Allahabad High Court
Mouni vs State Of U.P. on 14 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 2602
Bench: Pankaj Mithal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 26.02.2020 In Chamber Reference No. 4 of 2019 & Case :- CAPITAL CASES No. - 6 of 2019 Appellant :- Mouni Respondent :- State of U.P. Counsel for Appellant :- From Jail, Saghir Ahmad A/C Counsel for Respondent :- A.G.A. Hon'ble Pankaj Mithal,J.
Hon'ble Pradeep Kumar Srivastava,J.
(Delivered by Hon'ble Pradeep Kumar Srivastava, J.)
1. Heard Sri Saghir Ahmad, Senior Advocate/Amicus Curiae for the appellant and Sri Ajit Ray, learned AGA for the respondents.
2. This appeal has been filed by the appellant Mouni against the impugned judgment dated 19.09.2019, passed in Special Sessions Trial No. 624 of 2018, by Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 9, Agra, arising out of Case Crime No. 605 of 2017, under Sections 363, 302, 201, 376(f) IPC and Section 5(n) read with Section 5(m)/6 of the POCSO Act, Police Station Etmadpur, District Agra by which the learned trial court had convicted the appellant Mouni for the offence under Section 302 IPC and awarded death sentence along with fine of Rs. 1 Lakh and in default of fine one year additional imprisonment, under Section 376(f) IPC for life imprisonment along with fine of Rs. 50,000/- and in default of fine six months additional imprisonment, under Section 363 IPC for seven years imprisonment along with fine of Rs. 25,000/- and in default of fine three months additional imprisonment, under Section 201 IPC for three years imprisonment along with fine of Rs. 10,000/- and in default of fine two months additional imprisonment and for the offences under Section 5(n) read with Section 5(m)/6 of the POCSO Act for 14 years rigorous imprisonment along with fine of Rs. 50,000/- and in default of fine six months additional imprisonment.
3. The Special Judge after convicting and sentencing the appellant for death sentence has submitted the record to this Court for confirmation of death sentence under Section 366 CrPC, which has been registered as Reference No. 6 of 2019.
4. The appeal and the reference both are being decided simultaneously as both relate to the same impugned judgment.
5. Briefly, the prosecution case is that accused Mouni himself lodged an oral report on 24/25.11.2017 at about 02:30 AM in the mid night with the allegation that on 24.11.2017, he and his daughter (victim) aged about 7 years, Jeete aged about 9 years were sleeping on the cot in his hut. At about 02:30 AM in the mid night, he got awakened and found that the victim was not on the cot and she was missing. He tried to search her in the surroundings but he could not trace her. The victim was wearing a red trouser and red sweater. Having failed to trace out her, he went to the police station and orally reported the matter and on that basis, the offence against unknown person was registered under Section 363 IPC. SSI Suneel Kumar started the investigation, the police tried to search out the missing child and in the night at about 03:00 AM, she was found in the naked condition in the courtyard of the building of Government Model School. She was taken to the hospital, where she was declared dead. Thereafter a written report was given by the accused Mouni to the Police Station Etmadpur stating that he was living in a hut near the Government Modal School. On 24.11.2019, when he, his daughter and his son were sleeping in the night on cot, at about 2:30 AM in the night he got awakened and found that his daughter is not there on the cot and was missing. He tried to search her and thereafter, he informed about the incident in the police station in the night itself. He and police of the local police station were searching his daughter in the Government Model School building and there in the courtyard, they found the victim in naked condition and her inner-wear (Baniyan)was lying closer to her. There were mark of injuries on her body and bleeding was present in her private part. She was taken to the emergency of the S.N. Hospital, where she was declared dead. He suspects that some unknown person killed her after committing rape.
6. On the basis of this written report an addition of Sections 302, 201, 376 IPC and Section 3/4 POCSO Act were made and the investigation was started. The inquest report of the dead body was prepared, dead body was sealed and after preparing the necessary papers, the dead body was sent for postmortem. The investigating officer recorded the statements of the witnesses, prepared the site map of the place of occurrence, took in possession the wearings of the deceased and took swab etc. from the private part of the deceased. During investigation, prima-facie the offence was made out against the accused Mouni, the informant himself. Charge-sheet was submitted for the aforesaid offence and charges were framed against the accused person.
7. The prosecution has examined as many as 16 witnesses in support. They are PW-1 Kartal, PW-2 Servesh, PW-3 Johny, PW-4 Dr. Udit Kumar, PW-5 Lajja Ram, PW-6 Shailendra Yadav, PW-7 Shammi Kapoor, PW-8 Rahul, PW-9 Ramchandra, PW-10 Constable Sandeep Singh, PW-11 SI Vinod Kumar, PW-12 Sonu, PW-13 Jeete, PW-14 Constable Harendra Singh, PW-15 SO Fateh Bahadur Singh Bhadauria and PW-16 SI Suneel Kumar.
8. The witnesses have proved the incident and the documents such as written report Ext. Ka-1, postmortem report Ext. Ka-2, chik FIR Ext. Ka-3, GD reports Exts. Ka-4 & Ka-5, panchnama Ext. KA-6, 12 & 13, photo nash Exts, Ka-7 &14, charge sheet Ext. Ka-8, site plan Ext. Ka-9, letter to RI Ext. Ka-10, sample seal Ext. Ka-11, form-13 Ext. Ka-15, report of forensic science laboratory Ext. Ka-16, spot investigation/DNA report Exts. Ka-17/1 & 17/2, letter to CMO Ext. Ka-18, application for video-graphy Ext. Ka-19, recovery memo of clothes of deceased Ext. Ka-20, recovery memo of clothes of the accused Ext. K-21 and envelope, swab of the private part of the deceased, hair of the deceased and the accused, clothes etc. material Exts. 1 to 26.
9. The statement of the accused was recorded under Section 313 CrPC, wherein he has denied the prosecution version and has stated the evidence of the witnesses to be false and given due to enmity. He has been falsely implicated in the present case. However, the accused did not produce any evidence in his defence.
10. After perusing the evidence available on record, the learned trial court has passed the aforesaid impugned judgment convicting and sentencing the accused-appellant by awarding death sentence and other punishments.
11. Feeling aggrieved by the impugned judgment, the present appeal from jail has been filed challenging the impugned judgment on the ground that the impugned judgment is against the facts, evidence and law. The sentence awarded is excessive and the prosecution has failed to prove the case against him. No case is made out and the benefit of doubt has not been given to him, hence, the impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal.
12. The learned trial court has also submitted the record of the case for confirmation of the death sentence.
13. Before proceeding to analyze and examine the evidence on record, it appears necessary to first go through the evidence which has been produced by prosecution in support of case. PW-1 Kartal has stated that at the time of incident, he was living near Government Model School in a hut constructed by him. Besides his hut there is hut of Rajendra. About ten months ago in the mid night at about 03:30 AM, the police team came and awakened him. Mouni was accompanying the police team who told that his daughter is missing. The police along with Mouni started searching the deceased in the building of Government Model School. Sarvesh was also accompanying. After some times, the appellant came with the deceased who was unconscious. She was taken to the Government Hospital. Thereafter, he came to know that Mouni committed rape and killed her. His statement was taken by the police.
14. PW-2 Sarvesh has stated that his hut is in front of the hut of Mouni, wherein he lives with his family. Ten months before at about 03:30 AM in the mid night, the police jeep came and he was awakened. The police was accompanied by Mouni who told that his daughter is missing. They all started searching his daughter. The police went to search the victim in the garden of the school and in the left side of the building, Mouni went and he told that his daughter is lying in the courtyard. The witness has stated that he saw that the victim was lying naked in the school's courtyard. The victim was taken to the S.N. Medical College. Subsequently, he came to know that Mouni has committed murder of his daughter after committing rape on her. His statement was taken by the police.
15. PW-3 Johny has stated that about ten months before Mouni got the report scribed by him and has the proved the written report. He has also stated about the incident as narrated to him by the accused.
16. PW-4 Dr. Udit Kumar, Medical Officer, CHC, Kheragarh, Agra has stated that on 25.11.2017, Constable Harendra Singh of Police Station Etmadpur had brought the sealed dead body of the daughter of Mouni for postmortem. The dead body was unsealed. The height of the deceased was 3 feet and 10 inches and her weight was about 15 Kg. In the external examination, it was found that her mouth and eyes were closed and the white portion of the eyes were congested. The following ante-mortem injuries were found on the body of the deceased-
(I) Teeth bite 4 cm. X 3 cm. on the on face.
(ii) Teeth bite 4 cm. X 3 cm. on chest at nipple.
(iii) Teeth bite 4 cm. X 3 cm. near the umbilical area.
(iv) Abrasion and contusion was present on the left side of the forehead.
(v) Abrasion 2 cm. X 2 cm. on the front of the nose.
(vi) Lacerated wound 0.5 cm. X 0.5 cm. on the lower lips.
(vii) Abrasion and contusion 9 cm. X 2 cm. on the left side of the neck.
In the internal examination, nothing was found in the head. The brain and its membranes were congested. Lungs were found congested. Heart was empty. Half digested food was present in the stomach. Fecal matter and gas was present in the large intestine. In the small intestine digested food and gas was present. Liver was congested and gall bladder was half full. Kidney was congested. Urinary bladder was empty. Hymen was torn. Bleeding was present in the vagina. Uterus was non gravid. Larynx and Vocqal cords were congested. Trachea was also congested and the hyoid bone was intact. The reason of death was asphyxia. In the cross examination, the doctor has stated that no clear opinion can be given with regard to commission of rape. Postmortem has been conducted on 25.11.2017 at 5.20 PM and according to doctor, death must have been caused ¾ days before on the same day.
17. PW-5 Lajja Ram has stated that about one year before he was passing with Shailendra Yadav through the Government Model School, Etmadpur, where many persons were gathered. On inquiry, he came to know that accused Mouni has committed sexual assault with his 6-7 years old daughter and at that time, he was in a drunk condition. The people of the locality were scolding him. Accused Mouni sought apology and promised not to repeat such thing. He was in the habit of drinking and he committed the offence on her daughter. In the cross-examination, he has stated that he knew the accused.
18. PW-6 Shailendra Yadav has stated the same thing what was stated by PW-5 Lajja Ram.
19. PW-7 Shammi Kapoor has stated that he was living near the Government Model School, Etmadpur in a hut where accused Mouni was also living in a hut with his family. On 24/25.11.2017 at about 03:30 AM in the mid night, police came on jeep with Mouni for searching the victim. Thereafter, the victim was found in the school and he saw that she was in unconscious state. Mouni was carrying his daughter on his shoulder. She was taken to the hospital, where she was declared dead. Mouni was in the habit of taking drugs and wine. Prior to this incident, there was a complaint that he committed sexual assault with his daughter about 5-6 months before. People of the locality scolded him and he sought apology for the same and promised not to repeat such kind of act.
20. PW-8 Rahul has stated that he used to live near the Government Model School, Etmadpur with his family near the hut of Mouni. One year before, at about 03:30 AM in the mid night, police jeep came and got the nearby people awakened. Mouni was also accompanying the police who said that his daughter was missing. On search, the naked body of the daughter of Mouni was found and taken to the hospital where she was declared dead. Mouni was in the habit of taking wine and drugs and used to sexually assault his daughter.
21. PW-9 Ram Chandra has stated that on the next day of the death of deceased, he reached on the spot and inquest report was prepared by the police and he signed on the inquest report.
22. PW-10 Constable Sandeep Singh has stated that on 25.11.2017, he was on night duty in the police station. At about 03:05 AM, Mouni came and informed that on 24.11.2017 in the mid night, his daughter aged about 7 years and his son aged about 9 years were sleeping with him on a cot and at 02:30 AM in the night, when he got awakened, he found that his daughter is missing. He searched but could not trace her. He gave an oral information in the police station. On the basis of which Crime No. 605 of 2017, under Section 363 IPC was registered. Thereafter, on 25.11.2017, at about 06:10 AM, he gave the written report about the rape and murder of his daughter and on that basis the offence was modified by adding Sections 302, 201, 376 IPC and section ¾ POCSO Act. The entry was made in the corresponding GD.
23. PW-11 SI Vinod Kumar has prepared the inquest report.
24. PW-12 Sonu aged about 12 years is son of accused Mouni who has stated that his sister was killed about one year before by his father Mouni, who used to commit sexual assault and rape with her. He had drinking habit and used to take drugs. He could do anything with anyone. He has however accepted that he did not see the accused committing the offence.
25. PW-13 Jeete aged about 8 years is also son of Mouni. He has stated that his sister was killed by his father in the fateful night when she was sleeping with him and his father. In the night she was weeping and she said that she is feeling pain. His father took her out saying that he is going to get medicine for her.
26. PW-14 Constable Harendra Singh had taken the dead body of the deceased for postmortem and he submitted the postmortem report in the police station.
27. PW-15 Fateh Bahadur Singh Bhadauria, incharge police station and IO of the case has stated that during the course of investigation he also recorded the statement of some witnesses and on the basis of collected evidence, the name of Mouni came into light as accused. He also submitted charge sheet against him.
28. PW-16 SI Suneel Kumar traced out the deceased in the Government Model School with the accused and has stated that when they were searching the deceased in the school, the accused went to the left side and came carrying the deceased on his shoulder and said that he has traced his daughter and he found her in the courtyard of the school. He went there and found that there was blood on the place. The deceased was taken to the district hospital where she was declared dead. Accordingly the addition of other offences were made. During investigation, this fact was brought into the knowledge that 5-6 months before also, he committed the same kind of act with the deceased under the influence of wine and drugs. The local people got him scolded. He has also stated that during investigation, Jeete told him about the incident and said that in the night the deceased was weeping and she said that she was feeling pain in her thigh and chest. Mouni got her drink water and took her out for medicine. He has further stated that his father can do anything as he used to take wine and drugs. During investigation Sonu who is also son of the accused has also stated the similar facts. On the above facts and circumstances he arrested the accused Mouni on 27.11.2017. After being arrested, the accused confessed and at his instance, certain incriminatory things such as black Jarkin, jeans and school coat of deceased from the hedges of school which according to accused the victim was wearing at the time of incident, were recovered of which memo Ext. Ka-20 was prepared and the recovered articles were sealed. Similarly, keeping in view the possibility of availability of blood and semen on the clothes of accused he was wearing at the time of accident, the clothes of accused, underwear, shirt, lower and a round neck T-shirt was taken into possession, sealed and memo Ext. Ka-21 was prepared. After recording the statements of relevant witnesses, he prepared the site map and proved the same as Ext. Ka-9. He also prepared the papers prepared for postmortem. He also sent the aforesaid articles and blood samples of the accused and victim to FSL with other items taken from spot during investigation such as one cigarette, half burnt matchstick, one button, black thread and red thread, blood swab, blood/sperm swab from the spot, hair of deceased found on dead body and bed sheet, piece of bed sheet for comparison, swab and hair from the private part of the accused, Hair recovered from the clothes of victim found in hedges and from spot, hair of the accused for comparison. FSL report is on record and sent items have been produced and proved by the witness.
29. The submission of learned counsel for the appellant is that the whole case is based on circumstantial evidence and there is no evidence of rape being committed by the appellant. The first information report was lodged by the appellant himself and he was falsely implicated and made accused in the case. The further submission is that the age of the victim at the time of incident was 6-7 years and the medical evidence shows that she died out of asphyxia and definite opinion with regards to commission of rape has not been given by the doctor conducting postmortem. It has been further submitted that none of the fact witnesses has seen the incident and they have not been able to say that the accused caused the death of deceased or he committed rape. PW-12 Sonu and PW-13 Jeete who are sons of the accused are child witnesses but their intellectual capacity has not been tested by the learned trial court and their testimony cannot be relied upon nor conviction can be based on their testimony. The learned trial court has committed error in concluding that the case of the accused is covered under the rarest of rare cases and, therefore, the death sentence awarded is not legally justified.
30. Learned AGA has submitted that there was sufficient evidence to prove the charge against the accused-appellant and the learned trial court finding the evidence given by the prosecution reliable and trustworthy passed the finding of conviction and considering the fact that the accused was found to be guilty of committing rape and murder of his own 7 years old daughter, the death sentence awarded by the learned trial court is absolutely justified.
31. From perusal of the first information report, it appears that the accused appellant orally informed the police of Police Station Etmadpur regarding his 7 years old daughter got missing in the mid night of 24.11.2017 when he, his son and the victim were sleeping on a cot in his hut. He got awakened at 02:30 AM in the mid night and found the victim missing. He searched her in the surrounding but could not get her. The information has been given at 03:05 AM in the mid night and the case was registered for the offence under Section 363 IPC against unknown person. On his oral report, the police went with him to his residence and made a search and in Government Model School building, in the courtyard, the victim was found in naked condition with her inner-wear close to her body. She was taken to the hospital and she was found to have died. Thereafter, the accused himself gave a written application to the SO stating this version and making allegations that some unknown person has committed rape and murder. Theefore, Sections 302, 201, 376 IPC and 5(n) read with Section 5(m)/6 of the POCSO Act were added. On the basis of statements recorded by the investigating officer, under Section 161 CrPC of witnesses, the name of the accused appellant came in light and he was charge sheeted for the aforesaid offences.
32. The case of the accused-appellant as disclosed from his statement under Section 313 CrPC and in the manner the defence has conducted cross-examination of the prosecution witnesses is of complete denial and he has alleged that he has been wrongly and falsely framed in the case and the whole case is based on false incident. The accused, however, did not give any evidence in his defence.
33. PW-1 Kartal lives near the hut of accused and close to the Government Model School. He has stated that in the fateful night, the victim was found in the government Model School building. She was unconscious and subsequently found dead by the doctor. This witness has stated during cross-examination that he does not know who committed rape and murder of the victim. He was sleeping when he was awakened. He did not see the victim nor he entered in the exercise of her search. He has also stated that he cannot say when she was found in the late mid night. Similar is the statement of the PW-2 Sarvesh with the difference that with police the accused also searched the victim and he saw that victim was lying in the courtyard of Government Model School in the naked condition. He was told by the accused himself that the victim is lying in the courtyard, then he saw her. The accused did not call the police and said that the victim has been traced. In the cross-examination, he has stated that he cannot say who committed rape and killed the victim. PW-3 Johny is only scriber of the written report and he did not see the incident nor he has any knowledge about it. PW-5 has stated that he cannot say how the victim died and whether the rape was committed on her or not. He has stated that a year before, he had seen the accused committing sexual assault on the victim who was 6-7 years old. Similar is the statement of PW-6 Shailendra Yadav and both these witnesses have stated that because of this incident, the crowd collected in front of the house of the accused and all scolded him. PW-7 Shammi Kapoor has also stated in similar manner but he has stated that he did not see the accused doing sexual assault on his daughter and he was told by others. PW-8 Rahul has stated that the accused was edict of wine and drugs and under that affect, he used to commit sexual assault with the victim. Thus, all these witnesses have either stated about the recovery of dead body or about the fact that the accused was in the habit of committing sexual assault on victim and when seen and scolded by people of the locality, he apologized before them. This fact got further affirmed by the statement of PW-12 Sonu who is son of the accused and has also stated that his sister was killed by the accused who used to sexually assault her. He was edict of wine and drugs and he can do anything with anyone. We find that all the fact witnesses except PW-13 Jeete have stated about earlier conduct of the accused who was in the habit of taking wine and also in the habit of committing sexual assault with the victim and he was seen by the persons of that locality. Thus, all these witnesses have stated the background leading to the commission of offence and the sexual perversion of the accused which is one circumstance indicating towards guilt.
34. The statement of PW-13 Jeete has to be seen in the backdrop of the statement given by other witnesses. PW-13 has stated that he was with his father and victim in the fateful night. The victim was sleeping with him and his father. He got awakened in the night as the victim was weeping and she told that she is in pain. Whereupon his father took her out of the hut saying that he is going to take medicine for her and thereafter, she was not seen alive and her dead body was recovered. This also goes to show that the son of the accused himself has proved the fact that he saw his father taking away the victim from the house and prior to that she was weeping and complaining that she is feeling pain. Thus, it is clear that the accused was the person who was last seen with the deceased taking her away out from the house.
35. Learned counsel for appellant has submitted that PW-12 Sonu has also stated that his father never took wine and the drugs before him. This is not relevant. The submission of the learned counsel is that all these witnesses have not stated with conformity regarding the involvement of the accused in the crime. As regards the statement PW-13 Jeete, it has been submitted that he is 8-9 years old and he did not possess that intellectual capacity to give answer to the questions put to him. His intellectual capacity was not tested by the learned trial court and it was not legal on the part of the court to place reliance on his evidence.
36. It is true that there is no evidence of any witness who might have seen the accused committing rape and causing death of the victim and the prosecution case is based on circumstantial evidence of "last seen together" and only PW-13 has been examined to prove this fact. The statement of PW-13 Jeete is significant as an evidence of the circumstance of last seen. The last seen evidence is very important circumstantial evidence and if proved and found trustworthy, it can singularly lead to the inference of guilt. In State of Rajasthan v Kheraj Ram, (2003) 8 SCC 224, Vilas Pandurang Patil v State of Maharashtra, (2004) 6 SCC 158, Arun Bhanudas Pawar v State of Maharashtra, 2008 (61) ACC 32 (SC) Vithal Eknath Adlinge v State of Maharashtra, AIR 2009 SC 2067 and Vijay Kumar v State of Rajasthan, (2014) 3 SCC 412, the Supreme Court has laid down that circumstantial evidence, in order to be relied on, must satisfy the following tests :
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused.
3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else.
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence- in other words, the circumstances should exclude every possible hypothesis except the one to be proved.
37. In Bhimsingh v State of Uttarakhand, (2015) 4 SCC 281, it was laid down that when the conviction is to be based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances. If there is a snap in the chain, the accused in entitled to benefit of doubt. If some of the circumstances in the chain can be explained by any other reasonable hypothesis, then also the accused is entitled to the benefit of doubt. But in assessing the evidence, imaginary possibilities have no place. The court considers ordinary human probabilities.
38. In Rohtas Kumar v State of Haryana, 2013 (82) ACC 401 (SC), Prithipal Singh v State of Punjab, (2012) 1 SCC 10, it has been further laid down that The doctrine of "last seen together" shifts the burden of proof on the accused requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard would give rise to a very strong presumption against him.
39. Further, in Ashok v State of Maharashtra, (2015) 4 SCC 393, it was explained by the Supreme Court that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with the deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus would have burden of proof as per Section 106, Evidence Act. But last seen together itself is not conclusive proof but along with other circumstances surrounding the incident like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from accused, etc. non-explanation of death of deceased, etc. may lead to a presumption of guilt of accused.
40. In State of Goa v Pandurang Mohite, AIR 2009 SC 1066, State of UP v Satish, 2005 (3) SCC 114 and Sardar Khan v State of Karnataka, (2004) 2 SCC 442, it has been remarked that circumstances of "last seen together" do not by themselves and necessarily lead to the inference that it was accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. The time gap between last seen alive and the recovery of dead body must be so small that the possibility of any person other than the accused being the author of the crime becomes impossible.
41. In Niranjan Panja v State of WB, (2010) 6 SCC 525 and State of UP v Satish, (2005) 3 SCC 114, it has been further affirmed by the Supreme Court that the last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists.
42. Recently, in Ravi v State of Karnataka, AIR 2018 SC 2744, reversing the conviction based on "last seen together" where there was a time gap of four days between last seen and recovery of dead body and as per postmortem report the death must have occurred 30 hours ago, the Supreme Court held that the time gap was considerably large and no corroboration was forthcoming, and therefore, in absence of any other circumstance which could connect the accused with crime, reasonable doubt as to involvement of accused is created and in such situation, the burden would not shift under section 106 of the Evidence Act. Following the judgment in Mohibur Rahman vs State of Assam, (2002) 6 SCC 715 and Malleshappa vs State of Karnataka, (2007) 13 SCC 399, the court held:
"'Last seen together' is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time lag is considerably large,....., it would be safer for the court to look for corroboration."
43. In this instant case, PW-13 Jeete is the son of the accused and the FIR version is that he was sleeping on the same cot with the victim and accused. The incident took place in the post midnight. He was only 8-9 years in age and therefore, the presence of the witness is very natural at the time of last seen. The victim was weeping and she said that she is feeling pain and the accused took her out saying that he is taking her to get medicine. In the same night, her dead body was recovered from the courtyard of the school which situates close to the hut. Seemingly, there is no delay or time-gap between last seen and the discovery of the dead body. The witness is of very tender age and is own son of the accused-appellant and there is no reason to even think that he would give false or even tutored evidence. Therefore, he has been rightly relied by the learned trial court.
44. So far as not testing the intellectual capacity of the PW-13 is concerned, this procedure has been provided to determine whether oath can be administered or not. It appears from his statement that learned trial court has administered oath to him and therefore, it can be inferred that the learned trial court must have found him capable of giving intellectual answers to the questions put to him. Merely because the learned trial court has not entered into preliminary inquiry to test the competence of witness, it cannot be said that the witness was incapable of understanding the nature of questions put to him and was not capable to give rational reply to them. Section 118 of the Evidence Act provides the need for a witness to be competent and the courts may enter into an inquiry to determine competency of a witness if it is required so that oath can be administered. In Rameshwar v State of Rajasthan, AIR 1952 SC 54, on preliminary inquiry, the trial court did not find the child to be competent to be testified, even then the court proceeded to examine the child without administering oath. The Supreme Court held that even then the evidence of the child can be relied upon.
45. In State of Rajasthan v Vijayram, 1968 Cr.LJ 270, it has been held that the child witness despite being not subjected to preliminary examination and despite no finding recorded about his competency by the trial court, if he is found to have given rational answers, his evidence is admissible. In Suresh v State of UP, AIR 1981 SC 1122, the Supreme Court accepted the evidence of five years child who was sole witness and held that conviction can be based on it's testimony.
46. It is only a rule of prudence that there should be a record of the question put and answer received during the preliminary examination for ascertaining the competence of the child witness. But, non-recording of the questions and answers is no ground for rejecting the testimony of child witness if on close scrutiny, it appears to be otherwise reliable. In Suryanarayana v State of Karnatak, (2001) 9 SCC 129 and State of Karnatak v Shantappa Madivalappa Galapuji, (2009) Crimes 245 (SC), it has been held that the court can base conviction on being convinced about the quality of the evidence as the competency of a child witness is not considered in relation to his age, but on his ability to understand the question and to give rational answer. The law, as laid down in Nivrutti Pandurung Kokate, (2008) 12 SCC 565 and Himmat Sukhdeo Wahurwagh v State of Maharashtra, (2009) 2 Crimes 294, is that all persons are competent to testify unless the court thinks otherwise. Thus, unless the court feels that the witness suffers from some disability and incapable of understanding the questions put and to give rational answer, there is no need to enter into preliminary inquiry to ascertain his competence. In Gul Singh Vs. State of MP, 2015 (88) ACC 358 (SC), it has been held that the testimony of a child witness cannot be rejected unless found unreliable & tutored. In view of the law discussed above, we do not find force in the argument of the learned Amicus Curiae /Senior Advocate on this point.
47. The evidence of last seen is further corroborated by medical evidence which shows that at the time of postmortem, hymen of victim was found lacerated and her vagina was bleeding. It is also clear from the postmortem that on her face there was teeth bite. Abrasion and contusion was also there on her forehead and there was abrasion on breast and nose and her lips were lacerated. It is strange that despite ample evidence of sexual assault and rape, the doctor has not given specific opinion on rape. The fact that her hymen was lacerated and vagina was bleeding and there was abrasion and other marks of injury on her body, amply goes to show that rape was committed on her. The FSL report and DNA report also supports this as rightly concluded by the learned trial court. The doctor has stated that the deceased died out of asphyxia and it also shows that she was caused to death by the accused.
48. As many as 17 items were picked either from spot or taken from the accused for chemical examination and DNA test. The report of FSL is Ext. Ka-16. According to the report, on item 3 jacket, item- 4 coat and item-5 blood/swab and items-8 piece of bed sheet, item-9 swab, item-10 hair, item-11 hair and item-12 hair, partial DNA profile was generated. The DNA profile of material item-15 lower, item-16 underwear and item-17 sample blood were found same. On that basis, the learned trial court has rightly concluded that on comparison of the said items of the victim and accused, the DNA of the accused Mouni was found matched. After a close scrutiny of the evidence given by PW-13 and medical evidence, the learned trial court has rightly concluded that the accused committed rape on the victim and caused her death by closing her mouth or by throttling which resulted in asphyxia. It was also noted down by the learned trial court that just to save himself, the accused demonstrated that he was indulged in searching the deceased and when he came with the police and other witnessed, he himself traced her out from the courtyard of the government Model School.
49. Once it is established that it was the accused who took the victim out of the house, it was on the accused to explain what happened thereafter. He was under legal liability under section 106 of the Evidence Act to explain how her private parts was lacerated and why such injuries were found on her body which could not have been caused except by way of sexual assault and in the course of commission of rape on her. In such cases, the POCSO Act and the Evidence Act, both require the accused to show that he was innocent and did not commit rape. On the contrary, the accused made report to the police that when he got awakened, he found his daughter missing which is fabricated and incorrect in view of the statement of PW-13. The incident took place after midnight and the learned trial court has rightly concluded that at that point of time normally people living around his house must have been in a deep sleep. This also find support from the statement of the witnesses that they were awakened by the police and the accused in the mid night to search the victim. The learned trial court has also rightly concluded that the nature of crime is such that if somebody would have seen the accused committing it, such incident could not have taken place. The accused has alleged that he was falsely implicated, but, there appears to be no reason for his false implication nor there is any reason why the people of that locality would give evidence about his drinking habit and sexually sick and perverted behavior. Had it been so as alleged by accused, there is no reason why his own sons would give evidence against him. We find that there is no force in the argument of the defence regarding false implication of the accused. The previous conduct which has been stated by the witnesses that he used to sexually abuse the deceased, also supports the version of the prosecution and if read in conjunction with the statement of last seen given by PW-13, medical evidence and previous conduct of the accused conclusively indicate the hypothesis that it was he and only he who committed rape and murder of the deceased.
50. In view of the above discussion, we find that the conclusion of the learned trial court that the prosecution successfully established that the accused committed rape and murder of the victim is based on unimpeachable evidence of last seen supported by medical and FSL report and the conduct of the accused himself prior to the incident and soon after the incident. The conviction of accused for the offence under section 302/376(f) IPC is legal and justified.
51. The learned trial court has also convicted the accused under section 363 and 201 IPC for the offence of kidnapping from lawful guardianship and for causing disappearance of the evidence of offence. So far as the offence under section 363 is concerned, it is admitted fact that the victim was 6-7 years daughter of accused. Her mother had already died and the age of her brother residing in the hut was only 8-9 years. The accused was the only lawful guardian at the time of incident. Hence, the ingredients of the offence as defined under section 361 and punishable under section 363 were not complete to constitute the offence and as such, not only that the charge-sheet should not have been submitted by police, even the learned trial court was not required to frame charge for the offence under section 363 IPC. Similarly, the accused allegedly took out the victim under the pretext of getting medicine for her and admittedly she was alive at that point of time as she was weeping. The school from where the body of deceased was recovered is close to the hut of the accused. The circumstances are such that the offence might have been committed in the hut or in the courtyard of school or partly in the hut and partly in the school. Thereafter, there is no evidence given by prosecution that he did anything to disappear the body or evidence as the inner-wear of victim was found close to her body and the clothings were also in the hedges of the school. Therefore, the conviction for the offence under section 363 and section 201 is misconceived, unwarranted and illegal and is liable to be set aside.
52. It appears that the accused has been convicted under section 376(f) IPC (it should be section 376(2))(f) ) and also for the offence under section 5(n) read with 5(m)/6 of the POCSO Act. Section 376(f) is attracted when rape has been committed by relative, guardian etc for which minimum ten years imprisonment which may extend to life imprisonment is provided which may continue for the remainder of that person's natural life. Section 6 of the POCSO Act provides punishment for aggravated penetrative assault on a girl below the age of 18 years which shall not be less than 10 years and which may extend to life imprisonment. Section 42 of the POCSO Act provides that where the offence is punishable under this Act and also under section 376 etc IPC, the offender found guilty of such offence shall be liable to punishment under POCSO Act or under the IPC providing greater punishment in degree. We find that section 376 IPC provides punishment which is greater in degree as life imprisonment under section 376(2) may extend to remainder natural life of the accused. Therefore, the learned trial court should have awarded punishment only for the offence punishable under section 376(2)(f) read with section 6 of the POCSO Act and not under section 6 separately. Hence, the separate sentence under section 5(n) read with 5(m)/6 is neither legally required nor justified and the separate sentence is modified and set aside as above.
53. Now, the question is whether the case is covered under the "rarest of the rare case" and the death sentence is justified. In Bachan Singh vs. State of Punjab, AIR 1980 SC 898, the Supreme Court upheld the constitutional validity of death sentence with the rider that it must be imposed in "rarest of the rare" cases and before awarding the death sentence, the following questions may be asked and answered :
1. Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
2. Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the Offender?
54. If upon taking an overall view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed here in above, the circumstances of the cases are such that death sentence is warranted, the court would proceed to do so. In Machi Singh vs. State of Punjab (1983) 3 SCC 470 the Supreme Court tried to explain, define and identify the meaning of ''rarest of the rare' dictum as propounded by Bachan Singh (supra) in the following manner-
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. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house, (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death, (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
2. When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland.
3. When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them or, make them with a view to reverse past injustices and in order to restore the social balance.
4. In cases of ''bride burning' and what are known as ''dowry-deaths' or when murder is committed in order to remarry for the take of extracting dowry once again or to marry another woman on account of infatuation.
5. 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.
6. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder, (b) a helpless woman or a person rendered helpless by old age or infirmity, (c) a person vis-à-vis whom the murderer is in a position of domination or trust, (d) a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similarly reasons other than personal reasons.
55. In Ravji vs. State of Rajasthan (1996) 2 SCC 175, where the Supreme Court held that it is only characteristics relating to crime, and not to criminal, which are relevant for sentencing. The Court observed as follows:
"The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ''respond to the society's cry to justice against the criminal'."
56. In Swamy Shraddananda (2) vs. State of Karnataka, (2008) 13 SCC 767 the Supreme Court observed:
"The inability of the criminal justice system to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court is giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the criminal justice system."
57. In this case the appellant was convicted for the offense of murder and was awarded death sentence by the Session Judge and the death sentence was confirmed by the Karnataka High Court. The matter came before the Supreme Court in appeal where a bench of two Judges unanimously upheld the conviction but expressed a different view on the punishment. The matter came for consideration before the larger Bench of the Supreme Court. The Supreme Court referred to Bachan Singh (supra) and Machhi Singh (supra) to hold that death sentence could only be awarded in ''rarest of the rare case' on recording special reasons and in doing so the court should put itself in the position of the ''community' whose collective conscience is so shocked that it will expect the court exercising judicial power to inflict death penalty. Machhi Singh (supra) very carefully crafted the categories of murder in which the society may demand death sentence. The Supreme Court however made it clear that Machhi Singh criteria even though useful but looking to the long gap passed after that judgment, it can not be absolute or inflexible. Referring to Aloke Nath Dutta v State of WB, (2007) 12 SCC 230 and other cases took the view that the most glaring deficiency of the criminal justice system is the lack of consistency in the sentencing process. The Court also referred Jayawant Dattatraya Suryarao vs. State of Maharasthra, (2001) 10 SCC 109 and Nazir Khan vs. State of Delhi (2003) 8 SCC 461 and observed:
"............. this Court modified the death sentence to imprisonment for life or in some cases imprisonment for a term of twenty years with the further direction that the convict must not be released from prison for the rest of his life or before actually serving out the term of twenty years, as the case may be, mainly on two premises; one, an imprisonment for life, in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for the rest of life of the prisoner and two, a convict undergoing life imprisonment has no right to claim remission."
58. Emphasizing that there is no law on the basis of which a sentence for life imprisonment can be automatically treated as a sentence for a definite period and without any formal remission by appropriate government it will mean an imprisonment for the whole of the natural life of the convicted person, the Court further observed:
"......the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission."
59. The Supreme Court pointed out that the issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionate and inadequate. Some times the court may feel that the case falls short of the rarest of the rare category and death sentence should not be confirmed. But at the same time, considering the nature of the crime, a sentence of life imprisonment for a term of only fourteen years would be grossly inadequate and will amount to no punishment at all. Endorsing the life sentence to mean a sentence for whole natural life, the Court remarked:
".......the formalization of special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution bench decision in Bachan Singh, besides being in accordance with the modern trends in penology."
60. In Dilip Prem Narayan Tiwari vs. State of Maharastra, AIR 2010 SC 36, the Supreme Court, reducing the sentence to that of life imprisonment for 25 years clearly held that multiple murder itself would not be sufficient for imposing death sentence and selecting the sentence the nature of crime, background of criminal, his mind set in the commission of offence and social status are relevant factors. Subsequent decisions show that the Supreme Court has followed the Shradhanand pattern and has substituted life imprisonment for rest of life. For instance, in Sebastian vs. State of Kerala, (2010) 1 SCC 58 where the accused was previously convicted for the offence u/s 354 and further for the offence u/s 363, 376, 379, 302 and 201 IPC for rape and murder of young child and was awarded life imprisonment and he was facing trial for the murder of several children, was awarded death sentence and his sentence was reduced to life imprisonment for rest of life on the ground that the case was based on circumstantial evidence and the accused was a young man of 24 years at the time of incident. In Vikram Singh v State of Punjab, (2010) 3 SCC 56 three accused persons were awarded death sentence for kidnapping and murder for ransom. The Supreme Court upheld the sentence in respect of two accused persons but converted the sentence into life for the third accused.
61. In Mulla v State of UP, (2010) 3 SCC 508 the Supreme Court emphasized that the sentence should be proportionate and befitting to crime and capable of deterring other potential offenders. Finding that the accused persons belonged to extremely poor background and even though they committed murder of five innocent persons for ransom, the Court remarked that criminals who commit crimes due to economic backwardness are most likely to be reformed and therefore converted the death sentence to life sentence for rest of life. The Supreme Court made it clear that death sentence should be awarded only when no other option is available and in such cases the brutality aspect should be considered along with other mitigating factors. He also pointed out that where death sentence has been substituted by life sentence, the courts are free to extend the sentence to rest of life.
62. In Sandeep v State of UP, (2012) 6 SCC 107, the accused was sentenced with death penalty which was upheld by the Allahabad High Court. The Supreme Court, while upholding the conviction of the accused Sandeep, converted the death sentence to life imprisonment with the condition that the main culprit Sandeep would serve minimum imprisonment for 30 years without remissions during the said period. The co-accused was ordered to serve imprisonment for minimum 20 years without remission. Again, in Union of India v V. Sriharan alias Murugan, (2016) 7 SCC 1, the Shradhanand pattern was affirmed on a Reference made by the Court in Union of India v V. Sriharan alias Murugan, 2014 (11) SCC 1 in respect of remission the state was inclined to grant and release the assailants of Rajiv Gandhi. The Court endorsing the judicial power so innovated by the Court and it was remarked that the High Court or Supreme Court may convert the death sentence or impose life imprisonment for the remainder life of the convict. It was remarked that the Court may "alter the said punishment (death sentence) with one either for the entirety of the convict's life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience befitting such offence found proved to have been committed."
63. Similarly, Raj Kumar v. State of Madhya Pradesh, (2014) 5 SCC 353, a case concerning the rape and murder of a 14 years old girl, the Court directed the appellant therein to serve a minimum of 35 years in jail without remission. In Selvam v. State, (2014) 12 SCC 274, the Court imposed a sentence of 30 years in jail without remission in a case concerning the rape of a 9yearold girl. In Tattu Lodhi v. State of MP, (2016) 9 SCC 675, where the accused was found guilty of committing the murder of a minor girl aged 7 years, the Court imposed the sentence of imprisonment for life with a direction not to release the accused from prison till he completed the period of 25 years of imprisonment. Similar approach has been adopted in Parsuram v State of MP, (2019) 8 SCC 382. Recently, in Sachin Kumar Singhraha v State of MP, (2019) 8 SCC 371, where the accused was sentenced capital punishment for the offence of rape and murder of 5 years girl, the Supreme Court converted the sentence into life imprisonment for 25 years without remission and has observed:
"Life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime."
64. We find that the aggravating circumstances in this case is that the accused was the father of the deceased and the deceased was only 7 years in age and he committed rape and murder. The mitigating factor is that the accused was in the habit of taking wine and drugs, his wife was not alive and the whole case is based on circumstantial evidence and the murder has not been committed in an unusual and cruel manner. In the facts and circumstances of this case and on the basis of the law discussed above, we are of the view that the learned trial court was not justified in awarding death sentence and the sentence of life imprisonment could have been sufficient in the circumstances of the case. The conviction under section 376(2)(f) IPC and under section 5(n) read with 5(m)/6 of the POCSO Act is upheld but the separate punishment under section section 5(n) read with 5(m)/6 of the POCSO Act is not sustainable in view of section 42 of the POCSO Act and is set aside.
65. The conviction and sentence of accused Mouni for the offence under section 363 and section 201 IPC is not sustainable under law and is set aside and consequently, he is acquitted from the said charge.
66. In view of above, affirming the conviction, we modify the death sentence awarded for the offence under section 302 IPC to accused Mouni into life imprisonment with the direction that the life imprisonment shall continue for the whole span of natural life of accused and could not be less than 25 years rigorous imprisonment without remission. The sentence of fine is modified to Rs. 50000/-, and in default, for 6 months additional imprisonment. The sentence awarded under section 376(2)(f) IPC would mean a sentence of life imprisonment for the offence under 376(2)(f) IPC read with section 5(n) read with 5(m)/6 of the POCSO Act and the sentence of fine is modified to Rs. 25000/- and in default, 4 months additional imprisonment. Both the sentences shall run concurrently.
67. With the above modification, the Criminal Appeal and Reference are finally disposed of.
68. The Senior Advocate Shri Saghir Ahmad shall be given Rs. 15000/- for his work as Amicus Curiae and legal assistance to the Court.
69. Office is directed to send the certified copy of this judgment along with lower court record to the court concerned for information and compliance.
Order Date :- 14.05.2020 sailesh (Justice Pradeep Kumar Srivastava) (Justice Pankaj Mithal)