Madhya Pradesh High Court
Ravishankar @ Baba Vishwakarma vs The State Of Madhya Pradesh on 6 December, 2016
Author: H. P. Singh
Bench: H. P. Singh
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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
Criminal Reference No.2 of 2016.
Corum : Hon'ble Shri Justice S. K. Gangele &
Hon'ble Shri Justice H. P. Singh
In reference.
Versus.
State of Madhya Pradesh
For State : Shri Ajay Shukla Govt. Advocate.
For respondent/ Accused : Shri V. S. Choudhary, Advocate.
CRIMINAL APPEAL NO.2175/2016
Ravishankar @ Baba Vishwakarma
Vs.
State of Madhya Pradesh
For appellant : Shri V. S. Choudhary Advocate.
For respondent/ State : Shri Ajay Shukla Govt. Advocate.
ORDER
(Pronounced on 06.12. 2016) As per S.K. Gangele, J:
1. This reference has been made by the Trial Court for confirmation of death sentence under Section 366 of Cr. P. C. Accused has also filed an appeal against death sentence. Both reference and appeal have been heard together.
2. Deceased along with her mother came to the residence of her grand mother. She was missing, thereafter on 22.5.2015 her semi naked dead body was found in a dry well situate at the field of Mr. Darshan Kaurav. Prior to that on the same day Kotwar of the village lodged Dehati Nalisi/ missing report of the deceased. After recovery of dead body police conducted investigation, spot map was prepared on 22.5.2015. Deceased was identified. Her postmortem was conducted by the Doctor. Chappal and Salwar of the deceased were seized on producing the same by the mother of the deceased. Doctor also prepared vaginal swab slide of the deceased. Accused was arrested and on his memorandum one Cahappal of the deceased was seized. Blood of the accused was taken for DNA test.
Superintendent of police sent the articles vaginal swab, Salwar, chappal of the deceased for DNA test to F.S.L. Sagar. Police also sent blood samples of accused Hargovind Kaurav, Nandi @ Anand Vanshkar & Baba @ Ashok Kaurav to FSL Sagar. Baba @ Ravishankar was arrested on 22.7.2015. As per FSL report DNA profile of accused/ appellant Ravishankar @ Baba Vishwakarma and fluid which was found on the slide prepared by the Doctor from semen and blood stains which were found on the Salwar and vagina of the deceased was same.
3. After conducting investigation police filed charge sheet before the trial Court. Accused denied commission of offence. He had taken a plea that he was falsely implicated in the case. Trial Court found accused guilt for commission of offence punishable under Sections 363, 366, 376 (2) (Jh), 376 (2) (Dh), 376 (N), 376 (D), 376- 3 K and 201 of IPC and awarded sentence of death and other sentence mentioned in the impugned judgment.
4. Learned counsel for the appellant/ accused has submitted that conviction of the appellant is based on circumstantial evidence. Evidence of last seen is not reliable. He further contended that proper procedure was not adopted at the time of taking sample and preparing slides of vaginal fluid of the deceased. One of the Analyst deposed that he had found human blood spur on Salwar of the deceased. The blood of the appellant was not taken properly. Hence, appellant could not be convicted on the basis of DNA test. He further submitted that looking to the facts of the case and evidence on record, the present case cannot be classified as rarest of the rare case nor it satisfies the criteria fixed by the Apex Court for awarding death sentence. Hence, trial Court has committed an error in awarding death sentence. In support of his contentions, learned counsel for the appellant placed reliance on the following judgments :-
(a) Shyamal Sahu Vs. State of West Bengal reported in (2014) 12 SCC, 321,
(b) Krishnan @ Ramasamy and others Vs. State of Tamilnadu, reported in (2014) 12 SCC 279, ( c) Dharam Deo Yadav Vs. State of U.P., reported in (2014) 5 SCC 509,
(d) Anil @ Anthony A. Joseph Vs. State of Maharashtra reported in (2014) 4 SCC 69,
(e) Santosh Kumar Satishbhushan Vs. State of Maharashtra reported in (2009) 6 SCC 498,
5. Learned counsel for the State has submitted that there is enough evidence to hold guilty the appellant for commission of offences. The DNA profile of the accused/ appellant and DNA which was found on the vaginal slide of the deceased and her Salwar is same. Hence, it has been proved by cogent evidence that spurm of the present appellant was found in the vagina of the deceased, it clearly indicates that appellant accused had committed rape with the deceased and thereafter she was murdered by the appellant in brutal manner. Body of the deceased was thrown in a dry well in order to conceal the evidence. Appellant/ accused had committed rape with young girl aged about 13-14 years and murdered her and her body was also thrown in a well. Hence, it is a rarest of rare case and trial Court has rightly awarded death sentence to the accused/ appellant.
In support of his contentions learned Government Advocate relied on the following judgments : -
(1) Laxman Naik Vs. State of Orissa, AIR 1995 SC 1387, (2) Kamta Tiwari Vs. State of M.P., AIR 1996, SC 2800, (3) Ramnaresh & Ors. Vs. State of Chhattisgarh, AIR 2012, SC 1377
6. The conviction of the appellant/ accused is based on circumstantial evidence.
7. P. W. 1 is Kotwar of the village. He deposed that he had given information on 22.5.2015 to the police about death of deceased/ prosecutrix and police registered merg on 0/15, which is Ex. P.1.
Panchnama of the dead body of the deceased was prepared (Ex. P.2). Patwari of Halka prepared spot map (Ex. P.3) and he signed the same. 5 Police seized a Salwar of black colour and a fiber Chappal by Ex. P.4, he signed the same. He also signed seizure memo (Ex. P.5). A Naksa Panchnama (Ex. P.7) was also prepared before him and he signed the same. Accused/ appellant was arrested vide Ex. P.8, he signed the same. Thereafter, identification memo of the accused was prepared by Ex. P.9, he signed the same.
8. P. W. 2 is mother of the deceased. She deposed that she had come to village Baglai from her parents house at around 10.00 O'clock. Girl was with her. She was sleeping in the after-noon and thereafter she had gone out side at around 3.00 Oçlock in the noon. She further deposed that she tried to trace the girl. However, she could not find out her. Her husband came to the house at around 6.00 p. m. Thereafter she told him about the girl. On the next day she had made phone call to her family members and tried to find out the girl. On the next day her Bahnota (sister's son) told her that one Salwar and one Chappal were lying on the way. On the request to identify the same she had gone near Bandhiya and found a Salwar and Chappal of the deceased and thereafter she told to her brother and father in law and they had gone to lodge the report at the police Station. Police came and thereafter they tried to search the girl then dead body of the girl was found lying in a dry well of one Darshan Kaurav. She handed over a Salwar and a Chappal of the deceased to the police. A seizure memo (Ex. P.4) was prepared, she signed the same.
9. P. W. 3 is grand father of the deceased. He deposed that he had lodged missing person report of the deceased at the police station. He further deposed that his son and Kotwar had gone to search the dead body of the deceased and they found dead body of the deceased in a dry well. He identified the dead body. Police prepared Naksha Panchnaya and he signed the same.
10. P. W. 4, father of the deceased deposed that his daughter was aged about 12 years and she was studying in 7th Class, when he returned back to the house her wife told him that deceased was missing. Thereafter on the next day dead body of the deceased was found in a well of one Darshan Kaurav.
11. P. W. 5 in his evidence deposed that at around 3.00 p. m. on Wednesday he had seen Baba @ Ravishankar and deceased Ramlata and thereafter in evening he came to know that deceased was died. In his cross-examination he admitted that he had given his statement to the police after incident and not after two months. However, police had beaten him and he had deposed the fact as told by the police.
12. P. W. 6 deposed that he had seen that accused was offering biscuit to the deceased one and half year before.
13. P. W. 10 in his evidence deposed that he was working at the relevant time as contract teacher and deceased was the student of his 7 school. She had taken admission in class 8th and her date of birth is 14.10.2003.
14. P. W. 12 Doctor Kinshuk Jaiswal perform postmortem of the deceased. She deposed that body of the deceased was decomposed. There were contusions and abrasions on all over body of the deceased particularly on the following parts: an abrasion on left hand 15 x 3.5 cm. Left thigh 8 x 3 cm. Left leg below knee 7.5 x 2.5 cm. Below waist on the left side 15x 4 cm. Contusion on both sides of neck and also on clavicle part. Long contusion on left shoulder including scapula region and also right thigh. There was swelling on perennial region. Hymen was ruptured. She further deposed that she prepared and sealed two vaginal slides and handed over for biochemical examination. Cause of death of the deceased was asphyxia due to throttling. Injuries were ante-mortem in nature. Time of death was 48-72 hours. She further deposed that two fingers easily enter into vagina of the deceased. There was swelling in genetic parts of the deceased.
15. In her cross-examination she deposed that she had taken specific care in preparing vagina slides. Body of the deceased was dragged. Hence, there were abrasions and contusions on all over the body.
16. P. W. 13 Rajesh Kaurav is Patwari of Halka No.65. He deposed that he had prepared Nazri Naksha of the place (Ex. P.3) and he signed the same.
17. P. W. 15 deposed that before him Doctor had taken blood samples of the appellant along with another person Roopram in the bottles. Police had also seized chappal of the deceased. Police had recorded memorandum of the accused, which is Ex. P.24 and he signed the same.
18. P. W. 16 Dr. Shipra Kaurav deposed that at the relevant time she was posted as medical officer at Government Hospital Chichali. Police had come along with accused appellant Baba @ Ravishankar for collecting blood samples at the hospital. She had taken out blood of the appellant and sealed in a bottle. It was seized by seizure memo Ex. P. 5 and she signed the same C to C. Identification memo of the accused (Ex.P. 9) was prepared before her on 8.7.2015 and she signed the same. She further deposed that she was present at the time of postmortem of the deceased. In her cross-examination she deposed that she had taken all care at the time of taking blood sample of the appellant and same was handed over to the police.
19. P. W. 17 Tahsildrar deposed that at the relevant time he was posted as Tahsildar, Gadarwara. He had conducted identification of chappal of the deceased. Identification memo is Ex. P.25 and he signed the same. Shobha bai identified chappal of the deceased and 9 she affixed thumb impression on identification memo Ex. P. 25 and after identification Chappal was sealed and it was handed over to the Station House Officer In-charge.
20. P. W. 8 Mr. R. R. Choudhary in his evidence deposed that at the relevant time he was posted as senior scientist at F. S. L. Sagar. He had submitted the report after examination Ex. P.10. He further deposed that on 2.6.2015 he had received slide, Salwar and Chappal of the deceased and on 3.6.2015, he had conducted examination of the articles and submitted his report on 4.6.2015. In slides of the deceased Ex-A human sperm were found while. No spot of semen or sperm were found on Salwar Ex. B, nor human blood was found on Ex. B. Human blood was not found on Chappal Ex. C. Ex. A. and Ex. B. were sent for DNA examination to DNA unit FSL Sagar. He submitted his report (Ex. P.10). In his cross-examination he admitted the fact that on Ex. B, Salwar of the deceased the blood was found.
21. P. W. 11 Dr. Pankaj Shrivastava in his evidence deposed that between 24.6.2015 to 20.7.2015 he was posted as Scientist Officer at FSL Sagar. On 24.6.2015 and 20.7.2015 he had given DNA test report to Police Station Chichali in respect of Crime No.165/2015. He further deposed that he is in profession of DNA testing since 2007. In the aforesaid case two packets A and B were received from Zoology Branch Sagar for DNA test on 4.6.2015. All the samples were sealed and seal was unbroken. DNA test of aforesaid articles was conducted by DNA extraction method and DNA genetic marker with the help of amplification power flex by 23 kit was done through multiplex P.C. R. process and in accordance with DNA examination my opinion is as under:
"e`frdk dqekjh jkeyrk ds L=ksr oStkbZuy LykbZM ,oa lyokj ij lansgh ckck mQZ jfo'kadj ds leku iq:"k Mh- ,u- ,- izksQkbZy ik;h x;h A"
22. He further deposed that he had submitted a report Ex. P.15. He specifically deposed in his cross-examination that he had taken all care at the time of DNA examination and DNA examination was fully proved.
23. P. W. 18- M. D. Yadav at the relevant time was posted as Sub-
Inspector at P. S. Chichali. He deposed that on 22.5.2015 Purushottam Kaurav lodged the FIR. He had registered the offence under Section 363 of IPC. FIR is Ex. P. 27. On information of village Kotwar on 22.5.2015 a merg was registered i. e. Ex.P.15 and map of the place of incident was prepared, which is Ex. P.28 and he signed the same. He further deposed that he had taken the statement of Purushottam Kaurav on 22.5.2015 and on the same day on producing a Salwar and fiber Chappal of the deceased were seized by Ex.P. 4 and he signed the same.
24. Investigation officer P. W. 19 deposed that at the relevant time he was posted as Station House Officer Chichali. On 22.5.2015 Purushottam Kaurav lodged a report of missing person, which is Ex. 11 P. 29. On the same day dead body of the deceased was found in a well. He prepared the map Ex. P. 30 and Panchnama of dead body was prepared Ex. P.22. The dead body was sent for postmortem by Ex. P. 27. Statement of Smt Shobha bai was recorded on 22.5.2015 and Statement of Satya Prakash Kaurav was recorded on 23.5.2015 and thereafter on 7.6.2015 supplementary statement of Smt. Shobha Bai was recorded. Seized property was sent through Superintendent of Police Narsinghpur for examination to F. S. L. Sagar. He issued duty certificate to Head Constable Chetram for postmortem of dead body (Ex. P.31).
25. P. W. 20 Smt. Harsha Singh in her evidence deposed that she had received information about death. She had examined dead body of the deceased She had given her opinion about death that it was caused by strangulation. She further deposed that she had given report, which is Ex. P.33. Blood of accused was sent to the F. S. L. Sagar for examination by Ex. P.23.
26. P. W. 21 in his evidence deposed that he was working as Village Employment Assistant and before him statement of accused Ex. P. 24 was recorded and on his memorandum statement a Chappal of the deceased was seized by seizure memo Ex. P.23, he signed the same.
27. P. W. 22 in his evidence deposed that on 8.7.2015 Dr. Smt. Shipra Kaurav had taken out the blood of accused Ravishankar @ Baba and she seized the blood by seizure memo Ex. P.5, he signed the same, which was sent on 8.7.2015 to FSL Sagar by Ex. P.9. Accused/ appellant also signed the same. He further deposed that on 20.7.2015 he had recorded the statement of Smt. Alop Bai, Sharda, Nimma Yadav and Itta @ Kichchu Yadav.
28. P. W. 23 deposed that on 4.8.2015, he was posted as In-charge Station House Officer at P. S. Chichali. He had recorded the statement of accused in presence of the witnesses Prakash Chand Mehra, Krishna Kant Kaurav (Ex.P.23) and map was also prepared. Chappal was sent for identification to Tahsildar Chichali.
29. P. W. 24 Head Constable deposed that he had received sealed packet of vaginal slides and other articles of the deceased and also prepared seizure memo.
30.The conviction of the appellant is based on circumstantial evidence.
The trial court has relied on two evidence. There are two strong sets of evidence against the appellant in regard to his involvement in commission of offence. Number one is match of DNA profile and second is recovery of slipper (chappal) of the deceased from the appellant. The semen of the appellant was found in the vaginal swab of the deceased. This fact has been proved by DNA profile of both the samples, i.e. blood sample of the appellant and sample of vaginal swab of the deceased.
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31. The Apex Court in Dharam Deo Yadav Vs. State of Upper Pradesh reported in (2014) 5 SCC, 509 in regard to DNA test has held as under :-
36. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. The most important role of DNA profile is in the identification, such as an individual and his blood relations such as mother, father, brother, and so on. Successful identification of skeleton remains can also be performed by DNA profiling. DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory. Close relatives have more genes in common than individuals and various procedures have been proposed for dealing with a possibility that true source of forensic DNA is of close relative. So far as this case is concerned, the DNA sample got from the skeleton matched with the blood sample of the father of the deceased and all the sampling and testing have been done by experts whose scientific knowledge and experience have not been doubted in these proceedings. We have, therefore, no reason to discard the evidence of PW19, PW20 and PW21. Prosecution has, therefore, succeeded in showing that the skeleton recovered from the house of the accused was that of Diana daughter of Allen Jack Routley and it was none other than the accused, who had strangulated Diana to death and buried the dead body in his house.
32. The Apex Court in Pantangi Balarama Venketa Ganesh Vs. State of Andhra Pradesh reported in (2009) 14 SCC 607 has held as under :-
Submission of Mr. Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means :-
"(Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred percent precise, experts opine."
There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high- 15 molecular-weight DNA complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See Article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA Profiling and its applications) But in this case there is nothing to show that such precautions were not taken.
42. Indisputably the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In cross-examination PW-46 had stated as under :-
"If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population."
33.From the aforesaid judgments of the Apex court the principle of law is that DNA test can be riled on as medical evidence in a criminal case with caution. The scientific evidence is more reliable than ocular evidence and probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population.
34.Dr. Kinshuk Jaiswal, (PW-12 ) had prepared the DNA swab slide of the deceased. She deposed that she had prepared two vaginal slides of the deceased. In her cross examination, she further deposed that she used the sterilized slides at the time of preparation of vaginal slides and she was also wearing the mask. The vagina of the deceased was not degraded. Two slides were handed over. Other articles of the deceased were handed over to the Constable.
35.PW-15, Prakashchandra Mehra, who is an independent witness has affirmed that before him the Doctor had taken blood of accused Ravishankar in small bottles and the chappal was also seized from the possession of the accused of the deceased before him and he had also singed the seizure memo, Ex. P-33.
36.PW-16, Dr. Shipra Kaurav had taken out the blood of the deceased and it was sealed pack, Ex. P-5 and handed over to the SHO, Incharge. She further deposed that alongwith the accused the blood of other two persons was also taken out and handed over to the Police. At the time of taking blood samples, proper procedure was followed. A chemical was also mixed in the blood to prevent the blood clouting and it was sealed in a cold carrier seal pack and handed over to the SHO, Incharge.
37.PW-8, R.R. Choudhary, Senior Scientist, who was posted as Senior Scientist Officer had conducted the FSL, Sagar confirmed that he had examined the Ex.3-A :- (a) slide, (b) Salwar, ( c) Chappal. On Ex. A, the slide of deceased human sperms were and on Ex.
(b) Salwar the human blood was found. Thereafter, he had sent Ex. (a) and Ex. (b) for DNA text to DNA Unit, FSL and the report was submitted by him Ex. P-10.
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38. PW-11, who was working as Scientific Officer at FSL, Sagar deposed that he received two packets Ex. (a) and Ex. (b) from Zoology Project, Sagar for DNA examination and three packets from Constable Kamlesh and three packets from other persons and DNA test was performed. He in his report verified the fact that on the swab of vagina, human sperm were found and on Salwar, male DNA profile was found and on the vaginal swab the DNA profile of the appellant Ravishankar @ Baba Vishwakarma were found. Notable feature is that alongwith the blood sample of the accused two other blood samples of suspected accused namely Hargovind Kaurav, Nandi @ Anand were sent. However, on the vaginal swab, the DNA of two persons were not found. It indicates that there was no intention of the prosecution to implicate the appellant only. The witness deposed in his cross examination that all the care was taken at the time of taking DNA sample.
39.Learned counsel for the appellant has emphatically advanced his arguments to the effect that DNA sample was not proper, hence, it could not be relied on. We are not in agreement with the arguments advanced by learned counsel for the appellant. Bottles were sterilized and the blood sample was taken. At the time of preparation of vaginal swab proper care was taken and thereafter it was sent in a sealed cover. In our opinion, there is no ambiguity, illegality in the DNA test and it has rightly been relied upon by the trial court.
40.The next evidence is recovery of one of the slipper of the deceased from the possession of the accused- appellant. This fact has also been proved. The slipper (chappal) was identified by the mother of the deceased and Tahsildar who had conducted the identification verified the same in his evidence. Hence, in our opinion, there is evidence against the appellant to hold him guilty for commission of rape and murder of the deceased - girl.
41. Now the next question is that whether proper sentence has been awarded by the trial court or not. In the present case, the court has awarded the death sentence. The deceased was aged about thirteen years. She was raped and thereafter she was killed. The Constitution Bench of the Apex in Bachan Singh Vs. State of Punjab reported in (1980) 2 SCC 684 has fixed the following guidelines in the event of imposition of death sentence :-
Mitigating circumstances:- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances: -
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.19
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.
42. In Ramnaresh and others Vs. State of Chhattisgarh reported in (2012) 4 SCC 257, the Apex court has affirmed the death sentence of the accused in case of rape and murder of a child aged three years as under :-
43. The Apex Court further in Vasanta Sampat Dupare Vs. State of Maharashtra reported in (2015) 1 SCC 253 has affirmed the death sentence in a case of rape and murder of four years girl. The Apex Court has held as under :-
35. In Sharad Birdhichand Sarda v. State of Maharashtra, the five golden principles which have been stated to constitute the "panchsheel" of the proof of the case based on circumstantial evidence are:
(i) that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established; (ii) that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) that the circumstances should be of a conclusive nature and tendency;
(iv) that they should exclude every possible hypothesis except the one to be proved; and
(v) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
36. In C. Chenga Reddy v. State of A.P it has been held that (SCC pp.206-07. para 21) "21. In a case based on circumstantial evidence.... the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. (That apart), the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
57. Keeping in view the aforesaid authorities, we shall proceed to adumbrate what is the duty of the Court when the collective conscience is shocked because of the crime committed. When the crime is diabolical in nature and invites abhorrence of the collective, it shocks the judicial conscience and impels it to react keeping in view the collective conscience, cry of the community for justice and the intense indignation the manner in which the brutal crime is committed. We are absolutely conscious that Judges while imposing sentence, should never be swayed away with any kind of individual philosophy and predilections. It should never have the flavour of Judge-centric attitude or perception. It has to satisfy the test laid down in various precedents relating 21 to rarest of the rare case. We are also required to pose two questions that have been stated in Machhi Singh's case.
58. Presently, we shall proceed to dwell upon the manner in which the crime was committed. Materials on record clearly reveal that the appellant was well acquainted with the inhabitants of the locality and as is demonstrable he had access to the house of the father of the deceased and the children used to call him "uncle". He had lured the deceased to go with him to have chocolates. It is an act of taking advantage of absolute innocence. He had taken the deceased from place to place by his bicycle and eventually raped her in a brutal manner, as if he had the insatiable and ravenous appetite. The injuries caused on the minor girl are likely to send a chill in the spine of the society and shiver in the marrows of human conscience. He had battered her to death by assaulting her with two heavy stones. The injured minor girl could not have shown any kind of resistance. It is not a case where the accused had a momentary lapse. It is also not a case where the minor child had died because of profuse bleeding due to rape but because of the deliberate cruel assault by the appellant. After the savage act was over, the coolness of the appellant is evident, for he washed the clothes on the tap and took proper care to hide things. As is manifest, he even did not think for a moment the trauma and torture that was caused to the deceased. The gullibility and vulnerability of the four year girl, who could not have nurtured any idea about the maladroitly designed biological desires of this nature, went with the uncle who extinguished her life spark. The barbaric act of the appellant does not remotely show any concern for the precious life of a young minor child who had really not seen life. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on the society. It is calamitous.
59. In this context, we may fruitfully refer to a passage from Shyam Narain V. State (NCT of Delhi), wherein it has been observed as follows:
"1. The wanton lust, vicious appetite, depravity of senses, mortgage of mind to the inferior endowments of nature, the servility to the loathsome beast of passion and absolutely unchained carnal desire have driven the appellant to commit a crime which can bring in a "tsunami" of shock in the mind of the collective, send a chill down the spine of the society, destroy the civilised stems of the milieu and comatose the marrows of sensitive polity".
In the said case, while describing the rape on an eight year old girl, the Court observed: (Shyam Narain Case SCC p. 88, para 26) "26. ..............Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilised society. The age-old wise saying that "child is a gift of the providence" enters into the realm of absurdity. The young girl, with efflux of time, would grow with a traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers."
60. In the case at hand, as we find, not only was the rape committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of the society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances.
44.Now in the present case the accused, appellant had raped a minor girl. There was bleeding due to sexual intercourse and 23 thereafter she was killed. The appellant had denied the act. There is no possibility that the appellant will reform in future. In view of the aforesaid evidence and facts of the case in our opinion, the trial court has rightly awarded the death sentence to the appellant. We affirm the death sentence of the appellant. Accordingly, we are answering the reference. There is no merit in the appeal filed by the appellate- accused. It is hereby dismissed on merits.
(S.K. Gangele) (H. P. Singh)
Judge Judge
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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Criminal Reference No.2 of 2016.
Corum : Hon'ble Shri Justice S. K. Gangele &
Hon'ble Shri Justice H. P. Singh
In reference.
Versus.
State of Madhya Pradesh
For State : Shri Ajay Shukla Govt. Advocate.
For respondent/ Accused : Shri V. S. Choudhary, Advocate.
CRIMINAL APPEAL NO.2175/2016 Ravishankar @ Baba Vishwakarma Vs. State of Madhya Pradesh For appellant : Shri V. S. Choudhary Advocate. For respondent/ State : Shri Ajay Shukla Govt. Advocate.
ORDER FOR CONSIDERATION (S.K. GANGELE) JUDGE .11.2016 Hon'ble Shri Justice H.P. Singh.
(H.P. Singh)
Judge
POST FOR : 06.12.2016.
(S.K. GANGELE)
JUDGE
05.12.2016