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Madhya Pradesh High Court · body

2013 DIGILAW 720 (MP)

In Re: Rajkumar Bhagat v. .

2013-06-27

AJIT SINGH, ALOK ARADHE

body2013
JUDGMENT ALOK ARADHE, J. The Second Additional Sessions Judge, Mandla vide impugned judgment dated 5-2-2013 passed in Sessions Trial No. 20/2013 has awarded the death sentence to the appellant and has made a reference of the proceeding for confirmation of death sentence to this Court. The appellant being aggrieved by the impugned judgment has preferred Criminal Appeal No. 397/2013. Since the reference and the appeal arise out of same judgment, both are being decided by this common judgment. 2. The background facts leading to the appeal, briefly stated, are that Iknis Jojo (PW-1) along with his wife and four children resides in village Payli and is an agriculturist. The deceased was the eldest daughter of Iknis and also a student of Class VI. At the time of incident she was aged about 14 years. According to the prosecution story, on 26-12-2012 Iknis worked for the whole day in the agricultural field and stayed in the night to water the crop. His wife took food for him in the evening between 7-8 p.m. and stayed there to help him. 3. Thereafter, at about 9 p.m. on 26-12-2012 the appellant who is a married man and is aged about 32 years, to whom the children of PW-1, used to call mama (maternal uncle), came to the house of PW-1 and in the courtyard of the house, consumed liquor. The appellant asked the deceased to sleep in a separate room away from her brothers and sister. The appellant slept with the brothers and sister of the deceased. Between 11-12 p.m. in the night the appellant went to the deceased and committed rape on her and thereafter strangulated her, as a result of which she died. 4. The wife of PW-1 returned from the field next day morning i.e. on 27-12-2012 at about 6.30 a.m. and got busy in household chores. PW-1 reached home at 7.30 a.m. and asked the children to get up. However, the deceased did not wake up. PW-1 made an attempt to wake her up but learnt that she had died. He found that blood was coming out from the nose of the deceased and there were marks of injuries on her neck. Sanchit Jojo (PW-2), the younger brother of the deceased and son of PW-1, narrated the incident to him. Thereupon, PW-1, lodged the F. I. R. at Police Station, Nainpur. He found that blood was coming out from the nose of the deceased and there were marks of injuries on her neck. Sanchit Jojo (PW-2), the younger brother of the deceased and son of PW-1, narrated the incident to him. Thereupon, PW-1, lodged the F. I. R. at Police Station, Nainpur. The Police after completing the investigation filed the charge-sheet for offences under Sections 302, 376 and 450 of the Indian Penal Code against the appellant. 5. The Trial Court on the basis of appreciation of evidence on record as well as the testimony of child witness, namely, PW-2 found that the crime committed by the appellant is premeditated and is barbaric and, therefore, falls in the category of rarest of rare cases. Accordingly, the trial Court concluded that the appellant deserves to be awarded death sentence. The appellant was convicted for offence under Section 302 I.P.C. and was awarded death sentence and fine of Rs. 3,000/- was also imposed. The appellant was also convicted for offence under Sections 376 and 450 I.P.C. and was sentenced to rigorous imprisonment for life and rigorous imprisonment for 10 years respectively. In addition, in respect of each of the aforesaid offences fine of Rs. 3,000/- was also imposed on the appellant and, in default, of payment of fine amount, the appellant has been directed to undergo rigorous imprisonment for one year each. 6. We have considered the respective submissions made by learned counsel for the parties and have perused the record. The prosecution has examined 10 witnesses to prove its case and has also relied on expert evidence whereas no witness has been examined on behalf of the appellant. The defence of the appellant is that he is innocent and has been falsely implicated in the crime in question. 7. In Panchhi and others v. State of U. P., AIR 1998 SC 2726 : (1998 Cri LJ 4044), the Supreme Court has held that if the evidence of child witness is found to be truthful, the same can be relied upon. However, the evidence of child witness must be evaluated more carefully and with greater circumspection. 7. In Panchhi and others v. State of U. P., AIR 1998 SC 2726 : (1998 Cri LJ 4044), the Supreme Court has held that if the evidence of child witness is found to be truthful, the same can be relied upon. However, the evidence of child witness must be evaluated more carefully and with greater circumspection. Similar view has been taken in Suryanarayana v. State of Karnataka, AIR 2001 SC 482 : (2001 Cri LJ 705) and the sole testimony of a child witness aged about 4 years was relied upon in a case of murder, as the Supreme Court did not find any inherent defect in the testimony of child witness. In the case of Bhagwan Singh and others v. State of M. P., AIR 2003 SC 1088 : (2003 Cri LJ 1262) the Supreme Court reiterated that law recognizes the child as competent witness but evidence of child is required to be evaluated carefully. (See also : K. Venkateshwaralu v. State of Andhra Pradesh, AIR 2012 SC 2955 ) : (2012 Cri LJ 4388). 8. At this stage, we may advert to the evidence on record, PW-2 who is aged about 10 years and is younger brother of the deceased in his evidence has deposed that he knows the appellant and calls him mama; and that after his parents had gone to the field to water the crops, the appellant came and consumed liquor in the courtyard. Thereafter the appellant asked the deceased to give him food and also asked her to sleep separately. The appellant slept with him and his brother and sister. He has also deposed that between 11-12 p.m. the appellant went near the deceased. Thereafter she had started shouting. The appellant strangulated the deceased and went away. On seeing the aforesaid incident, he got frightened and went to sleep. In the morning he was woken up by his mother. However, the deceased did not wake up. He then narrated the entire incident to his parents. We have carefully scrutinized the statement of aforesaid witness and there is no inherent defect in the testimony of this witness. We, therefore, find the same to be reliable. 9. The Dr. Surendra Barkade (PW-6) who conducted the postmortem along with Dr. Prabha Peepre (PW-7) has submitted postmortem examination report (Exhibit P-16). We have carefully scrutinized the statement of aforesaid witness and there is no inherent defect in the testimony of this witness. We, therefore, find the same to be reliable. 9. The Dr. Surendra Barkade (PW-6) who conducted the postmortem along with Dr. Prabha Peepre (PW-7) has submitted postmortem examination report (Exhibit P-16). PW-6 in his evidence has deposed that he had found four contusions over the neck of the deceased and abrasions on the left and right knees. The spots of semen were also found on the skirt of the deceased. The aforesaid witness has disclosed the cause of death of the deceased asphyxia due to throttling. It is pertinent to mention that no challenge has been made in the cross examination either to the nature of the injuries found on the person of the deceased or to the cause of the death. PW-7 in her evidence has deposed that on examination of the deceased she found hymen of the deceased was ruptured and blood was oozing out from her private parts. The aforesaid witness has also stated that the deceased was subjected to rape. The chemical report (Exhibit P-31) shows that in the vaginal slide as well as on the clothes of the deceased the appellants semen was found. As per DNA Finger Print Report the appellants hair has also been found from the place of incident. The appellant was examined on 27-12-2012. In the injury report (Exhibit -P-15) it is stated that on his left thigh a scratch was found. No explanation was furnished by the appellant with regard to the aforesaid injury which must have been caused due to resistance shown by the deceased. Thus, for the aforementioned reasons we find that prosecution has proved the offences against the appellant beyond reasonable doubt. Therefore, the judgment of the trial Court in so far as finds the appellant guilty of the offences does not suffer from any infirmity. 10. The only question which now survives for consideration is whether the instant case falls under the category of rarest of rare cases so as to justify awarding of capital punishment. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 : (1995 AIR SCW 510) it has been held that punishment in a given case must depend upon the atrocities of the crime, conduct of the criminal and defenceless and unprotected state of the victim. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 : (1995 AIR SCW 510) it has been held that punishment in a given case must depend upon the atrocities of the crime, conduct of the criminal and defenceless and unprotected state of the victim. It has further been held that justice demands that Courts should impose punishment fitting to the crime. In Laxman Naik v. State of Orissa, (1994) 3 SCC 381 : (1995 Cri LJ 2692) while dealing with the case of rape and murder of a 7 years old girl by her uncle the Supreme Court opined that accused has acted in beastly manner and with a view to screen the evidence of the crime put an end to the life of the innocent girl. Thus, death penalty was imposed. It was further held that crime was committed in pre-planned manner and accordingly held the case to be fit for awarding capital punishment. 11. In case of Kamta Tiwari v. State of Madhya Pradesh (1996) 6 SCC 250 : (1996 Cri LJ 4158) the Supreme Court while dealing with a case of rape and murder of a 7 years old girl by accused to whom deceased used to call uncle held that the case is rarest of rare cases where the death sentence is warranted. In Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317 : (2011 AIR SCW 2780) where a minor girl aged about 7 years was kidnapped, raped and murdered, the Court taking into account the manner in which the accused won the trust of the innocent girl and committed crime in gruesome manner by strangulating her to death, held the case to be a fit case for awarding capital punishment. In recent judgment delivered in the case of Shanker Kisanrao Khade v. State of Maharashtra, JT 2013 (6) 225 : (2013 Cri LJ 2595), the Supreme Court has reiterated that aggravating circumstances (Crime Test) and mitigating circumstances (Criminal Test) have to be taken into account while deciding the issue of imposition of death penalty. 12. The aggravating circumstances to name few are when the offence was committed on the victim who is innocent, helpless or a person relies upon the trust of relationship like a child, helpless woman and is inflicted with the crime by such a person. 12. The aggravating circumstances to name few are when the offence was committed on the victim who is innocent, helpless or a person relies upon the trust of relationship like a child, helpless woman and is inflicted with the crime by such a person. The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Some of the mitigating circumstances enumerated in the aforesaid judgment are, the manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course as well as the chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated and the condition of the accused shows that he was mentally defective. However, it has been clarified by the Supreme Court that aggravating and mitigating circumstances in the judgment are only illustrative and not exhaustive. 13. In the instant case the deceased was a young girl aged about 14 years and was a student of class VI. The deceased was innocent, helpless and relied upon the trust of relationship, as she was well known to the deceased and she used to call the appellant Mama (maternal uncle). On the instructions of the appellant she gave him food and slept separately from her brothers and sister, relying upon the trust of relationship. However, she was inflicted with the crime by a person on whom she trusted. The appellant committed rape on her and with a view to screen the evidence killed her by strangulating her. The injuries were found on her neck. The crime was committed in premeditated manner. It is a cold blooded murder without any provocation. The appellant is a married person. There is no evidence on record that he was suffering from any mental infirmity. The crime was committed in cruel, diabolic and brutal manner by the appellant who was in a position of trust of the deceased. The crime was committed in premeditated manner. It is a cold blooded murder without any provocation. The appellant is a married person. There is no evidence on record that he was suffering from any mental infirmity. The crime was committed in cruel, diabolic and brutal manner by the appellant who was in a position of trust of the deceased. In view of the vulnerability of the victim and the gruesome nature of the crime, in our considered opinion, the case falls in the category of rarest of rare cases where the sentence for death is eminentaly desirable not only to deter the others from committing such atrocious crime but also to manifest societys abhorrence of such crime. 14. In the result the reference made by the trial Court is answered in the affirmative by confirming the death sentence awarded to the accused appellant. The conviction and sentence awarded to the appellant under Sections 302, 376 and 450 of the Indian Penal Code are affirmed. Accordingly, the criminal appeal filed by the appellant is dismissed. Appeal dismissed.