Jharkhand High Court
State Of Jharkhand vs Sanjay Paswan @ Firangi Paswan on 17 August, 2011
Equivalent citations: 2011 (4) AIR JHAR R 49, (2011) 107 ALLINDCAS 325 (JHA)
Author: D.N. Upadhyay
Bench: R.K. Merathia, D.N. Upadhyay
Death Reference (D.B.) No.01 of 2011
State of Jharkhand ... Appellant
Versus
Sanjay Paswan @ Firangi Paswan... .... ..... ... Convict
with
Criminal Appeal (DB) No.207 of 2011
Sanjay Paswan @ Firangi Paswan... .... ..... ... Appellant
Versus
State of Jharkhand ..... .... ... Respondent
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For the Convict : Mr. Dilip Kumar Prasad, Advocate
For the State : Mr. V.S. Sahay, A.P.P.
(Against the judgment and order of conviction and sentence dated
15.02.2011& 18.02.2011 passed by Sri Brajendra Kumar Sinha, 1st Addl. District & Sessions Judge, Singhbhum E at Jamshedpur, in Sessions Trial No.166 of 2010) PRESENT HON'BLE MR. JUSTICE R.K. MERATHIA HON'BLE MR. JUSTICE D.N. UPADHYAY
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C.A.V. : 29.06.2011 Pronounced on : 17.08.2011
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D.N. Upadhyay, J. The Death Reference No.01 of 2011 and Criminal Appeal No.207 of 2011 are directed against judgment of conviction dated 15th February, 2011 and sentence dated 18th February, 2011 passed in connection with S.T. Case No.166 of 2010 corresponding to Baghbera P.S. Case No.26 of 2010 whereby and whereunder the learned 1st Additional Sessions Judge, Singhbhum (East) at Jamshedpur has held the appellant guilty for the offences punishable under Section 376 (f), 302 & 201 of the Indian Penal Code and awarded death sentence subject to the confirmation by this Court and no separate sentence on each count has been passed.
2. The fact emerges from the fardbeyan of Mina Rajbhar- informant recorded on 07.02.2010 at 1.30 a.m. at Tata Main Hospital, Ward-4(B) at Jamshedpur is that on 06.02.2010 while the informant had gone to her house situated at Sanjay Nagar Talab, her daughter Khusbu Kumari aged four and half years (the deceased), reached to the place at about 3.00 p.m. and asked for a rupee from her. The girl was directed to go home. At that relevant point of time the appellant namely Sanjay Paswan @ Firangi Paswan was also present near the place who told the informant that he would drop Khusbu at home. The informant trusted the version of appellant because he was resident of the same locality and permitted the deceased to go with him. At about 4.00 p.m. Shanti Rajbhar (mother of the informant) reached to the place in search of Khusbu with an intention to send her for her tuition but they were surprised to know that Khusbu left with appellant for home but did not reach. The informant, with her mother, returned to their quarter situated in the adjoining locality and made search for Khusbu. In course of that at about 5.00 p.m. they learnt from Muhalla people that a naked girl in injured condition was lying in a drain situated on the northern back of the house of appellant and the injured has been shifted to M.G.M. College & Hospital for treatment by Raj and Mangal. The informant with her brother and family members rushed to the place and found torn frock of her daughter Khusbu lying near the drain to which she picked up and rushed to M.G.M. Hospital. She found her daughter under treatment but she was unconscious. The deceased was shifted to Tata Main Hospital for her better treatment but she could not survive and succumbed to the injuries. In the hospital itself the fardbeyan of informant was recorded on the basis of which Baghbera P.S. Case No.26 of 2010 dated 07.02.2010 under Sections 376(f), 302 & 201 of the Indian Penal Code was lodged. It is also disclosed that the girl was having injuries on her private part besides other injuries and it was suspected that she was subjected to rape and then assaulted.
3. During investigation accused Sanjay Paswan @ Firangi Passwan was apprehended, his confession was recorded by the police and his blood stained trouser and underwear were seized from his house. The torn frock of the deceased and a shawl which was used to cover the naked body of the deceased in course of bringing her to hospital, which got stained with blood, were also seized.
4. The blood and semen sample of the accused-appellant were also taken and sent to State Forensic Science Laboratory for its examination and accordingly a report was submitted. After conclusion of the investigation the Investigating Officer had submitted charge sheet against Sanjay Paswan @ Firangi Paswan under Section 376 (f), 302 & 201 of the Indian Penal Code
5. The charges were framed and explained to the accused- appellant to which he pleaded not guilty and claimed to be tried.
6. The prosecution, in order to substantiate the charges, examined altogether 10 witnesses including the informant, I.O. and the doctor who conducted post mortem examination. The defence of the appellant, in the Court below, was of total denial of the allegation levelled against him and also of false implication. The learned Additional Sessions Judge, at the conclusion of trial, held the appellant guilty under Section 376(f), 302 & 201 of the Indian Penal Code and awarded capital punishment.
7. PW-8 Mina Rajbhar (informant) has stated that on 6th February, 2010 while she had been to Sanjay Nagar Talab, her daughter Khusbu reached to the place at 3.00 p.m. and requested for one rupee. The daughter was directed to go home and take money from her maternal grandmother. At the relevant point of time Sanjay Paswan @ Firangi was standing near the place who told the informant "Didi hum ghar chor dete hain." Thereafter the appellant took Khusbu with him but did not reach home. At about 4.00 p.m. the mother of the informant reached to the place in search of Khusbu in order to send her for tuition but she was surprised to know from the informant that Khusbu was sent home with Sanjay Paswan but she did not reach. Thereafter, a search was made for Khusbu and in course of that at about 5.00 p.m. informant learnt from muhalla people that a girl in naked condition having injury on her person was lying in a drain situated behind Singh Hotel towards northern backdoor of the house of the appellant. The informant rushed to the place and found torn yellow colour frock of her daughter Khusbu to which she picked up. She could further learn from the muhalla people that Khusbu has been shifted to hospital with the help of Mangal and Raj. She went to M.G.M. Medical College & Hospital and found her daughter injured who was under
treatment. After having consultation with the doctors and family members Khusbu was shifted to Tata Main Hospital for better treatment but she could not survive and died at 11.30 p.m. She has further stated that the accused had taken Khusbu to a nearby shop of Tiwariji and he had purchased Biscuit and Kurkure to allure the deceased. Thereafter the accused-appellant took Khusbu behind the back of his house and after fulfilling his lust caused injury to the girl and left her near the drain. The informant has further stated that her statement was recorded at Tata Main Hospital and she had given her thumb impression, whereas other witnesses including Harendra and her brother had put their signature. She had identified the accused in Court. In her cross-examination she has clearly stated that Khusbu had returned home at 1.30 p.m. as it was Saturday. After changing her school dress and having meal she had come to her to request for a rupee. She has made it clear that she had gone to Sanjay Nagar Talab in order to wash clothes. The quarter of accused is also situated within railway traffic colony in block No.10. This witness has been cross-examined in detail with regard to the place where Khusbu was found injured and the distance of the place from Sanjay Nagar Talab. At Tata Main Hospital she was informed by the doctor that Khusbu was subjected to rape. She had not stated about the occurrence to any doctor at M.G.M. Medical College and Hospital.
8. PW-4 Shanni Rajbhar and PW-6 Jitendra Rajbhar are the brothers whereas PW-7 Shanti Rajbhar is the mother of informant.
The two brothers have supported the prosecution story as made out by the informant. They have deposed that after knowing that Khusbu is missing they had made a search for Khusbu with the informant and after knowing that Khusbu in injured condition has been shifted to hospital they also accompanied the informant up to the hospital. The further story that Khusbu was taken by the accused-appellant Sanjay Paswan @ Firangi and after that she did not reach home and found injured on the back of the house of accused-appellant, which they heard from their sister Mina Rajbhar has been supported by them. PW-7 Shanti Rajbhar has corroborated the fact that on 06.02.2010 at about 4.00 p.m. she had gone to search Khusbu for sending her for her tuition but she could learn from Mina that Khusbu was sent with the accused-appellant Sanjay Paswan @ Firangi who assured to drop her at home. The rest part of incident, as disclosed by Mina Rajbhar, finds support from the deposition of this witness too.
9. PW-1 Priti Kumari is the daughter of Tiwariji in whose shop the deceased was taken by accused Sanjay Paswan @ Firangi in order to purchase biscuit and kurkure. Priti Kumari was present at the shop at the relevant point of time and she has stated that Sanjay Paswan had come to the shop at about 3.00-3.30 p.m. and he had purchased biscuit for Rs.5 and kurkure for Rs.5 and thereafter he returned back with Khusbu. On the next day she heard that Khusbu was found injured near the drain and she died due to the injuries caused to her. She has identified the accused in Court. She has confirmed in her cross-examination that Khusbu and Sanjay both are resident of the same locality and they are known to her. She used to go to the house of Khusbu but she had not visited the house of Sanjay Paswan at any point of time.
10. PW-2 Harendra Singh has also confirmed this fact that Khusbu was taken by accused Sanjay @ Firangi on 06.02.2010 from Sanjay Nagar Talab. At the relevant point of time he was sitting in a nearby tea stall. He had also gone to the hospital and he learnt that Khusbu was found naked in injured condition in a drain flowing on the back of the house of accused. He is also an attesting witness to the fardbeyan and he has proved his signature as a witness. This witness has also been cross-examined with regard to distance of Sanjay Nagar Talab from the house of accused, the place where Khusbu was found injured, Singh Hotel and quarter of the informant. PW-3 Mangal Samanto is a person who deals in plastic and polythene waste. His house -cum-godown is situated near the drain where the deceased was lying injured in naked condition. When he was informed by rubbish picker and his wife that a girl aged about 4-5 years is lying unconscious, naked in injured condition, he brought a shawl from his house in which the body of the girl was covered and he had taken the girl to M.G.M. College and Hospital for her treatment. In the evening at M.G.M. Hospital he could know about the parents of the girl. On the following morning he learnt that the girl has succumbed to her injuries and she was ravished by accused Sanjay Paswan. He has described the depth of drain where the deceased was lying injured. He admits that no information to police by him was given and he had simply taken the girl to the hospital with the help of other people. PW-5 Awadhesh Kumar Sharma happens to be hearsay witness and he could learn about the incident after going through the news published in local daily. He is also witness to the inquest and seizure list. He has proved his signature appearing on those documents.
11. PW-9 is Dr. Akhilesh Kumar Choudhary who had conducted post mortem on the dead body of Khusbu aged about 5 years on 07.02.2010 at 11.45 a.m. The doctor had found injuries on the dead body of Khusbu to which he had explained under the heading A, B, C, D & E. The injuries explained by him under heading A, B, C & D were appearing on face, neck and elbow of the deceased. The body was full of injuries - two stitched wounds on forehead and chin; two contusions with swelling on face and neck; six abrasions on face, neck etc.; several pressure marks abrasions on neck. The injuries described under heading E are the internal injuries noticed on the vagina and other part of the body of the deceased. We feel it necessary to reproduce the injuries noted by the doctor under the heading 'E'-
'E' Internal Injuries:-
(i) Fresh blood discharge vaginal orifice.
(ii) Posterior commeisure torn.
(iii) Fourchette ruptured.
(iv) Hymen ruptured with irregular bleedings margin.
(v) Contusion of inner vaginal wall with blood.
(vi) Contusion over posterior aspect posterior OS.
(vii) Soft tissues underneath the skin along parietal and frontal scalp contused and fissure fracture of right parietal scalp bone brain contused.
(viii) Soft tissues along right side super acalaricalal region of outer aspect underneath skin contused over an area of 2 cm x 2 cm.
(ix) Soft tissues along under surface of airway contused.
Vaginal swab two pieces and vaginal swab slide preserved.
12. According to opinion of the doctor the injuries were ante mortem in nature and it were caused by hard and blunt substance and the deceased died due to aforesaid injuries. The doctor preserved vaginal swab in which presence of semen and blood was noticed and he has opined about forceful penetration of hard and blunt substance inside genetilia.
13. PW-10 Surendra Prasad Singh happens to be Investigating Officer of this case and he has supported the investigation done by him. He has proved the fardbeyan, formal F.I.R., seizure list and other documents which have been marked exhibit as per the list. The sample of blood and semen along with the shawl, frock of the deceased and trouser and underwear of the accused-appellant were sent to State Forensic Science Laboratory and he had received the report from F.S.L. which is marked exhibit-8. The confessional statement of accused has also been proved as exhibit-9. The place of occurrence has been described in para-11 of his deposition. The contradictions taken from the witnesses have also been referred to this witness.
14. Learned counsel appearing for the appellant has submitted that instant case is based on circumstantial evidence and many important link in the chain of circumstantial evidence are missing and it could not be said that the evidence on record would lead only and only to the guilt of accused excluding every hypothesis of his innocence. In this context he has placed reliance on evidence of informant in which she has stated that the girl was handed over to the accused for sending her to home but the evidence as to what happened with the girl thereafter is absent. No prosecution witness has come forward to say that the girl was seen in company of accused going towards the place of occurrence. The evidence that the accused with the girl had gone to the shop of Tiwariji is not sufficient and conclusive to the effect that the girl was ravished by the appellant and subjected to assault. Furthermore, the place where the girl was found injured is also very important. In the evidence of witnesses including the I.O. it has come that the drain where the girl was lying injured is situated towards back to the railway traffic colony. Meaning thereby the place of occurrence is surrounded by the houses. The learned counsel has further pointed out the evidence of Mangal Samanto (PW-3) para-13 and submitted that place of occurrence is situated at a distance of ten yards from the godown of the said witness. He is the person who saw the girl injured and took her to the hospital. Not only that, the time of occurrence which is between 3.00 p.m. to 5.00 p.m., as disclosed by the witnesses, is also relevant. No person would dare to commit such heinous and ghastly crime during day hours within the residential vicinity.
15. The next point raised by the appellant is that PW-4, PW-6, PW-7 and PW-8 are the relatives of the deceased whereas PW-2 is the well-wisher of the family of informant and therefore, all of them are highly interested witnesses and no conviction can be based on the evidence of said witnesses. There are vital contradictions with regard to the time of occurrence, place of occurrence and also on other material point in the statement of prosecution witnesses. The most important aspect in this case is that semen and blood samples of the appellant had been taken for sending it to State Forensic Science Laboratory but who had taken the sample is unknown. Even the Investigating Officer has failed to disclose the name of such person who took the blood and semen sample for comparing the same with the stain appearing on the seized cloth. The expert who has done D.N.A. test and submitted report has not been examined hence the report which has been marked exhibit cannot be relied upon.
16. Last but not the least, it was urged that the learned Additional Sessions Judge has failed to prepare proper balancesheet with regard to the aggravating and mitigating circumstance before awarding death sentence. The appellant was aged 27 years and no criminal antecedent, pending against him, has been brought on record. There is every chance of rehabilitation and he may become an useful member of the society in future. The case is admittedly based on circumstantial evidence and therefore, the judgment reported in (2011) 2 SCC 764, Rameshbhai Chandubhai Rathod (2) Vrs. State of Gujrat is relevant to be relied upon. The facts of the aforesaid reported case is almost similar to the facts which are appearing in the case at hand. The judgment was referred to a larger Bench which considered the mitigating circumstance lying in favour of the appellant and the capital punishment was commuted to life imprisonment.
17. Learned A.P.P. appearing for the State has submitted that the prosecution has well proved its case beyond shadow of all reasonable doubts and the learned Additional Sessions Judge has considered all the pros and cons of the evidence available on record. It is a case in which the appellant won the trust of mother, got the custody of the girl child aged four and half years and executed his monstrous desire by committing rape on such a minor helpless child and also committed her murder. In this case, the report submitted by F.S.L. (exhibit-8) and seizure list (exhibit-6 and 6/1) are sufficient to hold the appellant guilty for the heinous crime which he has committed. The oral evidence available on record is also corroborating and conclusively leading towards the guilt of the accused. In course of argument he has submitted that the Apex Court has taken a serious view in a case of rape and murder which is committed against women and observed that such cases comes within the purview of rarest of rare case and death penalty is appropriate sentence. The prosecution has relied upon the judgment reported in (2011) 5 Supreme Court Cases 317, Mohd. Mannan Vrs. State of Bihar and (2011) 1 Supreme Court Cases 318 Thathamsetty Suresh Vrs. State of Andhra Pradesh.
18. The argument advanced from both sides and the evidence available on record admittedly brings the case based on circumstantial evidence. In a case of circumstantial evidence the prosecution has to establish that the circumstances so proved lead to one and the only conclusion towards the guilt of the accused. The circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in a fanciful manner. In order to sustain conviction circumstantial evidence must be complete and must point towards the guilt of the accused. Such evidence should not only be consistent with the guilt of accused but inconsistent with his innocence. It is true that no hard and fast rule can be laid down that what particular circumstances are conclusive to establish guilt rather the evidence and circumstances of each and every case is to be looked into before coming to conclusion of the guilt of accused. Keeping aforesaid principles in mind we now feel to consider the circumstantial and documentary evidence available on record.
19. On the day of incident informant (PW-8) had been to Sanjay Nagar Talab, a place situated at some distance from her residence. At about 3.00 p.m. Khusbu (deceased daughter of the informant) reached there and requested for a rupee after which she was directed to go home and take money from her grand mother. In the mean time, appellant Sanjay Paswan @ Firangi Paswan, present near the place, told "Didi hum ghar chor dete hain". After that appellant got custody of the girl child but he did not drop the girl at home and went to a shop of Tiwariji where PW-1 Priti Kumari (daughter of shopkeeper) was present. The appellant purchased biscuit and kurkure and went back with the girl child from the shop. These circumstances under which the accused had taken custody of Khusbu finds consistently proved from the evidence PW-1 and PW-8. The criminal intent of the accused/appellant is apparent from his conduct when he did not drop the girl at home and to allure purchased biscuit and kurkure for her. The appellant won the trust of the informant and after getting the custody of her daughter Khusbu aged four and half years, took her to a shop from where he purchased biscuit and kurkure to allure the girl and thereafter she was taken by the appellant to a suitable destination and he executed his diabolical and grotesque desire in a barbaric and monstrous way and the helpless child who became the prey was assaulted in a brutal manner and succumbed to her injuries.
20. When Khusbu did not reach home and this fact came within the knowledge of PW-7 and PW-8, they got worried and started hectic search for Khusbu. They were also accompanied by PW-6 and PW-4 who are brothers of informant. This fact finds support from the evidence of aforesaid witnesses. In course of search they learnt that a minor girl aged about 5 years lying injured in naked condition near a drain situated to the back of Singh Hotel was removed to hospital by Mangal and Raj. The informant (PW-8) rushed to the place and found frock of Khusbu lying there to which she picked up and proceeded to M.G.M. Hospital where Khusbu was under treatment. In the hospital she met with PW-3 Mangal Samanto (the person who had shifted the victim to the hospital). This fact finds support from the evidence of said witnesses Mangal Samanto who has been examined as PW-3. The informant was worried about her daughter and after having consultation she took Khusbu to Tata Main Hospital for her treatment but Khusbu could not survive. In the hospital itself fardbeyan of the informant was recorded and it was witnessed by Harendra Singh PW-2. The recording of fardbeyan finds support from the evidence of PW-2, PW-7 PW-8 and PW-10. The Shawl in which naked body of Khusbu was wrapped before shifting her to M.G.M. Hospital, the frock which the informant had collected from the place where Khusbu was lying injured in naked condition and the trouser and under garment of the accused-appellant were seized by the police during investigation and the seizure list have been proved as exhibit 6 and 6/1. The seizure witnesses namely Shanni Rajbhar PW-4 and Awadhesh Kumar PW-6 have proved the recovery of such articles and this fact finds support from their evidence. The most important document is exhibit-8, the report received from the office of State Forensic Science Laboratory. According to exhibit-8 human blood was found on the shawl and the vaginal swab collected from the person of deceased. After biological and chemical examination, human blood and semen was detected on the trouser and underwear of the appellant and it were matching with the sample of human blood and semen taken from the appellant. The next important document is post mortem report (exhibit-3) which indicates how a girl child aged four and half years was ravished in a barbaric manner. The injuries appearing on the private part of the deceased have been explained by the doctor, PW-9. The argument that report received from F.S.L. has been marked exhibit without examining the expert and therefore, the accused stood prejudiced and that document should not have been relied upon is not tenable. In this context Section 293 Cr.P.C. is relevant. The accused-appellant or his counsel had never expressed their desire to summon the expert for his examination in Court and therefore, raising such point at the appellate stage is of no consequence and that too in a situation in which the document has been marked exhibit without objection.
21. In view of the evidence of the witnesses and exhibited documents referred to above, the fact that the helpless minor girl who was given to the custody of appellant was diabolically ravished, stands consistently proved. We do not find merit in the argument advanced by learned counsel for the appellant that only because some of the witnesses are related to the deceased, they should be considered as highly interested witness. In view of the facts appearing in the case at hand, the relatives of the deceased are most competent witnesses and they have successfully proved the occurrence which they had witnessed. The place where the girl was actually ravished could not be explained by the witnesses because there is no eye witness to the occurrence but the place where the girl was found naked in injured condition is a lonely one without having thoroughfare of the people. We do not find any contradiction with regard to time of occurrence. There is consistent evidence that the girl was given in custody of the accused at about 3.00 p.m. and the search for girl begun at 4.00 p.m. and the deceased was shifted to hospital between 4.00 and 5.00 p.m. Therefore, the evidence on record, as discussed above, unerringly point towards the guilt of appellant and we find that chain of circumstantial evidence is so complete which leads to a conclusion that Khusbu, a helpless child aged 4-5 years, who was given in custody of accused-appellant for sending home was subjected to rape and assault at the hand of appellant as a result she died.
22. The learned counsel for the appellant has referred to the judgment of (2011) 2 SCC 764 (supra) in which aggravating and mitigating circumstances, appearing in the case were considered and the larger Bench of the Apex Court has commuted the death sentence to life imprisonment. In order to distinguish the facts appearing in the case at hand we feel it necessary to bring on record the facts appearing in the case reported in 2011 (5) Supreme Court Cases 317 (supra). To bring the case within the purview of rarest of rare case their Lordships have given some guideline appearing in paragraph 23 and 24 which run as follows:-
"23. It is trite that death sentence can be inflicted only in a case which comes within the category of the rarest of rare cases but there is no hard-and-fast rule and parameter to decide this vexed issue. This Court had the occasion to consider the cases which can be termed as the rarest of rare cases and although certain comprehensive guidelines have been laid to adjudge this issue but no hard-and-fast formula of universal application has been laid down in this regard. Crimes are committed in so different and distinct circumstances that it is impossible to lay down comprehensive guidelines to decide this issue. Nevertheless it is widely accepted that in deciding this question the number of persons killed is not decisive.
24. Further, crime being brutal and heinous itself does not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the court has to see as to whether the accused is a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance sheet is to be prepared while considering the imposition of penalty of death of aggravating and mitigating circumstances and a just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, it is expected that the holders of judicial power do not stammer dehors their personal opinion and inflict death penalty. These are the broad guidelines which this Court had laid down for imposition of the death penalty."
23. In view of the guidelines given above, before affirming the death sentence we feel it necessary to refer exhibit-9, the confessional statement of accused-appellant Sanjay Paswan @ Firangi Paswan, recorded by the police and the said document has been marked exhibit without objection. The accused-appellant himself has admitted that his brother Bibhash Paswan is having criminal antecedent and he was lodged in jail. His another brother Bipin Paswan had left his study and is living as a vagabond. He has further admitted that he is also not doing any job and living in association of criminal minded people. Even on the date of incident he had consumed liquor with his friend and was waiting to commit offence. When his companion went home, he returned to his residential locality where he saw the informant and her daughter and thereafter this incident took place. The prosecution witnesses have also given family background and status of accused-appellant. The perpetrator of such a barbaric and heinous crime is a menace to the society. The act so disgustingly diabolical and heinous to mention the manner in which the macabre act was perpetrated. This kind of inhuman perversion cannot go unpunished. Justice is intended to never set a precedence of this kind. The hand that should protect should never ever stifle the scream of defiled innocence. This is intended to stop the darkest of human soul seeking perverse reprieve in cold blood cruelty. Therefore, keeping all the aggravating and mitigating circumstances when we consider the present case we have left with no option but to consider the case falling in the category of rarest of rare cases.
24. In the recent judgment reported in (2011) 1 Supreme Court Cases 318, Thathamsetty Suresh Vrs. State of Andhra Pradesh the Apex Court has taken a serious view and observed in paragraph 8 as under:-
"8. In such cases ordinarily there is only circumstantial evidence but that does not mean that a person cannot be convicted on the basis of circumstantial evidence. We have recently held in Satya Narayan Tiwari v. State of U.P., that this Court is going to take a serious view in the matters of crimes against women and given harsh punishment. This view was reiterated by us in another special leave petition in Sukhdev Singh v. State of Punjab and we issued notice to the petitioner as to why his life sentence be not enhanced to death sentence."
25. In the result, we do not find any merit in this appeal and the judgment of conviction and death sentence, so awarded to the appellant in connection with Sessions Trial No.166 of 2010 arising out of Baghbera P.S. case No.26 of 2010 stands affirmed.
26. Accordingly, Criminal Appeal (DB) No.207 of 2011 stands dismissed and the Death Reference (DB) No.01 of 2011 stands affirmed (D.N. Upadhyay,J) I agree.
(R.K. Merathia, J.) (R.K. Merathia, J.) Jharkhand High Court, Ranchi Dated : 17th of August, 2011. NKC / A.F.R.