Madhya Pradesh High Court
Sachin Kumar Singhraha vs The State Of Madhya Pradesh on 3 March, 2016
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Criminal Reference No.05/2015
Criminal Appeal No. 2303/2015
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Division Bench (1)Hon'ble Shri Justice S.K. Seth
(2)Hon'ble Shri Justice Rajendra Mahajan
CRIMINAL REFERENCE No. 05/2015
In Reference received from
the First Additional Sessions
Judge, Maihar, District Satna
M.P. under Section 366 of the
Cr.P.C. for confirmation of death
sentence.
VERSUS
Sachin Kumar Singhraha,
S/o Shri Sajjan Prasad Singhraha,
Aged-33 years, R/o Ward No.1,
Dasaipur, Machali Paalan Vibhaag,
Police Station Maihar,
District-Satna (M.P.)
Accused.
CRIMINAL APPEAL NO.2203/2015
Sachin Kumar Singhraha,
S/o Shri Sajjan Prasad Singhraha,
Aged-33 years, R/o Ward No.1,
Dasaipur,Machali Paalan Vibhaag,
Police Station-Maihar,
District-Satna (M.P.)
Accused-Appellant.
Versus
State of M.P. through P.S.
Maihar,, District Satna (M.P.)
Respondent.
.....................................................................................
For Prosecution : Shri Ajay Shukla, learned Govt.
Advocate.
For accused-appellant : Shri Mrigendra Singh learned Senior
counsel with Shri Vikas Mahawar
learned counsel.
.....................................................................................
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Criminal Reference No.05/2015
Criminal Appeal No. 2303/2015
J U D G M E N T
(Pronounced on the 3 r d day of March, 2016 ) As per: RAJENDRA MAHAJAN, J.
Since aforesaid criminal reference and criminal appeal have arisen out of the judgment dated 06.08.2015 passed by the learned First Additional Sessions Judge Maihar, District Satna in Special Sessions Trial No. 41/15, both the matters are hereby disposed of by this common judgment.
2. Vide the impugned judgment, the learned ASJ has convicted the accused-appellant for the offences punishable under Sections 363, 376(A), 302 and 201 (II) of the Indian Penal Code (for short the IPC) and 5 (i) (m) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 (for short the POCSO Act) and sentenced him thereunder to suffer on first-count rigorous imprisonment (for short the R.I.) for 7 years with a fine of Rs.5,000/- (rupees five thousands) in default of which R.I. for 3 months, second-count death sentence, third -count death sentence with a fine of Rs. 10,000/- (rupees ten thousands) in default of which R.I. for 6 months, fourth-count R.I. for 7 years with a fine of Rs.5,000/- (rupees five thousands) in default of which R.I. for 3 months and fifth-count life imprisonment with a fine of Rs. 10,000/- (rupees ten thousand) in default of which R.I., for six months.
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Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015
3. Learned ASJ has submitted proceedings for confirmation of death sentence as imposed by him on the accused-appellant under Sections 376(A) and 302 of the IPC under the provisions of Section 366 (1) of the Cr.P.C., while feeling aggrieved by the impugned judgment, the accused- appellant has preferred the appeal under Section 374 of the Cr.P.C.
4. The prosecution case is narrated below in detail as it is based upon the circumstantial evidence.
(4.1) On 23.02.2015, at around 5.00 p.m. Sampat (PW-1) lodged an oral report at Police Station Maihar, stating that he is a native of village Itma. His daughter Ku. Richa Tomar (since deceased), aged near-about 5 years, studies in L.K.G. standard in the New Horizon Public School, Maihar (for short `the School'). On 23.02.2015 at about 10.00 a.m., his brother Brajbhan (PW-4) came over to Maihar from his village to drop his daughter in the school in a vehicle make Ace-Magic bearing registration No. MP-19-T-2374 (for short `the vehicle'). The driver of the vehicle was Sachin Kumar Singaraha, who is the accused-appellant herein. (4)
Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 His brother Brajbhan got off the vehicle near Sabzi Mandi (the vegetable market) Maihar, asking him to drop her at the school. In the evening of 23.02.2015, his daughter had not reached his residence. Thereupon, a massive hunt was launched to locate her, but she is still not traceable. He doubts that his daughter is kidnapped by an unknown offender and his needle of suspicion moves onto driver Sachin (the accused-appellant) who has left her daughter somewhere else. Upon his oral report, Sub-Inspector Sudama Prasad Mishra (PW-12) recorded the First Information Report Ex. P/1 and a case is registered at Crime No.174/15 under Section 363 of the IPC against an unknown offender.
(4.2) A.S.I. Pramod Singh (PW-15) was entrusted with the investigation of the case. On 23.02.2015, he prepared a spot map Ex.P/2 on the description of Sampat (PW-1), father of the deceased. On 25.02.2015, he took the accused-appellant into the custody and thereafter he interrogated him in the presence of Arun Verma (PW-2) and Ramji Kacher (PW-3). Upon the information disclosed (5) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 by the accused-appellant, he reduced it into writing and thus he prepared his disclosure statement Ex. P/6 under Section 27 of the Indian Evidence Act, 1872. On the same day at about 8.30 a.m., he recovered a school bag from the roof of school building of village Dubehi, at the instance of the accused-appellant in the presence of the aforesaid witnesses and drew recovery memo Ex. P/8. On the same day, at about 11.10 a.m., he recovered the deceased dead body from a well situated near the water canal of village Paraswara at the instance of the accused-appellant and prepared Lash Baramadgi Panchnama Ex. P/7 in the presence of witnesses namely Devendra Singh (not examined), Constable Ravi Shankar Dubey (PW-14), Arun Verma (PW-2) and Arun Paroha (not examined). He also seized one floating shoe from the well, which is alleged to be of the deceased, and he collected a bottle of water of the well. In this regard, he prepared a memo Ex. P/9 in the presence of Arun Verma (PW-2) and Ramji Kacher (PW-3). Upon his directions, photographer Kaushal Kishore Mishra (PW-13) (6) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 took snap-shots which are marked as Articles A-1 to A-9. Upon an oral intimation of Arun Verma (PW-2) he recorded Dehati Marg intimation Ex. P/12 at the aforesaid place. Thereafter, he drew inquest proceedings Ex. P/4 in the presence of Sampat (PW-1), Arun Verma (PW-2) and other witnesses namely Balkishore, Rajkumar and Santosh, (who are not examined). On the same day, at about 1.30 p.m., he made formal arrest of the accused-appellant vide arrest memo Ex. P/11 in the presence of Arun Verma (PW-2) and Ramji Kacher (PW-3). After completing all the formalities at the aforesaid place, he sent the dead body of the deceased for post-mortem examination to the Civil Hospital, Maihar.
(4.3) On 25.02.2015, at about 3.00 p.m., Pramod Singh (PW-15) seized the vehicle from the residence of the accused-appellant vide seizure memo Ex.P/10 in the presence of Arun Verma (PW-2) and Ramji Kacher (PW-3).
(4.4) On 25.02.2015, Sub-Inspector Sarla Mishra (PW-9) registered Marg intimation Ex.P/12 at Marg case no. 14/15 under Section 174 of the (7) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 Cr.P.C.
(4.5) On 25.02.2015, a panel of doctors comprising Dr. Pradeep Nigam (PW-10), Dr. V.K. Goutam (PW-7) and Dr. (Smt.) S.B. Awadhiya (PW-11) conducted the autopsy on the dead body of the deceased in the mortuary of the Civil Hospital, Maihar. The panel gave post-mortem report Ex. P/18. According to the report, the deceased suffered ante-mortem sexual assault and throttling. However, she died of cardio- respiratory failure due to ante-mortem drowning. Her death occurred between 12 to 72 hours before the commencement of the post-mortem examination. The panel also prepared the slides of the deceased's vaginal swab and preserved her visceral material and clothes for forensic examination. Upon the direction of the panel, photographer Kaushal Kishore Mishra (PW-13) took a close-up, which is marked as Article A-10, of deceased's external genitalia.
(4.6) On 26.02.2015, Dr. V.K. Gautam (PW-7), at Civil Hospital Maihar, conducted medico-legal examination of the accused-appellant and found that he is capable of performing sexual (8) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 intercourse and in this regard, he gave his report, Ex. P/13. He also prepared slides of semen of the accused-appellant for the forensic test.
(4.7) Vide letter Ex.P/23, the visceral-material, the slides of the deceased and the accused-appellant and the deceased clothes were sent to FSL, Sagar for forensic test. The FSL gave its reports Exs. P/25 and P/26.
(4.8) Vide letter Ex. P/24, a piece of femur-bone of the deceased and the water collected vide memo Ex. P/9 were sent for "Diatom test" to the Medico-Legal Institute Gandhi Medical College Bhopal. The Institute gave its report Ex. P/29.
5. After completing the investigation, on 31.03.2015 the police filed a charge-sheet against the accused-appellant for his prosecution for the offences punishable under sections 363, 372, 201, 376 of the IPC and 3 r/w 4 of the POCSO Act in the Court of Shri Vivek Patel, the Judicial Magistrate First Class, Maihar. The learned Magistrate committed the case vide committal order dated 23.04.2015. The case is registered as Special Case No.41/15 in the Court of First Additional Sessions Judge, Maihar.
6. The learned ASJ framed the charges against the (9) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 accused-appellant for the offences punishable under Sections 363, 376 (A), 302 and 201 of the IPC and 5 (i) (m) r/w 6 of the POCSO Act. He denied the charges and claimed to be tried. Thereupon, he was put on trial. The prosecution examined 15 witnesses and marked 29 documents and Articles A-1 to A-10, whereas the accused-appellant examined in his defence his father Sajjan Prasad Singhraha (DW-1) and marked 5 documents, which are, in fact, the case diary statements of the prosecution witnesses. The accused- appellant in his examination under Section 313 of the Cr.P.C., has denied all the incriminating circumstances and evidence appearing against him and took a plea that he has been falsely implicated in the case.
7. Having appreciated the evidence on record, the learned ASJ, has held the accused-appellant guilty of committing rape and murder of the deceased and throwing her dead body into the well to conceal the evidence of the murder and rape. Upon the aforesaid findings, he convicted and sentenced the accused-appellant as stated in para-2 of this judgment.
8. We heard arguments advanced by the learned counsel for the parties at length.
9. The learned Government Advocate submitted that (10) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 although the prosecution case rests entirely upon the circumstantial evidence, yet the prosecution has proved all the circumstances beyond reasonable doubts and they are of conclusive nature and none of them is capable of being explained in favour of the accused-appellant. He further submitted that the cumulative effects of the proved circumstances are that they form a complete chain which points unerringly that none other than the accused-appellant himself has committed the crime. Thus, the learned ASJ has rightly convicted the accused-appellant. On the sentence part, he submitted that the accused-appellant raped and murdered the deceased aged near-about five years, at a time when he was given a responsibility by her Tau Brajbhan (PW-
4) to drop her at the school, reposing faith in his bonafides. However, he betrayed the faith. He further submitted that as per the evidence on record, the accused-appellant has got a daughter whose age is almost same as that of the deceased. As such, he had a filial duty towards the deceased, but he made her a tool of satisfying her sexual lust. Hence, he is worse than a beast in the garb of human body. Under the circumstances, the learned ASJ has rightly awarded him capital punishment. He, therefore, prayed for the confirmation of the death sentence.
10. Per contra, the learned counsel for the accused- (11)
Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 appellant submitted that he does not contradict the fact that on the fateful day, Brajbhan (PW-4) took the deceased from village Itma to Maihar in the vehicle of the accused-appellant. Having referred to the depositions of Sampat (PW-1), Arun Verma (PW-2) and Ramji Kacher (PW-3), he argued that Brajbhan (PW-4) has not taken any active part in the search of the deceased when she had not returned to her home. Thus, his conduct is quite unnatural. In the cross-examination of Sampat (PW-1), it is challenged on behalf of the accused- appellant that he has a property dispute with his elder brother Brajbhan (PW-4). Hence, the real culprit of the crime is Brajbhan (PW-4), who committed her murder due to said dispute. However, the accused-appellant is made an accused of the case just on the ground that on the fateful day i.e. 23.02.2015 the deceased travelled in his vehicle from her native village Itma to Maihar. He further submitted that the conduct of Pramod Singh (PW-15) in seizing the school bag and the dead body of the deceased is also unusual because he had first gone to the place wherefrom he recovered the school bag and thereafter he went to the well for the recovery of the deceased's dead body. In the normal course, he ought to have first recovered the dead body of the deceased and thereafter the school bag. He further submitted that in the disclosure statement Ex. P/6 it is mentioned that (12) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 on the deceased's dead body there is only an underwear, whereas the photographs of Articles A-4 to A-6, show that when the deceased's dead body was took out from the well, she was in her full school uniform. Arun Verma (PW-2) and Ramji Kacher (PW-3) are the witnesses of the disclosure statement Ex. P/6 and the recovery memos Ex. P/8 and Ex. P/9. As per their depositions, they are the deceased's maternal uncle and Pupha (the husband of her father's sister) respectively. Hence, they are interested witnesses. Thus, their evidence is not reliable on the points that the accused- appellant had made the disclosure statement and that at his instance the school bag and the dead body of the deceased were recovered. He further submitted that during investigation the school bag was not got identified by the deceased's parents and her relatives in accordance with law. Hence, there is no evidence on record that the school bag belongs to the deceased. He further submitted that the Investigating Officer Pramod Singh (PW-15) arrested the accused-appellant vide arrest memo Ex.P/11 after the recovery of deceased's dead body and the school bag. Hence, the disclosure statement Ex. P/6 and the recovery memos Ex. P/7 and P/8 are inadmissible in evidence.
11. The learned counsel for the accused-appellant further submitted that as per the FSL reports Exs. P/25 and P/26, no (13) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 human spermatozoa were found on the deceased's clothes and her vaginal swab. Hence, the offence of rape is not proved. He further submitted that Brajbhan (PW-4) himself entrusted the custody of the deceased to the accused- appellant to drop her at the school. Hence, the offence of kidnapping is also not made out. He also submitted that the learned A.S.J., has sentenced the accused-appellant under Sections 376 (A) of the IPC and 5 (1) (m) r/w 6 of the POCSO Act, which is against the provisions of amended Section 42 of the POCSO Act. Thus, the impugned judgment suffers aforesaid legal infirmities. He concluded his submissions asserting that the impugned judgment is based upon mis- appreciation and misreading. Hence, it is liable to be set- aside and the accused-appellant deserves to be acquitted of all the charges.
12. Alternatively, the learned counsel for the accused- appellant submitted that in case this Court upholds the conviction of the accused-appellant, then this case does not fall in the category of "the rarest of the rare case". Hence, the capital sentence awarded to him under Sections 376 (A) and 302 of the IPC deserves to be altered in the sentence for life imprisonment.
13. In view of the law laid down by the Supreme Court in (14) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 Mohinder Singh Vs. State of Punjab (2013 Cr.L.J. 1559), first, we satisfy ourselves whether the learned ASJ has rightly recorded the conviction of the accused-appellant under Sections 363, 376 (A), 302, 201 (ii) of the IPC and 5 (i) (m) r/w 6 of the POCSO Act.
14. Upon perusal of the impugned judgment, we find that it suffers from verbosity and repetition of the evidence. Moreover, the learned ASJ has not mentioned categorically in the impugned judgment upon which circumstances the prosecution has based its case and whether they are proved by it. In the course of arguments before us, the learned Government Advocate submitted that the prosecution has relied on the following circumstances to establish the guilt of the accused-appellant.
(1) On the fateful day i.e. 23.02.2015 Brajbhan (PW-4) and the deceased travelled from their native village Itma to Maihar in the vehicle owned by and being driven by the accused-appellant himself.
(2) On the fateful day at Sabzi Mandi Maihar Brajbhan (PW-4) had given the deceased in the custody of accused-appellant upon his assurance that he would drop her at the school.
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Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 (3) On the fateful day, the deceased was with the accused-appellant all the time before her death.
(4) Recoveries of the empty school bag
without books and the dead body of the
deceased at the instance of accused-appellant, pursuant to his disclosure statement.
(5) The deceased was subjected to sexual
assault and later she was murdered by
throttling.
15. Before analyzing aforestated circumstances, we would refer to some of the illuminating judgments as to when the order of conviction can be passed in a murder case where the prosecution case is entirely based upon circumstantial evidence.
16. In Sharad Birdhichand Sarda V. State of Maharashtra , (1984 (4) SCC 116 : 1984 SCC (Cri) 487), the Supreme Court has set out the five golden principles which have been stated to constitute the "panchsheel" of the proof of a case based on circumstantial evidence. They are:
(i) that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;
(ii) that 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 (16) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 explainable on any other hypothesis except that the accused is guilty;
(iii) that the circumstances should be of a conclusive nature and tendency;
(iv) that they should exclude every possible hypothesis except the one to be proved; and
(v) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
In this case, the Supreme Court has also held that the onus is on the prosecution to prove that the chain is complete and any infirmity or lacuna in the prosecution case cannot be cured by a plea of false defence.
17. The Supreme Court has reiterated the same principles in Padala Veera Reddy Vs. State of M.P., (AIR 1990 SC 79) and Bodh Raj alias Bodhu and others Vs. State of Jammu and Kashmir (AIR 2002 SC 3164) though they are couched in different terms. Almost a similar view is also taken by the Supreme Court in State of Goa Vs. Sanjay (2007 AIR SCW 2226).
18. In State of U.P. Vs. Ashok Kumar Shrivastava (1992 Cr.L.J. 1104 SC), the Supreme Court has pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied upon is reasonably capable of two inferences one of which is in favour of the accused it must be accepted. It is also pointed out that the circumstances relied upon must be found to have been fully (17) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt of the accused.
19. In Raj Kumar @ Raju @ Batiya Vs. State of Rajsthan (2013 (15) SCC 722), the Supreme Court, while again reiterating the same principle as laid down in Sharad Birdhichand Sarda V. State of Maharashtra (Supra), has held that suspicion cannot take place of proof as there is a large difference between may be and must be.
20. We may also make a reference to a decision of the Supreme Court in C. Chenga Reddy v. State of A.P. (1996 (10) SCC 193) wherein it has been observed, thus :
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
21. In State of Gujrat Vs. S.D. Soni (AIR 1991 SC 917), the apex court has laid down that the circumstances must be established beyond reasonable doubt before conviction is recorded on the basis of circumstantial evidence. The same view is also taken in Balwindar Singh Vs. State of Punjab (1995 Supp. (4) SCC 259).
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22. In Manu Sharma Vs. State NCT Delhi (AIR 2010 SC 2352 = 2010 (6) SCC 1), the Supreme Court in para 274 of the decision has held that where an accused furnishes false answer as regard to proved evidence in his examination under Section 313 of the Cr.P.C., the court ought to draw an adverse inference qua him and such an inference shall be an additional circumstance to prove the guilt of the accused.
23. In Munish Mubar Vs. State of Haryana (2012 (10) SCC
464), the Supreme Court has held that it is obligatory on the part of the accused while being examined under Section 313 of the Cr.P.C. to furnish some explanation with regard to incriminating circumstances associated with him. The court must take note of such explanation even in a case of circumstantial evidence so as to decide whether the chain is complete? The same view is taken by the Supreme Court in Pudhu Raja Vs. State (2012 (11) SCC 196).
24. In Sanatan Vs. State of West Bengal (2010 Cr.L.J. 3871), the Supreme Court has observed as under when a case rests upon circumstantial evidence.
"That the circumstantial evidence is more reliable than eye witness. The basic principle of circumstantial evidence is that it should be consistent with the guilt of the accused and in inconsistent with innocence of the accused."
25. Recently, the Supreme Court in Munish Mubar Vs. (19) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 State of Haryana (supra) has observed upon circumstantial evidence as follows:-
"The circumstantial evidence is a close companion of factual matrix creating a fine network through which there can be no escape for the accused primarily because the said facts when taken as a whole do not permit us to arrive at any other inference but one indicating the guilt of the accused."
26. In Musheer Khan @ Badshah Khan and Anr. Vs. State of M.P. (2010 (2) JLJ 104), the Supreme Court has cited Lord Coleridge who has stated that circumstantial evidence is like gossamera thread, light and as unsubstantial as the air itself as may vanish of merest of touch.
27. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules especially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other (20) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 reasonable hypothesis than that of his guilt; and (5) if there is any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
28. Now, we shall proceed to test the circumstances mentioned in para 14 on the touchstone of the above- stated propositions of law relating to circumstantial evidence.
29. From perusal of the material on record, we find following facts are not controverted on behalf of the accused- appellant in the cross-examination of the prosecution witnesses.
(i) The distance between village Itma and Maihar town is approximately 9 km. In this regard, para-4 of the deposition of Ramji Shukla (PW-5) is relevant.
(ii) At the time of occurrence, the deceased was studying at the New Horizon Public School, Maihar and she was a student of the L.K.G. standard as per Ex. P/14.
(iii) The date of birth of the deceased was 14.11.2009 as per the Ex. P/14. Thus, on the fateful day the age of the deceased was 5 years, 2 months and 9 days.
(iv) At the relevant time the accused-appellant was the registered owner of the vehicle in question.
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(v) At the relevant time the daughter of accused-appellant was also a student of the school.
(vi) Investigating Officer, Pramod Singh (PW-14) seized the vehicle vide seizure memo Ex. P/10 from the residence of accused-appellant on 25.02.2015.
30. Now, we shall proceed to scrutinize the evidence on the circumstances of Para-14 upon which the prosecution case is based.
31. Sampat (PW-1), father of the deceased, has stated in his evidence that the deceased used to go to school by school bus from his native village Itma. On 23.02.2015 she missed the school bus. Thereupon, he asked his brother Brajbhan (PW-4) to take her to the school. At about 10.00 a.m., Brajbhan (PW-4) took her in the vehicle of the accused- appellant. In para-9 of his cross, he has given evidence in detail as to how he knows the accused-appellant prior to the crime. In para-11, he has stated that Brajbhan (PW-4) does a job of electrician at one electric shop by the name of Agrasen Electricals, Maihar. In view of the aforesaid evidence, it appears to us that it is quite a natural on his part to ask his brother Brajbhan (PW-4) to take the deceased to the school. Moreover, it is not challenged by the defence that on the fateful day Brajbhan (PW-4) and the deceased travelled in the accused-appellant's vehicle from village Itma to Maihar. Thus, (22) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 we hold that aforesaid evidence of Sampat (PW-1) is fully reliable.
32. Brajbhan (PW-4) and Ramkumar (PW-6) have also corroborated the evidence given by Sampat (PW-1). There is nothing adverse in their cross-examinations to disbelieve their evidence.
33. Having examined the evidence of Sampat (PW-1), Brajbhan (PW-4) and Rajkumar (PW-6), we hold that the prosecution has conclusively proved circumstance no.1 beyond reasonable doubt that on the fateful day at about 10.00 a.m. Brajbhan (PW-4) and the deceased left their native village Itma for Maihar in a vehicle being driven by the accused-appellant himself.
34. Brajbhan (PW-4) has stated in his evidence that when the vehicle reached the turn of Katni road in Maihar, he told the accused-appellant to drop them at the school. Thereupon, he told him that at first he would unload the vegetables from his vehicle at Sabzi Mandi, Maihar. He also told him that he had to go to the school to deposit his daughter's fee. Therefore, he would drop her there. Believing upon his commitment, he got off the vehicle and left the deceased into his custody.
35. The learned counsel for the accused-appellant has challenged the credibility of Brajbhan's (PW-4) statement on (23) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 the grounds, first; he and the deceased in fact got off the vehicle at Maihar, secondly; there are property disputes between him and his brother Sampat (PW-1) and thirdly; he had not played any active role in search of the deceased when she had not come back to her native village after the school was closed for a day.
36. We will examine Brajbhan's (PW-4) evidence in the light of aforestated contentions. In para 8 of his cross, he has strongly denied that he and the deceased both had alighted from the vehicle at Sabzi Mandi. Ramji Shukla (PW-5) has stated in para-2 of his statement that on 23.02.2015 he saw the deceased in the vehicle of the accused-appellant near the gate of Sabzi Mandi, Maihar. Nothing adverse has come out in his cross-examination. Therefore, his evidence is trustworthy. Thus, the defence's contention is not true much less proved that Brajbhan (PW-4) and the deceased got off the vehicle at Sabzi Mandi, Maihar. In para-12 of his cross, Sampat (PW-1) has emphatically denied that there are property disputes between him and his brother Brajbhan (PW-4) on account of which their relations are strained. Upon the perusal of entire depositions of Sampat (PW-1) and Brajbhan (PW-4), we find that both are semi-literate and they earn their livelihood by doing manual jobs. Moreover, there is no evidence either documentary or (24) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 oral on record on the point that they have substantial parental properties on account of which there is a bitterness in their relations over the property disputes. If, there exists a property related dispute between them, Sampat (PW-1) would have never asked Brajbhan (PW-4) to take the deceased to her school. Thus, we completely rule out the possibility that Brajbhan (PW-4) himself murdered the deceased on account of property-dispute. Brajbhan (PW-4) has stated in para-3 of his statement that in the evening of the fateful day when the deceased had not reached her home, then he with others went to the school to ascertain whether the deceased had attended the school? His statement is corroborated by Sampat's (PW-1) evidence appearing in para-9 of his deposition. Brajbhan (PW-4) has also stated in para-3 of his deposition that when they came to know that the deceased had not reached her school, he and other persons searched her. In view of the above, it cannot be said that Brajbhan (PW-4) had not taken active part in the search of the deceased. Hence, there is no evidence on record to draw a conclusion that his conduct was unusual on account of which the needle of suspicion moves onto him. On the basis of the aforesaid analysis of evidence. We hold that credibility of the evidence of Brajbhan (PW-4) is not eroded on the aforementioned grounds.
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37. Having drawn our attention in paras 5 and 6 of the statement of Brajbhan (PW-4), the learned counsel for the accused-appellant has argued that there are material discrepancies and the omissions between his deposition and his case dairy statement Ex. D/3. Upon the perusal, we hold the discrepancies and omissions are minor in nature which do not impinge upon the trustworthiness of his evidence.
38. On the basis of above close scrutiny of the evidence, we hold that the prosecution has proved circumstance no.2 beyond reasonable doubt that on the fateful day Brajbhan (PW-4) had left the deceased in the custody of accused- appellant upon his assurance that he would drop her at the school.
39. Ramji Shukla (PW-5) has testified that he is a resident of village Itma. He knows the accused-appellant and the deceased since long. He is an artisan by occupation. On 23.2.2015, he came to Maihar in search of a job. On that day, at Sabazi Mandi Gate, Maihar around 9:30 a.m. he saw the accused-appellant sitting at the driving seat in his vehicle and by his side the deceased in her school uniform. This witness has stated in his cross-examination that on 26.02.2015 the police recorded his case diary statement, Ex.D/4, whereas his case diary statement was, in fact, recorded on 28.2.2015. In our view, this contradiction is not material and it has (26) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 certainly cropped up on account of lapse of memory. We also find some omissions appearing in his evidence and his case diary statement, Ex.D/4. On due consideration, we find that the omissions are not material. Moreover, learned counsel for the accused-appellant has not pointed out anything in his cross-examination which render his deposition unreliable and untrustworthy. Hence, we hold that his evidence is fully reliable.
40. Ram Kumar Kushwaha (PW-6) has stated in his evidence that he is a resident of village Itma. He knows very well the accused-appellant and the deceased. He has Pan Ki Dukan (betel-shop) at Tamatar Mandi, Itma. On 23.2.2015, at about 11:00 a.m., sitting in his shop he saw the deceased with the accused-appellant in his vehicle going towards Katni road. At that time, the accused-appellant was driving the vehicle on high speed. This witness was subjected to lengthy cross-examination but there is nothing adverse in his cross- examination to draw an inference that he is prejudiced against the accused-appellant. Therefore, we hold that his evidence is trustworthy and reliable.
41. On the basis of the aforesaid testimonies of Ramji Shukla (PW-5) and Ram Kumar Kushwaha (PW-6), we hold that on the fateful day the deceased was with the accused- appellant after Brajbhan (PW-4) had left her in his custody. (27)
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42. Prahlad Patel (PW-8) is the Manager and Teacher of the School. On the basis of the attendance register, Ex.P/15, for the month of February 2015, he has stated that on 23.2.2015 the deceased has not attended the classes. There is nothing contrary in his cross-examination to discredit his evidence. Therefore, we hold that the accused-appellant had not dropped the deceased-prosecutrix at the school on the fateful day.
43. In Dharam Deo Yadav Vs. State of U.P. (2014 (5) SCC
509), the Supreme Court in para 19 of the decision has held that if the prosecution on the basis of reliable evidence establishes that the missing person was seen in the company of the accused and was never seen thereafter, it is obligatory on the part of the accused to explains the circumstances in which the missing person and the accused parted company. Hence, in the instant case, the accused-appellant has to explain where he parted company with the deceased. We find that the accused-appellant has not offered any explanation either through the cross-examination of material prosecution witnesses or in his examination under Section 313 of the Cr.P.C. as to the place where he had left the deceased on the fateful day. It is pertinent to mention here that we have rejected the accused-appellant plea that he had dropped the deceased and her uncle Brajbhan (PW-4) at Sabzi Mandi, (28) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 Maihar. Thus, there is ample evidence on record to hold that the deceased was with the accused-appellant before her death.
44. On the basis of the aforesaid analysis of evidence, we hold that the prosecution has proved the circumstance no.3 beyond reasonable doubt that the deceased was with the accused-appellant all the time before she was murdered.
45. Pramod Singh (PW-15), the Investigating Officer of the case, has deposed that on 25.2.2015 he took the accused-appellant in his custody at Police Station Maihar. Thereupon, he thoroughly interrogated him in the presence of Arun Verma (PW-2) and Ramji Kacher (PW-3). He reduced all the information furnished by him into writing in his own language in the disclosure statement, Ex.P/6. Thereafter, he took him and the aforesaid witnesses to the roof of the building of Primary School, Dubehi, wherefrom he recovered an old empty school bag i.e. without books vide seizure memo, Ex.P/8 at the instance of the accused-appellant. Therefrom, he took them to a well which is located on the bank of water canal near village Paraswara. They saw a shoe floating in the well. With the help of persons gathered there, he got the dead body of the deceased extricated from the bed of the well. In this connection, he prepared the Lash Baramadgi Panchnama , Ex.P/7, in the presence of some of (29) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 the persons who had collected there. He also seized the shoe and collected some water from the well. In this regard he prepared Panchnama, Ex.P/9. At last, he arrested the accused-appellant at the aforesaid place vide arrest memo, Ex.P/11.
46. The learned counsel for the accused-appellant has argued that as per the evidence of Pramod Singh (PW-15), it is crystal clear that he arrested the accused-appellant after the recording of disclosure statement and drawing aforesaid memos. This means that the accused-appellant was not in police custody when they were prepared. The upshot is that the disclosure statement and the recovery memos are inadmissible in evidence. Therefore, the learned ASJ has committed an error in law by placing reliance upon them. In Manohar and another Vs. State of M.P. ( 2008 MPHT 326 (DB)), this court has held that it is not necessary that arrest memo should have been drawn up prior to the accused- appellant giving information under Section 27 of the Indian Evidence Act, and getting recoveries made. An accused is deemed to be in police custody when he gives information and gets the recoveries made to the Investigating Officer. In view of the said ratio, we hold that the disclosure statement and recovery memos are admissible in evidence.
47. The learned counsel for the accused-appellant has (30) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 assailed the truthfulness of Pramod Singh's testimony on the ground that he has falsely recorded the disclosure statement and the recovery memos in the name of the accused- appellant. In this regard, he has pointed out the following facts: first, his conduct is unusual because he first recovered the school bag and thereafter the deceased's dead body, whereas the normal conduct of him would have been opposite i.e., first, the recovery of the dead body of the deceased and later the recovery of school bag. Secondly, as per the disclosure statement, there is only an underwear on the person of the deceased, whereas her photographs, Articles A/5 and A/6, show that when her dead body was recovered from the well, she was found in her full school uniform and thirdly witnesses to the disclosure statement and the recovery memos are Arun Verma (PW-2) and Ramji Kacher (PW-3) who are the close-relatives of the deceased. Hence, they are interested witnesses.
48. Now, we proceed to consider the aforesaid submissions. Upon the perusal of cross-examination of Pramod Singh (PW-15), we find that he was not cross- examined on the point why he had given preference to recovery of the school bag over the recovery of the dead body of deceased. To our mind, if he had been cross- examined on the aforesaid point, he would have certainly (31) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 explained the reasons on account of which he preferred the recovery of school bag first. Under the circumstance, we do not find his conduct unusual. True is that in the disclosure statement, it is mentioned that there is only an underwear on the person of the deceased, whereas her photographs Articles A/5 and A/6 show that her dead body was recovered in her full school uniform. To our opinion, the said discrepancy is not material. It is true that the witnesses of the disclosure statement and the recovery memos are close relatives of the deceased. The Supreme Court has observed in para 9 of its decision in State of A. P. Vs. S. Rayappa (2006 (4) SCC 512) that it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidated and at the top of all, they are subjected to lengthy cross- examinations. In such a situation, the only natural witnesses available to the prosecution would be the relative witnesses. A relative witness is not necessarily an interested witness. On the other hand, being in close relation to the deceased he will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real (32) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 culprit to escape him unpunished. The only requirement is that the testimony of a relative witness should be examined cautiously. The same view is taken by the Supreme Court in Sahabuddin Vs. State of Assam (2012 (13) SCC 213). On the basis of the aforesaid ratio, the bonafides of Pramod Singh (PW-15) cannot be doubted on this count. In the light of the discussion, we reject the aforesaid submissions made by the learned counsel for the accused-appellant.
49. From the perusal of the evidence appearing in the cross-examination of Pramod Singh (PW-15), we find that there is no evidence to the effect that he acted against the accused-appellant in a prejudice manner. Hence, we hold that his evidence is credible and trustworthy.
50. Arun Verma (PW-2) and Ramji Kacher (PW-3) have corroborated in material particulars the evidence given by Pramod Singh (PW-15). Both are subjected to grueling cross- examinations on behalf of the accused-appellant. But there is no conflicting and contradictory evidence in their cross- examinations to disbelieve their testimonies or to draw a conclusion that they have given evidence having been prejudiced against the accused-appellant. Thus, their evidence strengthens Pramod Singh's statement.
51. Ravi Shankar (PW-14) who is a witness of Lash Baramadgi Panchnama Ex.P/7, has deposed that on 25.2.2015 (33) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 he was posted as a Constable at Police Station Maihar. On that day at around 10:00 to 11:00 a.m., the SHO of Police Station Maihar instructed him on cello phone to go a well near the water canal of village Paraswara with ropes and hooks. Thereupon, he reached the said place taking with him the aforesaid articles. He and some of the persons present there made an attempt to fish the dead body out by means of ropes and hooks but in vain. Thereupon, he and Devendra, who is also a witness of Lash Baramadgi Panchnama but was not examined by the prosecution, climbed-down in the well and found a dead body lying on the bed of the well. They tied the dead body with ropes and hooks. Thereafter, the dead body of the deceased was pulled out from the well. This witness was crossed in brief by the defence. We find no inconsistencies in his evidence as a whole. On the other hand, photographs marked as Articles A/3 and A/4, support the veracity of his statement. On the basis of the evidence of this witness, we hold that since the dead body of deceased was recovered from the bed of the well, it was exclusively in the knowledge of the accused-appellant the place where the deceased's dead body was lying.
52. We find that the recovered school bag was not put to the test identification proceedings. However, the defence has not challenged in the cross-examination of Promod Singh (34) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 (PW-15), Arun Kumar (PW-2) and Ramji Kacher (PW-3) that the bag is not of the deceased. Hence, their testimonies remain unchallenged. We, therefore, hold that the recovered school bag belongs to the deceased.
53. Upon the aforesaid analysis of the evidence, we hold that the prosecution has proved beyond reasonable doubt circumstance no.4 that the dead body of the deceased and her school bag were recovered pursuant to the disclosure statement of the accused-appellant.
54. Dr. Pradeep Nigam (PW-10) has stated that on 25.02.2015 in the mortuary of the Civil Hospital Maihar he, Dr. (Smt.) S. B. Awadhiya (PW-11) and V. K. Gautam (PW-7) jointly conducted the autopsy on the dead body of the deceased upon the requisition of Police Station Maihar and they have found the following injuries on her person:
External Injuries
(i) The dead body was emitting foul smell.
(ii) Rigor mortis had set in.
(iii) Four ante-mortem bluish green bruises on the
neck. Out of them, three in the linear shape were on the right side of the neck and they were in the size of 2X1 cm., 4X1 cm. And 3X1 cm. respectively and one bruise on the left side of the neck, the size of which was 4X2 cm.
(iv) Hematoma was present beneath all the bruises.
(v) A semi-circular tear was present in the hymen.(35)
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(vi) Ante-mortem bruises were present over the female genitalia.
(vii) The vagina was in swollen state.
(viii) Fresh bright-red colour blood was present inside
the labia majora.
(ix) A scratch on the right side of the labia majora
the size of which was 0.5X0.5 cm.
Internal Injuries
(i) Lungs, liver, spleen and kidneys were
congested.
(ii) Blood was present in right chamber of the
heart. However, left chamber of the heart was empty.
He has opined that the ante-mortem bruises on the neck and ante-mortem injuries on the female genitaila were indicative of the facts that the deceased was subjected to sexual assault and throttling. He has also opined that the mode of death of the deceased was cardio-respiratory failure due to ante-mortem drowning and her death was occurred 12 to 72 hours prior to the commencement of post-mortem examination. He has proved post-mortem examination report, Ex.P/18, and identified the signatures of the panel doctors thereon. He has also stated that Dr. (Smt.) S. B. Awadhiya has given opinion as to the sexual assault. In paras 12 of the cross, he has emphatically denied that the deceased sustained injuries on her neck due to a fall or rubbing her neck against a bushy plant.
(36)
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55. Nothing has been pointed out by the learned counsel for the accused-appellant which may lead us to discard his testimony. Moreover, the positive diatom-test report Ex.P/29 confirms his opinion that the cause of death of deceased was ante-mortem drowning.
56. Dr. (Smt.) S.B. Awadhiya (PW-11) fully corroborates the testimony of Dr. Pradeep Nigam (PW-10). She has added her opinion in the post-mortem examination report, Ex.P/15, that the presence of injuries on her genitalia prove that the deceased was subjected to sexual assault. Replying to a query raised by the learned trial Judge, she has stated that the deceased suffered injuries on her private parts on account of forceful insertion of penis. In cross, she has explained in detail the reasons of finding fresh blood in the labia majora. Notwithstanding that, her dead body was lying in water for long hours. According to her, the orifice of labia majora of the deceased was very narrow, on account of which water could not reach inside it. It is apposite to mention here that the photograph of Article A-10 is a close- up of the deceased's genitalia showing the presence of fresh blood on her labia majora. Thus, the photograph confirms the aforesaid opinion given by her. Moreover, there is nothing in her cross to reject her aforesaid opinion.
57. However, the learned counsel for the appellant has (37) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 challenged the opinion of Dr.(Smt.) S. B. Awadhiya on the basis of FSL reports, Exs.P/25 and P/26. According to the reports, no human spermatozoa were found on the deceased clothes and in her vaginal swab. Since the deceased dead body was lying in deep water for long hours, on the basis of which we may say with certitude that the semen would have dissolved in water as being soluble. Hence, the FSL reports are negative. Under the circumstances, the negative reports of the F.S.L. do not debunk the opinion given by Dr.(Smt.) S. B. Awadhiya.
58. Dr. V. K. Gautam (PW-7) has deposed that on 26.2.2015 at Civil Hospital, Maihar, he has examined the accused-appellant upon the requisition of Police Station Maihar. Upon his medico-legal examination, he found that the accused-appellant is capable of performing sexual intercourse. In this regard, he has given M.L.C. report, Ex.P/13. There is one line cross-examination of this witness whereunder he has admitted that he had not found any injury on the accused-appellant male-genitalia. Thus, we hold that the accused-appellant was capable of committing sexual intercourse.
59. In the light of close scrutiny of the aforesaid evidence, we hold that the prosecution has proved beyond reasonable doubt circumstance no. (5) that the accused- (38)
Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 appellant had sexually assaulted and murdered the deceased by throttling.
60. Now, we consider defence evidence. The accused- appellant has examined in his defence his father Sajjan Prasad (DW-1). He has testified in his evidence that the accused-appellant was taken into custody by the police on 23.2.2015. However, he has not given any cogent evidence in this regard to prove his version. The prosecution has also challenged his version in his cross-examination. The prosecution has produced Rojnamcha entries Ex.P/27 to Ex.P/28 in the evidence of Pramod Singh (PW-15), the Investigating Officer, upon the perusal of Ex.P/27, it is manifest that the accused-appellant was taken into custody on 25.02.15. In his cross, the correctness of entries is not challenged even remotely. There is no evidence on record to doubt the correctness of Rojnamcha entry Ex.P/27. Hence, his bald statement cannot be relied on. Even if it is presumed that the police had taken the accused-appellant into custody on 23.02.2015 after the recording of the FIR, despite that his evidence has no evidentiary value because he is totally silent on the point what he wants to prove by saying that the accused-appellant was taken into custody on 23.02.15 in place of 25.02.2015. Thus, we hold that the evidence of this defence witness has no relevancy at all. (39)
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61. Considering the cumulative effect of all the proved circumstances, we hold that the chain of circumstantial evidence is complete, which unerringly points that none other than the accused-appellant had committed the crime. Therefore, the learned ASJ has rightly held the accused- appellant guilty for committing rape upon the deceased and murder of her and for causing the disappearance of evidence of her rape and murder by throwing her dead body into the well. However, the learned ASJ has committed an error in holding the accused-appellant guilty of kidnapping of the deceased on the ground that Brajbhan (PW-4) himself had entrusted the custody of the deceased to the accused- appellant getting an assurance from him that he would drop her off at the school. Hence, offence of kidnapping as defined in Section 361 of the IPC is not made out.
62. Now, we shall deal with the facet of sentence.
63. We have already held that the learned ASJ has committed an error of law in convicting the accused-appellant under Section 363 of the IPC. Hence, the sentence awarded to him in this Section is set aside and he is acquitted of the aforesaid charge.
64. We have noticed that the learned ASJ has convicted the accused-appellant under Sections 376 (A) of the IPC and 5 (i) (m) r/w 6 of the POCSO Act and sentenced thereunder (40) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 with death penalty and life imprisonment with a fine of Rs.10,000/- respectively. Taking into consideration the provisions of the amended Section 42 of the POCSO Act, which is given below, we hold that the learned A.S.J., has committed an error in law by convicting the accused- appellant in both the aforesaid sections:-
"Section 42. Alternate punishment - Where an act or omission constitutes an offence punishable under this Act and also under sections 166-A, 354-A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376, 376-A, 376-C, 376-D, 376- E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree".
Since the learned ASJ has awarded greater punishment under Section 376 (A) of the IPC in comparison to Section 5 (i) (m) r/w 6 of the POCSO Act, the learned ASJ ought not to have sentenced the accused-appellant in the aforesaid sections of the POCSO Act. Hence, we set aside the sentence awarded to the accused-appellant by learned ASJ under Section 5 (i) (m) r/w 6 of the POCSO Act.
65. Now, we consider whether in the fact situation of the case, the imposition of death sentence upon the accused- appellant under Sections 376(A) and 302 of the IPC by the learned ASJ holds justification?
(41)
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66. The Supreme Court has evolved the doctrine of the rarest of the rare case in awarding the death sentence through its several pronouncements. Hence, the first point before us is whether the present case falls under the category of the rarest of the rare case?
67. In Macchi Singh and Others Vs. State of Punjab (1983 (3) SCC 470), the Supreme Court has observed in para 39 of the decision that the following questions may be asked and answered as a test to determine the "rarest of the rare" cases in which death sentence can be inflicted.
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigation circumstances which speak in favour of the offender?
68. The Supreme Court in Lehna Vs. State of Haryana (2002 (3) SCC 76), has defined in para 27 of the decision that the rarest of the rare case is one 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, death (42) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 sentence can be awarded. The community may entertain such sentiment in the following circumstances:-
"(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion.
For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
69. The Supreme Court in Mofil Khan Vs. State of Jharkhand (2015 (1) SCC 67) in para 64 of its decision has expressed its view upon the "rarest of the rare" case as under:-
"The "rarest of the rare" case exists when an (43) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 accused would be a menace, threat and antithetical to harmony in the society. Especially in cases where an accused does not act on provocation, acting on the spur of the moment but meticulously executes a deliberately planned crime in spite of understanding the probable consequence of his act, the death sentence may be the most appropriate punishment."
70. The Supreme Court has ruled in para 20 of its judgment rendered in Haresh Mohandas Rajput Vs. State of Maharashtra (2011 (12) SCC 56) thus;
"The rarest of rare case when a convict would be menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of the "rarest of the rare case".
71. The Supreme Court has laid down the test of the rarest of the rare case in para 27 of its decision in Anil @ Anthony Arikswamy Joseph Vs. State of Maharashtra (2014 (4) SCC 69) thus;
"The rarest of the rare test depends upon perception of the society i.e. "society-centric" and not "Judge-centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into the variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls, intellectually challenged minor girls, minors suffering from physical disability, old and infirm women, etc."
72. In Santosh Kumar Vs. State through C.B.I. (2010 (9) SCC 747), the Supreme Court in para 98 has observed the philosophy behind the rarest of the rare principle thus;
"Undoubtedly, the sentencing part is a difficult one (44) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 and often exercises the mind of the court but where the option is between a life sentence and a death sentence, the options are indeed extremely limited and if the court itself feels some difficulty in awarding one or the other, it is only appropriate that the lesser sentence should be awarded. This is the underlying philosophy behind "the rarest of the rare" principle."
73. In Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra (2009 (6) SCC 498), the apex court held the nature, motive, and impact of crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation and some of the factors, the Court may take into consideration while dealing with such cases.
74. In Bachan Singh Vs. State of Panjab ( 1980 (2) SCC
684) the Supreme Court has laid down the following guidelines to be applied to the facts to each individual case where the question of imposition of death sentence arises.
(i) The extreme penalty of death need not be inflicted except in the gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances has to be accorded full (45) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
75. In the cases of Bachan Singh and Machhi Singh (supra), the Supreme Court has enumerated the following aggravating and mitigating circumstances for consideration of awarding the capital punishment.
Aggravating circumstances (crime test) (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or devise which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Cr.P.C.
(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or (46) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13)The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances (criminal test) (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the (47) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 accused.
However, we are aware that the Supreme Court in Shankar Kisanrao Khade vs. State of Maharashtra (2013 (5) SCC 546) has observed that the application of aggravating and mitigating circumstances need a fresh look in sentencing process. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance- sheet cannot be drawn up for comparing the considerations, for both are distinct and unrelated. In the sentencing process, both the crime and criminal are equally important.
76. In the light of the aforesaid legal positions, we shall consider whether the instant case falls within the category of "rarest of the rare case"? We have noticed the following aggravating and the mitigating circumstances in the present case:-
Aggravating Circumstances (1) At the time of commission of the crime, the age of the deceased was five years and over three months. Thus, we can say that she was raped and murdered at the age when girls often play with their dolls and when they are unaware about the materialistic world.
(2) As per the record, at the time of commission of offence, the age of accused-appellant was near-about 33 years. Thus, he was matured enough to know the consequences of committing the ghastly crime.
(3) The age difference between the deceased-
prosecutrix and the accused-appellant is near-about 28 years. (48)
Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 Thus, it is not a case of physical intimacy between them which had provoked the accused-appellant to commit the crime.
(4) As per the record, the accused-appellant has got a daughter whose age is almost similar to that of the deceased and they were the school-mates. Hence, he ought to have bestowed upon him love and affection as his bestows upon own daughter but he made her a scapegoat for satisfying his sexual lust. Thus, he is a beast in the clothe of human body. Hence, he does not deserves any kind of sympathy and looking to the nature of crime even a common man would expect from the court to award him no punishment other than the death penalty.
(5) He committed the crime when Brajbhan (PW-
4) left the deceased into his custody with a high hope that he would drop her at the school but he betrayed his belief by committing the crime.
(6) We have come across through the news media many cases of rape where the rapists first committed rape and thereafter murdered the victims with the sole criminal intention that they would not lodge the police reports against them. The present case falls in this category. In the circumstances, we are of the view that a strong message ought to go to criminals of like minded that in such cases the Courts would award only death penalty.
Mitigating Circumstances (1) The prosecution has not produced any criminal record of the accused-appellant at the trial. Hence, the logical inference may be that the accused-appellant is first offender.
Upon the comparison of aggravating and the mitigating circumstances, we find that the aggravating circumstances (49) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 outweigh the mitigating circumstances.
77. In Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra (2009 (6) SCC 498), the Supreme Court in para 131 has observed that when the court is faced with a capital sentencing case, a comparative analysis of the case before it with other purportedly similar cases would be in the fitness of the scheme of the Constitution. Comparison will presuppose an identification of a pool of equivalently circumstanced capital defendants.
78. In view of the aforesaid observation, we have found that in the following cases the Supreme Court has affirmed the death sentence wherein the age of victim girl ranges from three to nine years and they were first raped and thereafter murdered treating them to be the "rarest of the rare" cases:-
(i) Laxman Naik Vs. State of Orissa (AIR 1995 SC 1387).
(ii) Kamta Tiwari Vs. State of M.P. (1996 (6) SCC 250).
(iii) Sushil Murmu Vs. State of Jharkhand (2004 Cr.L.J. 658 SC).
(iv) Bantu Vs. State of Uttar Pradesh (2008 (11) SCC 113)
(v) Shivaji alias Dadya Shankar Alhat Vs. State of Maharashtra (2008 (15) SCC 269).
(vi) Mohd. Mannan alias Abdul Mannan Vs. State of Bihar (2011 (5) SCC 317).
(vii) Rajendra Prahladrao Wasnik Vs. State of Maharashtra (2012 (4) SCC 37 = AIR 2012 SC 1377).
(viii) State of U. P. Vs. Satish (2005 (3) SCC 114).
(ix) Vasant Sampat Dupare Vs. State of Maharashtra (50) Criminal Reference No.05/2015 Criminal Appeal No. 2303/2015 (2015 (1) SCC 253).
Upon the aforesaid rulings and the facts and circumstances of the case, we hold that the learned A.S.J., is justified in awarding capital sentence to the accused- appellant.
79. In the result,
(i) Criminal Reference No.05/15 made by the trial court for confirmation of death sentences awarded to the accused- appellant under Section 376(A) and 302 of the IPC are hereby affirmed.
(ii) The appeal filed by the accused-appellant against the impugned judgment is partly allowed and his conviction and sentence under Section 363 are set aside, acquitting him of the aforesaid charge. Further, maintaining his conviction under Section 5 (i) (m) r/w 6 of the POCSO Act, his sentence thereunder is set aside in view of the provisions of amended Section 42 of the POCSO Act.
(iii) The sentences of fine with default jail sentences, as imposed by the trial court upon the accused-appellant under Sections 302 and 201 (II) of the IPC, shall remain as they are.
80. A copy of the judgment be sent to the trial court along with its records for information and compliance without any delay.
(51)
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81. A copy of the judgment shall also be kept in the record of Criminal Appeal No.2203/15.
(S. K. Seth) (Rajendra Mahajan)
Judge Judge
dixit/-