Madhya Pradesh High Court
In Reference vs Naresh on 20 November, 2018
Author: P.K. Jaiswal
Bench: P.K. Jaiswal
HIGH COURT OF MADHYA PRADESH : JABALPUR
D. B. : HON.SHRI JUSTICE P.K. JAISWAL &
HON. SHRI JUSTICE B.K. SHRIVASTAVA
Criminal Reference No.10/2018 (Death Reference)
In reference
(Received from District and Sessions
Judge, Sagar (M.P.)
Versus
Naresh ............Respondent/Accused
With
Criminal Appeal No.6387/2018
Naresh
Versus
State of M.P.
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PRESENCE :
Shri S.K. Rai, Public Prosecutor for the State
Shri Siddharth Sharma, Advocate as Amicus
Curiae for the respondent/Accused in Criminal
Reference No.10/2018.
Shri Pramod Thakre, Advocate for the appellant in
Criminal Appeal No.6387/2018.
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JUDMENT
(20/11/2018)
Per P.K. Jaiswal, J.
Present Criminal Reference arises out of a judgment of conviction and order of sentence dated 14/08/2018 passed by 1 st Additional Sessions Judge/Special Judge, (Protection of Children from Sexual Offences Act, 2012), District Sagar in Special Sessions Trial No.21/2018 thereby convicting respondent-Naresh for the offence under Section 376 (AB) of the Indian Penal Code, 1860 (in short 'IPC') and sentencing him with death.
2. Proceeding of the trial along with record are being the reference to this Court for confirmation of death sentence as provided under Section 366(1) of the Code of Criminal Procedure, 1973. The respondent/accused has also filed Criminal Appeal No.6387/2018 against the said judgment, therefore, both, the reference and appeal have been heard together.
3. According to prosecution case, complainant-Siyabai (PW-1) who is resident of Mohali and doing the work of making Bidi has lodged a report at Police Station, Rehali, Distt. 3 Sagar that on 18/07/2018 at about 5.30 p.m. her daughter prosecutrix (PW-2) aged about 11 year was sitting with Mamta, mother of Sunil (PW-9) and she was sitting in the house of Smt.Kavita Mishra (PW-5) and making Bidi. After some time, she came to her house and saw that door was locked from outside and keys was with her daughter prosecutrix (PW-2) who was not present. She inquired about her where about, then Sunil (PW-9) told that prosecutrix went to the house of Gataroo, then she went to the house of Gataroo and found that door was closed and the slipper of the prosecutrix (PW-2) was lying outside. She called the prosecutrix (PW-2), who opened the door and was weeping. She was not wearing slax (tight pant) and was wearing only undergarment and Kurta. Then she asked her daughter prosecutrix (PW-2) as to what happened, then she narrated that Sunil (PW-9) called her stating that mother of Gutaroo was calling her and, therefore, she went to the house of Gutaroo where she found that mother of Gutaroo was not present and Naresh (appellant), father of Gutaroo, was present who forcefully took her inside the house removed her slax and by pressing her mouth took her to bed and while lying down, he started touching her private parts and also tried to remove her 4 undergarments. On hearing the voice of Smt. Siya Bai (PW-1), the appellant/accused went to another room.
4. Smt. Siya Bai (PW-1) went to another room where accused was hiding and slapped him, at that juncture, Ramkrishna Sen (PW-4), cousin brother of prosecutrix (PW-2) came to the place of occurrence and she narrated the whole story to him. On Seeing Ramkrishna Sen (PW-4), appellant came with axe and made an attempt to cause axe injury to them. Smt. Siya Bai (PW-1) left the house along with her daughter prosecutrix (PW-2) and narrated the whole incident to Sarpanch Shankar Lodhi (PW-6) and Dharmendra Lodhi (PW-8) and also dialled 100 number for police help. After some time, 100 number vehicle came to her house and then she along with Balkrishna (PW-3) came to Police and lodged a complaint. On the basis of the complaint, FIR was registered vide Crime No.350/2018 under Section 376(AB) of IPC and Sections 5(m) and 6 of the Protection of Children from Sexual Offences Act, 2012 against the appellant/accused. After medical examination and due investigation, charge sheet was filed before the Court against the appellant/convict by Police Station, Rehli, Distt. Sagar.
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5. After conducting trial, the trial Court found that the appellant had committed an offence with the prosecutrix (PW-
2) who was aged about 11 years. The prosecution case is corroborated by the evidence of Smt. Siya Bai (PW-1), mother of prosecutrix (PW-2), Balkrishna Sen (PW-3), Ramkrishna (PW-4), Smt. Kavita Mishra (PW-5), Shankar (PW-6), Sunil (PW-9), Dr. Sanjay Roy (PW-10), Dr. Akanksha Jain (PW-20), medical evidence and DNA test report, hence, convicted the appellant under Section 376 (AB) of IPC and awarded capital punishment of death and he was directed to be hanged by neck till he is dead. The record was sent to this Court under Section 366 (1) of Cr.P.C. for confirmation of death sentence. The reference was renumbered as Criminal Reference Case No.10/2018.
6. Learned counsel for the appellant/accused has contended that the judgment passed by the trial Court is based on assumption and presumption by mis-appreciating the evidence available on record. As per FIR (Ex.P/1), Police Statement (Ex.P/27) of prosecutrix (PW-2) and Smt. Sioya Bai (PW-1), only allegation against the appellant/convict is that he removed slax (pant) of the prosecutrix and touched her private part. In 6 164 statement of prosecutrix (PW-2) and her mother Smt. Siya Bai (PW-1) recorded before the Judicial Magistrate First Class on 19/07/2018, they improved their version and made an allegation that he inserted his fingures on her private part. Later on Smt. Siya Bai (PW-1), mother of the prosecutrix in her Court statement has deposed that after removing her slax, appellant/accused also removed her undergarments and inserted his finger on her private part. Prosecutrix (PW-2) also in para-3 of her statement has improved her version making an allegation against the present appellant/convict that after removing her undergarment inserted his finger on her private part. When he inserted his finger which pained her and at that time she heard the voice of her mother who was calling her from the outside of the house and she immediately rushed to the door opened it and narrated the whole incident to her mother. Learned counsel has submitted that learned trial Court ignored the aforesaid vital part of the evidence and erred in convicting the appellant under Section 376 (AB) of IPC and also committed legal error in awarding capital punishment.
7. He has also drawn our attention to Ex.P/30, MLC of prosecutrix (PW-2) and submitted that no sign of injury all over 7 the body of the prosecutrix was found, nor there was any sign of an injury over the labia, magora, minora and vulva. No definite opinion was given by the doctor. It is also alleged that medical evidence has not supported the prosecution case. Dr. Akanksha Jain (PW-20) who has examined the prosexutrix, in her cross-examination, has very categorically admitted that no mark of injury was found on the private part of the prosecutrix. The trial Court has dealt with the case without proper application of mind and there are several discrepancies and contradictions in the statement of material prosecution witnesses. He also pointed out DNA report and submitted that there is nothing against the accused in the said DNA report and prayed that the appeal may be allowed by setting aside the impugned judgment of conviction and order of sentence thereby acquitting the appellant/convict for the charges levelled against him.
8. Per contra, learned Public Prosecutor has vehemently opposed the contention of learned counsel for the appellant/convict by supporting the finding of the trial Court and submitted that the act of the appellant/convict comes within the purview of Section 376(AB) of IPC and in such type of 8 offence, capital punishment is just and proper, thus, prayed for dismissal of the appeal.
9. We have heard rival submissions of learned counsel for the parties at length and perused the record of the case.
10. In the instant case, when prosecutrix (PW-2) was playing outside of her house, Sunil (PW-9) called her to the house of appellant/accused stating that mother of Gutaroo was calling her. She responded to the call and on reaching the house, accused (father of Gutaroo) bolted the door from inside and gutted her mouth and made prosecutrix lye on the bed and forcefully removed her slax and started touching her private part and inserted finger on her private part which pained her. Smt. Siya Bai (PW-1), Ramkrishna (PW-4), Balkrishna (PW-3), Dharmendra (PW-8), Smt. Kavita Mishra (PW-5) in their statement supported the version of the prosecutrix (PW-2) that after removing her slax and under garments accused/appellant- Naresh inserted his finger on her private part. They, in their Police statement recorded under Section 161 of Cr.P.C., have deposed that once accused started touching her private part, prosecutrix heard the voice of her mother and, therefore, she got up and opened the door, though under section 164, Cr.P.C. 9 statement of prosecutrix which was recorded on the same day i.e. the date of occurrence has deposed that the accused tried to insert his fingers on her private part. Smt. Siya Bai (PW-1), mother of prosecutrix (PW-2) in para-4 of her statement very categorically supported the statement of prosecutrix (PW-2) that the accused inserted his fingers on the private part of prosecutrix (PW-2). She in para-16 of her statement has deposed that as per Adhar Card (Ex.P/8), the date of birth of her daughter is 04/10/2007 and age of her daughter is around 10-11 years. Nothing has come out in her cross-examination to disbelieve the statement of Smt. Siya Bai (PW-1).
11. Prosecutrix (PW-2) in her statement has deposed that she is student of 7th standard and studying in Govt. Middle School, Mohali. She, in para-3 of her statement, has deposed that on reaching the house of Gutaroo, accused was there and he bolted the door from inside and made her lye on the bed, gutted her mouth, after removing slax and under garment and inserted his finger in her private part. She also stated that when accused/appellant started inserting his finger on her private part, she received pain and at that relevant point of time, she heard the voice of her mother and then she immediately got up and 10 opened the door. Thereafter her mother came inside and she narrated the whole incident to her and also pointed out that when she resisted the accused he gave threat that he will cause axe injury on her and forcefully removed her Salwar/slax. On hearing this, Smt. Siya Bai (PW-1) slapped the accused. On this, accused/appellant also tried to cause axe injury to her mother. On hearing noise, Balkrishna (PW-3) and Ramkrishna (PW-4) also came at the place of occurrence and after coming to know about the incident, they narrated the whole incident to Sarpanch Shankar (PW-6) and Dharmendra Lodhi (PW-8). Sarpanch Shankar (PW-6) and Dharmendra Lodhi (PW-8) also supported the version of prosecutrix. On information, Police reached and lodged FIR.
12. The evidence of Smt. Siya Bai (PW-1) and prosecutrix (PW-2 is of great importance, notwithstanding the fact that she was about 10-11 years of old. Prosecutrix (PW-2) has very categorically depicted the manner in which the incident was occurred. She has also narrated, without any ambiguity, the whole incident to her mother. The evidence of prosecutrix (PW-2) is corroborated by the evidence of Balkrishna (PW-3), Ramkrishna (PW-4), Smt. Kavita Mishra (PW-5), Shankar 11 (PW-6), Lachu (PW-7), Dharmendra (PW-8). Sunil (PW-9) in his statement has very categorically admitted that at the instance of accused/appellant he called prosecutrix that mother of Gutaroo is calling her to her house. His evidence is further corroborated by the evidence of Smt. Siya Bai (PW-1) and prosecutrix (PW-2). From their statement, it has also come on record that when prosecutrix (PW-2) reached the house of Gutaroo, at that time, mother of Gutaroo was not present and accused was only present. He took her inside the house and bolted the door from inside the room.
13. The evidence of Smt. Siya Bai (PW-1), Balkrishna (PW-
3) and Ramkrishna (PW-4) also corroborated about the presence of the appellant/accused at the place of occurrence along with prosecutrix (PW-2). Nothing has been shown to us on behalf of the appellant to disbelieve the same. All the witnesses who claimed to be present near the place of incident and hearing the noise reached on the spot remained unshaken in the cross-examination which clearly indicates that no one other than appellant committed the offence for which he was charged.
14. Manisha Tiwari (PW-16), in her statement, has deposed that on 19/07/2018 she has recorded the statement (Ex.P/27) of 12 prosecutirx (PW-2). Article 'A-2' is DVD regarding statement of prosecutrix (PW-2) was prepared by Naraesh Kurmi. She took the prosecutrix for MLC at District Hospital, Sagar. Prosecutrix (PW-2) was medically examined by Dr. Akanksha Jain (PW-20). She produced the prosecutrix (PW-2) and her mother Smt. Siya Bai (PW-1) before the Judicial Magistrate First Class, Rehli for recording their 164 statement. Ex.P/2 and Ex.P/3 are their 164 statement. She also stated that for DNA test of Prosecutrix (PW-2), she took sample from Dr.Akanksha Jain (PW-20) and prepared one application (Ex.P/11) which was duly signed by prosecutrix (PW-2).
15. Dwarka Prasad (PW-20), Principle of Govt. Primary School, Mohali in his statement has deposed that he worked as Principal of the said school from 1986 to 31/07/2018. As per scholar register, date of birth of prosecutrix (PW-2) was recorded as 04/10/2007 which are Ex.P/14 and P/15 respectively. He has also deposed that prosecutrix (PW-2) completed her Primary education from Primary School, Mohali (from Class-1 to Class-5). At the time of admission prosecutrix (PW-2) came along with her father and at the instance of her father, her date of birth was recorded. Nothing has come out in 13 the cross-examination to disbelieve the aforesaid statement of Dwarka Prasad (PW-18). Dr. Akanksha Jain (PW-20) has supported the case of prosecution and stated that she prepared DNA application (Ex.P/11).
16. Investigating Officer-Ravindra Mishra (PW-23) has corroborated the aforesaid evidence and stated that he sent the prosecutrix for medical examination. Testimony of Dr. Akanksha Jain (PW-20) and medical report of the prosecutrix (PW-2) duly supported the prosecution case. Her report also indicate that at the time of incident proseuctrix was 10-11 years of age. During medical examination, Dr. Akanksha Jain (PW-
20) also prepared Videography and Radiography which is on record as Article 'A-1' and 'A-2' with certificate under Section 65-B of the Evidence Act.
17. However, learned counsel for the appellant/accused has contended that no external injury has been found on the body of the prosecutrix (PW-2) which implies that no incident has happened with the prosecutrix. The aforesaid contention of the defence cannot be accepted because it is on record that prosecutrix is an innocent child aged about 11 years. She, in her statement, has very categorically deposed about sexual 14 assault on her and has deposed that when appellant/accused inserted his fingers on her private part, she heard the voice of her mother and, therefore, she got up and immediately opened the door of the house which was bolted from inside. Appellant/accused ran away to another room and tried to hide himself in the said room, hence no question of external injury arises in such circumstances. Balkrishna (PW-3) and Ramkrishna (PW-4), villagers have supported the testimony of Smt. Siya Bai (PW-1) and prosecutrix (PW-2). They reached the spot immediately and saw the appellant with the prosecutrix. The testimony of these witnesses is found unshaken and unrebuted. Appellant/accused took the defence that there was enmity between him and Smt. Siya Bai (PW-1), therefore, he was falsely implicated by the prosecutrix (PW-2) with the help of of her mother.
18. Smt. Siya Bai (PW-1) clearly denied the aforesaid contention of the defence. Moreover, when mother of minor girl would not create a false story for implicating any one in such matter as the dignity and future of an innocent girl is also at stake. It is pertinent to mention here that the prosecutrix (PW-2) and her mother had no enmity or intention to falsely 15 implicate the appellant/convict in such crime. Further, the evidence available on record point towards the guilt of the appellant/accused beyond reasonable doubt. The appellant/accused has failed to offer any explanation about his presence along with prosecutrix inside the house in objectionable condition.
19. Dr. Sanjay Roy (PW-10) examined the appellant/accused and found him to be capable of performing intercourse. The testimony of Dr. Sanjay Roy (PW-10) is found unrebutted.
20. Learned trial Court evaluated the prosecution evidence in the right perspective and considered the facts in correct approach.
21. In view of amendment in Section 376 of IPC which came into force w.e.f. 21/04/2018, the act of appellant/accused comes within the purview of Section 376 (AB) of IPC. Hence, in the considered opinion of this Court, the finding of conviction recorded against the appellant/accused for the offence under Section 376(AB) of IPC do not warrant interference in the facts of the present case.
22. Now the question arises for consideration, in the facts and circumstances of the present case as discussed, whether this 16 is one of the "rarest of rare case", wherein the penalty of death may be confirmed on account of aggravating circumstances or due to having some mitigating circumstances, it may be converted into imprisonment for life.
23. Learned counsel for the appellant has placed reliance upon the decision of this Court in the case of of In refrence Vs. Sunil Adiwasi (Criminal Reference No.05/2018) decided on 17/08/2018 and submitted that the death sentence is not appropriate in the present case. Appellant/accused is aged about 40 years. He has no criminal antecedent. He is a first offender. In the FIR as well as Police statement of Smt. Siya Bai (PW-1) and prosecutrix (PW-2), only allegation against the present is that he touched the private part of prosecutrix (PW-2) and later on this version has been improved by making an allegation that he inserted his finger on the private part of prosecutrix (PW-2). As in the cross-examination no question was put to Smt. Siya Bai (PW-1) and prosecutrix (PW-2) nor they were confronted with their 161 statement and FIR lodged by PW-1 and, therefore he is liable to get opportunity of rehabilitation and reformation.
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24. On the other hand, learned Public Prosecutor has prayed for confirmation of the death sentence of the appellant in the light of recent amendment in the punishment for the offence under Section 376 of IPC.
25. As per the amended provisions of criminal law (by ordinance 2018) wherein Section 376AB was inserted after Section 376A which reads as under :
"376AB - Person committing an offence of rape on a woman under twelve years of age shall be sentenced with rigorous imprisonment of not less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person's natural life and with fine or with death."
26. In our considered opinion in the instant case the alleged offence is not committed in barbaric and brutal manner, hence it does not fall within "rarest of rare" case to award death sentence. In case of Amit vs. State of Uttar 18 Pradesh, AIR 2012 SC 1433, the Supreme Court held that in absence of having any evidence that the accused may repeat a similar crime in future, the possibility of his reform cannot be ruled out in the coming years looking to the age and under such circumstances, the Supreme Court converted the death sentence into the life imprisonment for remaining term.
27. Recently, the coordinate Bench this Court in Criminal Reference No. 06/2018 and Criminal Appeal No. 5726/2018 Bhaggi @ Bhagirath @ Naran vs. State of Madhya Pradesh vide judgment dated 11.10.2018, after following the principles laid down in cases of Kumudi Lal vs. State of UP (1999) 4 SCC 108; Raju vs. State of Haryana vs. State of Haryana (2001) 9 SCC 50; Bantu vs. State of MP (2001) 9 SCC 615, State of Maharashtra vs. Suresh (2000) 1 SCC 471; Amrit Singh vs. State of Punjab (2006) 12 SCC 79; Rameshbhai Chandhubhai Rathod vs. State of Gujrat (2011) 2 SCC 764; Surendra Pal Shivbalakpal vs. State of Gujrat (2005) 3 SCC 127 and Amit vs. State of Maharashtra (2003) 8 SCC 93, the 19 capital punishment under Section 376 AB of the Indian Penal Code was commuted to imprisonment for life. Similar approach has been opted by other coordinate Bench of this Court in case of Sunil Adiwasi vs. State of MP (Criminal Appeal No. 5015/2018) dated 17.08.2018. Hence, we are of the same opinion in the case at hand.
28. Accordingly, the Criminal Reference No. 10/2018 made by District and Sessions Judge, District Sagar (MP) under Section 366(1) of the Cr.P.C. for confirmation of the death penalty of the accused is answered. The Criminal Appeal No. 6387/2018 filed by appellant/accused stands allowed in part. The conviction under Section 376AB is maintained, but the capital punishment is hereby commuted to 20 years RI with fine of Rs. 15,000/- which is to be paid to the prosecutrix as compensation under Section 357 of Cr.P.C. In default of payment of fine amount, further RI for 1 years.
29. Let a copy of this judgment be retained in the record of Criminal Appeal No. 6387/2018.
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30. Office is directed to send a copy of this judgment immediately to the Trial Court concerned to take appropriate steps as per law.
(P.K. JAISWAL) (B.K. SHRIVASTAVA)
JUDGE JUDGE
ts
Digitally signed by TULSA SINGH
Date: 2018.11.27 13:43:51 +05'30'