MD.MANNAN @ ABDUL MANNAN Vs STATE OF BIHAR
Bench: HARJIT SINGH BEDI,CHANDRAMAULI KR. PRASAD
Case number: Crl.A. No.-000379-000379 / 2009
Diary number: 2259 / 2009
Advocates: Vs
GOPAL SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.379 OF 2009
MD. MANNAN @ ABDUL MANNAN .... APPELLANT
VERSUS
STATE OF BIHAR ..... RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
1. Appellant was put on trial for offence under Sections 366,
376, 302 and 201 of the Indian Penal Code, 1860 (hereinafter
referred to as the ‘Penal Code’). The Trial Court by its
judgment and order dated 29th of May, 2007 passed in
Sessions Trial No.220 of 2004 arising out of the Manigachi
P.S. Case No.13 of 2004 held the appellant guilty of all the
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charges and sentenced him to undergo rigorous imprisonment
for 10 years for offence under Section 366 of the Penal Code,
life imprisonment under Section 376 of the Penal Code,
rigorous imprisonment for 7 years for offence under Section
201 of the Penal Code and death penalty for offence under
Section 302 of the Penal Code. The trial court made Reference
to the High Court for confirmation of the death sentence which
led to registration of Death Reference No. 6 of 2007. Appellant
aggrieved by his conviction and sentence also preferred appeal
which was registered as Criminal Appeal (DB) No. 963 of 2007.
Both, the reference and appeal were heard together and by a
common judgment dated 19th of August, 2008, the Division
Bench of the Patna High Court accepted the reference and
dismissed the appeal.
2. This is how the appellant is before us with the leave of
the Court.
3. According to the prosecution, the appellant Md. Mannan
was working as mason and engaged for the plaster work at
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the residence of informant’s uncle PW-8 Devikant Jha. On
28th of September, 2004, the appellant gave Rs.2/- to the niece
of the informant, namely, Kalyani Kumari aged about 8 years
to bring betel from a shop at Hanuman Chowk. After some
time, appellant left the work, went to the Hanuman Chowk
and got seated Kalyani Kumari on the carrier of his bicycle.
PW-5 Maya Devi and other women heard the conversation
which the appellant was having with Kalyani Kumari.
Appellant, according to women folk, asked Kalyani Kumari as
to where her father lives to which she replied that he stays at
Bombay. A search was made when Kalyani Kumari did not
return home for sometime and in the course thereof, it
surfaced that she was seen going on a bicycle with a man.
The informant Sharwan Kumar Jha (PW-10) and his family
members set out in search of the girl and while they were
returning from Bahera saw the appellant going towards
Bahera. Appellant tried to escape but was apprehended and
on enquiry he showed ignorance about the girl. Appellant was
brought to the residence of the informant where PW-5 Maya
Devi disclosed that she had seen the appellant who had taken
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away Kalyani Kumari on his bicycle. Thereafter, the appellant
was brought to the Police Station and handed over to the
officer-in-charge with a written report, for taking suitable
action, alleging that the appellant had kidnapped Kalyani
Kumari. On the basis of the aforesaid information, a case was
registered and PW-11 Hari Ram, the officer-in-charge took up
the investigation.
4. During the course of investigation, the appellant gave a
confessional statement in the presence of the witnessess Amar
Kishore Jha (PW-2) and Devi Kant Jha (PW-8) and other
villagers. The appellant confessed his guilt and disclosed the
place where he had raped and killed Kalyani Kumari. The
statement given by the appellant led to the recovery of the
dead body of Kalyani Kumari from a field. She was identified
by the informant and other villagers. The dead body of
Kalyani Kumari had injury on the private parts, her nails were
munched and there were marks of bruises all over the body.
The Inquest Report was prepared and the dead body was sent
for post-mortem examination which was conducted by PW-4
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Dr. Prafulla Kumar Das, a Tutor in the department of Forensic
Medicine and Toxicology at Darbhanga Medical College and
Hospital. Police, after usual investigation, submitted charge-
sheet against the appellant for kidnapping, raping and killing
a minor girl and causing disappearance of evidence of offence.
Appellant was ultimately committed to the Court of Sessions
to face the trial, where charges under Sections 366, 376, 302
and 201 of the IPC were framed against him. Appellant denied
to have committed any offence and claimed to be tried.
5. The prosecution in order to bring home the charge has
examined altogether 11 witnesses besides a large number of
documentary evidence, including the First Information Report,
the Post-mortem Report and the Inquest Report, were
exhibited. The plea of the appellant in the statement under
Section 313 of the Code of Criminal Procedure is denial
simplicitor and false implication. However, no defence witness
has been examined.
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6. There is no eye-witness to the occurrence and the
prosecution sought to bring home the charge on the basis of
the circumstantial evidence.
Those are:
(i) Appellant was working as Mason in the House of
Devi Kant Jha (PW-8);
(ii) Appellant sent the deceased to the betel-shop to get
betel;
(iii) Appellant proceeded towards the betel-shop few
minutes after the deceased left;
(iv) Appellant was last seen with the deceased going
together on a bicycle and
(v) Appellant’s confession leading to the recovery of
dead body from a field.
7. All these circumstances led the trial Court to hold that
the chain is complete which points towards the guilt of the
appellant and accordingly convicted him as above. In the
opinion of the trial court, the case fell in category of the rarest
of the rare cases and accordingly it inflicted the death penalty.
The High Court concurred with the finding of the trial court
and affirmed the conviction and while doing so, it observed as
follows:
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“…..as per disclosure made by the appellant and on his disclosure the dead body was recovered from a lonely place surrounded and concealed by standing crops of wheat and rahar. Hence the part of the confession made by appellant which is disclosure regarding the place where the dead body could be found, is clearly admissible as evidence under Section 27 of the Indian Evidence Act. Since the rape and murder on the victim girl has been proved by medical evidence and since such offences were committed against the victim soon after her kidnapping by the appellant, a presumption arises against the appellant that he committed rape and murder of the victim and tried to conceal the evidence of such offence by hiding the body at a lonely place concealed by standing crops. No doubt such presumption can be rebutted if reasonable explanation could be given by the appellant. But in this case no such explanation has been brought on record. There is neither any defence witness nor any reasonable suggestion to the witnesses nor any explanation by the appellant under Section 313 of the Code of Criminal Procedure. Hence, the presumption remains un-rebutted. The evidence on record and the entire facts and circumstances coupled with disclosure made by the appellant which is admissible under Section 27 of the Indian Evidence Act prove beyond any doubt that after kidnapping the victim, the appellant committed the offence of rape followed by murder upon the deceased and also committed offence of destroying evidence by concealing the dead body.”
8. While accepting the reference and upholding the death
sentence, High Court observed as follows :
“I have considered the entire facts and the aforesaid submissions for deciding whether the
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death penalty awarded to the appellant should be confirmed or not. In this regard, it is noticed that appellant is a matured man aged about 42-43 years. He has committed the heinous and barbarous crime of rape and murder of a girl aged about 7 years who was thin built and of 4’ height. Such a child was incapable of arousing lust in normal situation. She was kidnapped in a planned manner because she was innocent and could not understand the design of the appellant. She became helpless victim of a diabolic middle aged man whom the child could trust as an elder person. The medical evidence shows the cruel manner of causing injuries on the face, nails and body of the child at the time of committing rape which was followed by murder. This was all pre- planned as is apparent from the manner of kidnapping and selection of a lonely place where crime was committed and body concealed. Crime of this nature against the child girl is definitely a crime against the society. The facts of the case, the offences taken together along with the age of the victim and the age of the appellant clearly bring the case in the category of “rarest of the rare cases” in which interest of justice requires award of maximum penalty.”
9. The deceased had met homicidal death and was
subjected to rape have not been questioned before us.
However, learned Counsel for the appellant has contended
that the circumstances brought on record do not lead to one
and the only conclusion towards the guilt of the appellant and
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therefore the appellant deserves to be given the benefit of
doubt.
10. Mr. Gopal Singh, learned Counsel representing the State,
however, supports the judgment of conviction and sentence.
11. We have bestowed our consideration to the rival
submissions. In our opinion to bring home the guilt on the
basis of the circumstantial evidence the prosecution has to
establish that the circumstances proved lead to one and the
only conclusion towards the guilt of the accused. In a case
based on circumstantial evidence the circumstances from
which an inference of guilt is sought to be drawn are to be
cogently and firmly established. The circumstances so proved
must unerringly point towards the guilt of the accused. It
should form a chain so complete that there is no escape from
the conclusion that the crime was committed by the accused
and none else. It has to be considered within all human
probability and not in fanciful manner. In order to sustain
conviction circumstantial evidence must be complete and
must point towards the guilt of the accused. Such evidence
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should not only be consistent with the guilt of the accused but
inconsistent with his innocence. No hard and fast rule can be
laid to say that particular circumstances are conclusive to
establish guilt. It is basically a question of appreciation of
evidence which exercise is to be done in the facts and
circumstances of each case.
12. Bearing in mind the principles aforesaid, we now proceed
to consider the circumstantial evidence available on the
record. PW-1 Rajkumar Jha claimed to be Mukhia of the
Gram Panchayat having shop at Hanuman Chowk and has
stated in his evidence that appellant was doing work of a
mason in the house of Devi Kant Jha (PW-8) who was grand-
father of deceased Kalyani. He has claimed to have seen the
appellant coming to Hanuman chowk and getting seated
Kalyani on his bicycle and taking her towards village Igharata.
Thereafter Kalyani never returned nor the appellant came back
till evening when the search started. He has further stated
that appellant led the witnesses to the wheat field and showed
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the dead body of deceased Kalyani. There was only a panty on
the person of the dead body and no other clothes.
13. PW.2, Amar Kishore Jha, owned a shop at Hanuman
Chauk and has stated in his evidence that he had seen the
appellant getting Kalyani seated on his bicycle at the Chauk.
He has further stated that Kalyani did not return till evening
and then he along with PW.1, Raj Kumar Jha had gone to
search her. He is further a witness to the statement given by
the appellant which led to the recovery of the dead body of
Kalyani with marks of bruises at different places of her body.
According to this witness her nails were munched.
14. PW.3, Phul Jha, is the owner of the betel shop from
where Kalyani had bought the betel. According to his evidence
Kalyani purchased betel from his shop and when he was
returning 50 paise she asked for the toffee for the said
amount. According to his evidence when Kalyani got down
from the shop, appellant came on a bicycle, took betel from
her, got her seated on the carrier of the bicycle and took her
towards the southern direction. He is also a witness to the
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confession of the appellant leading to the recovery of the dead
body at the place pointed by the appellant. PW.5, Maya Devi,
is another witness who had seen the appellant along with the
deceased in his bicycle and even the conversation she had
with the appellant. She has deposed that the appellant asked
Kalyani as to where her father resides to which she replied
that her father lives in Bombay. PW.6, Radhey Shyam Jha, is
another witness who had seen the appellant and the deceased
together on a bicycle. He is further witness to the disclosure
statement made by the appellant leading to recovery of the
dead body of the Kalyani. PW.8, Debikant Jha, is the
grandfather of the deceased and is a witness to the recovery of
the dead body of the Kalyani on the basis of the confessional
statement of the appellant. PW.9, Tapeshwar Prasad, is
another witness who owned the shop at Hanuman Chauk and
supported the case of the prosecution. He has stated that
after Kalyani purchased the betel, the appellant reached there
on bicycle, got her seated on the carrier of the bicycle and
went towards the southern direction. He is also a witness to
the recovery of the dead body of Kalyani on the basis of the
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statement given by the appellant. PW.10, Sharwan Kumar
Jha, is the informant of the case and also supported the case
of the prosecution.
15. From the evidence of the aforesaid witness it is evident
that the appellant was working as a mason in the house of the
grandfather of the deceased, PW.8 Debi Kant Jha and the
deceased was sent by him to the betel shop to get betel.
Evidence of the prosecution witnesses further prove beyond all
reasonable doubt that appellant proceeded towards the betel
shop few minutes after the deceased left and it was the
appellant who was last seen with the deceased going together
on a bicycle. There is overwhelming evidence which proves
beyond any shadow of doubt that the statement given by the
appellant led to the recovery of the dead body of Kalyani from
the field. In our opinion, the circumstances so proved
unerringly point towards the guilt of the appellant and the
chain is so complete that there is no escape from the
conclusion that the crime was committed by the appellant and
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none else. Accordingly we uphold the conviction of the
appellant.
16. As observed earlier the trial court as also the High court
had found the case in hand to be one of the rarest of the rare
cases and accordingly inflicted the death sentence. It is
contended by the learned counsel for the appellant that the
case in hand does not fall within such category and as such
the extreme penalty of death is not called for.
17. It is trite that death sentence can be inflicted only in a
case which comes within the category of rarest of the rare
cases but there is no hard and fast rule and the parameter to
decide this vexed issue. This Court had the occasion to
consider the cases which can be termed as rarest of the rare
cases and although certain comprehensive guidelines have
been laid to adjudge this issue but no hard and fast formula of
universal application has been laid down in this regard.
Crimes are committed in so different and distinct
circumstances that it is impossible to lay down comprehensive
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guidelines to decide this issue. Nevertheless it is widely
accepted that in deciding this question the number of persons
killed is not decisive. Further crime being brutal and heinous
itself do not turn the scale towards the death sentence. When
the crime is committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse
intense and extreme indignation of the community and when
collective conscience of the community is petrified, one has to
lean towards the death sentence. But this is not the end. If
these factors are present the court has to see as to whether
the accused is a menace to the society and continue to be so,
threatening its peaceful and harmonious co-existence. The
court has to further enquire and believe that the accused
condemned cannot be reformed or rehabilitated and shall
continue with the criminal acts. In this way a balance-sheet is
to be prepared while considering the imposition of penalty of
death of aggravating and mitigating circumstances and just
balance is to be struck. So long the death sentence is
provided in the statute and when collective conscience of the
community is petrified, it is expected that the holders of
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judicial power do not stammer, de hors their personal opinion
and inflict death penalty. These are the broad guidelines with
this Court has laid down for imposition of the death penalty.
18. When we test the present case bearing in mind what has
been observed, we are of the opinion that the case in hand
falls in the category of the rarest of the rare cases. Appellant
is a matured man aged about 43 years. He held a position of
trust and misused the same in calculated and preplanned
manner. He sent the girl aged about 7 years to buy betel and
few minutes thereafter in order to execute his diabolical and
grotesque desire proceeded towards the shop where she was
sent. The girl was aged about 7 years of thin built and 4 feet of
height and such a child was incapable of arousing lust in
normal situation. Appellant had won the trust of the child and
she did not understand the desire of the appellant which
would be evident from the fact that while she was being taken
away by the appellant no protest was made and innocent child
was made prey of the appellant’s lust. The postmortem report
shows various injuries on the face, nails and body of the child.
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These injuries show the gruesome manner in which she was
subjected to rape. The victim of crime is an innocent child
who did not provide even an excuse, much less a provocation
for murder. Such cruelty towards a young child is appalling.
The appellant had stooped so low as to unleash his monstrous
self on the innocent, helpless and defenceless child. This act
no doubt had invited extreme indignation of the community
and shocked the collective conscience of the society. Their
expectation from the authority conferred with the power to
adjudicate, is to inflict the death sentence which is natural
and logical. We are of the opinion that appellant is a menace
to the society and shall continue to be so and he can not be
reformed. We have no manner of doubt that the case in hand
falls in the category of the rarest of the rare cases and the trial
court had correctly inflicted the death sentence which had
rightly been confirmed by the High Court.
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19. In the result, we do not find any merit in this appeal and
same is dismissed accordingly.
……….………………………………..J. ( HARJIT SINGH BEDI )
..........………………………………..J. ( CHANDRAMAULI KR. PRASAD ) NEW DELHI, APRIL 20, 2011.