Madhya Pradesh High Court
Shyam vs The State Of Madhya Pradesh on 28 February, 2017
Author: Anurag Shrivastava
Bench: Anurag Shrivastava
-1- Cr.A. No.3820/2016
AFR
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Reference No.04/2016
IN REFERENCE
Received from Special Sessions Judge, (Protection of
Children from Sexual Offence Act 2012) Chhatarpur (M.P)
-Versus-
Shyam, S/o Shri Tijwa Raikwar, aged about 45 years, R/o
Village Urdmau, Police Station Garimalhara, District
Chhatarpur (M.P)
________________________________________________
Shri S.S. Chouhan, Government Advocate for the
appellant/State.
Shri Pramod Thakre, Advocate for the respondent.
Criminal Appeal No.3820/2016
Shyam, S/o Shri Tijwa Raikwar, aged about 45 years, R/o
Village Urdmau, Police Station Garimalhara, District
Chhatarpur (M.P)
-Versus-
State of Madhya Pradesh, through Police Station
Garimalehra District Chhatarpur (M.P)
________________________________________________
Shri Pramod Thakre, Advocate for the appellant.
Shri S.S. Chouhan, Government Advocate for the
respondent/State.
PRESENT : Hon'ble Shri Justice S.K. Gangele.
Hon'ble Shri Justice Anurag Shrivastava.
Whether approved for reporting: Yes
-2- Cr.A. No.3820/2016
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JUDGMENT
(28.02.2017) Per Anurag Shrivastava, J Aforesaid criminal reference as well as appeal arrived out of common impugned judgment; therefore, this judgment shall govern the disposal of both the cases.
2. Learned Special Sessions Judge ,Protection of Children From Sexual offence Act Chhatarpur vide impugned judgment dated 21st November, 2016 passed in Special Trial No.52/2016 has convicted the respondent/appellant Shyam (hereinafter referred as the "accused" also) for the offence punishable under Sections 302 and 376 (2) (Cha) (Ja) (Ta) (Tha) (Dha) of IPC.
Consequent punishment is as under:-
Conviction Sentence Section 302 of Hang till death with fine of Rs.500, with IPC default stipulation. Section 376(2) Rigorous imprisonment for life, with (Cha) (Ja) (Ta) fine of Rs.500, with default stipulation. (Tha) (Dha) of IPC.
3. Whereas the learned trial Court has awarded death sentence to the accused, therefore, made reference of proceedings to this Court for confirmation of death sentence under Section 366 of Code of Criminal Procedure, 1973.
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4. Feeling aggrieved by the impugned judgment of conviction and order of sentence the accused has also filed this appeal under Section 374 (2) of the Code.
5. The prosecution story in brief is that, the prosecutrix is the daughter of accused. She was aged about 17 years at the time of commission of offence. On 28.02.2016 a dead body of newly born girl child was found in Matiya pond of village Urdmaow. One Dinesh Kumar of village had given information of dead body to the Police Station Gadi Malahara. The Police registered a merge intimation and Rajesh Tiwari, Assistant Sub Inspector (PW-21) reached on scene of occurrence, prepared spot map, conducted inquest and sent the dead body of child for postmortem. The part of femur bone and lungs etc. of child were preserved and kept for further investigation. During enquiry it was found that somebody had thrown the child into the pond to hide the facts of illegal birth. Child was died from drowning. Subsequently, the Police recorded FIR (Ex.P/27) and registered an offence under Section 318 of Penal Code against unknown person and initiated investigation.
6. During investigation Police recorded statement of prosecutrix, which reveals that the prosecutrix was living with the accused who is her father in village Urdmaow. Her mother was died during her childhood. Accused was a drunkard, he frequently used to beat and misbehave with the prosecutrix. Around one year before the incident after -4- Cr.A. No.3820/2016 AFR consuming liquor the accused had beaten the prosecutrix and thereafter committed sexual intercourse with her and threatened her to kill if she would inform anybody about the incident. Thereafter, repeatedly accused used to ravish the girl by committing rape. After sometime prosecutrix became pregnant and at the advance stage of pregnancy, on 27.02.2016 at village Urdmaow accused gave some medicine to prosecutrix due to which prosecutrix delivered a girl child in the night. To hide the fact of delivery of child accused took the child with him and thrown her into the pond near his house. Next day accused took the prosecutrix to village Zind near Delhi to her brother Santosh, left her there and came back to his village. Prosecutrix informed her brother about the incident and thereafter, she came with her brother to village Urdmaow and went to Police Station Gadi Malahara where she narrated the entire story.
7. The police registered a case u/s 302 and 376 of Penal Code and during investigation recorded statements of the prosecutrix and other witnesses. Prosecutrix and accused were medically examined. The blood samples of prosecutrix, accused and body part of child were sent for a DNA test, which confirms the fact that the accused was biological father of the child of prosecutrix. After completion of investigation the accused was charge sheeted.
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8. The trial Court framed charges against the accused for commission of offence punishable under Sections 302 and 376 (2) (Cha) (Ja) (Ta) (Tha) (Dha) of IPC. The accused abjured guilt and pleaded not guilty. Prosecution examined 21 witnesses including prosecutrix, her brother and his father-in-law Changa Raikwar, who deposed about the rape, against the accused. Accused has not led any evidence in defence.
9. In his defence under Section 313 Cr.P.C statement, the accused stated that the prosecutrix and her brother wanted a share in the property of the accused, which he denied, therefore, a false report has been lodged against him. He is innocent.
10. The trial Court relied on the statements of prosecutrix and her brother and Changa Raikwar alongwith DNA report, and other evidences, held the accused guilty for committing rape with his daughter and murder of her newly born child, convicted and sentenced him as stated in para 2. The trial Court has awarded capital punishment and made a Criminal Reference under Section 366 of Cr.P.C for confirmation of death sentence. Being aggrieved by the judgment of conviction and sentence the accused also preferred Criminal Appeal.
11. It is submitted by learned counsel for the appellant/accused that, the entire case is based on the testimony of prosecutrix (PW-5) the daughter of the appellant , but her -6- Cr.A. No.3820/2016 AFR evidence is not satisfactory and cogent to convict the appellant under Section 302 of IPC. As per her evidence soon after the birth of female child the appellant took her in a towel and thrown into the pond which is situated near her house, on the second day the body of the deceased was recovered and thereafter she further stated that she went to her brother and thereafter on 29.03.2016 she informed to the police about the entire act of the appellant. Why prosecutrix did not report to Police soon after the incident when accused took her child, it is not explained by her.
12. It is further submitted that the prosecution has failed to prove the age of deceased female child, the mother of the child stated that soon after birth the child was thrown into the pond, the witnesses said that the age of the child was 6-7 months and the doctor has admitted that the age of the child was 6-7 days, therefore, it is very doubtful that when the child was thrown into the pond and that particular time what was the age of that child. The autopsy surgeon has categorically stated that the placenta was seems to be recently cut, but he did not find any infection or active bleeding, therefore, the story of the prosecutrix that soon after the birth the murder was committed, becomes false, apart from that the hut in which the incident took place situated in the locality but she failed to inform anyone. The lady Doctor (PW-16) had also failed to give any evidence to this effect that from her examination -7- Cr.A. No.3820/2016 AFR of the prosecutrix, how many days before she gave birth to the child and the prosecution has also failed to put any question on this point, therefore, looking to this material evidence the prosecution has failed to prove that when the act of murder committed and what was the age of the deceased. Apart from this evidence the possibility of committing murder of deceased by the prosecutrix is more probable because she had a motive and angriness against the appellant, therefore, looking to the entire evidence the conviction under Section 302 of IPC could not sustained and appellant is entitled for acquittal.
13. It is further argued by learned counsel that coming to the second charge of rape, the prosecution has also failed to prove this charge beyond reasonable doubt, though the DNA test report relied by the prosecution, but the possibility of mistake in this report cannot be ruled out. Therefore, the alleged offence against the appellant is not proved beyond reasonable doubt. As far as sentence is concerned, this is not a rare of rarest case in which capital punishment is warranted.
14. Learned Panel Lawyer for the State argued that the appellant has committed rape with his daughter, which is a gruesome offence and to save himself from social boycott and bad-name he had killed the newly born child. Therefore, trial Court on correct appreciation of evidence convicted and sentenced the appellant/accused. Thus, the -8- Cr.A. No.3820/2016 AFR findings of trial Court are correct and no interference is warranted.
15. Considering the rival submissions of learned counsel for the parties and on perusal of evidence led by the prosecution, it appears that the prosecutrix is daughter of accused/appellant who was living with him. The mother of prosecutrix had died earlier. Prosecutrix (PW-5) in her Court statement deposed that after the death of mother she was living with the accused/appellant. Her brother and sisters are married and living separately in their house. The accused/appellant used to beat and harass her after consuming liquor. Some one year before the incident the accused/appellant had beaten her and committed sexual intercourse. When she tried to resist accused/appellant threatened her to kill. Thereafter, at several times accused/appellant committed rape with her. Due to fear of accused/appellant prosecutrix did not tell about the incident to anybody. Later on the prosecutrix became pregnant. At this time prosecutrix was living with the accused in Delhi where they were employed in labour work. When the pregnancy of prosecutrix was at advance stage, accused brought her to his house in village Urdmaow and gave some pills. Due to these pills on 27.02.2016 prosecutrix delivered a girl child. It is further deposed by the prosecutrix that seeing the girl child accused took her and went out of house and throw the child in the pond situated near the house. Second day -9- Cr.A. No.3820/2016 AFR accused took the prosecutrix to village Zind and left her in the house of her brother and came back.
16. Prosecutrix was subjected to lengthy cross examination but the substance of the statement made in examination in chief remain totally un-impeached. A suggestion is put to the witness that a false case has been posted against the accused at the instance of her brother, denied by her. The statement of prosecutrix is well corroborated in all particulars by her brother Santosh (PW-4) and father-in- law of her brother namely Chhanga Raikwar (PW-6) to whom prosecutrix had informed about the incident.
17. The defense has not disputed the fact that on 28.02.2016 a body of newly born girl child was found in the pond of village Urdmaow. From the evidence of prosecution witnesses it is found that, the witness Dinesh (PW-2) gave information about the child to Police Station Gadi Malahara where Rajesh Tiwari, ASI (PW-21) registered a merge intimation Ex-P/4 and reached on the spot and prepared spot map Ex.P/3 and conducted inquest and sent the dead body for postmortem to PHC Maharajpur.
18. Dr. Omkar Nath Singh (PW-13) deposed that on 29.02.2016 at PHC Maharajpur he performed postmortem of a newly born girl child. There was no injury found on her body. A recently cut placenta was found on the body of child. There was water found in the lungs and stomach and the death of child was due to drowning. The statement of -10- Cr.A. No.3820/2016 AFR Doctor is corroborated by postmortem report Ex.P/18. In cross examination Doctor has clarified the fact that child was newly born and the age of child 6 to 7 months was written in P.M. report only on the basis of age mentioned in application for postmortem sent by the Police. This explanation is acceptable, because in the body of child of 6 to 7 months of age, placenta cannot be found. The presence of placenta is also noticed in Panchnama of body Ex.P/1. Since, the death was due to drowning in the water, therefore, because of swelling of dead body due to water the child appeared as of older age. It is also opined by the Doctor that the death occurred within 24 hours of postmortem. This corroborates the testimony of the prosecutrix who deposed that after delivery of child the accused took the child and threw her in the pond. The death due to drowning shows that the child was alive when she was thrown in the pond in order to kill her. Therefore, the trial Court has rightly concluded that the death of child is homicidal death.
19. The prosecutrix was examined by lady Dr. Suman Bajpai (PW-16) on 28.03.2016 after one month of incident. Dr. Bajpai in her statement deposed that at the time of examination the baby milk was coming from the breast of the prosecutrix. The prosecutrix had also informed her about the incident and delivery of child. Therefore, from the MLC report Ex.P/21, it appears that the prosecutrix had delivered a child.
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20. During investigation the blood samples of accused, prosecutrix and child were sent for DNA test. This fact is corroborated from the statement of Dr. N.K. Warsana (PW-
12), R.K. Pateriya (PW-11) Lab Technician, who had collected the blood samples and also from the statement of Investigation Officer Dilip Pandey (PW-19). The DNA report Ex.P/24 shows that the DNA profile of the child matches the accused and the prosecutrix and it is opined that accused is biological father of the child and prosecutrix is her biological mother. Thus, DNA report also corroborates the statement of prosecutrix.
21. Hon'ble Apex Court in State of H.P Vs. Asha Ram, reported in (2005) 13 SCC 766 has held as under:-
"It is now a well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement. The courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but -12- Cr.A. No.3820/2016 AFR a guidance of prudence under the given circumstances. Mino contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."
22. In the present case the prosecutrix is daughter of the accused. She was living alone with her father. She has categorically deposed against the accused and blames him for committing sexual intercourse with her against her will by threatening and use of force on her. Her statement is duly corroborated by her brother Santosh (PW-4), Chhanga Raikwar (PW-6) also. The MLC report (Ex.P/21) and Dr. Suman Bajpai (PW-16) corroborates the fact that the prosecutrix delivered a child before the medical examination. The DNA report (Ex.P/24) confirms the fact that the newly born child whose dead body was found in the pond was the daughter of the accused and prosecutrix. Hon'ble Apex Court in case law Dipanwita Roy Vs. Ranobroto Roy, reported in AIR 2015 SC 418 approved the importance of DNA test for determination of paternity of the child. Therefore, the statement of prosecutrix inspires confidence. There is no reason as to why the prosecutrix who is daughter of accused should deposed falsely so as to expose her honour and dignity and also expose the whole family to society risking condemnation by the society. The defence of the accused is not probable and cannot be accepted. There is no evidence that accused had property in which his sons are -13- Cr.A. No.3820/2016 AFR demanding share. It is not possible for a daughter to falsely implicate her father in such short of allegations of rape, only to pressurize him for giving share in the property. Thus, the trial Court has rightly relied upon the testimony of the prosecutrix and arrived this conclusion that the appellant/accused has committed rape with her.
23. The next question arises as to whether the appellant/accused has committed murder of child by throwing her in pond. In this regard the prosecution relies upon circumstantial evidence. It is settled law that in case of circumstantial evidence the facts and circumstances from which the conclusion of guilt is sought to be drawn by prosecution must be fully established. It should be consistent with the guilt of accused and must also be entirely incompatiable with the innocence of the accused. . The Hon'ble Apex Court in Madhu alias Madhuranatha Vs. State of Karnataka AIR 2014 SC 394 in para 6 observed that:-
"This Court has dealt with the case of circumstantial evidence time and again. It has consistently been held that a conviction can be based solely on circumstantial evidence. The prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only lend assurance to the court where various links in the chain of circumstantial evidence are complete in themselves. The circumstances from which the conclusion of -14- Cr.A. No.3820/2016 AFR guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable or point to any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. The evidence produced by the prosecution should be of such a nature that it makes the conviction of the accused sustainable."
24. In present case from the evidence of prosecutrix it appears that at the time of delivery of child, only accused was present with her. She delivered the child in the house of accused in village Urdmaow .Soon after delivery she was not able to go out of the house. Whereas the accused had a motive to kill the child in order to save himself from out casting and condemnation by the family circle as well as by society. Undoubtedly, in cases of circumstantial evidences motive bears important significance. People do not act without motive. Thus we can rely upon the statement of prosecutrix that the accused had taken the newly born child from her. He was the last person having possession of the child. Accused failed to explain what happened to the child after he took him away from the prosecutrix. It is also important to note that next day accused forcibly took the prosecutrix to village Zind (Harayan) and left her in her brother's house. This conduct shows the involvement of accused in commission of crime. If he would not have taken the child from prosecutrix, he would certainly have asked the prosecutrix about the child at the time of leaving -15- Cr.A. No.3820/2016 AFR to village Zind. The silence of accused in this regard and stating ignorance in statement u/s 313 Cr.P.C. confirms his guilt. The argument of learned counsel of the appellant that the age of child was more than a week when she was thrown in the water, is not acceptable. Since the body was recovered from the water therefore the exact age can not be ascertained with accuracy of days by usual medical examination or on bare observation of the dead body. The presence of placenta with recent cut shows that she was newly born. This fact fully corroborates the statement of prosecutrix. Thus aforesaid circumstances clearly show that the appellant/accused had thrown the child in the pond in order to kill her. Therefore, the trial Court has rightly held the accused guilty under Section 302 of IPC.
25. Now the next question arises as to what would be the punishment to be imposed on accused and whether punishment of death sentence is proper or not.
26. Hon'ble Apex Court in the case law Neel Kumar @Anil Kumar Vs. State of Haryana (2012)5 SCC766 reiterat- ed as under:-
"21. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime for the reason that life imprisonment is the rule and death sentence is an exception. The penalty of death -16- Cr.A. No.3820/2016 AFR sentence may be warranted only in a case where the court comes to the conclusion that imposition of life imprisonment is totally inadequate having regard to the relevant circumstances of the crime. The balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before option is exercised."
The Apex Court in the matter of Sunder Singh Vs. State of Uttaranchal, (2010) 10 SCC 611 , relied upon to the mitigating circumstances mentioned in Bachan Singh Vs. State of Punjab AIR 1980 SC 898 had observed in para 51 as under:-
"51. The law is now well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], where it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) where the murder has been committed after previous planning and involves extreme brutality; or -17- Cr.A. No.3820/2016 AFR
(b) where the murder involves exceptional depravity.
52. The mitigating circumstances which were mentioned in that judgment were:-
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the
accused is young or old, he shall not be
sentenced to death;
(c) The probability that the accused
would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
27. In the present case the accused is aged about 47 years. It cannot be said that the murder of child is committed in extremely brutal manner. There is no injury found on the body of child. In the case law Neel Kumar @Anil Kumar (supra) the father was convicted for committing rape and murder of his own daughter and death sentence was imposed on him by trial Court and affirmed by High Court.
-18- Cr.A. No.3820/2016AFR The Apex Court in appeal has set- aside the death sentence finding the case does not fall within gravest of grave case, set aside death penalty and imposed life imprisonment.
28. Keeping in view the overall facts and circumstances of the case, in our opinion, the act of the accused/appellant could not be termed as the gravest of the grave cases. Hence, the trial Court has committed an error of law in awarding death sentence to the accused/appellant. In our opinion, the proper sentence, which may be awarded to the accused/appellant is life imprisonment. The appellant must serve a minimum of 30 years in jail without remission, before consideration of his case for premature release.
29. Consequently, the reference is answered in negative and it is held that the trial Court has committed an error in awarding death sentence to the appellant Shyam.
30. Criminal Appeal No.3820/2016 filed by appellant Shyam is partly allowed. His conviction for commission of offence punishable under Section 302 of IPC is hereby upheld, however, his sentence is modified and he is sentenced to life imprisonment. The appellant shall serve a minimum of 30 years in jail without remission, before consideration of his case for premature release. The conviction and sentence for commission of rape imposed by the trial Court is affirmed. Impugned judgment of the trial Court is modified accordingly.
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(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
Vin**