceased. He has also given description of the dead body found in the agricultural field having as many as seventeen injuries and injury on the private parts.
PW - 6 Udairam has also supported the prosecution case. It was stated that the accused took away the girl and after commission of rape, she was killed. The dead body thereafter was placed in a plastic bag (katta) and thrown in the agricultural field. One slipper of the victim girl was recovered from residence of the accused on his disclosure. It is apart from two blood stained pillow covers. He has proved Exhibit P - 16, memo of site plan of the place of recovery with its description. The said witness has corroborated the statements of other witnesses regarding distribution of chocolates by the accused.
PW - 11 Surendra Kumar has also given corroborative evidence. He has proved the recovery of articles deposited in "Malkhana", which were received by Head Constable Ashish Kumar. The prosecution even produced the birth certificate of the (Downloaded on 05/06/2021 at 07:20:32 PM) (16 of 26) [CRLDR-5/2018] victim girl. PW - 16 Ashish Kumar was also produced to prove the deposition of the articles in "Malkhana". To show the entry, "Malkhana" register was also produced.
PW - 18 Dr.Anil Kumar has given description of the injuries caused to the deceased. The deceased had received as many as seventeen injuries, which were largely simple in nature other than head injury. The victim went in coma due to the head injury, which was the cause of death. The said witness has proved commission of rape as well as cause of death, which was due to head injury.
PW - 19 Dr.Manisha Gupta has corroborated the statement of PW - 18 Dr.Anil Kumar. The cause of death was the head injury. She has proved the postmortem report (Exhibit P -
39) and RFSL report (Exhibit P - 40 to Exhibit P - 42).
PW - 24 Dr.Shakil Ahmad has also supported the prosecution case. He has corroborated the statement of PW - 18 Dr.Anil Kumar and PW - 19 Dr.Manisha Gupta. It was stated that victim was having seventeen injuries on different parts of the body apart from injury on the private parts. The cause of death has also been given by the said witness. PW - 25 Harshraj Singh Kharera has also corroborated the statements of all the witnesses. In view of the above, the prosecution could bring evidence to prove the case against the accused by bringing a chain of evidence.
Learned counsel for the accused has mainly urged that evidence of last seen is not available, as Vishal was not produced in evidence. We find that statement of Vishal was not recorded during the course of investigation, though, he disclosed about last seen of the deceased with accused. The prosecution, however, (Downloaded on 05/06/2021 at 07:20:32 PM) (17 of 26) [CRLDR-5/2018] made an application under Section 311 Cr.P.C. to produce Vishal in evidence but the said application was rejected by the trial Court. It is mainly on the ground that evidence cannot be brought to fill-up the lacuna in evidence. In view of the above, it comes out that though, initially the prosecution failed to record statement of Vishal but on realising the default, an application was made for taking evidence of Vishal. Since, the application was rejected, Vishal could not be produced to prove evidence of last seen, however, if the statements of PW - 17 Chhagan Singh Rathore and PW - 23 Girraj Bai are looked into, they made reference of statement of Vishal. The statements of these witnesses have been supported by PW - 25 Harshraj Singh Kharera to show proof of last seen of the deceased with the accused.
We, however, find that the prosecution could prove its case not only by recovery of clothes of the victim girl but the underwear of accused apart from two pillow covers and one slipper of deceased at the residence of accused. The FSL report (Exhibit P - 40 to Exhibit P - 42) has confirmed not only blood on the underwear but also on two pillow covers recovered at the instance of the accused. It was matching to the blood group of the deceased, which was found on her Jeans pant, recovered from the place where dead body was lying. The same blood group was found even on piece of kota stone. The piece of kota stone was again recovered from the residence of accused on his disclosure. The DNA report has also confirmed involvement of the accused as it has given positive report. The DNA report was obtained after permission of the Court, wherein, blood samples of parents of victim girl were taken apart from accused and blood was found on (Downloaded on 05/06/2021 at 07:20:32 PM) (18 of 26) [CRLDR-5/2018] the articles. The witnesses produced by the prosecution have proved that the accused was in habit of distribution of chocolates to the children and on the day of occurrence, he had offered chocolate to the victim girl, who was then kidnapped by him for commission of offence under Section 376A apart from Section 376(2)(i) IPC. She was then subjected to murder.
In view of the above, we are unable to accept any of the arguments raised by learned counsel for the accused to cause interference in the order of conviction of the accused for the offence under Sections 376A, 376(2)(i) and 302 IPC. Learned counsel for the accused made halfhearted arguments to challenge the order of conviction. The appeal has been pressed on the sentence. Accordingly, now we are considering the case on the sentence given by the trial Court for different offences. It is after confirming the order of conviction for the offence under Sections 376A, 376(2)(i) and 302 IPC.
Learned Public Prosecutor has prayed for confirmation of death sentence given by the trial Court and, accordingly, to answer the reference. She has given reasons for it by referring the circumstances available on record. A prayer has been made to ignore the age of the accused. It cannot be said to be mitigating circumstances so as to cause interference in the death sentence. It is also stated that legislation brought amendments in the Indian Penal Code (IPC) so as to make the society sensitive to the offence against the women and, specifically, against the girl children. Now, not only death sentences has been provided for the offence under Section 376A IPC but even sentence of life imprisonment is for remainder of life. Taking into consideration the (Downloaded on 05/06/2021 at 07:20:32 PM) (19 of 26) [CRLDR-5/2018] legislative intent, prayer is made to maintain the death sentence. It is taking into consideration that girl was not only subjected to rape but she was given seventeen injuries, which includes, injury on her private parts apart from a head injury. It is said to be an act of brutality at the instance of the accused.
Learned Public Prosecutor has given a reference of the judgment of the Apex Court in the case of Bantu Vs. State of Uttar Pradesh (supra) where death sentence was confirmed by the Apex Court. Therein, the Apex Court extensively referred to the facts of the case and also the judgments on the issue. Finding reasons on facts as well as law, death sentence was confirmed and, therein, the appeal preferred by the accused was dismissed. It was again a case of circumstantial evidence as the present case but taking into consideration the seriousness of the crime of rape in a planned manner and thereafter commission of murder, death sentence confirmed by the High Court was maintained.
The other judgments referred by learned Public Prosecutor is in the case of Dhananjoy Chatterjee alias Dhana (supra). In the aforesaid case also, the Apex Court maintained the order passed by the High Court confirming the death sentence. Specific reference of para 15 of the said judgment has been given to support the arguments, it is quoted hereunder for ready reference :
"15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in (Downloaded on 05/06/2021 at 07:20:32 PM) (20 of 26) [CRLDR-5/2018] which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment."
A further reference is of judgment in the case of Purshottam Dashrath Borate & Anr. (supra). It is to show as to what can be considered to be mitigating circumstances. It cannot be the age or family background of the accused or even lack of antecedents. They are not considered to be mitigating circumstances so as to cause interference in the death sentence.
The other judgment referred is in the case of Satya Narayan Tiwari @ Jolly & Anr. (supra). Therein, it was held that crime against women should not be considered to be ordinary crime. Such crime disrupt social fabric and, thereby, an appropriate punishment, which may even be death penalty, should be given. Another judgment is in the case of Sukhdev Singh Vs. State of Punjab (supra). Therein also, death sentence has been confirmed by the Apex Court.
The other judgments referred by learned Public Prosecutor is in the case of Mukesh & Ors. Vs. State for NCT of Delhi & Ors., 2017(6) SCC 1. Specific reference of para Nos.506 and 516 of the said judgment has been given. It is apart from the judgments in the case of B.A. Umesh Vs. Registrar General, High Court of Karnataka, 2011 (3) SCC 85 and B.A. Umesh Vs. Registrar General, High Court of Karnataka, 2017(4) (Downloaded on 05/06/2021 at 07:20:32 PM) (21 of 26) [CRLDR-5/2018] SCC 124. Para Nos.506 and 516 of the judgment in the case of Mukesh & Ors. (supra) are quoted hereunder for ready reference :
"506. In a landmark judgment Shankar Kisanrao Khade v. State of Maharashtra, Madan B. Lokur (Concurring) after analysing various cases of rape and murder, wherein death sentence was confirmed by this Court, in para 122 briefly laid down the grounds which weighed with the Court in confirming the death penalty and the same read as under:
122. The principal reasons for confirming the death penalty in the above cases include:
(1) the cruel, diabolic, brutal, depraved and gruesome nature of the crime (Jumman Khan v. State of U.P., Dhananjoy Chatterjee v. State of W.B., Laxman Naik v.
State of Orissa, Kamta Tewari v. State of M.P., Nirmal Singh v. State of Haryana, Jai Kumar v. State of M.P., State of U.P. v.
Satish, Bantu v. State of U.P., Ankush Maruti Shinde v. State of Maharashtra, B.A. Umesh v. State of Karnataka, Mohd.
Mannan v. State of Bihar and Rajendra
Pralhadrao Wasnik v. State of
Maharashtra);
(2) the crime results in public abhorrence, shocks the judicial conscience or the conscience of society or the community (Dhananjoy Chatterjee, Jai Kumar, Ankush Maruti Shinde and Mohd. Mannan );
(3) the reform or rehabilitation of the convict is not likely or that he would be a menace to society (Jai Kumar, B.A. Umesh and Mohd. Mannan );
(Downloaded on 05/06/2021 at 07:20:32 PM)
(22 of 26) [CRLDR-5/2018] (4) the victims were defenceless (Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Ankush Maruti Shinde, Mohd. Mannan and Rajendra Pralhadrao Wasnik );
(5) the crime was either unprovoked or that it was premeditated (Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Nirmal Singh, Jai Kumar, Ankush Maruti Shinde, B.A. Umesh and Mohd. Mannan) and in three cases the antecedents or the prior history of the convict was taken into consideration (Shivu v. High Court of Karnataka, B.A. Umesh and Rajendra Pralhadrao Wasnik).
516. Society's reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal justice system. As held in Om Prakash v. State of Haryana, the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime."
The other judgments are in the cases of State of Himachal Pradesh Vs. Sanjay Kumar, 2017 (2) SCC 51 and 2017(4) SCC 313.
A reference of recent judgment of the Bombay High Court in the case of the State of Maharshtra VS. Chandrabhan Sudam Sanap (supra) has also been given where death penalty was confirmed after considering the judgments of the Apex Court (Downloaded on 05/06/2021 at 07:20:32 PM) (23 of 26) [CRLDR-5/2018] on the issue, though, it is after taking note of the facts of the said case. The judgment of the Bombay High Court applies to the facts of this case.
Learned counsel for the accused has also referred several judgments of the Apex Court, which includes, the judgment in the case of Machhi Singh & Ors. Vs. State of Punjab, (1983) 3 SCC 470 apart from the judgment in the case of Devendra Pal Singh Vs. State National Capacity Territory of Delhi & Os., 2002(5) SCC 234. The judgment of the Apex Court in the case of Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684 has also been referred. Therein, the Apex Court has laid down the criteria for death sentence and has been referred again in the case of Devendra Pal Singh (supra). Para 58 of the said judgment is quoted hereunder for ready reference :
"58.From Bachan Singh's (supra) case 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 center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, 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 assass in for money or reward; or cold-blooded (Downloaded on 05/06/2021 at 07:20:32 PM) (24 of 26) [CRLDR-5/2018] murder of against 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 spouse 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 oral most 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.
The perusal of the para quoted above shows that the Court should draw a balance sheet to answer the death reference. It is either to confirm the sentence or to commute it with other sentence. It is a consistent view of the Apex Court that extreme penalty of death should not to be inflicted except in gravest cases of extreme culpability. It has further been held that death penalty is an exception while life imprisonment is a rule. The death sentence should be imposed only when life imprisonment appears to be altogether inadequate punishment. The balance sheet of aggravating and mitigating circumstances has to be drawn and, in doing so, mitigating circumstance have to be accorded full (Downloaded on 05/06/2021 at 07:20:32 PM) (25 of 26) [CRLDR-5/2018] weightage. A just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised.
We need to look into the aggravating and mitigating circumstances of this case so as to draw the balance sheet. It is after taking into consideration that it is a case of circumstantial evidence to connect the accused with the crime. It is mainly in reference to recovery of clothes of the deceased and underwear of accused apart from two pillow covers and a piece of kota stone on disclosure of the accused apart from a blood stained plastic bag (katta). The FSL report confirmed not only blood on the articles matching to the blood group of the deceased.
It is, however, a fact that the accused is a disabled person suffering from Polio. The deceased had received seventeen injuries but all injuries were found to be simple in nature other than head injury. It cannot be said to be a case of extreme brutality at the instance of the accused so as to give him severest punishment of death penalty. According to us, the case does not fall in the category of rarest of rare cases. It is also a fact that before the occurrence, PW - 1 Rajesh, father of victim girl, consumed liquor with the accused. The aforesaid is proved by PW
- 1 Rajesh himself.
Taking into consideration the overall facts of the case and judgments referred by learned counsel for the parties, we find reasons to cause interference in the sentence and to accept the arguments of learned counsel for the accused to commute it to life imprisonment for the remainder of the life for the offence under Section 376A IPC. The interference in the sentence for the offence under Section 302 IPC to commute it to life imprisonment is also (Downloaded on 05/06/2021 at 07:20:32 PM) (26 of 26) [CRLDR-5/2018] accepted taking into consideration the mitigating circumstances available on record. It is while maintaining the conviction and sentence for the offence under Sections 376(2)(i), 363 and 366A IPC. Since, the aforesaid is greater than the sentence given for the offence under Section 5 (i,m)/6 of the POCSO Act, thus no separate sentence for the aforesaid offence is given in view of Section 42 of the POCSO Act. It provides that if greater punishment is provided and given then separate sentence for the offence under the POCSO Act need not to be given.
Accordingly, we commute the sentence for the offence under Section 376A IPC to life imprisonment for remainder of his life with fine of Rs.20,000/-. In case of default of payment, to further undergo two years' simple imprisonment.
The sentence for the offence under Section 376(2)(i) IPC is maintained apart from maintaining the sentence for the offence under Sections 363 and 366A IPC.
The sentence under Section 302 IPC is also commute to life imprisonment with fine of Rs.20,000/-. In case of default in payment of fine, to further undergo two years' simple imprisonment.
All the sentence would run concurrently.
With the aforesaid, the death reference is answered. The appeal of the accused is partly allowed accordingly.
A copy of this order be placed in the connected file. (BANWARI LAL SHARMA),J (M.N. BHANDARI),J Preeti/10-11 (Downloaded on 05/06/2021 at 07:20:32 PM) Powered by TCPDF (www.tcpdf.org)