HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on : 23.05.2017

Delivered on : 30.05.2017

Case :- CAPITAL CASES No. – 1445 of 2016

Appellant :- Boby

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Farid Ahmad Quraishi,Nazrul Islam Jafri

Counsel for Respondent :- A.G.A.,Raghuraj Kishore

Hon’ble Ramesh Sinha,J.

Hon’ble Umesh Chandra Srivastava,J.

(Delivered by Hon’ble Umesh Chandra Srivastava, J.)

1. This appeal has been filed against the judgment and order dated 3.3.2016 of Additional Sessions Judge/Fastrack Court, Saharanpur passed in S.T. No.387 of 2013, State vs. Boby, by which the appellant has been convicted under Sections 376-A and 302 of IPC and sentenced with capital punishment for the first count and the same punishment i.e. death penalty and to pay Rs.5,000/- as fine for the second count.

2. A reference being reference No.2 of 2016 has also been made by the Additional Sessions Judge, Fastrack, Saharanpur under Section 366 (i) of the Code of Criminal Procedure for confirmation of death punishment awarded the appellant for the offences under Sections 376-A and 302 IPC.

3. Both the above mentioned criminal appeal and reference being connected with the same judgment are being decided together by a common judgment.

4. The prosecution case as set up in the FIR is that appellant Boby Singh son of Sushil, who is the resident of village Fatehpur Kalan, Police Station Nagal, District Saharanpur took deceased Km. Payal aged about two and half years of the same village to a sugarcane field on the pretext of providing toffee to her and killed her after committing rape upon her. Mahaveer of the same village had seen appellant taking deceased towards the sugarcane filed. Basant Kumar, father of the deceased alongwith Mahaveer went to the sugarcane filed in search of deceased and when they entered the field, they saw that appellant was strangulating deceased to death. They arrested appellant on the spot and thereafter father of the deceased went to Police Station Nagal alongwith appellant and written report of the incident and handed over the appellant and the written report to the police whereupon an First Information Report of the incident was registered against the appellant under Sections 376, 302 IPC and appellant was kept in the police lock-up. This incident took place in the evening of 7.2.2013 at 6 p.m. The written report and chick FIR are Exs. A1 and A9.

5. Inquest report on the dead body of deceased was done on 8.2.2013 and thereafter, dead body was sent to District hospital Saharanpur for post mortem. The post mortem on the the dead body of deceased was conducted by Dr. Rajesh Kumar Tiwari and following ante mortem injuries were found :-

(I) multiple abraded contusion in an area of 13 cm x 8 cm both side of face, upper and lower lip, chin and upper part of neck and nose.

(II) Laceration of vagina, urethra, uterus at 6′ O clock position, clotted blood present in vagina and around it.

According to doctor, death of deceased was caused due to asphyxia as a result of ante mortem smothering. Post mortem report is Ex. Ka-14.

6. Appellant was also medically examined on 8.2.2013 at 10:50 a.m. at C.H.C. Nagal, Saharanpur by Dr. Virendra Singh and following injuries on 8.2.2013 at 10:50 a.m. and following were found on his person:-

(I) Red abrasion on left side of forehead measuring 3 cm x 0.8 cm just above from left eye brow.

(II) Red contusion 6 cm x 1.5 cm on left side of face just below from left eye.

As per opinion of doctor, the above injuries were caused by hard and blunt object, fresh in duration and simple in nature.

7. The investigation of the case was undertaken by S.I. Naresh Pal Singh, the then S.O. of P.S. Nagal, Saharanpur who visited the place of occurrence and took statements of witnesses and after completing investigation submitted charge sheet against appellant under Sections 376 and 302 IPC in the Court of Magistrate concerned.

8. The cloths worn by the deceased and appellant were also sent to Forensic Science Laboratory for chemical examination and blood stains were found on the clothes of deceased, but no such stains were found on appellant’s clothes.

9. The case of appellant was committed to the Court of Session who framed the charge against appellant under Sections 376 and 302 IPC, to which appellant pleaded not guilty and claimed to be tried.

10. Prosecution examined as many as nine witnesses, namely, PW-1 Basant Kumar, informant and father of the deceased, PW-2 Mahaveer, an eye witness of the incident, PW-3 Meenu Kumar, PW-4 Dr. Virendra Singh, who examined the injuries of the appellant, PW-5 S.I. Naresh Pal Singh, the Investigating Officer, PW-6 Constable Arun Kumar, PW-7 Dr. Rajesh Kumar Tiwari, who conducted post mortem on the dead body of the deceased, PW-8 S.I. Vijay Pal Singh, who prepared inquest report and PW-9 S.I. Raj Kumar Singh.

11. The statements of the appellant under Section 313 Cr.P.C. were recorded in which he denied the prosecution case and stated to be innocent and claimed to be falsely implicated due to enmity. The appellant also examined his mother Smt. Phoolkali as DW-1 and father Sushil as DW-2 in defence.

12. The Learned Additional Sessions Judge after having heard the submissions of learned counsel of both sides and having considered the evidence brought on record, came to the conclusion that charges framed against appellant were proved beyond doubt, hence he held appellant guilty for the offences under Sections 376-A and 302 IPC and awarded capital for the first count and the same punishment and to pay Rs.5,000/- as fine for the second count, against which the present appeal has been filed and a reference under Section 366 (i) of the Code of Criminal Procedure has also been made by the Additional Sessions Judge for confirmation of the capital punishment.

13. We have heard the submissions of Sri N.I. Jafri, assisted by Sri Farid Ahmad Quraishi, learned counsel for the appellant, Sri Raghuraj Kishore, learned counsel for the complainant and Sri Ashish Pandey, learned AGA assisted by Sri Abbas Haidar, Advocate for the State and have perused the material brought on record.

14. Before entering into merit of submissions of learned counsel of both sides, we would like to mention in brief what witnesses have stated in their statements.

15. PW-1 Basant Kumar is the father of deceased and informant of the case. He has stated that deceased went missing in the evening of 7.2.2013 at about 6 p.m. when she was playing outside the home. He has further stated that during search of deceased PW-2 Mahaveer, a native of his village met him at his shop and told that he had seen appellant taking deceased towards the sugarcane filed of Manoj @ Bittu. He has further stated that he alongwith PW-2 Mahaveer went to the sugarcane field of Manoj @ Bittu in search of deceased and heard the noise of Khar-khar coming from inside the field. Thereafter, when they went inside the field they saw that appellant was pressing the neck of deceased with his hand. He has further stated that when he shook the body of deceased, he found that she was dead and also that she was raped before being killed. He has further stated that he and Mahaveer arrested appellant on the spot and took him to the village and got report of the incident scribed by one Sri Anuj Kumar and, thereafter, he alongwith Roop Kumar and Meenu Kumar went to Police Station Nagal and handed over the appellant and the written report to the police.

16. In the cross-examination, PW-1 has stated that he himself had not seen appellant taking deceased towards the sugarcane field rather PW-2 Mahaveer had told him in this regard. He has further stated that distance between the shop of Mahaveer and the sugarcane field of Manoj @ Bittu is about 100 paces and one cannot have look at the field from the shop of Mahaveer. He has further stated that when he alongwith PW-2 Mahaveer went into sugarcane field they did not see appellant committing rape upon deceased, they only saw that appellant was pressing the neck of deceased. He has further stated that PW-2 Mahaveer and Anil, the scribe of the written report had also accompanied him to the police station.

17. PW-2 Mahaveer has stated that appellant alongwith deceased Kumari Payal had come to his shop in the evening of 7.10.2013 at 6-6:15 p.m. and after purchasing toffee from his shop went towards Chandka. He has further stated that PW-1 had come to his shop same evening at about 6:30 p.m. and inquired about deceased and he had then told him that appellant had taken deceased towards Chandka, a place near the sugarfield of Manoj @ Bittu. He has further stated that he and PW-1 then went to the sugarcane field of Manoj @ Bittu and when after hearing the noise of Khar-khar coming from inside the field went towards the place from where the noise was coming they saw that appellant was pressing the neck of deceased with his one hand and her mouth with his other hand and deceased had died. He has further stated that he and PW-1 Basant Kumar apprehended appellant on the spot and on their raising alarm Meenu Kumar son of Chandrabhan and Roop Kumar son of Maangey Ram came there and they took appellant to the gher of PW-1 where people of the village had already gathered and gave beating to the appellant.

18. In the cross-examination, PW-2 Mahaveer has said that appellant alongwith deceased had come to his shop at about 6:30 p.m. and had proceeded towards south after purchasing toffee from the shop. He has further stated that appellant did not commit rape upon deceased in his presence and that he had only seen appellant pressing the mouth of deceased with one hand and her neck with his other hand. He has further stated that PW-1 had caught the appellant on the spot. He has also stated that police inquired him about the incident after a week of the incident while he was present in the village during this period. He has also stated that police had not taken undergarments of deceased and appellant in his presence and inquest of dead body was also not done in his presence.

19. PW-3 Meenu Kumar is the native of the same village of which PW-1 and PW-2 are. He has stated that he went the place of occurrence in the sugarcane filed of Manoj @ Bittu after hearing the cries of PW-1 and saw that PW-2 Mahaveer had caught the appellant and dead body of deceased was lying near a popular tree and pajami (lower wear) of deceased was also lying near the dead body. He has further stated that Roop Kumar and Meenu Kumar also came to the place of occurrence and thereafter appellant was taken to the gher of Basant Kumar. He has further stated that police came to the village in the night of the incident and inquired about the incident and they again came to village next day morning and took pajami of deceased in their possession and prepared its memo on which he had put his signature as witness. He has further stated that police had taken pajami of deceased into possession from the spot and he has also stated that police inquired him about the incident after 8 days of the occurrence.

20. PW-4 Dr. Virendra Singh had examined the injuries of appellant on 8.2.2013 at 10:50 a.m. at C.H.C. Nagal. He has proved the injury report Ex.Ka-2 and referal slip Ex. Ka-3 and has stated that injuries found on the body of appellant at the time of medical examination were fresh i.e. about six hours old.

21. PW-5 S.I. Naresh Pal Singh had investigated the case. He has stated that First Information Report of the incident was lodged in his presence. He has proved Ex.Ka-4, the memo of taking panty of deceased into possession, Ex. Ka-5, the cite plan of place of occurrence and Ex. Ka-6, the memo dated 8.2.2013 of taking brief (kachcha) of appellant into possession. He has also proved the charge sheet Ex. Ka-7. In cross-examination, he has stated that he had interrogated PW-1 and PW-2 in the night of the incident itself at the police station. He has further stated that none of the eye witness had told that he had seen appellant committing rape upon deceased in his presence. He has further stated that both eye witnesses had only stated that they had seen appellant killing the deceased by strangulation.

22. PW-6 Constable Arun Kumar has proved the chick FIR Ex.Ka-9, copy of G.D. Ex. Ka-10, and memo of personal search of appellant Ex. Ka-11.

23. PW-7 Dr. Rajesh Kumar Tiwari, had conducted post mortem report on the dead body of the deceased at SBD Hospital, Saharanpur on 8.2.2013 at 12:20 p.m. He has proved the post mortem report Ex. Ka-14 and has stated that following ante mortem injuries were found on the person of the deceased:-

(I) multiple abraded contusion in area of 13 cm x 8 cm both sides of face, upper and lower lip, chin and upper part of neck and nose.

(II) Laceration of vagina, urethra , uterus at 6’o clock position, clotted blood present in and around vagina.

He has stated that death of deceased was caused due to asphyxia as a result of ante mortem smothering. He has further stated that ante mortem injuries were about one day old and could possibly come during rape. He has further stated that hyoid bone of deceased was not broken.

24. PW-8 S.I. Vijay Pal Singh has proved inquest report Ex. Ka-15 and letters relating to post mortem i.e. Ex. Ka-16, Ka-19. In cross-examination, he has stated that inquest proceedings on the dead body of deceased were done in presence of father of the deceased.

25. PW-9 S.I. Raj Kumar has stated that he had prepared memos Ex. Ka-4 and Ex. Ka-6 at the dictation of S.I. Naresh Pal Singh

26. DW-1 Smt. Phoolkali is the mother of the appellant. She has stated that appellant was born on 4.11.1996, she has further stated that appellant remained at his home in the night of 7.2.2013 and police alongwith PW-2 Mahaveer came to home in the morning of 8.2.2013 and picked up appellant from there.

27. DW-2 Sushil is the father of the appellant. He has also stated that appellant was born on 4.11.1996. He has further stated that appellant was present at his home in the night of 7.2.2013 and police alongwith Mahaveer came to his home in the morning of 8.2.2013 and picked up appellant from there. He has further stated that PW-2 Mahaveer has animosity with him as he had filed a criminal case against him. He has further stated that PW-1 Basant Kumar has falsely implicated his son Boby at the instance of PW-2 Mahaveer. In the cross-examination, he has admitted that grocery shop of PW-2 Mahaveer is situated in his house. He has also stated that dead body of deceased Kumari Payal was recovered from the sugarcane field of Manoj @ Bittu and the said sugarcane field is situated near Chandka which is towards the back side of grocery shop of Mahaveer.

28. Appellant had taken a plea of being Juvenile during trial and had stated that as per school certificate, his date of birth being 4.11.1996, he was juvenile on the date of incident 7.2.2013, as he was below 18 years of age and, therefore, his case be referred to Juvenile Justice Board for trial under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (in short ‘J.J. Act’).

29. The plea of juvenility of appellant was inquired into by the learned Additional Sessions Judge and during inquiry, CW-1 Sushil Kumar, father of the appellant and CW-2 Seth Pal, the Head Master of S.N. Memorial Public School, Fatehpur Kalan, Saharanpur from the said of appellant and CW-3 Shimla Devi, the Head Mistress of Govt. Primary School, Fatehpur Kalan, Saharanpur from the side of informant were examined and besides oral evidence, school Admission Form, birth certificate and School Admission Register were filed. Learned Additional Sessions Judge after having considered the evidence led on record and having heard the submissions of learned counsel of both sides turned down the plea of juvenility of appellant by order dated 16.6.2014, against which a Criminal Revision No.2305 of 2014 was filed in this Court. The said criminal revision has been decided by us on 2.5.2017 and it has been held that date of birth of the appellant being not 4.11.1996, but it being 1.3.1993, as entered in school admission register of Govt. Primary School, Fatehpur, Kalan, Saharanpur, appellant was not juvenile on the date of incident. Thus, it has become final that appellant was not juvenile on the date of incident, he was major.

30. Learned counsel for the appellant has submitted that PW-1 Basant Kumar and PW-2 Mahaveer that they are not the eye witness of the fact that appellant committed rape upon deceased in their presence. He has submitted that both eye witnesses have stated in their cross-examination that when they reached the place of occurrence they saw that appellant was strangulating the deceased. They have also stated that they had not seen appellant committing rape upon deceased nor they had given any such statement to PW-5 S.I. Naresh Pal Singh, the Investigating Officer. He has further submitted that when none of the eye witnesses has said that he had seen appellant committing rape upon deceased, but they have only stated that when after hearing the noise of khar-khar, they went near the place of occurrence they saw that appellant was strangulating the deceased, the charge of rape against appellant cannot be held proved.

31. Learned counsel for the appellant has further submitted that charge of rape against appellant is not proved for other reason also. For this, the learned counsel has drawn our attention towards the report dated 24.7.2014 of the Forensic Science Laboratory. In the said report, it has been stated that clothes worn by the deceased and appellant at the time of alleged incident were examined in the Forensic Science Laboratory and in the said examination blood stains were found on the shirt, jersy and cap of deceased only but no blood or sperm was found on the clothes of the appellant. He has further submitted that report of Forensic Science Laboratory also indicates that no rape was committed upon deceased.

32. He has further submitted that if the offence of rape had been committed upon deceased, then there could be no reason of sperm being found on the clothes worn by the appellant. He has further submitted that in case of offence being committed, sperm ought to have been found in the vaginal swab of deceased where as there is no such evidence on record. Thus, learned counsel has submitted that when it has come in the evidence of PW-1 and PW-2 that they did not see appellant committing rape upon deceased and Forensic Science Laboratory report also indicates that no offence of rape was committed, it belies the prosecution story that appellant took deceased into sugarcane field of Manoj @ Bittu and committed rape upon her before strangulating her to death.

33. Learned counsel for the appellant also submitted that prosecution story that appellant took deceased into sugarcane field of Manoj @ Bittu and committed rape upon her before killing her does not find support from the medical evidence also. He has submitted that both eye witnesses have categorically stated that when they reached near place of occurrence after hearing the noise of khar-khar coming from inside the field, they saw that appellant was strangulating the deceased. However, the medical evidence is otherwise, as according to opinion of doctor as is evident from the post mortem report, Ex.ka-14, death of deceased was caused due to ante mortem smothering and not due to ante mortem strangulation. He has further submitted that had it been a case of strangulation then hyoid bone of deceased would be broken while it was not so in the present case, and this is suggestive of the fact that it was not a case of strangulation but of smothering. Thus, he has submitted that when both eye witnesses have clearly stated that appellant strangulated deceased to death whereas death of deceased is not a case of strangulation but of smothering, it also belies the prosecution story that appellant took deceased into sugarcane field and killed her after committing rape upon her.

34. Learned counsel for the appellant has further submitted that prosecution has made improvement in its case in the statement of PW-2 Mahaveer that before taking deceased to sugarcane field of Manoj @ Bittu appellant came to his shop alongwith deceased and purchased toffee and thereafter went towards the sugarcane field. He has submitted that however, PW-2 has not given such statement to the Investigating Officer which has been recorded after 8 days of the alleged occurrence. In the statements given to Investigating Officer, he has stated that he had seen appellant taking deceased and going towards the sugarcane field in the evening of 7.2.2013 at 6:30 p.m. when he was going towards Chandka from his shop. Learned counsel has further submitted that prosecution has purposely improved its case in the statement of PW-2 so that it should be established that appellant took deceased to sugarcane field and killed her after committing rape upon her. Thus, learned counsel has submitted that improvement made in the prosecution case through PW-2 makes this witness unreliable, therefore, no conviction could be based on his evidence.

35. Learned counsel has further submitted that it is proved from the evidence of DW-1 Smt. Phoolkali and DW-2 Sushil Kumar that appellant was not arrested on the spot as PW-1, PW-2 and PW-3 say, but he was picked up from his home in the morning of 8.2.2013 and falsely implicated in the offence at the behest of PW-2. For this, learned counsel has drawn our attention towards the statement of PW-4 Dr. Virendra Singh, who had examined the injuries of appellant on 8.2.2013 at 10:50 a.m. at C.H.C. Nagal, Saharanpur. PW-4 has said that at the time of medical examination of appellant, two injuries were found on his person and it were fresh i.e. not more than six hours old. He has also said that had injuries been more than six hours old then no redness would be present therein rather they would be bluish. The submission is that duration injuries found on the body of appellant at the time of medical examination also suggests that appellant was picked from his house in the morning of 8.2.2013 and was given beating, and this was the reason that when he was examined at 10:50 a.m. the injuries found on his person were fresh. He has further submitted that when it is established from the evidence of DW-1 and DW-2 coupled with medical evidence that appellant was not arrested on the spot but he was picked up from his home in the morning of 8.2.2013, it belies the whole prosecution story that appellant took deceased into sugarcane field of Manoj @ Bittu in the evening of 7.2.2013 at about 6 p.m. and killed her after committing rape upon her.

36. Learned counsel for the appellant has also submitted that appellant has been wrongly convicted and sentenced under Section 376-A IPC while no charge was framed against him under this section. His submission is that charge against appellant was framed by Additional Sessions Judge, Court N.4, Saharanpur on 11.4.2017 under Sections 376 and 302 IPC and it was never altered or amended under Section 376-A IPC. He has further submitted that the offence under Section 376-A IPC is a graver offence as compared to Section 376, as punishment provided under Section 376-A IPC is death penalty whereas life imprisonment is the punishment for the offence under Section 376.

37. He has further submitted that well settled proposition of law is that no one could be convicted for a graver offence on a charge of minor offence. Elaborating his submission by giving example he has submitted that if an accused has been charged for an offence under Section 304 IPC, he could not be convicted for the offence under Section 302 IPC, however, if the charge is framed under Section 302 IPC, he could be convicted and sentenced under Section 304 IPC. Thus, he has submitted that in the facts and circumstances of the case, since no charge under Section 376-A has been framed against appellant, rather charge framed is under Section 376 IPC, appellant cannot be convicted under Section 376-A IPC as this offence is punishable with capital sentence and, since appellant has been convicted for the offence under Section 376-A IPC, while charge framed is under Section 376 IPC, the finding of learned Additional Sessions Judge convicting and sentencing appellant under Section 376-A IPC is wholly illegal and needs to be quashed.

38. Per contra, learned AGA has submitted that it is true that PW-1 and PW-2 have stated that they had not seen appellant committing rape upon deceased rather they have said that when they reached the place of occurrence, they saw that appellant was killing the deceased. However, it is established from the evidence of PW-2 that he had seen appellant taking deceased towards the sugarcane field, as before proceeding towards sugarcane field, appellant alongwith deceased had come to his shop and purchased toffee for the deceased. He has further submitted that it is also established from the evidence of PW-1 and PW-2 that appellant killed deceased. It has come in the evidence of PW-2 that when he alongwith PW-1 entered the sugarcane field after hearing the noise of ‘khar-khar’ and reached near the place of occurrence, he saw that appellant was pressing the neck of deceased with one hand and her mouth with other hand. Thus, he has submitted that it is established from the evidence of PW-1 and PW-2 that appellant took deceased into sugarcane field and killed her after committing rape upon her.

39. Learned AGA submitted that it is evident from the post mortem report Ex. Ka-14 and statements of PW-7 Dr. Rajesh Kumar Tiwari, who had conducted post mortem on the dead body of the deceased, that there was multiple abraded contusion on both sides of face, upper and lower lip, chin and upper part of neck and nose of the deceased and there was also laceration in her vagina, urethra and uterus of deceased at 6’o clock position and clotted blood in and around vagina was also present. He submitted that finding of laceration in vagina, urethra and uterus of deceased at 6’o clock position alongwith clotted blood is strong indication of the fact that deceased was raped before being killed and, when it is established from the evidence that in between the period deceased was taken into sugarcane field and she was killed she remained with appellant, the only thing that could be inferred is that it was appellant who committed rape upon her before killing her.

40. He has also submitted that during cross-examination of PW-7 Dr. Rajesh Kumar Tiwari a question was put to him if injury No.2 could possibly be the result of sexual assault and his answer of the question was in affirmative which clearly suggests that laceration found in vagina, urethra and uterus of deceased was the result of sexual assault and not for any other reason.

41. Learned AGA has further submitted that though in chemical examination, no blood stain has been found on the clothes worn by the appellant at the time of alleged incident and no sperm has found in smegma taken from his penis, however, possibility of deceased being raped before being killed could not be ruled out on this reason. He submitted that presence of laceration in vagina, urethra and uterus of appellant at 6’O clock position alongwith clotted blood in and around vagina strongly suggests that deceased was raped before being killed. Further, there could be no other purpose of appellant taking deceased to sugarcane field and killing her.

42. The learned AGA has also submitted that submission of learned counsel for the appellant has no merit that eye witness account of PW-1 and PW-2 is not supported with medical evidence. It is established from the evidence of PW-7 Dr. Rajesh Kumar Tiwari as well as post mortem report Ex. Ka-14that death of deceased was caused due to asphyxia as a result of smothering. Evidence given by PW-2 Mahaveer in this regard is very clear that when he alongwith PW-1 reached the place of occurrence he saw that appellant was pressing the neck of deceased with one hand and her mouth with his other hand. He submitted that if mouth of two and half year old girl is pressed by an adult with his hand, the death of child may be caused due to smothering. Thus, he submitted that this argument of learned counsel for the appellant also has no leg to stand that eye witness account of PW-1 and PW-2 is not supported with medical evidence and therefore, the same is not reliable.

43. As regards improvement made in the prosecution case, learned AGA submitted that prosecution has not made any improvement in its case through statement of PW-2. He has submitted that it is incorrect to say that PW-2 has given false statement that in the evening of 8.2.2013 at about 6-6:15 p.m. appellant alongwith deceased came to his shop and after purchasing toffee from the shop went towards sugarcane field of Manoj @ Bittu. He has submitted that first information report of the incident has been lodged within 2 hours 15 minutes of the incident and it has been stated therein that appellant lured the deceased and took her to sugarcane field of Bittu on the pretext of providing toffee to her and while taking her inside the field, he killed her after committing rape upon her. He has further submitted that alleged improvement is nothing but a variation in statements given to Investigating Officer and in Court. However, the said variation is not such so that the same may be called improvement and prosecution story may be treated doubtful. He has further submitted that settled position of law is that in case of variation in statements of a witness given to Investigating Officer and in Court, latter will be believed.

44. The learned AGA has also submitted that there appears to be no reason to believe that appellant was not arrested on the spot and handed over to the police of Police Station Nagal in the night of 7.2.2013, but he was picked up from his home in the morning of 8.2.2013. He submitted that PW-6 Constable Arun Kumar, who has proved the chick report Ex. Ka-9 and G.D. relating to lodging of FIR Ex. Ka-10, has stated that informant Basant Kumar alongwith Roop Kumar, Meenu Kumar and appellant came to Police Station in the night of 7.2.2013 and handed over the appellant to him and lodged the First Information Report. He has further submitted that he had registered the FIR on the basis of written report Ex. Ka-1 which Basant Kumar had brought with him. He has also stated that he had taken search of appellant before keeping him into police lock-up and he had then noticed injury on his forehead and left temple region and had noted the same in the General Diary of police station also. He has also stated that he had asked the appellant about the injuries who present on his person and appellant had told that it were caused by the villagers. Learned AGA has submitted that no cross-examination has been made from this witness about the aforesaid statements and in absence thereof, prosecution would be believed that appellant was arrested on the spot and taken to concerned Police Station same night where he was kept in the police lock-up and after his arrest, he was given beating in the village by the village people. He has submitted that in view of this factual position, if PW-4 Dr. Virendra Singh has said that injuries on the person of appellant were not more than six hours hold, the same being merely an opinion of doctor will not be preferred over oral evidence of PW-1, PW-2 and PW-3 who have said that appellant was arrested on the spot while he was pressing the neck of deceased from his one hand and her mouth with his other hand inside the sugarcane field.

45. We have thoroughly examined the statements of PW-1 and PW-2 who have categorically stated that when they reached the sugarcane field of Manoj @ Bittu in search of deceased, they heard the noise of khar-khar coming out from inside the field. They have also categorically stated that when after hearing the aforesaid noise, they entered into the field and went towards the direction of noise and reached near the place of occurrence, they saw that appellant was killing the deceased. PW-2 has categorically stated that appellant was pressing the neck of deceased with one hand and her mouth with his other hand. This witness has also stated that before having proceeded towards the sugarcane field in search of deceased, father of the deceased had come to his shop and inquired him about his daughter and he had then told him that he had seen appellant taking his daughter towards the sugarcane field of Manoj @ Bittu. Thus, it is fully established from their evidence that it was appellant who took deceased into sugarcane field and killed her. It is also established from the evidence of PW-7 Dr. Rajesh Kumar Tiwari who had conducted post mortem on the dead body of the deceased that deceased was having two ante mortem injuries on her person and one of the injuries was laceration in her private parts and clotted blood was also present there. From this, it is also established that deceased was sexually assaulted before being killed.

46. Now the question is as to who sexually assaulted deceased and the answer of this question is very simple that it is appellant who sexually assault her. This is because it was appellant who took deceased into sugarcane field and killed her and in between the period he took deceased into sugarcane field and killed her, deceased remained with him and not with anybody else. When it is established that appellant took deceased into sugarcane field and PW-2 Mahaveer had seen him taking decased towards the sugarcane field, and it is also established that appellant was seen killing deceased by pressing her neck with his one hand and her mouth with the other hand, and the medical evidence strongly suggests that deceased was sexually assaulted before being killed, in the given circumstances, no other interference could be drawn but that appellant, who is a young boy in order to satisfy his lust took deceased, a two and half year old child into sugarcane field on the pretext of providing toffee to her and committed rape upon her before killing her.

47. The plea taken by the learned counsel for the appellant that PW-1 and PW-2 are not the eye witness of the fact that appellant committed rape upon the deceased and, therefore, the charge of rape could not be proved against the appellant is not acceptable at all. The fact and circumstances of the case clearly suggest that it was appellant who took deceased into sugarcane field and killed her. He had sexually abused her also before killing her because had deceased been not sexually abused, no laceration would be found in her private part and clotted blood would also not be present in and around the private part.

48. Appellant cannot be given the benefit of report of Forensic Science Laboratory also in which no blood stains have been found on the clothes of the appellant, and the report of S.B.D. District Hospital, Saharanpur in which it has been said that no spermatozoa was found in the smegma taken from the penis of the appellant. The alleged incident had taken place in the evening of 7.2.2013 at 6 p.m. whereas slide of smegma was prepared on 8.2.2013 at 10:50 p.m. in C.H.C Nagal and there being a long interval between these two periods, there is possibility of appellant having attended the natural call and while doing so he would have washed his private parts with water.

49. It is incorrect on the part of appellant to submit that eye witness account of PW-1 and PW-2 is not corroborated with medical evidence, as in medical evidence it has been said that death of deceased was caused due to smothering and not due to strangulation. The statements of PW-2 Mahaveer is very clear on this point who has said that death of deceased was caused due to pressing her neck and mouth. Had it been a case of prosecution that deceased was only strangulated then appellant could be given the benefit of cause of death shown in the post mortem report. But when prosecution has come up with a clear case that when the fact witnesses reached near the place of occurrence, they saw that appellant was pressing the neck of deceased with one hand and her mouth with other hand, and the death of deceased has been caused due to ante mortem smothering, the eye witness account gets full support with medical evidence also and appellant’s contention that medical evidence being contrary to what eye witness say, prosecution story becomes unreliable is not tenable.

50. When we look at the statement of PW-2 Mahaveer, we find that there is nothing his statement which could suggest that prosecution has improved its case. The case of prosecution from the very beginning is that appellant took deceased into sugarcane field on the pretext of providing toffee to her and after having committed rape upon her, he killed her. In the First Information Report which has been lodged within two hours and fifteen minutes of the incident, it has been specifically stated that appellant had lured deceased of providing toffee to her and he took her to the sugarcane field. PW-2 Mahaveer has also said the same things in his statement as he has said that appellant came to his shop in the evening of 7.2.2013 at 6-6:15 p.m. taking deceased with him and after purchasing toffee from his shop, he went towards the sugarcane field of Bittu. He has further stated that after sometime, PW-1 came to his shop and inquired from him about his daughter and then he informed him that appellant had taken his daughter towards the sugarcane field. Thereafter, they both went to the sugarcane field and when after hearing the noise of khar-khar coming from inside the field, they entered the field and went towards the place from where the sound was coming, they saw that appellant was pressing the neck of deceased with his one hand and her mouth with other hand. There is no discrepancy in the FIR and statements of PW-2 Mahaveer so that it could be said that prosecution has developed a new story in evidence by way of statements of PW-2. Though, there is some variation in the statements given to Investigating Officer and that given in Court, but the same is not such so that prosecution story may be disbelieved saying prosecution has improved its case. Thus, so far as the alleged improvement in the prosecution story is concerned, appellant cannot be given any benefit of this, nor on account of alleged improvement, prosecution story would be disbelieved.

51. We have gone through the statements of DW-1 Phoolkali and DW-2 Sushil Kumar also and we find that they being mother and father of the appellant have given false evidence that appellant was picked up from his home in the morning on 8.2.2013. This has been the case of prosecution from beginning that after spot arrest appellant was taken to the gher of PW-1 where people of the village had already gathered who inflicted injuries to him before he was taken to police station and handed over there to police. The fact that appellant was taken to police station Nagal in the night of the incident itself and was kept in the police lock-up is proved from the evidence of PW-6 Constable Arun Kumar. This witness has said that appellant was brought to the police station in the night of 7.2.2013 at 8:15 p.m. by first informant PW-1 Basant Kumar, Anoop Kumar, Meenu Kumar and handed over to him who after taking personal search of him, kept him in the lock-up of the police station. He has further said that during personal search, he had noticed some injuries on the person of appellant and he had asked him about those injuries to which he has said it were caused by the village people. The injuries found on the person of appellant has been mentioned in the G.D. of police station also. No cross-examination has been made on this point from PW-6 from the side of the appellant. Therefore, in view of specific statements given by PW-6 and he being not cross-examined, it would be believed that appellant was not lifted from his home in the morning of 8.2.2013, but he was arrested on the spot at the time of incident and taken to police station same night at 8:15 p.m. where he was kept in police lock-up and the injuries he had were inflicted to him by the villagers after arrest. The opinion given by PW-4 Dr. Virendra Singh that injuries present on the person of appellant were not more than six hours old is simply an opinion and it cannot be preferred over ocular testimonies.

52. On a careful consideration of testimonies of PW-1, PW-2 and PW-3 together with medical evidence, it appears that prosecution has been able to prove that appellant took deceased into a sugarcane field in the evening of 7.2.2013 at about 6 p.m. and sexually abused her before pressing her neck and mouth with the help of his hands as a result she died. It further appears that learned Additional Sessions Judge after having considered the entire facts and circumstances of the case as well as evidence brought on record has held appellant guilty for the offence of rape murder, with rape.

53. On perusal of record, it appears that First Information Report against appellant was lodged under Sections 376 and 302 IPC and after investigation, charge sheet was also submitted against him in those sections only. It further appears that charges were also framed against appellant under those sections i.e. 376 and 302 IPC on 11.7.2013 and appellant was tried for the same. The charge was never altered under Section 376-A IPC which is a graver offences than the offence under Section 376-A IPC, as offence under Section 376-A is punishable with death whereas offence under Section 376 IPC is punishable with life imprisonment only. When the charge was framed against appellant under Section 376 IPC, and not against under Section 376-A IPC, which is a graver offence, the learned Additional Sessions Judge could not have held appellant guilty for the offence under Section 376-A IPC and awarded him capital sentence for the said offence. The order of learned Additional Sessions Judge convicting and sentencing appellant under Section 376-A IPC while no charge was framed under that Section is not legal. The settled proposition of law as provided under Section 222 of the Code of Criminal Procedure is that charge framed against accused is of graver offence but the charge which has been proved against him is of a minor offence, he can be convicted and sentenced for the minor offence, however, it would not be applicable in the same way if the charge has been framed for a minor offence but the charge found to be proved is of graver offence. Since, no charge had been framed against appellant under Section 376-A IPC, but the charge framed was under Section 376 IPC only, even if from the facts and evidence the charge under Section 376-A IPC was proved, appellant could not be held guilty and sentenced for the said offence but he could be convicted and sentenced for the offence under Section 376 IPC only. Therefore, the order of learned Additional Sessions Judge convicting and sentencing appellant for the offence under Section 376-A cannot be upheld. Accordingly, conviction and sentence of appellant is set aside, instead he is held guilty under Section 376 IPC and sentenced with imprisonment for life and to pay Rs.5,000/- fine and in default to undergo simple imprisonment for three months for the said offence. Impugned judgment and order, so far as Section 376 IPC is concerned, stands modified accordingly.

54. It has been argued before us by learned counsel for the appellant that punishment of death penalty provided to appellant for the offence under Section 302 IPC is an extreme penalty, as facts and circumstances of the case do not warrant such penalty. He has submitted that appellant had taken the plea of jevenility during trial saying he being not of 18 years of age on the date of alleged incident, he should be treated juvenile and his matter be referred to Juvenile Justice Board for trying his case, but the said plea was not accepted by the learned Additional Sessions Judge and revision preferred against the order of learned Additional sessions Judge has also been dismissed by this Court. However, the fact remains that appellant was hardly 19 years old when offence is said to have been committed. He has further submitted that appellant is not a habitual offender as he has no criminal antecedents and the offence for which he has been held guilty is his first offence. He has further submitted that though offences committed by the appellant is serious and heinous in nature, but the facts and circumstances of the case are not such so that it could be said to be of rarest rare category and death penalty could be awarded. He has further submitted that looking to age and conduct of appellant in jail, there is possibility of rehabilitation and reformation and, if provided with opportunity, he may be back to main stream of the society. Learned counsel has thus submitted that learned Additional Sessions Judge has failed to take all these aspects into account and has awarded death penalty for the offence which is an extreme penalty and could be provided in rarest of rare case only. Thus, he submitted before us that matter of death penalty of the appellant be considered in the perspective of the aforesaid contentions and death penalty provided to him for the offence of committing murder of deceased be reduced to life imprisonment.

55. In reply, learned Additional Government Advocate submitted that it is true that appellant was only 19 years old when the offence was committed and also there is nothing on record to suggest that he has any criminal antecedents. However, looking to age of the deceased and the way she was treated before being killed, capital punishment provided to appellant is the adequate punishment provided to him.

56. In the case of Mohd. Chaman Vs. State (NCT of Delhi) 2001 SCCrR, 473, the Apex Court has held that the extreme penalty can be inflicted only in the gravest case of extreme culpability as pre-planned calculated cold blooded murder and like that. The Apex Court has further held that life imprisonment is the rule and death sentence is a exception and that for awarding death punishment, the circumstances should be such that there is no alternative but to impose this penalty. The Apex Court has further held that humanist approach should be taken in the matter of providing punishment. Paras 15,16, 20, 24 25 of the judgment which are relevant in this regard are given below:-

(15) Reiterating the principles laid down in Jagmohan vs. State of U.P. this Court held (at SCC p. 748, para 197) that: the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also.

(16) Noticing some of the aggravating circumstances this Court observed that: pre-planned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind. Some other aggravations were enumerated in para 202 of the Judgement.

After enumerating the circumstances, this Court added:

“Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.”

(20) This Court in the background of the guidelines indicated in Bachan Singh case (supra) formulated the following propositions for application to the facts of each case for determination of the question (at p.489):

“(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.

In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?”

(24) Coming to the case in hand, the crime committed is undoubtedly serious and heinous and the conduct of the appellant is reprehensible. It reveals a dirty and perverted mind of a human-being who has no control over his carnal desires. Then the question is: whether the case can be classified as of a ‘rarest of rare category justifying the severest punishment of death. Testing the case on the touchstone of the guidelines laid down in Bachan Singh (supra), Machhi Singh (supra) and other decisions and balancing the aggravating and mitigating circumstances emerging from the evidence on record, we are not persuaded to accept that the case can be appropriately called one of the ‘rarest of rare cases deserving death penalty. We find it difficult to hold that the appellant is such a dangerous person that to spare his life will endanger the community. We are also not satisfied that the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the offender. It is our considered view that the case is one in which a humanist approach should be taken in the matter of awarding punishment.”

(25) Accordingly, the capital sentence imposed against the appellant by the Courts below is set aside, instead the appellant shall suffer rigorous imprisonment for life. Subject to the above modification of sentence, the appeals filed by the accused are dismissed.

57. The Apex Court in the case of “Rameshbhai Chandubhai Rathod (2) vs. State of Gujrat (2011) 1 Supreme Court cases (Cri) 883 (2011) 2 Supreme Court cases 764” has held that while awarding the sentence of death penalty in rarest of rare cases, the Court should also take into account the possibility of rehabilitation and reformation of the offender. Paras 9 to 12 of the judgment relevant in this regard are given as under :-

(9) Both the Hon’ble Judges have relied extensively on Dhanonjoy Chatterjee’s case (supra). In this case the death sentence had been awarded by the trial court on similar facts and confirmed by the Calcutta High Court and the appeal too dismissed by this Court leading to the execution of the accused. Ganguli,J. has, however, drawn a distinction on the facts of that case and the present one and held that as the appellant was a young man, only 27 years of age, it was obligatory on the trial court to have given a finding as to a possible rehabilitation and reformation and the possibility that he could still become a useful member of society in case he was given a chance to do so.

(10) We are, therefore, of the opinion that in the light of the findings recorded by Ganguli,J. it would not be proper to maintain the death sentence on the appellant. At the same time the gravity of the offence, the behaviour of the appellant and the fear and concern such incidents generate in ordered society, cannot be ignored. We, therefore, feel that a via-media ought to be adopted in the light of the judgment of this Court in Ramraj v. State of Chattisgarh and Mulla v. State of U.P. In these two cases, this Court has held that the term “imprisonment for life” which is found in Section 302 IPC, would mean imprisonment for the natural life of the convict subject to the powers of the President and the Governor under Articles 72 and 161 of the Constitution of India or of the State Government under Section 433-A of the Code of Criminal Procedure.

(11) In Mulla’s case, this Court has said : (SCC p. 538, paras 85-87)

“85. “We are in complete agreement with the above dictum of this Court. It is open to the sentencing court to prescribe the length of incarceration. This is especially true in cases where death sentence has been replaced by life imprisonment. The court should be free to determine the length of imprisonment which will suffice the offence committed. Thus we hold that despite the nature of the crime, the mitigating circumstances can allow us to substitute the death penalty with life sentence.

“86. Here we would like to note that the punishment of life sentence in this case must extend to their full life, subject to any remission by the Government for good reasons.

“87. For the foregoing reasons and taking into account all the aggravating and mitigating circumstances, we confirm the conviction, however, commute the death sentence into that of life imprisonment. The appeal is disposed of accordingly.”

In arriving at its conclusion, the Court relied on similar observations made in the case of Ramraj.

(12) We are, therefore, of the opinion that the appellant herein ought to be awarded a similar sentence. We accordingly commute the death sentence awarded to him to life but direct that the life sentence must extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons.

58. In the case of “Rahul @ Raosaheb vs. State of Maharashtra, 2005 Supreme Court cases (CRi) 1516” the Apex Court has held that while awarding sentence in a case of murder with rape of minor girl, the age of the offender should also be taken into account and death penalty should be awarded only when there would be evidence to the effect that offender would be a menace to the society in future. Paras 2 to 5 of the judgment relevant in this regard are given here as under :-

” (2) We have heard counsel for the appellant and also the counsel for the State of Maharashtra. The prosecution case, in short, is that the appellant enticed a girl aged 4-1/2 years and took her to a deserted place and committed rape and later caused her death by inflicting injuries on her throat. The dead body was wrapped in a gunny bag and left in a pit near a stream. On the next day, the gunny bag was found and the gruesome murder came to light.

(3) In the Sessions Court, the prosecution relied on the extra-judicial confession, medical evidence and also the fact that the appellant was found in the company of the deceased in the evening of 24.11.1999. The counsel for the appellant submits that the appellant was aged 24 years at the time of the crime and there was also evidence to the effect that he was in a drunken state and having regard to all attendant circumstances of the case, the appellant may not be visited with the extreme penalty. The counsel for the respondent submitted that the appellant committed an offence of the most heinous nature as he committed rape and then caused the death of the child by inflicting cut injury on the neck and the body was put in the gunny bag with hands and legs tied and these facts show the perversity and depravity of mind of the appellant and prayed that death penalty imposed on the appellant be confirmed.

(4) We have considered all the relevant aspects of the case. It is true that the appellant committed a serious crime in a very ghastly manner but the fact that he was aged 24 years at the time of the crime, has to be taken note of. Even though, the appellant had been in custody since 27.11.1999 we are not furnished with any report regarding the appellant either by any probationary officer or by the jail authorities. The appellant had no previous criminal record, and nothing was brought to the notice of the Court. It cannot be said that he would be a menace to the society in future. Considering the age of the appellant and other circumstances, we do not think that the penalty of death be imposed on him.

(5) In the result, we confirm the conviction of the appellant on all the counts but for the sentence of death imposed on him u/s. 302 of the Indian Penal Code, we commute the death sentence to life imprisonment”.

59. In the case of “Birju vs. State of Madhya Pradesh (2014) 3 Supreme Court cases (Cri) 421” the Apex Court has held that while awarding death sentence the aggravating circumstances and criminal antecedents of the offender should be taken into account.

54. In the case of “Ram Deo Prasad vs. State of Bihar [2013 (82) ACC 423] (Supreme Court)” the Apex Court has held that though the offence committed by the accused may be heinous and revolting but the nature of the offence may not be the determining factor for determining the case to be rarest of the rare category. Para 39 of the judgment is relevant in this regard which is as under :-

39. “There can be no doubt that the offence committed by the appellant is heinous and revolting but the nature of the offene alone may not in all cases be the determining factor for bringing the case in the “rarest of rare” category and to impose the ultimate and irreversible punishment of death. There are certain features of this case which are not to be found in Wasnik’s case and make the present case distinguishable from the decision relied upon by Mr. Khan”.

60. In the case of “Tattu Lodhi @ Pancham Lodhi vs. State of Madhya Pradesh 2016 (2) SCCrR. 1315” the Apex Court has held that even in a case where deceased, a helpless child fell victim of lust at the at the hands of appellant, appellant may be inflicted the punishment of imprisonment for life with further direction that he shall not be released till he completes actual period of 25 years of imprisonment.

61. After having given thoughtful consideration to the aforesaid pronouncements of the Apex Court and also the facts and circumstances of the case, the nature of the offence, the manner in which the offence was committed, the age of helpless deceased who fell victim of lust at the hands of appellant, the age of appellant being 19 years at the time of offence and also that he has no previous criminal antecedents and also that there is still possibility of rehabilitation and reformation and, if provided with opportunity, he may be brought to the main stream of society, we find that the present case do not fall in the rarest of the rare category so that capital punishment awarded to him by the learned Additional Sessions Judge may be confirmed. We are also of the view that instead of confirming death penalty, appellant should be sentenced with imprisonment for life with a further direction that he shall not be released from prison till he completes 25 years of actual period of imprisonment.

62. We accordingly modify the conviction of appellant under Sections 376-A and 302 IPC to Sections 376 and 302 IPC and order him to undergo imprisonment for life and to pay Rs.5,000/- as fine and in default to undergo three months simple imprisonment for the offence under Section 376 IPC and to undergo imprisonment for life and to pay Rs.5,000/- as fine and in default to undergo three months simple imprisonment for the offence under Section 302 IPC. with further direction that appellant shall not be released from the prison till he completes 25 years of actual imprisonment and both sentences shall run concurrently.

63. With the aforesaid modification, the appeal stands dismissed.

64. Appellant who is already in jail shall remain in jail to serve out the punishment awarded to him.

65. The Registrar General is directed to send a certified copy of the judgment of this Court to Sessions Judge, Saharanpur for information and necessary follow-up action.

(Umesh Chandra Srivastava, J.) (Ramesh Sinha, J.)

Order date: 30.5.2017

Rishabh