Madhya Pradesh High Court
In Reference vs Smt. Rajwa Kol on 4 February, 2016
Bench: Rajendra Menon, Sushil Kumar Palo
CRRFC-11-2015
(IN REFERENCE Vs SMT. RAJWA KOL)
04-02-2016
Criminal Reference No.11/2015
IN REFERENCE
Received from Additional Sessions Judge, Sidhi
(MP)
Versus
Smt. Rajwa Kol, W/o Late Ramesh @ Pappu Kol,
aged about 26 years, R/o Madarhi Tola, Police
Station Bahri, District Sidhi (MP)
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For the State: Shri Ajay Shukla, Government Advocate
For the Respondent: Shri D.D. Bhargava, Advocate
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Criminal Appeal No. 3174/2015
Smt. Rajwa Kol, W/o Late Ramesh @ Pappu Kol,
aged about 26 years, R/o Madarhi Tola, Police
Station Bahri, District Sidhi (MP)
Versus
State of Madhya Pradesh, through Police Station
Bahri, District Sidhi (MP)
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For the Appellant: Shri D.D. Bhargava, Advocate
For the State: Shri Ajay Shukla, Government Advocate
PRESENT :
HON'BLE SHRI JUSTICE Rajendra Menon
HON'BLE SHRI JUSTICE Sushil Kumar Palo
Date of hearing : 25.01.2016
Date of Judgment: .02.2016
JUDGMENT
As per S.K. Palo, J.:
This Criminal Reference No. 11/2015 is before this Court against the death penalty dated 7.11.2015 imposed by the First Additional Sessions Judge, Sidhi in Session Trial No. 102/2012 by recording a finding of guilt against the appellant Smt. Rajwa Kol for offence punishable under Section 302 of IPC. The learned trial Court has also convicted the appellant under Sections 324 and 323 of IPC and sentenced her to two years RI with fine amount of Rs. 1000/- and one year RI for causing injuries to Rajbhan Kol, Smt. Rannu Kol, Kusumkali, Ramkali, Shyamkali, Seema @ Manju Yadav and Sonu Yadav on each count with fine amount of Rs. 1000/- for each count. Failing to deposit the fine amounts would entail the appellant to undergo additional sentence of three months RI in each count. It is also directed that the sentences be suffered separately.
2. Criminal Appeal No.3174/2015 has been filed by the appellant being aggrieved by the aforesaid judgment.
3. As both the cases arise out of the same judgment and involve common issues, they are heard and decided concomitantly.
4. The prosecution story, in brief, is that the accused/appellant Smt. Rajwa Kol, R/o village Malkham, is the daughter of Ramadhar Kol. She was married with Ramesh @ Pappu Kol of Village Behri, Madrahi Tola. She was ill. She accompanied her husband to her father's home in the evening of 3rd March 2012 for treatment by hocus-pocus (jhad-phunk) [the treatment by chanting mantras and local way of treating people in crude method]. In the night of 4.3.2012 the appellant shouted in a loud voice and was also misbehaving, on which her husband and other members of the family objected. About 12.30 in the night again she repeated the same when her husband Ramesh @ Pappu Kol opposed, the appellant-accused took out an iron pincers (Chimta) (an iron instrument which is used to hold the hot utensils) and hit her husband's head about 3-4 times. He fell down on the spot. Blood oozed out. Her father Ramadhar, brothers Rajbhan and Tejbhan tried to save him, the accused- appellant also caused injuries to them, who with fear ran away from the spot and climbed the nearby mountain. At about 6.00 â 6.30 in the morning, the appellant-accused came out from Ramadhar's house holding the iron pincers, went to neighbour Nandlal's house. At that time Nandlal's wife was preparing food in the kitchen. Her son Chhotu, aged about 2 years, was sleeping at the adjacent room. When accused-appellant Rajwa shouted in front of the house, wife of Nandlal came out, she saw that the accused-appellant was hitting the child with the iron pincers, the child received a blow on his had and a second blow on his chest, as a result he died. When wife of Nandlal tried to save the child, the accused-appellant caught her from behind and given blows by the iron pincers on her head. Wife of Nandlal received injuries on the head, fell on the ground and passed away. The children of Nandlal namely Seema and Sonu when came out from the house, the appellant-accused attacked them and caused injuries. Nandlal Yadav then took the injured children to the District Hospital, Sidhi. Meanwhile, accused-appellant also injured other persons. On hearing the shouts Sanjay Singh, Ganga Singh and others approached the spot and saw the incident. Sonu, a member of the Gram Raksha Samiti, Dhanpati Sahu, Mane Yadav and Bajrang Sahu caught the accused-appellant and tied her by a rope. They also took away the iron pincers from her and kept away the same.
5. On the report of Nandlal Yadav at Police Station Behri, Dehati Nalishi was lodged on 5.3.2012. Later Merg Nos. 1/12, 2/12 and 3/12 were registered. On the basis of Dehati Nalishi, FIR of Crime No. 38/12 under Section 302 read with Section 307 of IPC was lodged. The dead bodies were sent for postmortem and injured were sent for medical examination. After investigation, charge sheet was filed under Section 302 read with Section 307 of IPC and the criminal proceeding was set in motion.
6. Learned trial Court framed the charges against the appellant under Section 302 of IPC for the death of Chhotu Yadav S/o Nandlal Yadav, Guddiya Yadav and Ramesh @ Pappu Kol. For causing injury by an iron pincers to Rajbhan Kol, Smt. Rannu Kol, the appellant was charged under Section 324 of IPC for both the counts. She was also charged under Section 323 of IPC for causing simple injuries to Kusumkali, Ramkali, Shyamkali, Seema @ Manju Yadav and Sonu Yadav for different counts.
7. Learned trial Court on the basis of evidence adduced by the prosecution held the accused-appellant guilty under Section 302 of IPC for causing the murder of Ramesh @ Pappu Kol, Chhotu Yadav and Guddiya Yadav and passed the death sentence holding it is a ârarest of rare caseâ. She has been convicted under Sections 324 and 323 of IPC and has been sentenced as mentioned in the impugned judgment.
8. This reference has been made by the learned trial Court under Section 366(1) of Cr.P.C. for confirmation of the death sentence and the appeal has been filed by the accused appellant requesting to set aside the conviction and sentence passed by the trial Court in the impugned judgment dated 7.11.2015.
9. We have examined the evidence adduced and the submissions made by the learned counsel for the appellant as well as the learned Panel Lawyer.
10. The postmortems were performed by Dr. Brijesh Kumar Pandey (PW13) along with Dr. S.B. Khare, a Senior Medical Officer (PW15). Ex.P/13 is the postmortem report of Smt. Guddiya W/o Nandlal Yadav. Ex.P/14 is the postmortem report of Ramesh @ Pappu Kol. Ex.P/15 is the postmortem report of child Chhotu Yadav son of Nandlal Yadav. In Ex.P/13 and Ex.P/14, the cause of death has been shown as caused by injuries to brain and in Ex.P/15, the cause of death is shown as excessive internal haemorrhage due to rapture of spleen, lungs and liver. All the injuries were antemortem in nature. Death occurred within twenty four hours of the examination of the dead bodies. The dead bodies were examined on 5.3.2012.
11. It is evident that the death of Ramesh @ Pappu Kol, Chhotu S/o Nandlal Yadav and Guddiya W/o Nandlal Yadav have been homicidal. The other persons who received injuries were examined by Dr. Smt. Babita Khare (PW2). According to her, Rajbhan Kol was examined and found two injuries. One injury on the head which is a contusion and second complaining of pain on the chest. Ex.P/1 is the MLC report.
12. Smt. Rannu Kol was also examined by the Medical Officer Smt. Babita Khare (PW2) and found three injuries on her body. One contusion on the back side of the head, one contusion on the left wrist and an abrasion on the right wrist. Her MLC report is Ex.P/2.
13. Smt. Kusumkali Kol received a bruise on the head and a swelling injury on the left wrist. Ex.P/3 is the MLC report of Smt. Kusumkali Kol. Smt. Ramkali Kol received similar injuries on the head and right knee. Ex.P/4 is the MLC report. Smt. Shyamkali Kol also received similar injuries on the head and left shoulder. Ex.P/5 is the MLC report. Smt. Seema @ Manju Yadav received an injury above the right eye which is a swollen injury. Ex.P/6 is the MLC report. Sonu Yadav received injury below the left ear. His MLC report is Ex.P/7. All these injuries have been caused by hard and blunt object. Same were advised for X-ray but no X-ray report has been enclosed, which indicates that there is no bony injury.
14. Hanuman Sahu (PW7) has stated that during the Holi Festival, he came to know that the accused Rajwa Kol had come to her father Ramadhar's village along with her husband Ramesh Kol @ Pappu for hocus pocus (jhad-phunk). He saw the body of Ramesh Kol. Because the accused caused injuries to her husband by the pincers (Chimta), her husband was fallen on the ground facing downwards and was dead. He also came to know that the neighbour Nandlal Yadav's wife and son had also received injuries and both of them were dead. He also came to know that it was the accused, who caused injuries to them, thereby committed the murders. Some members of the village managed to hold the accused and tied her by a rope. On a telephonic information to Police Station Bahri, police had come to the village. Meanwhile, accused Rajwa also caused injuries to other four-five persons. In this regard, Nandlal Yadav (PW5) is an important witness, whose son and wife had succumbed to the injuries caused by the appellant Rajwa Kol. At about 8.00 AM, on receiving a phone call from Arjun Gond, he reached the village by a motorcycle.
15. Mane Yadav (PW3), Dhanpat Sahu (PW4) and Bajrang Sahu narrated the incident to Nandlal Yadav that Rajwa had come to the village for treatment by hocus-pocus on 4.3.2012. She was shouting at her home and caused injuries to her husband and because of the said injuries, her husband succumbed to death. When Rajbhan and Tejbhan tried to save him, they were also beaten by the accused-appellant. He then lodged an intimation to the police. On his intimation, Manoj Kumar Soni (PW16) had lodged the Dehati Nalishi as 0/12 (Ex.P/1).
16. Seema @ Manju (PW1) and Sonu Yadav (PW21) have narrated that they were sleeping at their house. Accused Rajwa came to their house holding a pincers in her hand. She caused injuries to their brother on the head. He fell down and succumbed to the injuries. When their mother came to rescue their brother, appellant-accused also caused injuries to their mother Gudiya. When she was trying to hold her injured son and to take him out, the appellant-accused gave blows to her by pincers on her head. Because of which she fell down. The accused-appellant also caused injuries to Sonu on his head. Hearing the shout, some villagers came there.
17. Mane Yadav (PW3), Dhanpat Sahu (PW4) and Nandlal Yadav (PW5) supported the prosecution story and have stated that they saw Nandlal's son dead fallen on the cot. His wife Guddiya was also lying on the ground having received injuries on the head. Blood was oozing out from the injuries. They have also stated that Manju and other children received injuries, caused by the accused-appellant. When they went to see the house of Ramadhar the father of the accused- appellant, they saw Ramesh @ Pappu, the husband of the accused-appellant, lying dead. He had received many injuries.
18. Ganga Singh Chouhan (PW9) and Sanjay Singh (PW10) also corroborate the prosecution version and narrate that when they came to know about the incident at about 8.00 AM, they had gone to the house of Rajwa Kol. They saw a boy and a girl having received injuries, were lying unconscious and the boy was lying dead in the house of Kallu Yadav. Thereafter they went to the house of appellant Rajwa Kol, where she was tied by rope to a pole. Husband of the appellant was fallen on the ground. A pincers was seized from the spot. The spot map was prepared and the plain soil and blood contained soil were seized. All these articles were sent to Forensic Science Laboratory for examination.
19. The contention of the learned defence counsel that there was no motive for the alleged murders. It is evident that there are eye witnesses available in the case. Motive play an important role when the case is based on circumstantial evidence. In the case of Govind Vs. State, AIR 2000 SC 160, the Hon'ble Apex Court has held that when the case is based on direct evidence of eye witnesses, motive has no role to play. Otherwise also there is no reason to implicate the accused-appellant falsely. The postmortem reports and the FSL report also supports the prosecution story and there is no basis to discard the same. She was arrested by drawing arrest memo Ex.P/29 on 6.3.2012.
20. Dr. Nimisha Mishra (PW22) examined the accused- appellant and has stated that the accused was examined by her on 14.3.2012. When she was brought before her, the accused-appellant was violent. She was talking more. She was believing that she is a goddess and she can punish her enemies. There was no hallucination. She had no feeling of her guilt or violent acts. For psychometric test and for other treatment, she was referred to Mental Hospital, Gwalior.
21. The concept of legal insanity is founded on the belief that normal humans are rational beings with the power to choose between right and wrong conduct. Thus society exempts from criminal responsibility those persons whose state of mind at the time of the offence conforms to the definition of âunsoundness of mindâ. Unsoundness of mind, is a ground which is defined under Section 84 of I.P.C. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
22. In the present case, the Psychiatrist Dr. Nimisha Mishra (PW22) in her report states that on examining the appellant, she found her general behaviour was conscious and she was able to understand the happenings around her. It would be pertinent to mention here that the burden of proof that the accused was of âunsoundness of mindâ at the time of incident, was on the accused.
23. Manoj Kumar Soni, the Sub Inspector (PW16) has expressed that the appellant was sent for proper treatment but he has denied the suggestion that the accused-appellant was of unsoundness of mind.
24. As per Medical Jurisprudence and Toxicology, the unsoundness of mind has been divided into two categories. First category is natural insane such as thick head (Jadbudhi), (mutton-head) Murkh, (moron) Mandbudhi etc. The other category is after taking psychotropic substance or drugs the person's behaviour become uncontrollable. But the appellant- accused has not shown any such symptoms. Neither the defence pleaded the unsoundness of mind at the time of framing of charge nor claimed the same during the trial. The trial Court observed the same in paragraph-56 of its judgment. It is also observed by the learned Trial Court that while answering the questions during examination of accused under Section 313 of Cr.P.C., she answered the questions fully understanding the same. The record also does not show that she had any such symptoms or indications of unsoundness of mind before the incident nor she had undergone any treatment. It is also observed that the jail authorities have not drawn the attention of the Court about the accused-appellant having any such behaviour of unsoundness of mind.
25. The learned Trial Court in paragraph-57, therefore, differed to agree with the observation made by Dr. Nimisha Mishra (PW22) and held that it may be possible that the accused- appellant has been trying to behave in such a manner to pose herself to be a person of unsoundness of mind after the incident, so as to escape from the punishment.
26. We having considered all the aspects, have nothing in the record to take a different view. Besides all this, the prosecution witnesses have stated against the accused- appellant and the persons, who received injuries do not have any grudge or enmity against the accused-appellant. Therefore, it can be inferred that they have no reason to falsely implicate the accused-appellant. Hence, their statements which are corroborated by medical evidence cannot be overlooked.
27. It is well settled that the conduct of the accused, preceding the act complained of, as well as succeeding the act and also her conduct during the course of the complained incident, all call for closer scrutiny. Record, like the present one, that prior to the actual incident, the accused was not suffering from any mental disorder and also she was not having any mental disorder after the incident, would certainly assist the Court in coming to a just and proper conclusion. The mere fact that she was under treatment for some delusions and occasionally been subject to some treatment per se insufficient to bring her case within the exemption laid down by Section 84 of IPC. The antecedents and subsequent conduct of the appellant thus not only becomes relevant but gains importance to judge her state of mind at the time, the act was committed. No doubt it is true that generally in such a case it may not be possible to prove the unsoundness of mind at the exact time of commission of the offence, but to assess this factum of unsoundness of mind the Court is well entitled to consider the relevant facts and circumstances of the offence. The appellant was able to know what is happening around her as per report of Dr. Nimisha Mishra (PW22). Therefore, she cannot be considered to be of unsoundness of mind. The manner in which the accused had answered the questions in her examination under Section 313 of Cr.P.C. and the coherent story put up by her are indicative of a normal mental health. The paroxysm which seized her and the spree of blows that followed could not be called resulting from fit of insanity and no evidence of unhealthy condition of mind. Hence we do not have any reason to take a contrary view than the view expressed by the learned Trial Court.
28. The evidence indicates that the accused-appellant had inflicted injuries by iron pincers and dealt to death Ramesh @ Pappu Kol, Smt. Guddiya Yadav and Chhotu Yadav. Therefore, their deaths are homicidal in nature. Under these circumstances, we hold that the learned trial Court has not erred in holding the accused-appellant guilty under Section 302 of IPC on three counts.
29. Now we consider the sentence part. It is apposite to refer the reasons which weighed with the Sessions Judge, to impose the death sentence which are: (i) the case is based on the evidence of eye witnesses, (ii) the accused has killed three persons including her husband, (iii) she also inflicted the injuries to other persons, who ran away towards jungle or else they could have suffered fatal injuries, (iv) The action of the accused-appellant is gruesome, (v) The accused-appellant was caught and was tied in a rope to control her, (vi) If the appellant-accused is given the minimum sentence of life imprisonment, general public may loose confidence on the justice delivery system. We cannot countenance the reasons which weighed with the Additional Sessions Judge in awarding the death sentence.
30. In the case of Gurbaksh Singh Sibbia Vs. State of Punjab, (1980) 2 SCC 565, the Constitution Bench has made observations regarding the desirability and feasibility of laying down standards in the area of sentencing discretion. The Apex Court observed that Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. The majority Bench expressed the view in the case of Oma @ Omprakash and another Vs. State of Tamil Nadu needs mention here. After stating broad guidelines relating to the mitigating circumstances, the majority ultimately ruled thus:
âJudges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.â
31. In Machhi Singh and Ors. Vs. State of Punjab, (1983) 3 SCC 470, a three Judges Bench has explained the concept of ârarest of rareâ case and after stating about the feeling of the community and its desire for self preservation, the Court observed that the community may well withdraw the protection by sanctioning the death penalty. It rules thus:
âBut the community will not do so in every case. It may do so âin rarest of rare casesâ when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.â
32. Hon'ble Supreme Court in Sham Alias Kishore Bhaskarrao Matkari Vs. State of Maharashtra, (2011) 10 SCC 389, while dealing with the justifiability of imposition of death penalty, took note of the aggravating and mitigating circumstances and eventually opined that though the appellant therein caused death of three persons, he had no pre-plan to do away with the family of his brother and the quarrel started due to the land dispute and, in fact, on the fateful night, he was sleeping with the other victims in the same house and in those circumstances and other material placed, clearly showed that, he had no pre-plan or predetermination to eliminate the family of his brother. The Bench also took note of his antecedents and did not agree with the view expressed by the High Court which had enhanced the sentence from life to death on the ground that it was âa rarest of the rare caseâ where extreme penalty of death was called for.
33. As there is nothing on record to indicate that the appellant was having any criminal antecedent nor it can be said that she will be a grave danger to the society at large.
Even though her act is heinous and requires to be condemned but at the same time, it cannot be said that it is a ârarest of rare caseâ where the appellant requires to be eliminated from the society. Therefore, keeping in mind all these aspects, there appears no justifiable reason to impose death sentence on her.
34. Accordingly, we affirm the conviction of appellant under Section 302 of IPC but modify the sentence by commuting the sentence of death to imprisonment for life. We confirm the order of conviction and sentence for offence under Sections 324 and 323 of IPC. The sentences be suffered separately.
35. In the result, the Reference made by the trial Court is accordingly answered. Subject to above modification, for the aforesaid reasons, Criminal Appeal No. 3174/2015 is partly allowed.
(RAJENDRA MENON) (SUSHIL KUMAR PALO)
JUDGE JUDGE