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2013 DIGILAW 764 (MP)

In Reference v. Dileep Bankar

2013-07-04

AJIT SINGH, ALOK ARADHE

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JUDGMENT ALOK ARADHE, J. The Sessions Judge, Bhopal vide impugned judgment dated 21-2-2013 passed in Sessions Trial No. 28/2006 has sentenced the appellant to death for committing rape and murder of a minor girl aged about 5 years. The appellant has also been convicted for offences under Sections 363, 366 and 376(2)(f) of the Indian Penal Code and sentenced to life imprisonment and other terms of imprisonment with fine stipulations. The Sessions Judge has made reference of the proceeding for confirmation of death sentence to the High Court. Being aggrieved by the impugned judgment, the appellant has also preferred Criminal Appeal No. 647/2013. Since the reference and the appeal arise out of the same judgment, both are being decided by this common judgment. 2. The relevant facts giving rise to filing of the appeal, briefly stated, are that the victim was a minor girl aged about 5 years and was a daughter of one Satnam Singh. On 10-8-2005 she was playing with her brother-Chhutu alias Jagmohan near a temple situated adjacent to her house. The appellant at that time went there took her away. Thereafter, he committed rape on her and throttled her to death. When the victim did not return home till evening, her father lodged a report. The Investigating Officer during the course of inquiry learnt that one person whose appearance resembled with the appellant was last seen with the victim. The appellant was interrogated and a memorandum statement was prepared, on the basis of which, body of the victim and shirt containing dust particles and hair were recovered from the appellant. 3. The body of the victim was sent for post-mortem examination, which was conducted by Dr. Mukesh Goyal (PW-12). The following injuries were found on the body of the victim which is evident from the postmortem report (Exhibit-P-55): (i) Multiple abrasions and contusions on back area. (ii) Ligature mark around the neck. (iii) Lacerated wound present over the external orifice, post part of libia jaora and minura (iv) labia minora severally contused The Police after completing the investigation, charge-sheeted the appellant for offences under Sections 363, 366, 376 and 302 of the Indian Penal Code. 4. The trial Court after appreciating the evidence adduced by the prosecution, awarded death sentence to the appellant and referred the proceedings for confirmation to the High Court. 4. The trial Court after appreciating the evidence adduced by the prosecution, awarded death sentence to the appellant and referred the proceedings for confirmation to the High Court. A Division Bench of this Court vide judgment dated 21-7-2008 in Criminal Reference No.2/2007 set aside the judgment of the trial Court and remanded the case to the trial Court to record its satisfaction as to whether the appellant is of sound mind and is in fit mental condition to defend himself. It was further directed that in case the appellant is found to be in fit mental condition to defend himself, he should be put to trial. The trial Court thereafter got the appellant medically examined by the Assistant Professor, G. R. Medical College, Gwalior who after keeping the appellant under observation from 13-10-2008 till 9-6-2010 submitted a report that the appellant is in fit condition and is able to defend himself. The trial thereafter commenced against the appellant. 5. The prosecution, in order to prove its case, examined 13 witnesses. The appellant did not examine any witness. However, the appellant in his statement recorded under Section 313 Cr. P. C. stated that he has been falsely implicated. The trial Court after appreciating the evidence examined by the prosecution and material brought on record found the appellant guilty of committing murder of the victim in most brutal manner after raping her. The trial Court also took note of the fact that earlier also on two occasions the appellant was found guilty of committing rape on minor girls and was sentenced to 10 years and 2 years rigorous imprisonment respectively. Accordingly, the trial Court thereafter again sentenced the appellant to death penalty. 6. Learned senior counsel for the appellant submitted that the evidence adduced by the prosecution with regard to last seen is not reliable. While inviting the attention to Exhibit-P-24 it was submitted that there was no description of the accused and no other witness except PW-2 has identified the appellant. It is also urged that chain of circumstantial evidence is not complete so as to prove the offence against the appellant. In support of his submissions learned senior counsel has relied on the decisions in OMA alias Omprakash and another v. State of Tamil Nadu, AIR 2013 SC 825 and Mohammad Gaisuddin v. State of Andhra Pradesh, AIR 1977 SC 1926 . 7. In support of his submissions learned senior counsel has relied on the decisions in OMA alias Omprakash and another v. State of Tamil Nadu, AIR 2013 SC 825 and Mohammad Gaisuddin v. State of Andhra Pradesh, AIR 1977 SC 1926 . 7. On the other hand, learned Deputy Advocate General submitted that chain of circumstantial evidence is complete against the appellant and the case fall in the category of rarest of rare cases so as to warrant the imposition of death penalty. Therefore, the trial Court has rightly imposed the death penalty on the appellant. 8. We have considered the respective submissions made by learned counsel for the parties and have perused the record. The entire case of the prosecution is based on circumstantial evidence. Now, we may examine whether the chain of evidence proved the guilt of the accused beyond reasonable doubt in committing the crime. Jagmohan (PW-2) has clearly stated in his evidence that he saw the sister going away with the appellant. Sanjay Kumar (PW-5) in his evidence has stated that on the date of incident he saw the victim going with the appellant towards Birla Mandir. Mohd. Sayed Qureshi (PW-8) in his evidence has stated that the appellant came with a girl aged about 5-6 years and purchased a packet of Parle-G biscuits and went towards Roshanpura. It has further been stated by him that on the next day when the appellants photograph was published in the newspaper, he recollected that the appellant had visited his shop with a girl aged about 5-6 years. Kuldeep Singh (PW-9) in his evidence has deposed that on the date of incident at about 9 p.m. the appellant along with a girl aged about 5-6 years came to his shop and purchased a pouch containing country liquor. There is no material on record to show that the aforesaid witnesses have any enmity with the appellant. Therefore, the possibility of falsely implicating the appellant by them is ruled out. The evidence of the aforesaid witnesses establishes beyond reasonable doubt that the victim and the appellant were last seen together at the point of time in proximity with the time and day of commission of crime. 9. It is also pertinent to mention that the appellant has been indentified by Jagmohan (PW-2). The evidence of the aforesaid witnesses establishes beyond reasonable doubt that the victim and the appellant were last seen together at the point of time in proximity with the time and day of commission of crime. 9. It is also pertinent to mention that the appellant has been indentified by Jagmohan (PW-2). On the basis of memorandum statement of the appellant, body of the victim was found near the spetic tank covered by a big stone and only tiny legs of the victim were visible. A pouch of country liquor and the wrapper of Parle-G biscuits were also found near the victims dead body. On the pouch of country liquor finger prints of the appellant have been found. The stains of blood and semen were also found on the body of victim. From the evidence of Dr. Mukesh Goyal (PW-12), who conducted the postmortem of the victim, it is evident that he found contusion and abrasions and several other injuries on the body of the victim as well as signs of sexual violence. The cause of death, in the opinion of the aforesaid witness, is asphyxia as a result of strangulation. Thus, for the aforementioned reasons we are of the considered opinion that chain of evidence is complete and fully proves the guilt of the accused beyond reasonable doubt. We, therefore, confirm the findings recorded by the trial Court that the accused kidnapped the victim and after subjecting her to sexual abuse, in a most brutal manner, throttled her to death. 10. The only question which survives for consideration is whether the instant case falls in the category of rarest of rare cases so as to justify awarding of the capital sentence. In State of U. P. v. Satish, (2005) 3 SCC 114 ( AIR 2005 SC 1000 ) the Supreme Court has held that rape and murder of minor is one of the most depraved acts and when the rape is followed by brutal murder, such an act falls in the rarest of rare category. In State of U. P. v. Satish, (2005) 3 SCC 114 ( AIR 2005 SC 1000 ) the Supreme Court has held that rape and murder of minor is one of the most depraved acts and when the rape is followed by brutal murder, such an act falls in the rarest of rare category. In recent judgment delivered in the case of Shanker Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 : (AIR 2013 SCC (Cri) 1230), the Supreme Court after taking note of the ratio laid down in all the cases starting from Bachan Singh v. State of Punjab (1980) 2 SCC 684 : ( AIR 1980 SC 898 ) till Sangeeta and others v. State of Haryana, (2013) 2 SCC 452 : ( AIR 2013 SC 447 ) 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. 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 and 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 mentioned in the judgment are only illustrative and not exhaustive. 11. In the instant case the appellant had allured the vitim to accompany her. Thereafter, the appellant subjected her to brutal rape and in most gruesome manner throttled her to death. Various injuries were found on the body of the victim testifying this fact. The appellant thereafter dumped the body of the victim near the septic tank and covered the same with big stone. Thereafter, the appellant subjected her to brutal rape and in most gruesome manner throttled her to death. Various injuries were found on the body of the victim testifying this fact. The appellant thereafter dumped the body of the victim near the septic tank and covered the same with big stone. An innocent hapless girl of 5 years was subjected to barbaric treatment showing extreme depravity which arose a sense of revulsion in the mind of common man. The crime committed in premeditated manner and is cold blooded murder without any provocation. It is also pertinent to mention here that the appellant in Sessions Trial No. 304/1993 was found guilty of committing rape of a minor girl aged about 7 years and was sentenced to 10 years rigorous imprisonment. Similarly, in Sessions Trial No. 277/2002 the appellant was found guilty of attempt to commit rape on a minor girl aged about 10 years and was sentenced to 2 years rigorous imprisonment. The appellant appears to be a habitual offender and is a menace to the society. The chances of his being reformed and rehabilitated are bleak. 12. In our considered opinion, the crime committed by the appellant satisfies the test of rarest of rare cases. We, therefore, uphold the death sentence and also other sentences imposed on the appellant by the trial Court. 13. In the result, the reference made by the trial Court is answered in the affirmative by confirming the death sentence awarded to the appellant. The conviction and sentence awarded to the appellant for offences under Sections 363, 366 and 376(2)(f) of the Indian Penal Code are affirmed. Accordingly, the criminal appeal preferred by the appellant is dismissed. Appeal dismissed.