RAJKUMAR Vs STATE OF M.P.
Bench: B.S. CHAUHAN,M.Y. EQBAL
Case number: Crl.A. No.-001419-001420 / 2013
Diary number: 22776 / 2013
Advocates: A. SUMATHI Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1419-1420 of 2013
Rajkumar …Appellant
Versus
State of M.P. …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned
judgment and order dated 27.6.2013 passed in Criminal Reference No.
01 of 2013 and Criminal Appeal No. 397 of 2013 passed by the High
Court of Madhya Pradesh at Jabalpur affirming the conviction of the
appellant under Sections 376 and 450 of the Indian Penal Code, 1860
(hereinafter referred to as the `IPC’) as well as confirming the death
sentence awarded for the offence under Section 302 IPC by the trial
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court vide judgment and order dated 5.2.2013 passed in Sessions Trial
No. 20 of 2013.
2. Facts and circumstances giving rise to these appeals as per the
prosecution are that:
A. On 26.12.2012, the appellant, aged 32 years, came to the house
of his neighbour Iknis Jojo (PW.1) and stayed with his four children
as Iknis Jojo (PW.1) and his wife Albisiya had gone to irrigate
agricultural fields in the night. The appellant was on visiting terms
with the family and the children used to call him “Mama” i.e.
maternal uncle. On the said night, he had taken liquor and meals in
the complainant’s house and when retiring for the night, the appellant
asked the prosecutrix Gounjhi, aged 14 years not to sleep with her
three siblings i.e. Sushma, Sanchit and Aric, rather to sleep at some
distance from them. Around midnight, he raped prosecutrix Gounjhi.
While committing rape, he caused some grievous injuries and
consequently she died. The incident was witnessed by Sanchit (PW.2),
brother of the prosecutrix, however, out of fear, he could not raise any
hue and cry. After committing the crime, the appellant left the place
of occurrence. In the morning, Iknis Jojo (PW.1) alongwith his wife
Albisiya came from their fields and found the children sleeping. They
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woke them up and also tried to wake the prosecutrix when they
realised that she was dead. Sanchit (PW.2) narrated the incident that
had occurred in the night.
B. Iknis Jojo (PW.1) immediately went to the police station and
lodged the complaint, on the basis of which Crime No. 294 of 2012
was registered for the offence under Sections 302 and 450 IPC. Shri
K.S. Thakur, Inspector of Police, Police Station: Nainpur, District
Mandla, Madhya Pradesh started the investigation. He came to the
spot, recovered the dead body, prepared the Panchnama, also
recovered the blackish brown colour purse and clothes lying near the
place of occurrence. Some coins and a small packet of tobacoo were
also recovered. Some hair were found lying near the dead body of the
prosecutrix and one sky blue coloured shawl was also recovered from
the place of occurrence which had blood stains and some other kind of
stains at various places. The earth of that place having some fluid
material thereon was also recovered. The investigating officer
prepared the site plan in presence of the witnesses and dead body of
the prosecutrix was sent for postmortem and the appellant was
arrested.
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C. Dr. Surendra Barkare (PW.6) alongwith lady Dr. (Smt.) Prahba
Pipre (PW.7) conducted the postmortem of the prosecutrix and
submitted the report. As per the postmortem report, rape had been
committed upon the deceased and, thus, Sections 376 and 511 IPC
were also added in the case.
D. After taking permission from the Judicial Magistrate, the
specimen blood of the appellant was obtained to conduct his DNA
finger printing which was sent for analysis to State Forensic Science
Laboratory, Sagar. All the materials sent for chemical analysis were
analysed and the report was submitted and on the basis of which the
chargesheet was filed and the appellant was put to trial. Appellant
denied his involvement in the offence, thus trial commenced.
E. Dr. Surendra Barkare (PW.6) deposed and proved the
postmortem report and deposed that the prosecutrix died of asphyxia
as a result of strangulation and her death was homicidal in nature.
F. Iknis Jojo (PW.1), father of the deceased, deposed while giving
the version as mentioned in the FIR and admitted that the appellant
used to come to his house occasionally and he was referred to by his
children as “Mama” and sometimes he used to stay in the house
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though his house was only half a kilometer away from his house and
he was already married having a child.
G. Sanchit (PW.2), a 10 years old boy, supported the case of the
prosecution and deposed that his “Mama” had come to their house. He
consumed liquor and was served rice and water by the deceased.
Appellant asked the prosecutrix to sleep at some distance from her
siblings. The appellant slept with other three children and it was
about 11-12 in the night that he heard the shrieks of his sister and saw
that the appellant had pressed her neck and he got so much scared that
he could not even raise the voice. All this was disclosed by PW.2 to
his parents in the morning on their returning from the fields.
H. Dr. (Smt.) Prabha Pipre (PW.7) deposed about the conduct of
the postmortem of the body of the deceased alongwith Dr. Surendra
Barkare (PW.6). They further deposed that hymen of the deceased
was torn and blood was oozing out from her private parts. Some
blood was present in the cavity of the private part and some blood was
also present in the cavity of her uterus. Her vagina accommodated one
finger and it accommodated two fingers with difficulty. On the basis
of the above, she had opined that deceased had been subjected to rape
before murder.
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I. The deceased was 14 years of age and a student in sixth
standard which was proved from the school register and the statement
of her father Iknis Jojo (PW.1). Her age has also been mentioned in
the FIR as 14 years. So far as medical evidence is concerned, it was
mentioned that the deceased prosecutrix was about 16 years of age.
J. So far as the analysis report of the material sent and the DNA
report is concerned, it revealed that semen of the appellant was found
on the vaginal swab of the deceased. The clothes of the deceased
were also found having appellant’s semen spots. The hair which were
found near the place of occurrence were found to be that of the
appellant.
K. The trial court after considering the entire evidence on record,
recorded the following findings of fact:
(i) The evidence of Sanchit Jojo (PW.2), a child witness was
worth placing reliance and it duly supported the case of
the prosecution;
(ii) His deposition corroborates medical evidence;
(iii) The hymen of the deceased was found torn;
(iv) Semen of the appellant was found on the slide prepared
from the vaginal swab of the prosecutrix as proved by the
DNA report;
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(v) The shawl of the deceased was also found having semen
stains which were of the appellant;
(vi) The hair found near the body of the prosecutrix were
found to be of the appellant as per the DNA report;
(vii) The appellant did not take any defence in his statement
under Section 313 Cr.P.C. except that he had been falsely
implicated by the family of the deceased at the instance
of the police and that the appellant did not lead any
evidence in his defence.
L. Considering all the aforementioned circumstances and evidence
of the relationship with the family of the deceased, the trial court
treated it to be a case of extreme culpability and a rarest of rare case
awarding death sentence under Section 302 IPC with a fine of Rs.
3,000/-. Under Section 376 IPC, the appellant was awarded rigorous
life imprisonment and a fine of Rs.3,000/-; in default of making
payment on both counts, sentence of one year on each count was also
awarded. For the offence punishable under Section 450 IPC, the
appellant was awarded 10 years rigorous imprisonment with a fine of
Rs.3,000/- and in default, a rigorous imprisonment for one year.
However, it was directed that all the sentences would run
concurrently.
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M. The trial court made a reference to the High Court for
affirming the death sentence. The appellant, being aggrieved, also
preferred an appeal against his conviction and sentence before the
High Court. The appeal and the reference were heard together.
N. The High Court recorded the same findings after re-
appreciation of evidence and came to the conclusion that prosecutrix
was 14 years of age at the time of incident. The appellant was
admittedly present in the house but he furnished no explanation
whatsoever about the injuries received by the deceased. As the
appellant has committed rape upon an innocent and helpless child and
then killed her brutally, it has shocked not only the judicial conscience
but even the conscience of society as well. The High Court also
recorded the finding that the offence had been committed in pre-
mediated manner. The death sentence was affirmed and the appeal
was dismissed.
Hence, these appeals.
3. Ms. A. Sumathi, learned counsel appearing on behalf of the
appellant, has submitted that the appellant had falsely been implicated
by the family members of the deceased at the instance of the police.
There is no eye-witness in the case. Sanchit Jojo (PW.2), brother of
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the prosecutrix, is a child witness and cannot be relied upon simply
for the reason that after seeing the incident and knowing well that his
sister had been killed, he did not raise any alarm even after the
accused had left the spot. Even in the morning, he did not tell his
parents when they came back from the agricultural fields as what had
happened. Therefore, the courts below have committed a grave error
while placing reliance upon the deposition of the child witness. It is a
clear cut case of circumstantial evidence for which the prosecution
could not furnish explanation on various counts and it cannot be held
that appellant had committed rape upon prosecutrix and, subsequently,
killed her. The facts and circumstances of the case did not warrant
death sentence as awarded by the courts below, and hence, the appeals
deserve to be allowed.
4. Per contra, Ms. Vanshaja Shukla, learned counsel appearing on
behalf of the State, has vehemently opposed the appeals contending
that the appellant had a pre-meditated intention to commit the offence
and that is why he asked the prosecutrix to sleep separately. The
chemical analysis report as well as the DNA report make it crystal
clear that no other person except the appellant had committed the
offence and the manner in which the offence had been committed and
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the gravity of the offence warrant nothing less than the death sentence
and, thus, the appeals lack merit and are liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
6. We have been taken through the impugned judgments rendered
by the High Court as well as the trial court and the evidence on
record. In view of the concurrent findings of fact recorded by the
courts below, particularly in respect of the DNA report to the extent
that the semen of the appellant was found in the vagina swab of the
prosecutrix and that she died of asphyxia caused by strangulation, we
affirm the findings of fact recorded by the courts below.
7. Sanchit Jojo (PW.2), who is an eye-witness, was a child as he
was 10 years of age at the time of incident. The courts below have
found him worth reliance as he has understood the questions put to
him and he was able to answer the same. The issue regarding the
admissibility of evidence of a child witness is no more res intergra.
8. It is a settled legal proposition of law that every witness is
competent to depose unless the court considers that he is prevented
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from understanding the question put to him, or from giving rational
answers by reason of tender age or extreme old age or disease or
because of his mental or physical condition. Therefore, a court has to
form an opinion from the circumstances as to whether the witness is
able to understand the duty of speaking the truth, and further in case
of a child witness, the court has to ascertain that the witness might
have not been tutored. Thus, the evidence of a child witness must be
evaluated more carefully and with greater circumspection because a
child is susceptible to be swayed by what others tell him. The trial
court must ascertain as to whether a child is able to discern between
right or wrong and it may be ascertained only by putting the questions
to him.
9. This Court in State of Madhya Pradesh v. Ramesh & Anr.,
(2011) 4 SCC 786, after considering a large number of its judgments
came to the conclusion as under:
“In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a
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child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.”
(See also: Suryanarayana v. State of Karnataka, AIR 2001 SC
482).
10. In view of the above, as the courts below have found the child
witness worth reliance, we do not see any cogent reason to take a view
contrary to the same.
11. Admittedly, the appellant did not take any defence while
making his statement under Section 313 Cr.P.C., rather boldly alleged
that the family of the deceased had roped him falsely at the instance of
the police. However, appellant could not reveal as for what reasons
the police was by any means inimical to him.
12. The accused has a duty to furnish an explanation in his
statement under Section 313 Cr.P.C. regarding any incriminating
material that has been produced against him. If the accused has been
given the freedom to remain silent during the investigation as well as
before the court, then the accused may choose to maintain silence or
even remain in complete denial when his statement under Section 313
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Cr.P.C. is being recorded. However, in such an event, the court would
be entitled to draw an inference, including such adverse inference
against the accused as may be permissible in accordance with law.
(Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC
1357; Munish Mubar v. State of Haryana, AIR 2013 SC 912; and
Raj Kumar Singh alias Raju @ Batya v. State of Rajasthan, AIR
2013 SC 3150).
In the instant case, as the appellant did not take any defence or
furnish any explanation as to any of the incriminating material placed
by the trial court, the courts below have rightly drawn an adverse
inference against him.
13. The appellant has not denied his presence in the house on that
night. When the children were left in the custody of the appellant, he
was bound to explain as under what circumstances Gounjhi died.
14. In Prithipal Singh & Ors. v. State of Punjab & Anr., (2012)
1 SCC 10, this Court relying on its earlier judgment in State of W.B.
v. Mir Mohammad Omar, AIR 2000 SC 2988, held as under:
“….. if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section
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106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.”
(See also: Neel Kumar alias Anil Kumar v. State of Haryana,
(2012) 5 SCC 766; and Gian Chand & Ors. v. State of Haryana,
AIR 2013 SC 3395).
15. This Court in Prajeet Kumar Singh v. State of Bihar,
(2008) 4 SCC 434 had confirmed the death sentence awarded by the
High Court observing that accused had been living as a family
member of the victim and had been provided with shelter and meals,
despite which he committed ghastly and brutal murder of three
defenceless children without any provocation.
16. In a similarly situated case in Kamta Tiwari v. State of
M.P., AIR 1996 SC 2800, this Court found that the accused was
close to the family of the deceased. The deceased and her siblings
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used to call the accused uncle and her closeness with the appellant
encouraged her to trust him and when the accused had committed
the rape and gruesome murder causing numerous injuries on her
body, this Court found it to be a fit case for awarding death sentence.
The Court observed as under:
“When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a “rarest of rare” cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society’s abhorrence of such crimes.”
(See also: Dhananjoy Chatterjee @ Dhana v. State of W.B., (1994)
2 SCC 220)
17. However, in Bantu @ Naresh Giri v. State of M.P., AIR
2002 SC 70, while dealing with the case of rape and murder of a six
years old girl, this Court found that the case was not one of the
'rarest of rare case’. The Court noticed that, accused was less than 22
years at the time of commission of the offence, there were no
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injuries on the body of the deceased and the death probably occurred
as a result of gagging of the nostril by the accused. Thus, the Court
while noticing that the crime was heinous, commuted the sentence of
death to one of life imprisonment.
18. In Mohinder Singh v. State of Punjab, AIR 2013 SC 3622,
this Court dealt with the case of death sentence observing:
“In this context, we are only reminded of the Tamil proverb “ ” which means in English “when the fence eats the crops”. When the father himself happens to be the assailant in the commission of such beastly crime, one can visualise the pathetic situation in which the girl would have been placed and that too when such a shameless act was committed in the presence of her own mother. When the daughter and the mother were able to get their grievances redressed by getting the appellant convicted for the said offence of rape one would have in the normal course expected the appellant to have displayed a conduct of remorse. Unfortunately, the subsequent conduct of the appellant when he was on parole disclosed that he approached the victims in a far more vengeful manner by assaulting the hapless victims which resulted in filing of an FIR once in the year 2005 and subsequently when he was on parole in the year 2006. The monstrous mindset of the appellant appears to have not subsided by mere assault on the victims who ultimately displayed his extreme inhuman behaviour by eliminating his daughter and wife in such a gruesome manner in which he committed the murder by inflicting the injuries on the vital parts of the body of the deceased and that too with all vengeance at his command in order to ensure that they met with instantaneous death. The
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nature of injuries as described in the post-mortem report speaks for itself as to the vengeance with which the appellant attacked the hapless victims. He was not even prepared to spare his younger daughter viz. PW 2 who, however, escaped the wrath of the appellant by bolting herself inside a room after she witnessed the grotesque manner in which the appellant took away the life of his wife and daughter.”
However, the Court concluded that applying various principles
culled out from earlier judgments of this Court, the case did not fall
within the category of “rarest of rare case”, though it called for a
stringent punishment.
19. The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability. Before opting for the death
penalty the circumstances of the offender also require to be taken into
consideration alongwith the circumstances of the crime for the reason
that life imprisonment is the rule and death sentence is an exception.
The penalty of death sentence may be warranted only in a case where
the court comes to the conclusion that imposition of life imprisonment
is totally inadequate having regard to the relevant circumstances of the
crime. The 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
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between the aggravating and mitigating circumstances before option is
exercised.
Thus, it is evident that for awarding the death sentence, there
must be existence of aggravating circumstances and the consequential
absence of mitigating circumstances. As to whether death sentence
should be awarded, would depend upon the factual scenario of the
case in hand.
20. A three-Judge Bench of this Court in Swami Shraddananda
@ Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC
3040, wherein considering the facts of the case, the Court set aside the
sentence of death penalty and awarded life imprisonment, but further
explained that in order to serve the ends of justice, the appellant
therein would not be released from prison till the end of his life.
21. Thus, taking into consideration the aforesaid judgments, we are
of the view that in spite of the fact that the appellant had committed a
heinous crime and raped an innocent, helpless and defenceless minor
girl who was in his custody, he is liable to be punished severely but it
is not a case which falls within a category of rarest of rare cases.
Hence, we set aside the death sentence and award life imprisonment.
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The appellant must serve a minimum of 35 years in jail without
remission, before consideration of his case for pre-mature release.
However, it would be subject to clemency power of the Executive.
The appeals stand disposed of.
Before we part, we would like to note with appreciation that in
the instant case investigation and all judicial proceedings upto this
Court stood concluded in less than 8 months from the date of
incidence. Thus, it is an exemplar of expeditious justice in country of
chronic delay by smooth functioning of investigating agency, courts
and the members of legal fraternity. We expect such prompt disposal
of cases specifically in cases of such grave nature.
…..………….................. J. (Dr. B.S. CHAUHAN)
…..………….................. J. (M.Y. EQBAL)
NEW DELHI FEBRUARY 25, 2014
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