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Madhya Pradesh High Court · body

2008 DIGILAW 1048 (MP)

State of M. P. v. Iqbal alias Ikku alias Kabra

2008-08-21

A.K.SHRIVASTAVA, B.M.GUPTA

body2008
JUDGMENT Shrivastava, J. -- 1. This judgment shall also govern the disposal of connected Criminal Appeal No.51 of 2008 (Iqbal alias Ikku alias Kabra v. State of M.P.) filed on behalf of accused. 2. By exercising powers conferred under section 366 of the Code of Criminal Procedure, 1973 learned Second Additional Sessions Judge, Ashok Nagar has referred this death reference for confirmation of the death sentence awarded to the accused. Simultaneously the accused has also filed connected Criminal Appeal No.51/2008 assailing the judgment of conviction and order of sentence passed by learned trial Court convicting him under sections 376, 302, 450 and 394/397 of IPC. 3. In brief the case of prosecution is that on 4.8.2006 complainant Hanif Khan who is a vegetable vendor went to the market to sell the vegetables leaving behind his wife Bhuri Bai (hereinafter referred to as "the deceased") and an innocent child having age of 5 months in his house. After selling the vegetables when he came back to his home near about 10:45 a.m., he found his daughter Ruksar in weeping condition who told complainant that when she came back from school at 9:45 a.m., the door of the house was open and she found accused present inside the house and on seeing her, accused flee away. She also narrated to complainant that when she entered inside the room she found that her mother was lying besmeared in the blood and her young brother was weeping. The complainant immediately rushed inside the house and found incised wounds on the neck of the deceased from which blood was oozing. Her Salwar was not on her body and the deceased was killed by some sharp edged weapon. According to the complainant, the accused after committing rape has killed the deceased. 4. It is the further case of prosecution that 2-3 days earlier to the incident the accused was roaming nearby the house of the complainant. A Dehati Nalishi was lodged by complainant Hanif Khan on the basis of which the police registered the case against the accused. 5. After registering the case under section 302, 376, 397 and 450 of IPC, the investigating agency investigated the matter. A Dehati Nalishi was lodged by complainant Hanif Khan on the basis of which the police registered the case against the accused. 5. After registering the case under section 302, 376, 397 and 450 of IPC, the investigating agency investigated the matter. The panchayatnama of the dead body was prepared and thereafter the dead body was sent for post-mortem; seized the blood stained and ordinary soil from the place of occurrence; spot map was prepared; statement of witnesses were recorded; arrested the accused and on the basis of his disclosure statement recovered silver chain and ear tops of the deceased; seized blood stained shirt of accused; seized a knife which was used as a weapon in the commission of offence; blood stained articles; vaginal swab; underwear of accused, etc. were sent for chemical examination. 6. After the investigation was over, a charge-sheet was submitted in the competent Court which on its turn committed the case to the Court of Session and from where it was received by the trial Court for the trial. 7. The learned trial Judge framed charges punishable under sections 376, 302, 450 and 394/397 of IPC against the accused which he denied and requested for the trial. 8. In order to bring home the charges the prosecution examined as many as 14 witnesses and placed Ex.P-1 to P-23 the documents on record. The defence of accused is of false and maladroit implication. In support of his defence, he examined his father Hakim Khan on the point of alibi. The learned trial Judge on the basis of oral and documentary evidence placed on record came to hold that the charges framed against the accused arc proved and eventually convicted him and passed the sentence of 5 years RI and fine Rs.10,000/-, in default, further RI of two years for offence under section 450 of IPC; 10 years RI and fine Rs.10,000/-, in default, further RI of two years for offence under section 376 IPC; capital sentence and fine Rs.25,000/-, in default further RI of 5 years for offence under section 302 IPC; and 7 years RI and fine Rs.10,000/-, in default, further RI of two years for the offence under section 397 of IPC with a further stipulation that all the sentences shall run concurrently. 9. In this manner this death reference has been referred by the learned trial Judge for confirmation of the death sentence. 9. In this manner this death reference has been referred by the learned trial Judge for confirmation of the death sentence. Simultaneously accused has also preferred Criminal Appeal No.51/2008 assailing the judgment of conviction and order of sentence. 10. It has been argued by Shri Brijesh Sharma, learned public prosecutor appearing for the prosecution that in the present case there is no direct evidence against the accused and the prosecution has based its case purely on circumstantial evidence and has submitted that few days prior to the incident, the accused was roaming nearby the house of the deceased and was seen soon after the incident inside and nearby her house by her daughter Ruksar (PW5) and was seen coming out from the house; Akil (PW 4) also saw him soon after the incident nearby the house of the deceased; extra judicial confession of accused made to his friend Ajju (PW 13); recovery of ear tops and silver chain of the deceased on disclosure statement of the accused; seizure of blood stained shirt at his instance; presence of semen on the vaginal swab of the deceased; presence of human blood on the shirt of the accused, are the circumstances pointing out the guilt towards the accused and if all these circumstances are considered collectively, they would form a complete chain unerringly pointing out the guilt towards the accused leading no other hypothesis and, therefore, the learned trial Court did not err in convicting the accused and because the deceased who was a helpless woman, has been murdered after committing rape over her, hence the present case would fall under the sphere of rarest of rare case and therefore the learned trial Court did not commit any error in passing different sentences for each offence including the capital punishment. In support of his contention, learned counsel has placed reliance on Prajeet Kumar Singh v. State of Bihar [ (2008)4 SCC 434 ]. 11. On the other hand Shri Naqvi, learned counsel appearing for accused has submitted that Ruksar (PW5) who is a child witness, looking to the infirmity in her statement her evidence should not be placed reliance. In support of his contention, learned counsel has placed reliance on Prajeet Kumar Singh v. State of Bihar [ (2008)4 SCC 434 ]. 11. On the other hand Shri Naqvi, learned counsel appearing for accused has submitted that Ruksar (PW5) who is a child witness, looking to the infirmity in her statement her evidence should not be placed reliance. To bolster his contention, learned counsel has placed reliance on certain decisions of Supreme Court, State of Assam v. Mafizuddin Ahmed [ AIR 1983 SC 274 ]; Bhagwan Singh and others v. State of M.P. [ 2003(2) JLJ 129 = (2003)3 SCC 21 ]; The State of Bihar v. Kapil Singh [ AIR 1969 SC 53 ], and Caetano Piedade Fernandes and another v. Union Territory of Goa, Daman and Diu, Panji, Goa [ AIR 1977 SC 135 ]. By putting a deep dent on the veracity of the statement of Aslam (PW6), it has been argued that first of all this witness was informed by his sister Nazma and the Teacher Afsar about the incident but these two witnesses have not been examined by the prosecution and, therefore, adverse inference should be drawn against it. According to learned counsel the evidence of Akil (PW 4) is also not worth reliable. 12. By hammering a deep dent on the Naksha Panchanama of the dead body (Ex.P-11), it has been argued that had it been the intention of accused to commit robbery, he must have not left Payal and Bichhua which were being worn by the deceased and were found from her dead body. It has also been argued by learned counsel that the piecemeal recovery of silver chain, ear tops, blood stained shirt and knife on the basis of disclosure statement should not be placed reliance. In support of his contention learned counsel has placed reliance on Sattatiya alias Satish Rajanna Kartalla v. State of Maharashtra [ (2008)3 SCC 210 ]. 13. It has also been argued by learned counsel for the accused that in the Dehati Nalishi (Ex.P-12), complainant Hanif Khan who is the husband of the deceased has not at all stated about the missing of silver chain and ear tops and, therefore, thrusting the story of robbery is a concoction. 13. It has also been argued by learned counsel for the accused that in the Dehati Nalishi (Ex.P-12), complainant Hanif Khan who is the husband of the deceased has not at all stated about the missing of silver chain and ear tops and, therefore, thrusting the story of robbery is a concoction. It has also been put forth by learned counsel that the alleged stolen articles were seized from accused on 5.8.2006 but they were put to test identification only on 12.10.2006 and there is no explanation of conducting the test identification of these articles after a considerable long period of more than two months and therefore the recovery of these articles from accused becomes highly doubtful. Similarly it has been argued that the incriminating articles which were seized from the spot as well as from the accused soon after the incident on 4.8.2006 and 5.8.2006 but they were sent only on 22.9.2006 to chemical examiner, although the letter of the Superintendent of Police (Ex.P-17) is dated 2.9.2006 and why second dispatch number has been mentioned in the said letter, there is no explanation. By inviting our attention to the report of the chemical examiner, it has been argued that semen on the vaginal swab, Salwar of the deceased and on the underwear of the accused were found to be disintegrated and, therefore, the report of the chemical examiner is not at all helpful to the prosecution. 14. An alternative submission has also been put forth by learned counsel for the accused that if this Court comes to the conclusion that all the charges are proved against the accused, since the present case cannot be said to be the rarest of the rare case, therefore, the death sentence is not at all warranted. In support of his contention, learned counsel has placed reliance on some decisions they are Muniappan v. State of Tamil Nadu [AIR 1981 CAR 193 (SC)]; Macchi Singh and others v. State of Punjab [ AIR 1983 SC 957 ]; Bachan Singh v. State of Punjab [ AIR 1980 SC 898 ]; Allauddin Mian and others v. State of Bihar [ (1989)3 SCC 5 ]; Puncchi and others v. State of U.P. [ AIR 1998 SC 2726 ]; Sahdeo and others v. State of U.P. [ AIR 2004 SC 3508 ] and Deepak Kumar v. Rani Vinnani and another [ AIR 2002 SC 1320 ]. 15. 15. Having heard learned counsel for the parties and on close scrutiny of the oral and documentary evidence placed on record, we are of the firm view that the charges under sections 376, 302, 450 and 394/397 of IPC are proved and the sentence awarded to the accused also does not require any interference except the capital sentence awarded to him by the trial Court for the offence committed under section 302 of IPC and the same is required to be altered to life imprisonment. 16. Much has been argued by Shri Naqvi advocating the innocence of the accused. Hence, we are constrained to say as said by John Adams: "The law will not bend to the uncertain wishes, imaginations and wanton tempers of men. On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder, to the clamours of the populace." 17. In the present case there is no eye-witness to the incident and the prosecution has based its case purely on circumstantial evidence and if a case rests upon circumstantial evidence the prosecution is obliged to prove each and every link of circumstance in order to form a complete chain unerringly pointing out the guilt towards the accused. 18. The Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra [ AIR 1984 SC 1622 ], has held that it is well settled in law that if the case is based on circumstantial evidence the prosecution is obliged to prove: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In above said decision the Supreme Court has also held that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of defence. Where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. 19. In the present case, broadly the prosecution is basing its case on the following circumstances : (i) deceased was having injuries and was lying dead undressed below the waist in her house and the accused was present inside the house and was seen coming out from the house of the deceased; (ii) soon after the incident the accused was seen nearby the house of deceased; (iii) unusual conduct of the accused; (iv) accused was making enquiry 3-4 days earlier to the incident about the timing of Hanif who is the husband of the deceased, going from his house to his work place; (v) extra judicial confession of the accused; (vi) abrasions were found on the neck and breasts of the deceased; (vii) abrasions on the neck were found on the person of accused; (viii) presence of semen on the vaginal swab of the deceased; (ix) deceased was subjected to rape; (x) recovery of blood stained knife on account of disclosure statement of the accused; (xi) recovery of silver chain and ear tops of deceased on account of the disclosure statement of accused; (xii) correct identification of chain and ear tops of the deceased by Hanif; (xiii) seizure of blood stained shirt of accused from his house; and (xiv) an order under National Security Act against the accused as well as he stands convicted in several cases including outraging the modesty of the girl and committing unnatural offence with a boy which have been admitted by the accused in his statement under section 313 CrPC. We shall now examine whether the abovesaid circumstances have been proved on the touchstone of the evidence of the prosecution witnesses placed on record. 20. We shall now examine whether the abovesaid circumstances have been proved on the touchstone of the evidence of the prosecution witnesses placed on record. 20. (i) Deceased was having injuries and was lying dead undressed below the waist inside her house and the accused was present in the house and was seen coming out from the house of the deceased; (ii) soon after the incident the accused was seen nearby the house of the deceased. 20A. To prove abovesaid two circumstances the prosecution has examined Ruksar (PW5) who is the daughter of the deceased and complainant, Akil alias Kalla (PW4). 20B. Before examining the evidence of abovesaid witnesses, we would like to consider the statement of autopsy surgeon Dr. P. Bunkar (PW1) who found following injuries on the person of the deceased, they are : (i) stab wound 2 cm x 1/2 cm x 2 cm horizontal at interior side of the neck left to middle line; (ii) stab wound 2 cm x 1/2 cm horizontal at interior side of the neck of the middle line x 2 cm above No.(i) injury; (iii) 4 small abrasions at left side of the neck above injuries No.(i) and (ii); (iv)abrasions (scratches) on half portion of upper side of both the breasts. Left carotid artery and neck muscles of the neck were cut. According to the doctor the death was homicidal due to shock and hemorrhage. The doctor also prepared a slide of the vaginal swab of the deceased and handed over it to the police to ascertain whether any rape was committed over the deceased before she was killed. The doctor has proved his post-mortem report which is EX.P-1. On the basis of the evidence of the doctor, it is revealed that the deceased received homicidal injuries and apart from the incised wounds there were abrasions on her neck as well on her both the breasts. 20C. Ruksar (PW5) who is the daughter of the deceased and complainant Hanif (PW8) has stated that on the fateful day she went to her school at 8:00 in the morning and in the recess she came back to her house to have lunch. In the house she called her mother again and again but did not receive any reply of her mother. In a room, this witness found the accused who is known to her. In the house she called her mother again and again but did not receive any reply of her mother. In a room, this witness found the accused who is known to her. This child witness having age of 8 years also identified the accused in Court. She has further stated that accused scolded on her by saying to run away from the house otherwise she will be killed. According to her thereafter she went to call Kalla Chacha who told her that he is coming behind her and asked this witness to go back. Thereafter this witness has stated that accused came out from the house and ran away. According to her Kalla Chacha also arrived thereafter. This witness is specifically saying that when she entered inside her house, she found blood lying on the floor, the sound of TV set was in full volume. This witness has stated that she saw accused in the same room in which the deceased was lying. In cross-examination this witness has stated that Kalla Chacha (alias of witness Akil is Kalla) came after half an hour but in the same breath again she stated that she had no idea about the duration of half an hour. Further she has stated that she also shouted from her house, however when she was further cross-examined she says that after her arrival in the house when she did not find her mother she went to search her in the house of neighbours. This witness took some time to search her mother and she saw accused outside her house in the gali (lane). In para 5 she has stated that she did not see who has killed her mother. This witness is a child witness and no question has been put to her that whatever she has stated is the outcome of promoting or tutoring. The Supreme Court in the case of Suryanarayana v. State of Karnataka [ (2001)9 SCC 129 ], has held that if no infirmity is found in the evidence of child witness; prosecution can rely her testimony and the Court can base conviction of the accused solely on the basis of testimony of child witness. The Supreme Court further held that the corroboration of the testimony of child witness is not a rule but measure of caution and prudence. The Supreme Court further held that the corroboration of the testimony of child witness is not a rule but measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony if those discrepancies are not material. It would be apposite to quote para 5 of the decision Suryanarayan (supra), which is as under: "5. Admittedly, Bhavya (PW2), who at the time of occurrence was about four years of age, is the only solitary eye-witness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eye-witness. The evidence of the child witness cannot be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW2 cannot be discarded only on the ground of her being of Teen age. The fact of being PW2 a child witness would require the Court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. The same principle has been reiterated by the Supreme Court in a later decision Ratansingh Dalsukhbhai Nayak v. State of Gujarat [2004(I) MPWN 131= (2004)1 SCC 64 ], in which the decision of Suryanarayan (supra), has been placed reliance. 20D. On going through the spot map (Ex.P-13), it is revealed that the main door of the house of the deceased opens in a Gali (lane) thereafter there is a room and behind that room there are two more rooms and the door of the rear room opens in a courtyard and on the eastern side of the said courtyard there is another room in which the deceased was lying dead and, therefore, if during her cross-examination the child witness Ruksar (PW5) is saying that she was calling her mother, there is nothing unusual looking to several rooms of the house of the deceased one after the other and there is no specific cross-examination to the witness that after searching the entire house including the last room of the home, where the deceased was lying dead, this child witness did not find the deceased inside the home and therefore, if this witness has said that she was searching her mother in the house there is nothing unusual. On conjoint reading of the examination-in-chief and the cross-examination of this witness, it is revealed that this witness, when did not find the deceased in her house, she started calling her. There is no cross-examination that this witness searched the entire house and did not find the deceased. On x-raying the evidence of this child witness particularly para 3 of the cross-examination that she did not go inside the house but was calling her mother, would only mean that she did not go up to the last room which is on the eastern side of the courtyard and the end point of her house and thereafter she went to Akil @ Kalla (PW4). At this juncture, it would be relevant to consider the evidence of Akil (PW4) who has categorically stated that when he was at his shop, Ruksar (PW5) came to her and told that ^^esjh eEeh cksy ugha jgh** (my mother is not responding). On this, this witness told ^^eSaus mlls dgk fd rqe pyks rqEgkjh eEeh ogha ij gksxh** (I told her to go back your mother must be there only). Thereafter again Ruksar (PW5) came to him and told that something had happened with her mother and he should accompany her. Thereafter, this witness rushed to her house where on the way he also found the accused and when he arrived at the spot and peeped from the space in between the iron rods of the door, he found that blood was oozing from the body of the deceased and her Salwar was off from her body. 20E. Thus, if in the cross-examination of child witness Ruksar (PW5) it has come that on calling her mother she did not find her in the house and she went to search her in the houses of the neighbours, it cannot be said that her evidence is not reliable. If the testimony of Ruksar (PW5) is kept in juxtaposition to the evidence of Akil (PW4) and is read conjointly, we find that the clouds of the alleged suspicious circumstances are removed and the scene has become as clear like a noon day. The decision of Mafizuddin Ahmed (supra), placed reliance by learned counsel for the accused is not applicable in the present case because in that case the child witness admitted that he was taught by his father what to say to the police. In the present case, there is no cross-examination and no question was put to this witness that she has been tutored and, therefore, the decision Mafizuddin Ahmed (supra), is not applicable in the present case. In the present case, there is no cross-examination and no question was put to this witness that she has been tutored and, therefore, the decision Mafizuddin Ahmed (supra), is not applicable in the present case. The same principle has been reiterated by the Supreme Court in the decision of Bhagwan Singh (supra), wherein the Supreme Court has held that the law recognizes a child as a competent witness but a child particularly at such a tender age of six years who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony. In the present case, there is no suggestion to Ruksar (PW5) that she has been tutored nor we find from her deposition that she is a tutored witness or she is immature to understand. This girl is a school going girl and thus it can be inferred that she understands the things. Apart from this, her testimony is corroborated by Akil (PW 4) also whose evidence we shall scrutinize in next para. The decision of Caetano Piedade Fernandes (supra), is also not helpful to the accused because serious infirmities and contradictions were found in the evidence of the child witness. 20F. The other important witness is Akil (PW 4) who has categorically stated that he is well acquainted to the accused and to the deceased. According to this witness, in between 9:30 to 9:45 a.m. he came to his house from his shop to keep the vegetables at that juncture Ruksar who is the daughter of Bhuribai came to him and told that her mother is not responding as a result of which he asked Ruksar to go back to her home and see her mother who would be there only. According to this witness Ruksar again came to him, and told that something has happened to her mother and requested him to move fast as a result of which he rushed to the house of the deceased where on the way he found accused. According to this witness Ruksar again came to him, and told that something has happened to her mother and requested him to move fast as a result of which he rushed to the house of the deceased where on the way he found accused. Inside the house of the deceased he saw from the space in between the bars of the door that the deceased was lying dead and blood was oozing from the wounds and her Salwar was off and was not on her body. On seeing the incident this witness became perplexed and straight way went to inform the sister of Aslam and her brother-in-law Salim who informed the police on telephone. In very specific words this witness has stated in para 2 that he saw accused coming out from the house of the deceased and the spot was full of blood. This witness noticed broken bangles on the floor and the Salwar of the deceased was off and was lying separately. This witness has also proved seizure memo (Ex.P-3) by which the broken bangles, blood stained soil and ordinary soil were seized. Seizure memo is dated 4.8.2006 viz the date of incident at 13:30 hours. In cross-examination he has stated that he saw accused going from the gali (lane). In para 6 he has stated that he saw accused going nearby the house of the deceased but did not see him coming out from the house of the deceased, but he has again stated that nearby the door of the house of the deceased he saw accused coming out. Further this witness has admitted that the gali (lane) is quite narrow and three persons cannot move together at one point of time. According to us in these circumstances, the only inference which can be drawn on x-raying the testimony of this witness is that he saw accused coming out from the outer door and was seen nearby the house of the deceased and immediately when this witness entered inside the house of the deceased he found the deceased lying dead having injuries on her body and the blood was oozing from the wounds, her Salwar was off from her body and was lying separately. Thus from the evidence of Ruksar (PW5) and Akil (PW 4) safely it can be said that accused was seen coming out from the house of the deceased and after his departure immediately when these two witnesses entered inside the house they found deceased lying dead besmeared with the blood having incised wounds and was undressed below her waist. From the evidence of Ruksar (PW5), it is also proved that the accused was seen in the same room in which the deceased was lying. 20G. From the evidence of Aslam (PW6) as well as from the evidence of Hanif (PW8) who is the husband of the deceased it is revealed that these two witnesses found the deceased lying besmeared in the blood. We do not find any substance in the contention of learned counsel for the accused that PW 6 Aslam and teacher Afsar came to her and informed about the incident and therefore they are the first persons who firstly saw the incident and therefore in absence of examination of these persons an adverse inference should be drawn against the prosecution because if they would have been examined they could have thrown sufficient light that how the incident had occurred and what were the circumstances when they saw the dead body first. To meet the argument, we are constrained to see para 1 of the evidence of Akil (PW4), who has categorically stated that when he saw the dead body he became perplexed and informed about the incident to the sister of Aslam and his brother-in-law and therefore it has been rightly stated by Aslam (PW6) that his sister Nazma came to him and told that something has happened to Bhuribai (deceased) and thereafter this PW6 Aslam went to the place of occurrence along with his sister and therefore in these circumstances if the prosecution has not examined Nazma and that teacher, adverse inference cannot be drawn. If these two persons would have been examined, at the most they would have said that PW4 Akil informed them about the incident. 20H. PW6 Aslam has specifically stated that when he arrived at the spot, he found deceased lying dead and a quilt was lying over her body. If these two persons would have been examined, at the most they would have said that PW4 Akil informed them about the incident. 20H. PW6 Aslam has specifically stated that when he arrived at the spot, he found deceased lying dead and a quilt was lying over her body. We do not find any substance in the argument of learned counsel of the accused that because PW6 has seen a quilt lying over the dead body which has not been so stated by Ruksar (PW5) and Akil (PW4), therefore, the case of the prosecution has been diluted. It be seen that PW4 Akil and PW5 Ruksar when saw the dead body of the deceased, it was undressed below the waist and the Salwar of the deceased was lying separately. The deceased was a young lady and if she was lying undressed below her waist in order to avoid and to visualise publicly the undressed figure of a young lady who was dead and if the dead body was covered by a quilt by someone and thereafter PW6 Aslam has seen the dead body covered by a quilt, it cannot be said that the story of the prosecution has become weaken. 20I. In para 2 of his statement Aslam (PW6) is saying that Ruksar (PW5) told that her mother (deceased) is not speaking and had died. This witness further stated that police also arrived and then he saw the dead body and found that the dead body was undressed below the waist. 20J. On the basis of above said evidence, we can safely say that circumstances (i) and (ii) have been found to be proved. 21. (iii) Unusual conduct of the accused; and (iv) accused was making enquiry 3-4 days earlier to the incident about the timing of Hanif, who is the husband of the deceased, going from his house to his work place: 21A. The conduct of the accused also appears to be quite suspicious because on seeing Ruksar (PW5) the accused scolded by saying to flee away otherwise she would be killed. The conduct of the accused also appears to be quite suspicious because on seeing Ruksar (PW5) the accused scolded by saying to flee away otherwise she would be killed. Akil (PW 4) is also saying that when Ruksar (PW 4) came to him and told that something has happened to her mother and requested him to move fast, he rushed to the house of the deceased and saw accused on the way who on seeing this witness going inside the house of the deceased called him by saying that ^^dYyk dgk¡ tk jgk gS** (Kalla where are you going). Indeed, looking to the behaviour of the accused, we can safely rely the idiom ^^pksj dh nk<+h eas frudk** (twig in the beard of thief) and can say that this idiom is applicable in the present case because if the accused would not have killed the deceased why he was refraining Akil (PW 4) by saying "Kalla where are you going" even if he was moving fast and going in the house of the deceased. Putting this question to Akil (PW 4) by the accused tends us to hold that accused did not want that this witness should go inside the house of the deceased because the deceased was lying dead and, therefore, the conduct of the accused is also highly suspicious. 21B. At this juncture we would like to go through section 106 of the Evidence Act which speaks about burden of proving fact especially within knowledge. According to this section when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The undressed deceased was lying dead inside the room and the accused was seen in that room by Ruksar (PW5) and the accused scolded on her. by saying to flee away from that place and, because the presence of accused inside the room has been duly established and proved from the evidence of Ruksar (PW5) and, therefore, according to section 106 of the Evidence Act, the accused is required to explain that in what circumstances he was along with the dead body of the deceased having incised wounds on her neck as well as her Salwar was off from her body and she was lying undressed below her waist. This incriminating circumstance which was within the special knowledge of the accused and failure to give any satisfactory explanation rather no explanation, by him, would be an additional link in the chain of circumstances proved against him. 21C. In Nagarajan v. State of Tamil Nadu [ AIR 1995 SC 1926 ], which is a case of rape by two persons to a young lady having age of 20 years and who died in the struggle, it was held by the Supreme Court that the appellants of that case were found inside when the door was got broken and had earlier been seen inside the house trying to avoid opening the door showing their guilty mind that they had something to conceal by putting up resistance. According to us, the decision of Nagarajan (supra), is squarely applicable in the present case because in the given case also the accused was seen inside the room where the dead body of the deceased was lying and the deceased was undressed below the waist. In A.N. Venkatesh v. State of Karnataka [ AIR 2005 SC 3809 ], it was observed by the Supreme Court that conduct of the accused persons in running away on seeing police party was unnatural. In the present case also the conduct of accused is highly unnatural and suspicious because on seeking Akil (PW 4) rushing towards the house of the deceased he was refrained from entering inside the said house by the accused by saying ^^dYyk dgk¡ tk jgk gS** (Kalla where are you going). Thus, according to us the decision of A.N. Venkatesh (supra), is squarely applicable in the present case. 21D. At this juncture, it would be fruitful to scan para 5 of the evidence of Hanif (PW8) who is the husband of the deceased and who has stated that one day earlier to the incident in the shop of Nisar which is nearby his house, accused was making enquiry from him that at what time he happens to go to sell the vegetables and what is the time of his return. It would be relevant to mention here that there is no cross-examination on this material point which this witness has stated in para 5 of his examination-in-chief and, therefore, this piece of evidence is unchallenged. Hence, abovesaid circumstances (iii) and (iv) also stands proved against the accused. 22. It would be relevant to mention here that there is no cross-examination on this material point which this witness has stated in para 5 of his examination-in-chief and, therefore, this piece of evidence is unchallenged. Hence, abovesaid circumstances (iii) and (iv) also stands proved against the accused. 22. (v) Extra-judicial confession of the accused: This is an another important link to form a complete chain pointing out the guilt towards the accused. According to Ajju (PW13) who is a friend of accused, on the fateful day in between 10 to 11: 15 a.m. when he was sitting on a Well at that juncture, accused in perplexed condition came to him and asked to give some money to go to Shivpuri and also told that he has committed rape on the deceased and when she put resistance, he has murdered her. Accused was also having two ear tops and a chain. Accused also asked him to keep the ear tops and chain and give some money to him so that he can go to Shivpuri. According to this witness, he told accused that he is not having any money with him. This witness was cross-examined at length but despite there being roving cross-examination over him he remained embedded in his version. Merely because this witness on being informed by the accused that he has firstly committed rape and thereafter killed the deceased and thereafter this witness went to the place of occurrence and did not state this fact to the police on same day would in itself is no ground to disbelieve the extra judicial confession made to this witness by the accused. This witness has categorically stated that he became perplexed and on account of fear, he did not state about the extra judicial confession of the accused made to him and we think there is nothing unusual in his testimony. On going through his case diary statement, it is revealed that the statement of this witness was recorded on the next day of incident i.e. 5.8.2006. True in his case diary statement (Ex.D-2) there is omission that accused was making demand of money from this witness for going to Shivpuri but in his case diary statement he has said that accused told that he is going to Shivpuri and he had no money with him. True in his case diary statement (Ex.D-2) there is omission that accused was making demand of money from this witness for going to Shivpuri but in his case diary statement he has said that accused told that he is going to Shivpuri and he had no money with him. The factum of the friendship with accused stated by this witness in examination-in-chief has not been challenged in the cross-examination and, therefore, it can be inferred that there was no hitch to the accused to make extra judicial confession to this witness. The friendship with Ajju (PW13) has also been admitted by the accused in answer to question No.108 put to him in his statement recorded under section 313 CrPC. The Supreme Court in Kusuma Ankama Rao v. State of A.P. [2008 AIR SCW 4669], while placing reliance on its earlier decision State of Rajasthan v. Rajaram [ (2003)8 SCC 180 ], has held that if an extra judicial confession is voluntary and true and made in a fit state of mind, can be relied upon by the Court. The Supreme Court further held that the value of the evidence as to confession, like any other confession, depends upon the veracity of the witness to whom it has been made. It would be apposite to quote para 18 of the said decision which reads thus: "18. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom, it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. It is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing• is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." 22A. Thus making extra judicial confession by the accused to Ajju (PW13) has also been proved. 23. (vi) Several abrasions were found on the neck and breasts of the deceased; (vii) the abrasions on the neck were found on the person of accused; (viii) presence of semen on the vaginal swab of the deceased; (ix) deceased was subjected to rape: 23A. So far as proving of these four circumstances are concerned, it would be profitable to examine the evidence of Dr. P. Bunkar (PW1) who is the autopsy surgeon and who found that there were four small abrasions at left side of the neck and abrasions (scratches) on the upper half portion of both the breasts. There is no cross-examination on this point and, therefore, it is proved that several abrasions were found on the neck and breasts of the deceased. 23B. Several abrasions were also found on the neck of the accused also. It would be apposite to go through the evidence of Dr. B.K. Sharma (PW3) who examined the accused on 5.8.2006 viz one day after the incident and who has categorically stated that there were multiple (8 in numbers) abrasions on anterior aspect of the neck 2-2-1/2 cm x. 1/4 cm hemispherical shape. It would be apposite to go through the evidence of Dr. B.K. Sharma (PW3) who examined the accused on 5.8.2006 viz one day after the incident and who has categorically stated that there were multiple (8 in numbers) abrasions on anterior aspect of the neck 2-2-1/2 cm x. 1/4 cm hemispherical shape. The injuries of abrasions having hemispherical shape, according to the doctor, could come by nails within 24 to 48 hours. Although the suggestion has been put to the doctor that on account of scuffle this type of injuries may come but the suggestion put during the cross-examination to this doctor is not against the prosecution rather it corroborates the case of prosecution because deceased must be struggling and resisting herself and during the course of scuffle she must have caught hold of the neck of the accused as a result of which the accused sustained injuries having abrasions hemispherical in shape. 23C. The autopsy surgeon in order to ascertain whether deceased was subjected to rape prepared a slide of the vaginal swab of the deceased and sent it for chemical examination. The presence of semen on the vaginal swab has been found by the chemical examiner in his report EX.P-18. We do not find any force in the contention of learned counsel for the appellant that the slide of vaginal swab of the deceased was sent after considerable long period as the same was sent for examination on 22.9.2006 although the incident had taken place on 4.8.2006 and therefore it has no credential value. According to us, because, in the extra judicial confession made to Ajju (PW13) which we have already found to be proved, it has been admitted by the accused that he committed rape over the deceased and, therefore, it is proved that accused committed rape over the deceased and these four circumstances mentioned in para 22 hereinabove have also been proved. 24. (x) Recovery of blood stained knife on account of disclosure statement of the accused; (xi) recovery of silver chain and ear tops on account of the disclosure statement of accused; (xii) correct identification of chain and ear tops of the deceased by Hanif; (xiii) seizure of blood stained shirt of accused from his house: 24A. We have already in foregoing paragraphs held that the extra judicial confession made by accused has been proved. We have already in foregoing paragraphs held that the extra judicial confession made by accused has been proved. In the extra judicial confession it has also been admitted by the accused that he has looted two ear tops as well as one chain of the deceased. Apart from this, the recovery of these articles have been proved from the evidence of Akil (PW4) and Yakub (PW7). Although there is no effective cross-examination on the point of recovery of the ear tops and chain of the deceased, but, even for the sake of argument it is held that the recovery of these articles are not duly proved because they have been recovered nearby the Railway Station in a public place, according to us, since there is extra judicial confession of the accused, the recovery of silver chain and ear tops also stands proved. These articles were also correctly identified by Hanif in test identification. In this regard test identification memo (Ex.P-15) and evidence of Sahir Khan Tahsildar (PW12) may be seen. Similarly, the blood stained knife has been found to be proved which was recovered from the house of the accused. The seizure memo of knife Ex.P-10 has also been proved by Akil (PW4). 24B. Similarly vide Ex.P-9 the blood stained shirt of deceased was seized from his house which was kept in a tin box and the recovery of the shirt has also been proved by Akil (PW4) and also by Yakub (PW7). The presence of human blood on the shirt was found by the chemical examiner. We do not find any force in the submission of learned counsel for the accused that the disclosure statements were given in piecemeal vide Ex.P-5, P-6 and P-7, therefore, no reliability can be fastened on the recovery in view of the decision of Supreme Court Sattatiya alias Satish Rajanna Kartalla (supra). According to us, because in the present case there is extra judicial confession of the accused and which has been found to be proved, the hallmark of the recovery of incriminating articles cannot be questioned. 25. (xiv) There is an order under National Security Act against the accused as well as he stands convicted in several cases including outraging the modesty of the girl and committing unnatural offence with a boy which have been admitted by the accused in his statement under section 313 CrPC. 25A. 25. (xiv) There is an order under National Security Act against the accused as well as he stands convicted in several cases including outraging the modesty of the girl and committing unnatural offence with a boy which have been admitted by the accused in his statement under section 313 CrPC. 25A. The accused has admitted that in the gambling cases fine was imposed on him but so far as a case registered at Crime No.3/2006 is concerned, according to the accused he has been acquitted. 25B. On going through Ex.P-22 which is a copy of the crime register of Police Station Shadhora, it is revealed that at Crime No.3/2006 a case under section 324, 354, 294 and 506/34 IPC has been registered against two accused persons, namely, present accused Iqbal alias Ikku and another accused Afsar but what was the result of that case it has not been mentioned in this register. The column of conviction of said register is lying vacant. So far as committing unnatural offence with a boy is concerned, accused has stated in reply to question No.118 put to him under section 313 CrPC that he was acquitted. The result of that case has not been shown in the crime register (Ex.P-16) of Police Station Shadhora which has been registered under section 377 of IPC against the accused and the column of the result is also lying vacant. Hence it cannot be said that the accused was convicted under section 354 or 377 of IPC although it has been admitted by the accused in his statement that fine was imposed on him in the cases registered against him under the Public Gambling Act, 1867. 25C. It has also been proved that an order has been passed against the accused under the National Security Act since he has admitted in this regard while giving answer to question No. 135 put to him in his statement under section 313 CrPC. Thus only this much is proved that in five cases registered under the Public Gambling Act, 1867 against the accused, he was sentenced with fine and an order has been passed against him under the National Security Act. According to us, this circumstance No.(xiv) cannot be said to be a link to prove the present guilt of the accused. 26. Thus only this much is proved that in five cases registered under the Public Gambling Act, 1867 against the accused, he was sentenced with fine and an order has been passed against him under the National Security Act. According to us, this circumstance No.(xiv) cannot be said to be a link to prove the present guilt of the accused. 26. Above said circumstances (i) to (xiii) which are proved and if all these thirteen important links of the circumstances are united, according to us they would form a complete chain unerringly pointing out the guilt towards the accused leaving behind no other hypothesis that after committing rape on the deceased when she struggled she was murdered and her chain and ear tops were looted by the accused. Hence the finding of learned trial Court holding that the charges under sections 376, 302, 450 and 394/397 of IPC are proved, is hereby upheld and affirmed. 27. We shall now advert ourselves to the quantum of punishment. According to us the punishment awarded to the accused under section 376, 450 and 394/397 of IPC has been rightly awarded to him by the learned trial Court and no interference is required looking to the gravity of the offences the accused has committed. 28. The question would now arise for consideration is whether present case is rarest of the rare case and, therefore, the learned trial Court has rightly passed the capital sentence. 29. According to Shri Brijesh Sharma, learned public prosecutor the deceased was a helpless woman and first of all accused who is libidinous and in order to satisfy his lascivious activity, he committed vile act clandestinely on the deceased and thereafter killed her when she resisted and struggled with the accused. Her silver chain and ear tops were also looted by the accused and therefore by placing reliance on the decision of Prajeet Kumar Siligh (supra), it has been argued by learned public prosecutor that the present case would come under the ambit and sweep of rarest of the rare case. Out attention has been drawn to the decision of Macchi Singh (supra), and also the decision of the Constitution Bench of the Supreme Court Bachan Singh (supra). The decision of Prajeet Kumar Singh (supra), is of multiple murders including three innocent defenceless children having age of 15, 10 and 9 years respectively but the facts of present case are distinguishable. Out attention has been drawn to the decision of Macchi Singh (supra), and also the decision of the Constitution Bench of the Supreme Court Bachan Singh (supra). The decision of Prajeet Kumar Singh (supra), is of multiple murders including three innocent defenceless children having age of 15, 10 and 9 years respectively but the facts of present case are distinguishable. In Macchi Singh (supra), the Supreme Court explained certain principles in awarding death sentence which may be summarized as under: (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'; (iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances; (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 30. According to us, no straitjacket formula or a watertight compartment can be made in order to hold that in particular type of cases death penalty is warranted and in other cases passing of life imprisonment would be sufficient. We may summarize some of the reasons for not awarding the death sentence, they are : (1) The offender being under eighteen years of age. (2) There having been no intention to commit murder, the offence falling under the fourth clause of section 300, Indian Penal Code. . (3) The murder, though intentional, having been committed without premeditation, and in the heat of passion, without special brutality. (4) The murder having been committed upon grave provocation, the provocation not being both grave and sudden so as to reduce the offence to culpable homicide not amounting to murder. (5) Reasonable doubt as to the sanity of the offender at the time of committing murder, actual insanity not being proved. (4) The murder having been committed upon grave provocation, the provocation not being both grave and sudden so as to reduce the offence to culpable homicide not amounting to murder. (5) Reasonable doubt as to the sanity of the offender at the time of committing murder, actual insanity not being proved. (6) Where murder has been committed by more than one person, and it appears that the offender acted under the instigation of another and did not take a principal part in committing the murder." [See Ratanlaland Dhirajlal's Law of Crimes 26th Edition page 1641]. (emphasis supplied) 31. In order to ascertain when a case would come in the ambit and sweep of rarest of rare case, one of the test is that the existence of the accused has become hazardous to the society. Merely because in some cases under the Public Gambling Act fine was imposed on accused and even if there is an order against him under National Security Act, it cannot be said that the accused has become hazardous to the society and there is no option except to pass capital punishment against him. We may further add that the Judges are never blood thirsty persons. 32. The accused made extra judicial confession to Ajju (PW13) that he committed rape on the deceased but on account of her resistance she has been murdered and therefore the accused was well acquainted that the act which is being done by him is so imminently dangerous that it must, in all probability would cause death, or such bodily injury as would likely to cause death, and has committed such act without any excuse for incurring the risk of causing death. Hence according to us, the act by which the death is caused by the accused would come under fourth clause to section 300 IPC and, therefore, this is another circumstance to hold that death penalty is not at all warranted, and untimely accused cannot be directed to meet his maker. Plato has said: "Man is a prisoner who has no right to open the door of his prison and run away. Plato has said: "Man is a prisoner who has no right to open the door of his prison and run away. A man should wait, and not take his own life until God summons him." We may further add as held by us that the Judges are not the blood thirsty persons and, therefore, unless and until the existence of the accused becomes hazardous to the society, the Judge has no right to take the life of a person as said by Plato, that a man has no right to open the door of his prison and he should be allowed to wait and not to take his life until God summons him. 33. The Supreme Court in Raju v. State of Haryana [ AIR 2001 SC 2043 ], has interfered in the quantum of sentence by altering the capital sentence to life imprisonment. This case was also of rape with murder of a minor girl aged about 11 years. In the present case, the deceased was not even a minor. In the decision of Raju (supra), the accused gave extra judicial confession to an independent witness who was the resident of that locality that accused caused injuries to the deceased by giving two bricks blow on head and mouth as she stated that she would report the incident at her house and, therefore, there was no intention on part of accused to commit murder of the deceased child and in that situation, the Supreme Court altered the sentence of death to sentence of life imprisonment. In the present case also the extra judicial confession has been made by the accused to Ajju (PW13) that he had committed rape on the deceased and when she struggled and resisted she has been murdered and, therefore, there was no intention of the accused to commit murder of the deceased and his act would come under the fourth clause to section 300 IPC. In the case of Raju (supra), there was no criminal history of the accused although in the present case five times the accused was subjected to fine for the offence under the Public Gambling Act and there is an order against him under the National Security Act. However, according to us, the accused is having such type of criminal background, his existence would not become dangerous to the society. However, according to us, the accused is having such type of criminal background, his existence would not become dangerous to the society. In Bantu v. State of M.P. [2002(2) Vidhi Bhasvar 1= AIR 2002 SC 70 ], an innocent girl of six years was subjected to rape and was also murdered. In that case also the Supreme Court held that the accused is not a grave danger to the society at large and although the act of the accused was found to be heinous and was required to be condemned but the Supreme Court held that his act would not come under the sphere of rarest of rare case. In the case of Bantu (supra), the age of that accused was 22 years and this aspect was also taken into consideration by the Supreme Court while altering the death senesce to life imprisonment in para 8 of the judgment. In the present case also the age of the accused is rather less than 22 years as his age is 20 years and, therefore, the decision of Bantu (supra), is squarely applicable in the present case. 34. On the basis of the elucidated principles of law and by considering the facts and circumstances of the present case, we are of the firm view that the present case would not come under the ambit and sweep of rarest of rare case and, therefore, capital sentence awarded by learned trial Court convicting the accused under section 302 of IPC is hereby not affirmed and the same is hereby altered to life imprisonment. 35. The net result is that the conviction of accused under sections 376, 302, 450 and 394/397 of IPC is hereby affirmed and the sentence awarded by learned trial Judge, except the death sentence awarded to him, is also hereby affirmed. The death sentence awarded to the accused is hereby altered to life imprisonment for the offence under section 302 of IPC committed by him. Needless to emphasize, all the sentences shall run concurrently. 36. The death reference is accordingly disposed of and Criminal Appeal No.51/2008 filed by the accused is allowed in part to the extent indicated herein above.