Allahabad High Court
State Of U.P. vs Chotkau on 18 April, 2016
Bench: Surendra Vikram Singh Rathore, Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on 17.03.2016
Delivered on 18.04.2016
A.F.R.
Case :- CAPITAL SENTENCE No. - 4 of 2014
Appellant :- State Of U.P.
Respondent :- Chotkau
Counsel for Appellant :- Govt. Advocate
Counsel for Respondent:-(Amicus Curiae),Atul Verma
And
Case :- CRIMINAL APPEAL No. - 570 of 2014
Appellant :- Chhotkau
Respondent :- State Of U.P.
Counsel for Appellant :- Jail Appeal (In Person)
Hon'ble Surendra Vikram Singh Rathore,J.
Hon'ble Pratyush Kumar,J.
[Per Hon'ble Pratyush Kumar,J.] The above mentioned Capital Sentence No. 4 of 2014 and Criminal Appeal No. 570 of 2014, both relate to the same judgment and order dated 29.03.2014 passed in Sessions Trial No. 76 of 2012 [State Vs. Chotkau], they have been heard together and decided by a common order.
The instant appeal, on behalf of the appellant Chotkau, is directed against the judgment and order dated 29.03.2014 passed by learned Sessions Judge, Shravasti in Sessions Trial No. 76 of 2012 (State Vs. Chotkau) whereby following sentences have been awarded to the appellant:
U/s 302 IPC : Death Sentence with fine of Rs.50,000/-
U/s 376 IPC : Life Imprisonment with fine of Rs.50,000/-
:In default of payment of fine one year's imprisonment.
In the matter in hand facts of the prosecution case may be summarized as under:
That on 08.03.2012 at 8.10 PM Kishun Bahadur, resident of Village Semgarha, P.S. Ikauna, District Shravasti gave a written report at police station Ikauna stating therein that her niece Uma aged about 6 years was taken by co-villager Chotkau towards southern side. On that day at about 4.00 Pm on the pretext of showing her singing and dancing at the occasion of Holi festival, when she did not come back and it was getting late search was made for her and it was found that Chotkau was absent (from his house), after extensive search dead body of Uma was found in the sugarcane field, situated in southern side of the village. Chotkau was a man of bad character , he had taken her niece with bad intention and murdered her. Fattoo son of Lakhan and Prem Nath and Hari Dutt also saw Chotkau taking Uma with him.
At this chick FIR was scribed, Case Crime No. 261 of 2012, under Sections 302, 376 IPC was registered and requisite entry was made in the report of the general diary. Investigation was taken over by Inspector Incharge Ram Bali Rai, who reached the spot on the same night but could not held inquest proceedings due to darkness. On 09.03.2012 inquest proceedings were conducted, dead body was sent for postmortem examination, witnesses were interrogated, spot was inspected. On 10.03.2012 he searched for the accused but could not find him, ultimately on 31.03.2012 he arrested the accused-appellant, obtained the pathological report and submitted the charge-sheet.
The appellant stood for trial before the court of Sessions Judge, Shravasti, where he was charged under Sections 302, 376 IPC, to which he pleaded not guilty and claimed to be tried.
On behalf of the prosecution in order to prove the charges in documentary evidence besides other papers, written report Ext. Ka-1, inquest report Ext. Ka-2, recovery memo of taking samples of blood stained earth and simple earth Ext. Ka-3, chick FIR Ext. Ka-4, copy of the report of the general diary Ext. Ka-5, postmortem report Ext. Ka-6, site plan Ext. Ka-7, requisite papers accompanying the dead body to wit, copy of the chick FIR, report of the general diary, letter to Chief Medical Officer Ext. Ka-8, form no. 13 Ext. Ka-9, diagram dead body Ext. Ka-10, specimen seal Ext. Ka-11, letter to Superintendent of Police Ext. Ka-12 and charge-sheet Ext. Ka-13 were filed.
In the oral evidence, six witnesses were examined. Thereafter statement of the accused-appellant under Section 313 Cr.P.C. was recorded wherein he denied the facts stated by the prosecution witnesses. According to him, he was falsely implicated due to enmity, investigation was not fairly conducted, he was illegally chargesheeted, witnesses falsely deposed due to enmity, documents of the prosecution were incorrectly prepared. He has further submitted that his maternal grand father (Nana) Lazim Khan had no son, his mother was his only issue, after the death of his maternal grand father Zalim Khan, brother of Lazim Khan, in order to grab his property, had forced the appellant to leave the village and property, and on his behest he was falsely implicated in the present case.
In the defence one witness was examined.
The learned Sessions Judge after hearing the arguments found the prosecution version reliable, evidence of the prosecution witnesses trustworthy, he rejected the defence version and convicted and sentenced the appellant as above.
According to learned Sessions Judge the crime for which the appellant was convicted was ghastly and barbaric and case of rarest of the rare, thereafter he found this is a fit case wherein convicted person should be sentenced to death.
Learned Sessions Judge under Section 366 CrPC sent the reference for confirmation of the sentence and on behalf of the appellant, appeal against conviction and sentence has been filed.
Heard Sri Atul Verma, Advocate, Amicus Curiae and Sri Umesh Verma, learned Additional Government Advocate, assisted by Sri Hemant Pandey, Brief Holder and perused the record.
On behalf of the appellant it has been submitted that the learned Sessions Judge did not appreciate the evidence properly, it is a case of circumstantial evidence and the prosecution except evidence of last seen could not prove any other circumstance to complete all links in the chain of circumstantial evidence. His next argument of attack is that place of occurrence is doubtful, the inquest proceedings were not held at the spot. His next argument is that the learned Sessions Judge has not considered the defence evidence and without any cogent reason discarded the defence version. His fourth argument is that FIR was lodged with delay and no sufficient explanation has been given. He has further submitted that the statement recorded under Section 313 CrPC is defective. Certain incriminating circumstance were not put to the appellant and without providing any opportunity to him explain, convicted him. In the last he has submitted that this is not a case of rarest of rare, the young age of the appellant was not taken into consideration.
On behalf of the State, these arguments have been repelled. Replies submitted by the learned Additional Government Advocate in reference to each of the argument would be discussed in detail when these arguments will be dealt with and considered by us.
Before entering into the merits of the appeal, we would like to recall the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222] whereby duties of the appellate court have been outlined. Para-4 of the judgment reads as under:
"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."
In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
First we would like to have a glance at the medical evidence.
In the present case medical evidence consists of statement of Dr. Mukesh Kumar P.W.5 and postmortem report Ext. Ka-6. The witness has deposed that on 09.03.2012 at 4.00 pm he performed the autopsy on the dead body of deceased Uma aged about 6 years, rigor mortis was present, face was congested, nails and lips were cynonized, on the dead body mud and dry grass were present, there were eight ante mortem injuries on the person of the deceased, she died due to asphyxia as a result of smothering, she could have died one day before, he has proved postmortem report Ext. Ka-6, wherein following ante mortem injuries have been recorded:
1.Contusion 6 cm x 1 cm present on mid of forehead 2 cm above bridge of nose.
2.Abraded contusion present on front of face including mouth, nostrils size 12 cm x 10 cm.
3.Lacerated wound 3 cm x 0.5 cm muscle deep present on lower lip.
4.Abraded contusion 4 cm x 1 cm present on the medial aspect of the upper lip.
5.Multiple abrasion present in an area of 15 cm x 12 cm of varying size 2 x 1 cm to 1 cm x 0.5 cm present over back chest joint above inferior angle of both scapula.
6.Multiple abrasion of varying size 1 cm x 0.5 cm, 0.5 x 0.5 cm present on both lips.
7.Lacerated wound present, Labia Majora, Minora torned up to Anus. Hymen lacerated. Torned in two places. Edge lacerated. Bleeding coming out from vagina.
8.Contusion 10 cm x 5 cm present over medial aspect of both thighs and labia majora and perineal area.
During cross-examination the witness admitted he did not remember whether complexion of the deceased was white or black, what clothes were worn by her, whether clothes were stained with mud or blood, about injuries no. 7 and 8 he was asked whether those could be caused by any animal. He replied that he did not remember about the stains on the clothes or whether injuries no. 7 and 8 could be caused by animal or not.
After going through the cross-examination of the witness, we find that homicidal death of the deceased and ante mortem injuries found on her person during autopsy were not disputed even it was not disputed that on her person mud and dry grass were found. We find that his testimony remains unchallenged about the facts noticed by him, from the postmortem examination and the injuries recorded in the postmortem report. He is an official witness, who in the discharge of his official duty has performed the autopsy. He has no enmity with the appellant or no affinity with the first informant's family. We find him to be a impartial witness, his testimony is not only remained unchallenged but also duly corroborated by the postmortem report Ext. Ka-6. For these reasons, we rely on his testimony and hold that at the time of postmortem examination eight ante mortem injuries were found on the person of the deceased Uma, her death had occurred due to asphyxia as a result of smothering, time of death could be as alleged by the prosecution.
Before entering into the merits of the respective arguments, we would also like to give brief substance of the depositions of prosecution and defence witnesses.
Prosecution witnesses Kishun Bahadur P.W.1 P.W.1 is the first informant and uncle of the deceased. He has fully supported the prosecution version. According to him, the appellant used to visit often at his house, he took Uma as disclosed in the first information report. He was seen by the persons named in the FIR, her dead body was found after search, her vagina was ruptured, there were many injuries on her body, lot of blood was found on the spot, he proved FIR Ext. Ka-1.
Raj Karan P.W.2 P.W.2 is the witness of last seen, discovery of dead body and witness of inquest proceedings, he proved inquest proceedings Ext. Ka-2.
Fatehpur Bahadur @ Fatte P.W.3 P.W.3 is also a witness of last seen, he has supported the prosecution version, he has also stated that after taking Uma he had seen Chotkau leaving sugarcane field, after half an hour. He was also a member of the search party which found the dead body, he is also witness of memo of taking samples of blood stained earth and simple earth and proved the same Ext. Ka-3, he is also a member of the family of the deceased.
H.C. Balram Tripathi P.W.4 P.W.4 is the scribe of the first information report, he has proved chick FIR Ext. Ka-4 and copy of the reports of the General Diary Ext. Ka-5.
Dr. Mukesh Kumar P.W.5 The testimony of P.W.5 has been discussed above.
Inspector Rambali Rai P.W.6 P.W.6 gave details of the steps taken during the course of investigation and proved police papers mentioned herein before.
Defence witness Janntul Nisha D.W.1 D.W.1 is the mother of the appellant, according to her. Wife of Zalim Khan was pradhan of village Semgarha, her father Lazim Khan was the brother of Zalim Khan, he had no issue except her, her father bequeathed his property to her but it was grabbed by Zalim Khan, who was inimical term with her, for this reason his son was falsely implicated in this case.
Kishun Bahadur and Raj Karan are the servants of Zalim Khan. Deceased Uma had gone to relieve herself in the sugarcane field, where she was killed by Neelgai, who threw Uma by use of her horn.
First argument advanced to question the correctness of the findings recorded by the learned Sessions Judge is that this is the case of circumstantial evidence and except the evidence of last seen no other incriminating circumstance could be proved by the prosecution, therefore, all links in the chain of circumstantial evidence were not proved and without properly appreciating the evidence in legal perspective the appellant was held guilty.
This argument argument was replied at length by the learned Additional Government Advocate, who has submitted that motive for the crime is obvious, there is evidence of last seen, there is evidence of accused departing from the scene of occurrence, his subsequent conduct that he remained absent from his house and his failure to explain how he had departed with the company of the deceased. In support of this argument learned Additional Government Advocate has referred the following case laws:
1.Sharad Birdhichand Sardar Vs. State of Maharashtra [(1984) 4 SCC 116].
2.State of Rajsthan Vs. Kashi Ram [2007(1) SCC (Cri) 688]. Reliance has been placed on paras 16, 17, 23, 24 and 28.
3.Rajendra Prahaladrao Wasnik Vs. State of Maharashtra [2012 (2) SCC 37]. Reliance has been placed on paras 15 and 30.
4.Arbindra Mukherjee Vs. State of West Bengal [2011 (8) SCC 352].
Before we proceed further, we would like to recollect the observations made by the Apex Court in the case of Sharad Birdhichand Sardar (supra).
"1.The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established.
2.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 on any other hypothesis except that the accused is guilty.
3.The circumstances should be conclusive nature and tendency.
4.They should exclude every possible hypothesis except the one to be proved and,
5.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 have been done by the accused."
In the light of these principles we propose first to find out what circumstances could be proved by the prosecution by cogent evidence only thereafter we propose to consider whether conditions enumerated above stand satisfied or not.
Kishun Bahadur P.W.1 has been cross-examined extensively on 08.11.2012, 09.11.2012, 11.12.2012 and 16.01.2013. The lengthy cross-examination that too on various dates permits that normally discrepancies and variations in the deposition may be treated natural, keeping this principle in mind we have gone through his cross-examination, we notice that though the witness has stated that dead body of Uma was kept inside the police station, his statement is discrepant with the statement of the doctor about the cloths worn by the deceased on the fatal day. We also notice that his statement is discrepant about the place where the Investigating Officer found the dead body. All these discrepancies do not touch his statement relevant for the present purpose i.e. appellant had taken Uma towards the sugarcane field and her dead body was found in that field, for the reasons mentioned above, we are of the opinion that he is rustic villager and also a labourer and after the incident his state of mind must be in turbulence and due to the mental trauma the discrepancies indicated on behalf of the appellant could have occurred but they do not touch his statement on the material points, therefore, we find him to be trustworthy witness of the facts, stated by him in the examination-in-chief.
Raj Karan P.W.2 also cross-examined on various dates i.e. 04.02.2013, 16.03.2013 and 30.03.2013. While going through the statement made during cross-examination, we notice that this witness has candidly stated the facts which were in his knowledge irrespective of the facts whether they support the prosecution version or defence version. He has admitted the relationship between the Zalim Khan and Lazim Khan. He has stated that Zalim Khan is in possession of the property of Lazim Khan and further mother of the appellant had to leave that property and live at Majra Darjipurab of the same village. However, his statement made in the examination-in-chief remains and even after repeated readings we could not find any discrepancy in the examination-in-chief and the cross-examination about the facts touching the occurrence. He also appears to be reliable witness. Since he was not asked whether he was employed by Zalim Khan, therefore, only on the basis of statement of Janntulnisha D.W.1, we cannot treat him to be servant of Zalim Khan. Fateh Bahadur @ Fatte P.W.3 is also the uncle of the deceased, he was subjected to fairly lengthy cross-examination but his testimony also remains unshaken. He also appears to be a trustworthy witness.
Since all the three witnesses are trustworthy, from their evidence the following facts stand proved.
1. Deceased Uma was aged about six years and she was acquainted with the appellant due to his occasional visits to her house.
2. On the fatal day there was Holi festival and in front of the house of Gooji singing and dancing were held.
3. In front of the house of the first informant Uma was standing and accused Chotkau lifted her in his lap on the pretext of showing singing and dancing and took her towards southern side.
4. Fatehpur Bahadur @ Fatte P.W.3 after sometime saw the appellant leaving the sugarcane field of Panchu.
5. During search dead body of Uma was found in that field, her vagina was ruptured, on her body there were number of injuries and she had bleeded extensively.
6. During search, search party has gone to the house of Chotkau to ask whereabouts of Uma but he was not found in his house.
7. From medical evidence, it has also been established that deceased Uma could have died on 08.03.2012 at 4.00 PM, she had eight injuries on her person, her private parts were ruptured and cause of death was opined to be smothering.
8. Her death could have taken place in a field, this fact can be inferred by the statement of doctor where he says that on the dead body mud and dry grass were found.
At this juncture we are also compelled to take into account the defence version coupled with defence evidence. Jannatulnisha D.W.1 claims that Uma was killed in the sugarcane filed by furious Neelgai, who threw her by her horn, Jannatulnisha D.W.1 is not an eye witness of the alleged incident. Her testimony stands demolished from this fact that furious Neelgai could not cause death by smothering. Medical evidence clearly shows that asphyxia was induced by smothering and this could only happen by closing mouth and nose of the deceased, this was not possible for a Neelgai to do so.
The appellant had not preferred with any explanation about the death of Uma but his statement is relevant to this extent that he was specially asked that he took Uma on false pretext towards southern side and thereafter he remained absent from his house but he did not explain that he left Uma alive at any other place and he also failed to offer any explanation of his absence from his house,under Section 106 of Indian Evidence Act, he was bound to disclose these facts, failure to do so, raises presumption that he had no explanation to offer.
Now we come to the case law referred by the learned Additional Government Advocate to see whether chain of circumstances is complete in the present case or not ?
In the case of State of Rajsthan (supra) in paras 23 and 24 the Hon'ble Apex Court has held that on the basis of last seen if, reliable failure of the accused to offer reasonable explanation would be enough to complete the chain of circumstantial evidence, we can gainfully reproduce these paras, which read as under:
"23.It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.
24.There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt. "
Similarly in the case of Rajendra Pralhadrao Wasnik (supra), in para-15 the Hon'ble Apex Court narrated the circumstances proved in that case and in para 30 has held that the chain of circumstantial evidence stand proved.
Since the facts of that case are very similar to present case, we think reproduction of both the paragraphs are relevant for the purpose, which read as under:
"15. Now, we will revert to the facts of the present case in light of the above-stated principles. We must spell out the circumstances which would show that for the undisputable rape and murder of the deceased minor girl, the accused is not only the suspect but is also the person who has committed the crime. These circumstances are:
1. The accused had taken Vandana from her home on the pretext of purchasing her biscuits.
2. Neither Vandana nor the accused returned to the house.
3. Accused was seen with the deceased Vandana on 2nd March, 2007 at about 6.00 p.m. at the bus stand where, in the normal course of life, such shops are situated.
4. Thereafter, the nude body of Vandana was found in the field of Pramod Vitthalrao Mohod on 3rd March, 2007.
5. Exhibit 11 and 71, show beyond reasonable doubt that the three year old girl was subjected to rape, injuries and then murdered.
The above circumstances and the chain of events is complete with regard to the commission of crime and undoubtedly points towards the accused. Now, we have to examine whether the prosecution has provided these facts as required in law."
"30.The cumulative effect of the entire prosecution evidence is that it points unmistakably towards the guilt of the accused. It is not only a case of circumstantial evidence simpliciter but also the `last seen together' principle. There are witnesses who had seen the accused at the house of PW2 with the deceased minor girl. Thereafter, he was again seen with the child at the ST bus stand, Asra and lastly while going away from the ST bus stand with the minor child. Thus, once the evidence had successfully shown that the accused was last seen with the minor girl, it was for the accused to explain the circumstances."
In the case of Arabindra Mukherjee (supra) in para-5 the Hon'ble Apex Court has held as under:
"5.Once the appellant was last seen with the deceased, the onus is upon him to show that either he was not involved in the occurrence at all or that he had left the deceased at her home or at any other reasonable place. To rebut the evidence of last seen and its consequences in law, the onus was upon the accused to lead evidence in order to prove his innocence. It was also for the accused to establish that he was falsely implicated. The stand taken by the accused in his statement under Section 313 of the Code of Criminal Procedure, was a complete denial of involvement and a result of false charges by the appellants. Once the prosecution had established its case, it was expected from the appellant to prove his defence of false implication. The conduct jof the appellant-accused also is suspicious in the sense that after the occurrence he was absconding and with difficulty the police could trace and arrest him."
In view of the above narrated law, we have no hesitation to hold that the learned trial Judge has rightly appreciated the evidence, he has rightly discarded the defence version and he has rightly disbelieved the evidence of Jannatulnisha.
Second argument about the place of occurrence has been replied by the learned Additional Government Advocate on the ground that it was natural for the villager not to leave the dead body of a small child in the sugarcane field during the night. Since blood stained earth and simple earth were taken from the spot, therefore, place of occurrence has been successfully proved. We think reply submitted by the learned Additional Government Advocate is an adequate explanation of taking dead body to the house. For a simple mistake of the villagers we do not think veracity of prosecution version can be doubted upon.
Next argument about non consideration of defence version and evidence has already been considered by us and found unacceptable.
So far as question of delay in FIR is concerned, the time taken during the search is an explanation, occurrence might have taken place soon after half an hour but extensively search must have taken time of the first informant. Further from village Semgarha to police station situates at the distance of 12 Kms, therefore, the first informant must have spent sometime in travelling. Thus, in the present case we do not think FIR has been lodged with delay, we hold that the FIR has been lodged promptly and there was no possibility of embellishment in it.
The last argument is about the statement recorded under Section 313 CrPC is concerned, it is true that questions could have been framed in a better form but we find that all the incriminating circumstances were put to the appellant by the Judge and he had opportunity to explain that, we do not think he has been deprived from explaining any of the circumstance noticed by us. On his behalf defence was made vigorously and from perusal of the judgment we do not find that this argument was raised before the trial Judge that statement of the accused should be drawn in more details. Even during the appellate stage learned counsel for the appellant could not show that any prejudice has been caused to the appellant. In absence of this possibility of framing questions in more simple and straight forward manner, we do not think that the conviction of the appellant could be interfered with.
Our view get fortified by the observations made by the Hon'ble Apex Court in the case of Subhash Chandra Sahni Vs. State of Bihar [1995 Suppl (1) SCC page 82], para 26 of the report and Narsingh Vs. State of Haryana [2015 Crl. A.J. 576] para20 of the report.
Thus, we hold that the findings recorded by the learned trial Judge are well substantiated from the record, they do not suffer from any factual or legal infirmity. Cogent reasons have been assigned by the learned trial Judge to record finding of guilt against the present appellant. In this regard, we affirm the findings recorded in the impugned judgment.
On behalf of the appellant on the ground of young age request has been made that sentence of death at least should be reduced to imprisonment for life. A girl of six years was brutally murdered to satiate the abnormal sexual urge of the appellant. His depravity has not ended only by raping a female child but it extended to committing her murder in a very brutal manner. These are not mere conjectures, ante mortem injuries on the dead body and the testimony of Dr. Mukesh Kumar P.W.5 show that the present crime was very heinous in nature, it shows the depravity of the appellant. It must have torn the hearts of the parents of the deceased and residents of the village. In such cases leniency by the Court would send wrong message in the society, such type of cases deserves exemplary punishment, so that persons of deviant behaviour may choose not to do so. We are of the view that this case is rarest of the rare, a young age man i.e. 25 years of the offender is no mitigating circumstance. When by his deviant behaviour and abnormal sexual urge, he has forfeited his right to alive in the society, we think death sentence is the only punishment which can be awarded to him. We also affirm the sentence awarded by the learned trial Judge. Appeal against conviction and sentence deserves to be dismissed and the reference of confirmation of death sentence deserves to be answered in affirmative.
The Criminal Appeal is dismissed. Death sentence awarded to the appellant vide judgment and order dated 29.03.2014 is hereby affirmed.
The reference is answered accordingly.
Office is directed to certify this order to the court concerned forthwith for compliance and to send back the lower court record.
[Pratyush Kumar,J] [S.V.S. Rathore,J]
Order Date :- April 18th,2016
Prajapati