Punjab-Haryana High Court
Ibrahim @ Raju Son Of Kharaudin Resident ... vs State Of Punjab on 6 August, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA NO.D-223-DB OF 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA NO.D-223-DB OF 2004
Decided on:- 06.08.2013
Ibrahim @ Raju son of Kharaudin resident of village Mehmood Ganj
Sahna, Police Station and District Shahpur Kamal (Bihar).
....................Appellant
versus
State of Punjab .....................Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present: Ms. Geeta Sharma, Advocate for the appellant.
Mr. PPS Thethi, Additional Advocate General, Punjab for the respondent.
Mr. T.S.Sangha, Sr. Advocate with Mr. H.S.Sangha, Advocate (Amicus curiae). S.P.BANGARH,J In this case formal FIR Ex.PC/1 was registered on the statement Ex.PM of Surjit Singh, complainant, a resident of village Mattewal, District Amritsar, wherein, he stated that he was residing with his family in a farmhouse in the fields located in the area of village Mattewal. He had one son aged about four years and one daughter (victim-name withheld) aged about six years. Three four days prior to 30.09.2001, he had employed the appellant as a servant. On Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 2 30.09.2001, he (complainant) alongwith Gurmeet Singh son of Shingara Singh, resident of village Mattewal were present in his house, when appellant took his daughter (victim) on his bicycle at about 05:00 p.m towards village Mattewal. Later, the appellant and the daughter of the complainant did not return. Complainant alongwith Gurmeet Singh and Satnam Singh went towards the fields in search of his daughter. When they reached near sugarcane field of Ranjit Singh son of Hazara Singh, resident of village Mattewal, corpse of his daughter (victim) was found lying. Some cloth and pieces of sugarcane were found put in her mouth. It was found that Ibrahim @ Raju (appellant) after having brought daughter of the complainant in that sugarcane field had murdered her.
Statement ibid Ex.PM of Surjit Singh complainant was recorded by SI Bikramjit Singh in the area of village Mattewal, where he was present alongwih other police officials. He read over and explained the statement Ex.PM to Surjit Singh, complainant, who after admitting the genuineness and correctness, thereof, signed the same. Later, SI Bikramjit Singh put his endorsement Ex.PM/1 on the statement Ex.PM and sent the same to police station Kathunangal for registration of the case where, on the basis of this statement Ex.PM, formal FIR Ex.PC/1 was registered under Section 302 IPC by ASI Tirlok Singh.
Later, SI Bikramjit Singh alongwith other police officials and Surjit Singh, complainant visited the place of incident. Corpse of daughter of the complainant was found lying there. Piece of cloth and two pieces of sugarcane were found in the mouth of the deceased. That piece of cloth and two pieces of sugarcane were removed from the mouth of the deceased that were sealed into a parcel and the parcel was sealed with the seal bearing impression 'BS' and the same was Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 3 seized vide memo Ex.PN, that was attested by Gurmeet Singh and ASI Sukhwinder Singh. Inquest report Ex.PB of the corpse of the deceased was prepared, that was sent for autopsy alongwih police request Ex.PA through Constables Rupinder Singh and Sukhdev Singh.
Rough site plan Ex.PQ of the place of occurrence was prepared. Appellant was arrested on 01.10.2001. Constable Rupinder Singh produced the autopsy report alongwith clothes of the deceased and one container containing pieces of sugarcane that were separately sealed into a parcel by Bikramjit Singh, SI with his own seal bearing impression 'BS'. That parcel was seized vide memo Ex.PR by SI supra and attested by the witnesses.
After completion of investigation, Station House Officer of Police Station Kahaunangal instituted police report under Section 173 of the Code of Criminal Procedure (Cr.P.C for short), before the learned Illaqa Magistrate to the effect that it appears that the appellant has committed offence punishable under Section 302 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were furnished to the appellant by the learned Illaqa Magistrate, who later committed this case to the Court of Session vide order dated 02.01.2002 after concluding that the case under Section 302 of the Indian Penal Code (IPC for short) was attributed to the appellant was exclusively triable by the Court of Session.
On receipt of Session case in his Court, the learned Sessions Judge, Amritsar on 05.03.2002 framed charge under Section 302 IPC against the appellant, that was read over and explained to him in his own language, whereto, the latter pleaded not guilty and claimed Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 4 trial. Consequently, prosecution evidence was summoned for 05.06.2002.
On a later date, an application was moved by the public prosecutor before the learned trial Court for amendment of the charge by stating that as per the report of Dr.Gurmanjeet Rai PW1, deceased- daughter of the complainant for whose murder, appellant has been charged, had also been raped. After going through the documents on file and finding that the offence under Section 376 IPC was also made out against the appellant, the charge against the appellant was ordered to be amended. Thereupon, charges for the offences under Sections 376 and 302 IPC was framed against the appellant on 05.06.2002 that was readover and explained to him, whereto, the latter pleaded not guilty and claimed trial.
At the trial, prosecution/respondent examined as many as ten witnesses, who deposed as under:-
PW1 Dr.Gurmanjeet Rai conducted autopsy on the corpse of deceased (victim-name withheld) and found the following injuries on her person:-
1. Bluish bruise was present on eye lid of left side 4 cms x 2.5 cms in size. Eye was found congested;
2. Bluish bruise was present on mucesa of both lips on their inner aspect. Tongue was found lacerated at its tip;
3. Reddish brown abrasion 3 cms x 1.5 cms on he left side of neck and chin;
4. Reddish blue bruise 3 cms x 1 cm on left side of neck at the level of thyroid cartilage;
5. Reddish blue bruise 2.5 cms x 1 cm on right side of neck in its Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 5 middle;
6. Multiple reddish brown abrasions(9) on right thigh and buttock on its lateral aspect. The size varies from 0.3 cm x 0.2cm to 0.2 cm x 0.1 cm;
7. Reddish brown abrasions three in number were present on back of right thigh in its middle, 0.2 x 0.1 cm in size;
8. Reddish brown abrasion 3 cms x 0.5 cm was present on left inguinal region and 2 cms x 1 cm abrasion in right inguinal region;
9. On vaginal examination, vaginal opening was found gaped. A lacerated wound of 1 cm x 0.5 cm size was present on right side of upper end of vagina. Clotted blood was present and
10.A lacerated wound 0.6 cm x 0.4 cm was present on upper part of vaginal opening.
PW1 further opined that on vaginal examination of deceased and on dissection, bladder was found ruptured and lacerated and on opening the abdomen, about 10 cm long piece (stub) of sugarcane (Ganna) was found thrust through the vagina into the lower abdominal cavity. The piece was found blood stained and lying beneath the intestines after lacerating bladder. Diffuse haematoma was present in the lower pelvic region. According to PW1, all the injuries were ante mortem in nature and cause of death was shock, as a result of injuries nos.9 and 10 which were sufficient to cause death in the ordinary course of nature. He also deposed that opinion regarding sexual intercourse was kept pending awaiting the report of the chemical examiner. PW1 further deposed that on receipt of police request Ex.PF, he vide his endorsement Ex.PF/1 declared that sexual intercourse had been Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 6 carried out with the deceased. PW1 Dr. Gurmanjeet Rai proved the copy of autopsy report of the deceased Ex.PD and pictorial diagram showing the seat of injuries Ex.PD/1 regarding injuries found by him on the corpse of victim. According to PW1, blood stained discharge was found coming from the mouth and blood was also present in the vaginal opening of the deceased and diffuse reddish swelling was present on both labia majora.
PW2 Satnam Singh, Constable tendered his affidavit Ex.PG in evidence to the following effect:-
1. That on 30.09.2000, ASI Tarlok Singh, police station Kathunangal had handed over to him the special reports of aforesaid case for delivery, thereof, to the higher officers. On the same day, he had delivered the aforesaid special reports to Illaqa Magistrate and to the other officers;
2. That so long as the aforesaid special reports remained with him, neither he nor anybody else had ever tampered, therewith.
PW3 Rupinder Singh, Constable tendered in evidence his affidavit Ex.PH to the following effect:-
1. That on 30.09.2001, he was posted at police post Mattewal. In the abovesaid case, SI Bikramjit Singh had handed over to him and to Sukhdev Singh 932, the corpse of deceased girl daughter of Surjit Singh, caste Jat, resident of Mattewal for autopsy. On 01.10.2001, after getting conducted the autopsy examination on the aforesaid girl, the clothes of dead body and one parcel from concerned doctor and concerned papers had been handed over to SI Bikramjit Singh, who prepared the parcel of clothes of dead body, that was sealed with his seal bearing impression 'BS' and seized Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 7 that parcel vide memo. He and Sukhwinder Singh had put signatures on memo;
2. That on 05.10.2001, he went to C/E Patiala, for depositing one parcel envelope from Medical College, Amritsar, on which PMR-
FM-83-01 dated 01.10.2001 had been written. Office of C/E Patiala, had returned the same on objection. After removing objection, again on 08.10.2001, he went to the office of the C/E Patiala for depositing aforesaid envelope PMR No. GM/FM/83/01 duly sealed with seal FM/ASR total four seals affixed. The same had been again returned on objection. Again after removing the objection on 09.10.2001, he went to the C/E Paiala, for depositing the aforesaid parcel envelope. The same had again been returned on objection. Again after removing the objection from Medical College, Amritsar, on 15.10.2001, he went to the office of C/E Patiala for depositing the aforesaid parcel vide road No. 193/4 and on that date, after depositing the aforesaid parcel envelope in the office of C/E Patiala, receipt was handed to MHC Bikramjit Singh and
3. That, so long as, the aforesaid parcel envelope remained with him, neither he nor anybody else tampered with the same.
PW4 Bikramjit Singh, HC also tendered his affidavit Ex.PJ in evidence to the following effect:-
1. That on 05.10.2001 C Rupinder Singh 1834 had got executed the departure report from him for depositing one parcel from Medical College, Amritsar, to the office of C/E Patiala containing swabs of deceased (victim-name kept secret) on which PMR No. GM/FM/83/01 dated 01.10.2001 was written. The office of C/E Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 8 Patiala had returned the same on objection. After getting removed the objections, again on 08.10.2001, C Rupinder Singh 1834 went to the office of C/E Patiala for depositing above noted envelope PMR No.GM/FM/83/01 duly sealed with seal of FM/Asr total 4 seals affixed. Again that was returned with some objection.
Again after removing the objection on the same, on 09.10.2001, he went to the office of C/E Patiala for depositing the above noted parcel envelope. Again that was returned on some objection and on 15.10.2001 again after removing the objection from Medical College, Amritsar, C Rupinder Singh 1834 went to the office of C/E Patiala for depositing the above noted parcel vide road no.193/21 and after depositing the abovesaid parcel envelope on the same day in the office of C/E Patiala, receipt was handed over to him which he got attached with the record and
2. That so long as the aforesaid parcel envelope remained with him, neither he nor anybody else tampered with the same.
PW5 Rishi Ram Draftsman deposed that he prepared scaled plan Ex.PK with correct marginal notes at the pointing out of Surjit Singh on 08.10.2000 with scale 1" x 35'.
PW6 Smt. Gurdish Kaur, Head Mistress, Sant Baba Labh Singh Khalsa Primary School, Guru ki Ber, Mattewal brought the record pertaining to the admission of the deceased and other students in he school supra and deposed that as per the record, deceased, daughter of Surjit Singh (complainant), resident of Matewal was admitted in the school on 02.04.2001 in the first class and her date of birth was recorded as 11.02.1995. She proved certificate Ex.PL in this regard.
PW7 Surjit Singh complainant was father of the deceased Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 9 who deposed that deceased was taken on a bicycle by Ibrahim @ Raju (appellant) at about 05:15 p.m. He further deposed that when both of them did not return till date, they started searching the deceased in the fields and when they reached near the sugarcane field of Ranjit Singh, he (Surjit Singh) was on one side of the road, whereas, Gurmeet Singh and Satnam singh were on the other side of the sugarcane field and the latter had seen the appellant running away when the shrieks of his daughter were being heard from the sugarcane field. He further deposed that the appellant had succeeded in fleeing and when they (Satnam Singh and Gurmeet Singh) had gone inside that sugarcane field, they found deceased daughter of the complainant (PW7) lying dead and two pieces of sugarcane and one piece of cloth were put in her mouth.
PW8 Gurmeet Singh also deposed likewise and corroborated the testimony of PW7.
PW9 Dr.Sumeet Singh, Medical Officer conducted medico- legal examination on Ibrahim (appellant) on 03.10.2001 and he observed the following injuries on his person:
1. Diffused swelling with tenderness with black coloured contusion over left forearm. No restriction of movements was present and
2. Diffused swelling over the left ankle, slight tenderness with restriction of movements.
PW9 further deposed that there were secondary sexual characters present as moustaches were present, pubic and axillary hair was present. Sex organ was well developed and prepuce was retractable. There was nothing to suggest that the patient was unable to do sexual intercourse.
Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 10 PW10 Bikramjit Singh, SI conducted investigation of this case and deposed on the lines of investigation, as has been reproduced in the earlier parts of this judgment.
Thereafter, the evidence was closed. After the closure of prosecution evidence, appellant was examined under section 313 Cr.P.C, wherein, he denied the allegations of prosecution, pleaded innocence and false implication in this case.
Since, it was not a case, where the appellant could have been acquitted under Section 232 Cr.P.C, he was called upon to enter in defence and adduce any evidence he may have in support, thereof. However, appellant did not produce the evidence albeit number of adjournments granted by the learned trial Court and ultimately he (appellant) closed his defence evidence.
After hearing both the sides, as also, after perusal of the evidence and documents on record, learned trial Court vide impugned judgment dated 03.09.2003, convicted the appellant for commission of offences punishable under Sections 376/302 IPC and vide impugned order of sentence dated 03.09.2003, sentenced him to undergo imprisonment for life and to pay fine of `500/- and in default of payment of fine to undergo imprisonment for a period of three months for commission of offence punishable under Section 302 IPC and to undergo rigorous imprisonment for 10 years and to pay fine of `500/- and in default of payment of fine, to further undergo rigorous imprisonment for three months for the offence punishable under Section 376 IPC. The substantive sentences of imprisonment were ordered to run concurrently.
Aggrieved, thereagainst, the appellant, who was accused Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 11 before the learned trial Court, has come up with this appeal with prayer for acceptance, thereof, and for his acquittal of offences punishable under Sections 302 and 376 IPC.
Learned counsel for the appellant contended that the learned trial Court has mis-interpreted and misunderstood the evidence on record and wrongly concluded that the appellant deserves to be convicted. She also contended that all the links of chain of circumstantial evidence have not been completed by the prosecution to establish the guilt against the appellant. She also contended that it is well settled principle of law that when in a case where the evidence is purely circumstantial in nature, the facts and circumstances, on which the conclusion of guilt is sought to be drawn, must be fully established beyond any reasonable doubt and such circumstances must be consistent and unerringly point to the guilt of the accused and chain of the circumstance must be established by the prosecution beyond any doubt.
Learned counsel for the appellant also contended that medical evidence of the latter candidly indicates that he has been falsely implicated in he present case, as PW9 Dr.Sumeet Singh categorically deposed that no injury was found on his private parts. So, it was contended that if the appellant had coitus with the deceased, he was bound to suffer injury on his private parts. Therefore, it was contended that non suffering of injury by the appellant on his private parts causes considerable doubt in the prosecution version and benefit, thereof, is required to be given to the appellant. She also contended that no DNA test of the appellant was conducted. So, the learned counsel for the appellant contended that the appeal may be allowed Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 12 and the appellant may be acquitted of the offences for which he was convicted and sentenced by the learned trial Court.
On the other hand, the learned State counsel contended that the appellant was lastly seen by PW7 and PW8 in the company of the deceased and it was for the appellant to explain the circumstances, whereunder, the minor daughter of complainant (PW7) turned into a corpse. He also contended that medical evidence of PW1 suggests commission of rape upon the deceased and only appellant was in her company and, therefore, it was he who had committed rape upon the deceased and later brutally killed her by putting pieces of sugarcane and cloth in her mouth, as also, he inserted a piece of sugarcane in the vagina of the deceased that was found blood stained by PW1 at the time of conducting autopsy on the corpse of deceased. The learned State counsel, therefore, contended that the appellant was rightly convicted and sentenced by the learned trial Court vide impugned judgment and order that may be upheld and affirmed.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and have also perused the evidence and documents on the record of the learned trial Court.
There is consistent evidence of PW7 and PW8 that the appellant was employed as a servant by the former. On this point, PW7 and PW8 were cross examined, but their cross examination failed to elicit anything worth the name which could possibly cause any dent in their testimonies. It has come on record that the appellant was employed as a servant four months prior to the occurrence. Even the appellant has not denied this fact of his employment with PW7. Indeed Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 13 he led no evidence. So, on the basis of evidence of PW7 and PW8, it is to follow that the appellant was working as a servant with PW7. On the date of occurrence, both PW7 and PW8 saw the appellant taking the deceased daughter of PW7 on his bicycle. When both of them did not return, a search was carried out and during search, the corpse of the deceased daughter of PW7 was found lying in the sugarcane field of one Ranjit Singh.
PW8 even, saw the appellant fleeing from the sugarcane field. The version of the appellant to the effect that the deceased was taken away and killed by one Rajesh Kumar son of Anoop Kumar, who has been left off by the police is not made out from the record. In order to prove this version, the appellant was required to lead positive evidence. He simply made suggestions to PW7 and PW8 in the cross examination. Had he not committed rape upon the deceased and later killed her, he would have lodged complaints against his false implication before the higher officials. Even, his family members would have lodged complaints against his false implication in this case.
If PW7 had any animus or hostility against the appellant, in that event, he would not have employed him as his servant. There is nothing on the record to indicate that PW7 and PW8 had animus or hostility against the appellant prior to the day of the incident. Appellant being a servant was like a family member. If the deceased would have been taken away by someone else than the appellant, in that event, he would have been at the house and joined PW7 and PW8 in searching the deceased.
Therefore, from the consistent testimonies of PW7 and PW8, it stands established that it was the appellant who had taken the Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 14 deceased with him on his bicycle. It was for him to explain as to whom he handed over the custody of the deceased. As per testimony of PW1 Dr.Gurmanjit Rai, the deceased was subjected to sexual intercourse. He gave this opinion after seeing the report Ex.PE of the Chemical Examiner. At the time of conducting autopsy on the corpse of the deceased, PW1 did not give any opinion regarding the deceased being subjected to sexual intercourse.
Evidence of PW1 could not be shattered during cross examination. It follows from his testimony that deceased daughter of PW7 was murdered and raped. Since, she was lastly seen in the company of the appellant, it must follow that she was raped and murdered by the appellant only. Apart from that, PW8 saw the deceased fleeing from the place where the corpse of deceased daughter of PW7 was lying. Evidence of deceased and the appellant being last seen together has been corroborated by the ocular evidence of PW8 to the effect that he saw the appellant fleeing from near the place, where the corpse of the deceased was lying.
Learned counsel for the appellant contended that PW7 and PW8 made improvements in their deposition, but this contention being devoid of merit must be repelled, as human memory is fallible and erodes with the passage of time. Some contradictions are likely to occur in the testimony of even truthful witnesses after lapse of time. So, minor contradictions in the testimonies of PW7 and PW8 are not suffice for rejecting the same.
It has come in the testimony of PW9 Dr.Sumeet Singh that appellant was capable of performing sexual intercourse. Simply on the ground that there was no injury on his sexual organ cannot exonerate Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 15 him from the offence of rape that was committed by him upon the deceased.
It may be mentioned here that PW9 Dr.Sumeet Singh deposed in cross examination that in case of forcible penetration of the penis into sex organ of five years female might cause some abrasions/contusions, but by mere touching the valva does not cause any abrasion or contusion. Even, the Hon'ble Supreme Court of India in State of U.P. vs. Babul Nath, III (1994) CCR 706 (SC) held that to constitute the offence of rape, it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even, partial or slightest penetration of the male organ within the labia majora or the vulva or pudena with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of the Indian Penal Code.
Appellant had two injuries on his person at the time of examination. Possibly, he would have received these injuries, when he fled from the place of occurrence in the sugarcane field. In that process, he would have been mangled with the sugarcane plants. Reliance can be placed upon Amardeep vs. State of Haryana 2013(2) RCR (Criminal) 739, passed by this court, wherein, accused was convicted merely on the basis of last seen evidence and sentenced to life imprisonment.
In Raju vs. The State by Inspector of Police 2009(2) RCR (Crl.) 153, the Hon'ble Supreme Court convicted the accused on the basis of last seen evidence. There was no eye witness in the case and last seen evidence in the said case was accepted. Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 16 In Deepak Chandrakant Patil vs. State of Maharashtra 2006(3) RCR (Criminal) 518, the Hon'ble Supreme Court upheld the conviction by relying upon the last seen evidence. In the said case, the accused and deceased were last seen together by two witnesses. There was no evidence that the accused parted company with the deceased.
In Shyamal Ghosh vs. State of West Bangal 2012(7) SCC 646, the Hon'ble Supreme Court held that once the last seen theory comes into play, onus was on the accused to explain, as to what happened to the deceased after they were together seen alive. The accused person failed to render any reasonable/plausible explanation in this regard. It was also held that the possible inference would be that the accused were responsible for commission of murder of the deceased.
In State of U.P vs. Satish 2005(1) Apex Criminal 437, 2005(3) SCC 114, it was held that the last seen theory comes into play where the time-gap between the point of time, when the accused and the deceased were seen alive and when deceased is found dead is so small that possibility of any person other than the accused being author of the crime becomes impossible. Reliance of this judgment was placed by the Hon'ble Supreme Court in Ramesh Bhai Chandu Bhai vs. State of Gujrat 2011(3) AIR Jharkhand 255 Ranchi; (2009) 5 SCC
740. In this judgment, the Hon'ble Supreme Court of India convicted the accused on the basis of last seen and other circumstantial evidence.
Hon'ble Supreme Court of India in Shri Bhagwan vs. State of Rajasthan AIR 2001 Supreme Court Cases 2342 relied upon the circumstantial evidence that the accused was last seen with one of the Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 17 deceased prior to the incident. He had acquaintance with the family. Accused was convicted on the basis of circumstantial evidence and blood stained shirt.
So, in view of the law laid down by the Hon'ble Supreme of India in the aforementioned judgments, on the basis of last seen evidence, it must be held that it is the appellant who first raped the deceased and then murdered her.
Learned trial Court thus, rightly held the appellant guilty for commission of offences punishable under Sections 376 and 302 IPC and, thus, we do not find any merit in the contentions raised by the learned counsel for the appellant, those are, therefore, repelled and the impugned judgment of conviction of the appellant is, hereby, upheld and affirmed.
Vide order dated 21.10.2008, at the time of hearing this appeal, the then Hon'ble Bench formulated opinion that this is a case of extreme brutality, depravity and barbarity which needs to be visited with extreme penalty of death sentence to the appellant. It was also held that circumstances, wherein, and the manner in which the offence was committed by the appellant in whom the parents of the deceased-victim reposed confidence, would bring this case in the category of rarest of rare cases. No appeal has been filed by the State of Punjab under Section 377 Cr.P.C for enhancement of sentence that was imposed upon the appellant. The Hon'ble Bench held that they cannot ignore the fact that this offence was committed in such a barbaric manner on a helpless girl of six years, that this incident is bound to shock the conscious of the society. Hence, on suo motu exercise of powers of enhancement of sentence, issued notice to the appellant, as to why Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 18 sentence of life imprisonment awarded to him be not enhanced to death sentence.
Mr.T.S.Sangha, Sr. Advocate was appointed as Amicus Curiae to assist the court.
Learned senior counsel contended that this Court has suo motu power to enhance the sentence. Learned Additional Advocate General appearing for the respondent State of Punjab also contended so.
Reliance has been placed upon Eknath Shankarrao Mukkawar vs. State of Maharashtra (1977)3 Supreme Court Cases 25, wherein, it was held that provision of appeal against inadequacy of sentence does not take away High Court's power to enhance sentence suo motu in exercise of revision powers. It was also held that the High Court's powers of enhancement of sentence, in an appropriate case, on exercising suo motu power of revision is extant under Section 397 read with Section 401 Cr.P.C, 1973, inasmuch as the High Court can by "itself" call for the record of proceedings of any inferior criminal Court under its jurisdiction. The provisions of Section 401 sub Section (4) Cr.P.C is a bar to a party who does not appeal when appeal lies, but applies in revision. Such a legal bar under Section 401(4) does not stand in the way of the High Court's exercise of power of revision suo motu, which continues as before in the 1973-Code also.
Hon'ble Supreme Court in Surender Singh Rautela @ Surendra Singh vs. State of Bihar (2002)1 Supreme Court Cases 266 held that the High Court, suo motu, in exercise of revisional jurisdiction, can enhance the sentence of an accused awarded by the trial Court and the same is not affected merely because an appeal has Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 19 been provided under Section 377 Cr.P.C for enhancement of sentence and no such appeal had been preferred. But the suo motu powers of enhancement under revisional jurisdiction can be exercised only after giving proper opportunity of hearing to the accused. In the said case, no such opportunity of hearing was given to the accused/appellant. Therefore, it was held that the High Court was not justified in enhancing the sentence of life imprisonment awarded under Section 302 IPC to death penalty.
Hon'ble Supreme Court in Jashubha Bharatsinh Gohil vs. State of Gujarat 1994(2) R.C.R (Criminal) 511 held that the High Court has power to enhance the sentence. This power has to be sparingly exercised. No hard and fast rule can be laid down as to in which case, the High Court may enhance the sentence from life imprisonment to death. Each case depends on its own facts and on a variety of factors.
In view of the law laid down in the judgments (supra), the power vests in this Court to take suo motu cognizance for enhancement of sentence in case the appeal has not been filed by the State for enhancement of sentence but this is to be done after giving notice to the accused/appellant. In the present case, notice has been given to the appellant by the earlier Bench of this Court vide order dated 21.10.2008, a mention of which has been made.
Learned Amicus Curiae Mr. T.S.Sangha, Sr. counsel and Mr. PPS Thethi, Additional Advocate General for the respondent-State of Punjab contended that a girl of six years was brutally raped and murdered by the appellant, who was a servant with the father of the deceased and, therefore, case falls within the category of rarest of rare cases and the imprisonment for life may be enhanced to death penalty. Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 20 In response, learned counsel for the appellant contended that the case against the appellant does not fall in the category of rarest of rare cases. The appellant, it is submitted, was in his early youth when the occurrence took place. He was a poor labourer then. His poverty is reflected from the fact that he has not been in a position to engage a counsel either before the trial Court or before this Court and, therefore, the ends of justice in this case would be met by imposition of minimum sentence prescribed under Section 302 IPC that has been awarded to him vide impugned order of sentence.
After hearing both the sides, we are of the view that the imposition of death sentence upon the appellant in the facts and circumstances of the case would be a very harsh punishment, besides, the case does not fall within the category of rarest of rare cases. The appellant is a poor person. He was on the thresh-hold of his life when the offences were committed by him. His poverty is reflected from the fact that he was not in a position to engage a counsel, when the case was being heard by the learned trial court. Legal aid counsel was appointed for him by the learned trial Court. In this appeal also, he is being represented by a legal aid counsel.
Such type of convict should be given an opportunity to reform himself through detention in jail. In our judgment, keeping the convict/appellant confined in jail would be more useful for the society, as convict/appellant through his detention in jail can reform himself and he can become a better human being through his detention in jail. When he comes out from the jail there are chances of his being reformed and a good person. He may have a good affect on the persons who come in his contact with his goodness that he may attain Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 21 through his detention in jail.
The Hon'ble Supreme Court in Shri Bhagwan's case (supra) commuted the death sentence to life imprisonment. The accused therein was aged 20 years and with the object to commit robbery had murdered five persons. It was held that offence, though, was a barbarous, but it is based on circumstantial evidence.
Hon'ble Supreme Court of India in Swamy Shraddananda @ Murali Manohar Mishra vs. State of Karnataka 2008(3) RCR (Criminal) 772 commuted the death sentence to life imprisonment on the grounds that the accused had put the body of the deceased Shakereh in a wooden box when deceased was in deep sleep (but not dead) and burried the box in building where they resided. It was a planned and a cold blooded murder but he devised the plan so that the victim could not know till the end and even for a moment that she was betrayed by the one she trusted most; Though way of killing was ghastly, but it did not cause any mental or physical pain to the victim; The appellant confessed his guilt partially; The sentence of death was reduced to life imprisonment with a direction that accused shall not be released from prison till rest of his life. It was recommend that no remission be granted where death sentence is commuted to life imprisonment.
Hon'ble Supreme Court of India in Shivaji @ Dadya Shankar Alhat vs. State of Maharashtra 2008(4) RCR (Criminal) 202 laid down the following guidelines on the question of sentence in a Mamta 2013.09.10 17:05 criminal offence:-
I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 22 (1) Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law.
(2) Practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times - Even now for a single grave infraction drastic sentences are imposed. (3) Appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced. (4) Social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment.
(5) It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial.
Keeping in view the facts and circumstances of the case, as also, keeping in view the law laid down in the aforementioned judgments, we hold that the awarding death penalty to the appellant shall not be in the interest of justice. In Shri Bhagwan's case (supra), as already noticed, the accused were convicted on basis of circumstantial evidence of last seen and recovery of stolen articles and blood stained shirt. The accused had murdered five members of a family. The plea of the defence that there may be more than one Mamta 2013.09.10 17:05 assailant was not found tenable. However, considering the heinous I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 23 barbaric offence committed by the accused in the said case, it was directed that in no set of circumstances the accused in the said case should be released before completion of 20 years of imprisonment had passed. The death sentence was commuted accordingly. The provisions of Section 57 IPC also envisages that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. Therefore, though the appellant committed the crime in a depraved and perveted manner on a girl aged six years with whom the appellant committed rape, put a sugarcane stub in her vagina and then murdered her but also keeping in view his social background and milieu inasmuch as he is a poor, uneducated and illiterate labourer probably with no sense of understanding as to what has he done, it would be just and expedient to maintain his sentence of imprisonment for life instead of accepting the suo motu reference of this Court in its entirety for imposition of death sentence especially when the State has not sought enhancement of sentence of life imprisonment to death. The imposition of sentence of life imprisonment shall, however, be subject to the condition that the appellant shall in no case be released till he has served out at least twenty years of imprisonment including the period already undergone by him. However, we confirm the conviction and sentence that has been awarded to the appellant for commission of offence punishable under Section 376 sub section (2) IPC. Both the sentences shall run concurrently as ordered by the learned trial Court.
Resultantly, the appeal fails and is, hereby, dismissed. However, suo-motu cognizance taken by the Court after notice to the appellant is answered in the manner that the appellant shall not be Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh CRA NO.D-223-DB OF 2004 24 released from jail, unless he had served out atleast 20 years of imprisonment including the period already undergone by him in jail during investigation, trial and pendency of this appeal for commission of offence punishable under Section 302 IPC.
(S.P.BANGARH) (S.S.SARON)
JUDGE JUDGE
06.08.2013
mamta
1. Whether the Reporters of the Local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or? Yes
3. Whether the judgment should be reported in the digest? Yes Mamta 2013.09.10 17:05 I attest to the accuracy of this order Chandigarh