SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

In Reference vs Rabbu @ Sarvesh on 17 January, 2019

-1- Cr.R. No.12/2018
Cr.A. No.6748/2018

HIGH COURT OF MADHYA PRADESH, JABALPUR
DIVISION BENCH: BEFORE HON’BLE SHRI JUSTICE P.K.JAISWAL
HON’BLE SHRI JUSTICE B.K.SHRIVASTAVA
Criminal Reference No.12/2018
In Reference
Vs.
Rabbu alias Sarvesh

Criminal Appeal No.6748/2018
Rabbu alias Sarvesh
Vs.
State of Madhya Pradesh
_
Shri Alok Vagrecha, Advocate and Shri Amit Jain, Advocate for the appellant.
Shri S.K.Rai, Government Advocate for respondent/State.

JUDGMENT

(17.01.2019)

Per : B.K.Shrivastava, J.

1. Reference No.12/2018 dated 20.08.2018 has been made by First
ASJ, Bina, District Sagar, alongwith the proceedings and record for
confirmation of death sentence as provided under Section 366(1) of the
Code of Criminal Procedure 1973, while the Criminal Appeal
No.6748/2018 has been preferred by the accused/appellant Rabbu alias
Sarvesh who has been convicted by the judgment dated 20.08.2018 passed
by First ASJ, Bina, District Sagar in Special Case No.01/2018 for the
offence under
Sections 450, 376(2)(i), 376(D), 376(A) of IPC and Section
5(g)/6 of POCSO Act and sentence as under:-

Conviction under Section Sentence
450 of
IPC 10 years R.I with fine of Rs.100/- in
default 1 month R.I.
376(D) of
IPC Life Imprisonment with fine of Rs.100/-
in default 1 month R.I
376(A) of
IPC Death penalty/capital punishment with
fine of Rs.100/- in default 1 month R.I.
302 of
IPC Death penalty/capital punishment with
fine of Rs.100/- in default 1 month R.I.
-2- Cr.R. No.12/2018
Cr.A. No.6748/2018

2. In this case, as per prosecution, another co-accused was also
involved but who was juvenile, therefore, separate challan has been filed
against him before the Juvenile Justice Board. Name of the aforesaid
juvenile is not mentioned in this judgment, he will be referred as
“juvenile” in this judgment.

3. As per prosecution case on 07.12.2017 at about 08:30 P.M. in the
night when the prosecutrix was watching T.V in her residence at village
Deval, Police Station Bhangarh, District Sagar (M.P.), appellant with
juvenile reached there and asked her for drinking water. Thereafter both
entered in the room of the prosecutrix and shown blue film in their mobile
to the prosecutrix and both the accused committed rape with the
prosecutrix and thereafter when the prosecutrix told them that she will tell
the incident to her parents, then the juvenile poured kerosene oil on the
prosecutrix and the present appellant set her on fire. Prosecutrix ran away
towards outside of her house. Her grand father and other persons any how
tried to control the fire. She narrated the entire story to her grand father
and witnesses Priti and Sandeep. Thereafter prosecutrix was rushed to the
Civil Hospital, Bina. Doctor conducted MLC and also informed the police
authority.

4. The Police reached to Bina Hospital and recorded Dehat Nalishi
(Ex.P/28) upon the information given by the injured. Naib Tahsildar
Sangeeta Mehto also called by Police, who recorded the statement
(Ex.P/26) of the injured. For further treatment the injured girl was send to
the Bhundelkhand Medical Hospital, Sagar. On 09.12.2017 Judicial
Magistrate, Sagar, Smt. Suchita Shrivastava also recorded the statement of
injured girl under
Section 164 of Cr.P.C (Ex.P/44). During treatment the
injured girl expired on 14.12.2017 at about 07:10 A.M. The doctor sent the
information to the Police thereafter the police reached on the spot and
offence under
Section 302 of IPC also enhanced. Police issued the notice
(Ex.P/2) to the witnesses, thereafter prepared the inquest Panchnama
(Ex.P/3) and sent the dead body for postmortem. Merg No.00/2017
(Ex.P/1) registered at Medical Police Chowki, Sagar and upon the basis of

-3- Cr.R. No.12/2018
Cr.A. No.6748/2018

aforesaid merg original Merg No.41/2017 was registered at Police Station
Bhangarh. Police collected the MLC report and documents related to
treatment. Police investigated the matter and recorded the statements of
several witnesses and arrested the accused persons and sent them for
medical examination. The DNA sample also taken by the doctor and the
samples were sent for medical examination and FSL examination.

5. After investigation the Police came to the conclusion that the accused
and the juvenile both committed the rape upon the prosecutrix and
thereafter the juvenile poured kerosene oil upon the girl and present
appellant set her ablaze. Therefore, challan No. 259/2017 filed before the
JMFC on 29.12.2017, who registered the Criminal Case No.872/2017 and
committed the case to the Court of Sessions where special Sessions Trial
No.01/2018 registered in Sessions Court Sagar on 12.01.2018 and the case
was made over to the ASJ, Bina, who framed the charges against the
accused on 09.02.2018 under
Sections 449, 293, 376(D) alternatively
376(2)(i), 376(A), 302/34 and 201/34 of
IPC and Section 5(g)/6 of
POCSO Act. The accused persons denied the charges and demanded for
trial. Thereafter prosecution examined 24 witnesses in support of its case.
Two witnesses examined by the accused in their defence.

6. After conclusion of the trial the First ASJ, Bina passed the judgment
on 20.08.2018 and convicted the accused for the offence punishable under
Sections 450, 376(2)(i), 376-D, 376(A) and 302/34 of IPC and 5(g)/6 of
POCSO Act. The trial Court acquitted the appellant for the offence under
Sections 293 and 201 of IPC. After hearing upon the sentence the trial
Court passed the sentence as stated in para-1 of this judgment. The reason
for non awarding sentence in some offence has been mentioned in para 56
to 65 in the impugned judgment. Therefore, the appellant has been
convicted and sentenced only for the offence under
Sections 450, 376-D,
376(A) and 302 of IPC.

7. The trial Court, after passing the judgment referred the case for
confirmation of death sentence under
Section 366 of Cr.P.C. The
accused/appellant also filed the appeal against the judgment impugned. It
is submitted by the learned counsel for the appellant that the case was not

-4- Cr.R. No.12/2018
Cr.A. No.6748/2018
proved beyond reasonable doubt against the appellant. The evidence of
PW-1, PW-13 and PW-14 was not reliable. The dying declaration recorded
by Naib Tahsildar and Judicial Magistrate are suspicious and the said
dying declarations are not given by the deceased in fit mental condition.
The Dehat Nalishi was not recorded upon the information given by the
deceased. Therefore, no any dying declaration was reliable. The accused
has been falsely implicated in this case. No independent witnesses have
been examined. Therefore, the judgment passed by the trial Court is liable
to be set-aside and the appellant is entitled to get acquittal.

8. On the other, side State strongly opposed the appeal. It is submitted
by the State that the incident took place on 07.12.2017. The deceased
survived upto 14.12.2017. Her mental condition was fit. She herself
scribed Dehat Nalishi to the Police and she herself given the statement to
Naib Tahsildar as well as Judicial Magistrate. All dying declarations
indicate that both the accused committed the rape with the deceased and
also committed murder by setting her ablaze. Therefore, this appeal having
no force, hence liable to be dismissed.

9. In this case the prosecution relied upon the oral dying declaration
given by the deceased to PW-1, PW-2, PW-13 and PW-14. In addition to
the aforesaid oral dying declaration the prosecution also relied upon the
Dehat Nalishi (Ex.P/28). Dying declaration (Ex.P/26) recorded by Naib
Tahsildar and the statement of deceased (Ex.P/44) recorded by the Judicial
Magistrate First Class. All three statements shows that both the accused
committed rape upon the prosecutrix and also set her ablaze. Due to death
of the deceased, all three statements have come in the purview of “dying-
declaration” and having weightage in the evidence.

10. First we see the oral dying declarations made by the deceased to
PW-1, PW-2, PW-13 and PW-14. Sohan Singh (PW-1) is the grand father
of the prosecutrix/deceased, who was undisputedly present in the house at
the time of incident on 07.12.2017. This witness said that after taking the
meal he was sleeping and the deceased was in her room and watching
T.V. The juvenile came and said that he wants some water and knocked the
door of the room of the deceased. As per statement of this witness the

-5- Cr.R. No.12/2018
Cr.A. No.6748/2018

accused when set ablaze the prosecutrix then she ran away after opening
the door and cried and at that time the witness and other persons put
“Kathari” upon the body of the deceased and lay down in the Dehlan. The
prosecutrix told the witness and other persons that she was watching T.V
in her room, at that time the juvenile and appellant knocked her door for
taking the water, when she opened the door the appellant gagged her
mouth and juvenile removed the clothes of prosecutrix and committed
rape. Thereafter juvenile gagged the mouth of the prosecutrix and the
appellant Rabbu committed the rape upon her. Katti of kerosene oil was
kept in the courtyard and juvenile poured the kerosene oil upon the
deceased and Rabbu set her ablaze by match box. Witness Sohan Singh
again said that upon his instigation his nephew Sandeep informed the
Police. Thereafter Narayan Singh, Sub Inspector reached there in the night
at about 09:00 P.M. and Ambulance also reached. Thereafter they took the
prosecutrix to the hospital, Bina from there she was referred to Sagar. In
Sagar hospital she was admitted for 7 days and expired on 14.12.2017.

11. Therefore, it appears from the statement of Sohan Singh (PW-1) that
just after incident when the prosecutrix came out from the room with
burning, at that time she narrated the entire incident to the witness and
other persons. Mukund Singh (PW-2) also supported the aforesaid version.
He said that he was sleeping in his house and after hearing the crying
sound of prosecutrix, he came out from the house and saw that prosecutrix
was in burning position and coming out from her house. They all
controlled the fire. Thereafter prosecutrix told that juvenile and Rabbu
both knocked her door upon the pretext of water and at that time she was
watching T.V., when she opened the door Rabbu gagged her mouth and
juvenile removed her clothes from her lower part of body and committed
rape and after that juvenile gagged her mouth and Rabbu committed rape
with her. In para-2 of the statement of witness he said that the deceased
also told that when she said the accused persons that she will tell the
incident to her family then juvenile poured kerosene oil upon her body and
Rabbu set her ablaze by match box. This witness is also resident of same
locality.

12. Preeti (PW-13) and Sandeep Singh Rajpoot (PW-14) are aunt and

-6- Cr.R. No.12/2018
Cr.A. No.6748/2018
uncle of the deceased. Both are residents of nearby house of prosecutrix.
Preeti said in her statement that resident of the deceased situated just after
one house from the house of witness. The witness heard the cry of the
deceased at about 8:00 – 8:30 P.M. in the night of 07.12.2018. The witness
came out from her house with her husband and saw that the deceased was
burning and crying loudly. The witness tried to extinguished the fire by
putting blanket, but could not controlled the fire, then Sandeep and Golu
poured water upon the deceased, thereafter the fire was controlled. when
the witness asked about the fire incident the deceased told her that she was
watching T.V in her room, at that time both the accused entered in the
house and asked for water and thereafter both committed rape. The same
incident has been narrated by the witness as deposed by Sohan Singh (PW-

1), Mukund Singh (PW-2). Sandeep Singh Rajpoot (PW-14) also
supported the statement of her wife and said the same fact.

13. Therefore, it appears that, all four witnesses are telling the same
story. When the deceased came out from the house with burning flame, all
four witnesses tried to save her and control the fire. Thereafter deceased
narrated the entire story to all four witnesses. As per that story both the
accused entered in the room of the prosecutrix and committed rape upon
her. Thereafter juvenile poured kerosene oil upon the deceased and Rabbu
alias Sarvesh set her ablaze.

14. The aforesaid all four witnesses have been cross examined by the
defence. In para-7 of statement of Sohan Singh the defence given the
suggestion that the deceased herself poured the kerosene oil because the
witness prohibits her from watching the T.V. The witness denied the
aforesaid suggestion. No other material omission or contradiction is found
in the entire evidence of the aforesaid witness. Mukund Singh (PW-2)
admitted in para-5 that the juvenile runs a small shop for selling ghutkha
etc. near by house of prosecutrix. He denied the suggestion that the
juvenile used to come frequently in the house of prosecutrix and both were
having any relationship. He also denied the suggestion in para-6 that the
prosecutrix did not narrate the incident to her. He denied in para-9 of the
statement that the deceased was having illicit relationship with the juvenile
and Sohan Singh saw them in objectionable condition. This suggestion has

-7- Cr.R. No.12/2018
Cr.A. No.6748/2018

not been given to Sohan Singh (PW-1). Therefore, this type of suggestion
having no meaning. The accused hemself did not produce any evidence
regarding illicit relationship between juvenile and deceased.

15. The witness Preeti (PW-13) was also cross examined by defence.
She denied the suggestion that she did not put the blanket upon the
prosecutrix. She admitted that the appellant is residing in her village Deval
and his house is situated near by house of prosecutrix. She also said that
there was no previous enmity between the family of the accused persons
and deceased. No other suggestion has been given to this witness. The
position of cross examination of Sandeep Singh Rajpoot (PW-14) is also
same. Any material omission and contradiction is not found in the cross
examination of the witness Sandeep Singh Rajpoot.

16. Therefore, it appears that the statements of PW-1, PW-2, PW-13 and
PW-14 are found reliable. The only suggestion of the defence is that the
juvenile was having relationship with the prosecutrix and PW-1 catched
them in objectionable condition, therefore, prosecutrix committed suicide
by pouring kerosene oil and set herself ablaze. This suggestion is not
supported from the evidence of witnesses. The accused also not produced
any evidence for proving the aforesaid suggestion. Therefore, oral dying
declaration made by the deceased to the aforesaid four witnesses is found
reliable.

17. Now we see the written dying declaration. First dying declaration
(Ex.P/26) has been recorded by Naib Tahsildar Sangeeta Mehto on
07.12.2017 between 11:05 to 11:30 P.M at hospital, Bina. Sangeeta Mehto
has been examined as PW-11. This witness said that she was posted and
working as Executive Magistrate on 07.12.2017 at Tahsil Bina. As per
instructions of Tahsildar she reached at Government Hospital, Bina at
about 11:00 P.M in the night. She again said that the deceased aged about
14 years was admitted in the hospital. She took the certificate from the
duty doctor and thereafter she recorded the dying declaration of the
prosecutrix in the question answer form. In para-2 the witness explained
the questions and answers given by prosecutrix and prove the statement of
Ex.P/26, which is as under:-

-8- Cr.R. No.12/2018
Cr.A. No.6748/2018
ej.kklUu dFku
^^uke dq- vatyh
firkfugkyflag jktiwr
mez 14 o”kZ
tkfr jktiwr
fuoklh nsoy] rglhy chuk
fnukad 07-12-2017
le; 11%00 PM
LFkku ‘kkldh; fpfdRlky; chuk

d`i;k M~;wVh MkWDVj ;g crk;s fd exZ c;ku nsus dh fLFkfr esa
gS vFkok ugha
ejht dFku nsus ;ksX; gSA
sd. (Dr.)
7/12/2017-11.05 P.M.

Q- D;k uke gS rqEgkjk
Ans- vatyh
Q- D;k gqvk gS vatyh

Ans- yMdks us NsMNkM dhA nks yM+dks usA ,d dk uke
f’koe vkSj ,d dk jCcw lsu
Q- D;k fd;k bUgksaus
Ans- ckFk:e djrs gS uk oks fn[k jgs Fks fQj eqag can djds
rsy Mkydj vkx yxk nhA
Q- rqe dgka Fkh
Ans- ?kj ij nsoy esa FkhA
Q- ?kj ij dkSudkSu Fkk
Ans- nknkth Fks mudks fn[krk ugha gSA
Q- ?kj esa dkSudkSu gS
Ans- eEeh] nknh] nknk] pkpk] pkph vkSj pkj cgusa gS lcdh
‘kknh gks xbZA
Q- rqe irh gks
Ans- gkW] vkBoh esaA
Q- rqEgsa igyh ckj NsMk ;k igys Hkh
Ans- ugha igyh ckjA
Q- rqEgkjs lkFk Ldwy irs gS
Ans- ,d ugha irk] ,d 10oha irk gSA
Q- yMdks ds firk dk uke D;k gS
Ans- f’koe ds firk dk uke jkes’oj] jCcw ds firk jkeizlkn

-9- Cr.R. No.12/2018
Cr.A. No.6748/2018

lsu gSA
Q- mUgksusa rqEgkjs lkFk dqN xyr dke fd;k gS
Ans- gkW mUgksaus esjs lkFk xyr dke fd;k ckFk:e okyh
txg ij tks fn[k jgs Fks mls vanj Mkyk cgqr nnZ gqvkA
eksckby ij xanhxanh fQYe ns[k jgs FksA
Q- vatyh D;k dguk gS dqN dguk pkgrh gks
Ans- gkW mUgsa ltk feyuh pkfg,] QkWlh dh ltkA
Q- feV~Vh dk rsy Fkk dgka ls feyk
Ans- gkWA ?kj esa j[kk FkkA ekfpl Hkh muus wa yh eSa
fpYykbZ ij eaqg nckdj can dj fn;k FkkA^^

18. In the cross examination she admitted that when she reached for
recording the statement at that time the family members of the deceased
were present nearby the bed. In para-5 she also said that hands of the
deceased were burnt but she was in the position to put her signature. She
also denied the suggestion that she did not recorded any statement and
prepared the Ex.P/26 upon the basis of the information given by the family
members of the deceased. If we see the entire statement of the witness
then no reason is found to disbelieve the testimony of aforesaid witness.
She is a public servant and was discharging her public duty as Naib
Tahsildar/Executive Magistrate. She also took the certificate from the duty
doctor thereafter she recorded the statement. The duty doctor Avinash
Saxena (PW-9) said in para-3 that the Executive Magistrate reached in the
hospital on 07.12.2017 at about 11:00 P.M. and the witness gave the
certificate regarding the fit mental condition of the deceased. The witness
proved his certificate mentioned in A to A part of Ex.P/26 and said that the
statement was started at 11:05 P.M. and completed at 11:35 P.M. The
witness also said that after completion of the statement he again certified
the condition of deceased and put his signature in the part of C to C upon
Ex.P/26. In cross examination of the aforesaid witness, no reason is found
to disbelieve the aforesaid statement. Therefore, it appears that the dying
declaration (Ex.P/26) recorded by Sangeeta Mehto (PW-11) is reliable,
which had been recorded on 07.12.2017 at about 11:05 P.M. after taking
the certificate of fit mental condition given by Dr.Avinash Saxena (PW-9).
Therefore, the trial Court has not committed any mistake by relying upon
the statement Ex.P/26.

                                       -10-                Cr.R. No.12/2018
Cr.A. No.6748/2018

19. The second dying declaration is in the shape of Dehat Nalishi
(Ex.P/28), which has been recorded by Anjana Parmar (PW-16) at 11:30
P.M. on 07.12.2017. Anjana Parmar (PW-16) is the Sub Inspector posted at
Police Station Bina. The witness said that in Civil Hospital, Bina she noted
down the report as per information given by the deceased, who was
admitted in hospital. In para-2 and 3 she explained the question and the
answers given by the deceased. She proved the statement (Ex.P/28) in her
para-4 and said that Ex.P/28 was written by her in detail and after writing
of the aforesaid report she read over it to the deceased and thereafter she
took the signature of the deceased in part B to B. Thereafter she sent the
aforesaid report for registration of case at Police Station Bhangarh. She
denied the suggestion of defence in para-5 that the aforesaid report was
written by her upon the information given by the Aunt of the deceased
named Preeti. This suggestion is not given in the statement of Preeti. The
witness also explained that hands of the deceased were not excessive burnt
and the deceased was in position to hold the pen. She denied the
suggestion that the report was not written upon the information given by
the deceased. Therefore, no reason is found in the cross examination of
this witness to disbelieve the Dehat Nalishi (Ex.P/28) recorded by witness.
The entire incident is mentioned in the Dehat Nalishi, which indicates that
the accused/appellant committed the rape and also set the deceased ablaze.
Ex.P/28 is as under:-

"Qfj;kfn;k vatyh us tyh gqbZ voLFkk esa chuk esa
ekSf[kd fjiksVZ ntZ djkbZ fd eSa xzke nsoy esa jgrh gwa
fd vkt jkh 08%30 cts djhcu vids ?kj ds dejs
esa Vh- Ogh- ns[k jgh FkhA rHkh iMkSl ds jgus okys 'kqHke
;kno vkSj jCcw lsu vdsyk ikdj ikuh ekaxus ds cgkus
dejs esa ?kql vk;s vkSj eqls tksj tcjnLrh djus
yxs rks eSus fpgyk;k rks jCcw lsu us esjk eqag nckdj
iyax ij iVd fn;k vkSj ,d gkFk ls gkFk idM+ fy;k
'kqHke us esjs uhps ds diMs mrkj fn;s vkSj esjs Åij
pdj cqjk dke fd;k fQj jCcw us Hkh esjs lkFk cqjk
dke fd;k rc 'kqHke ;kno us gkFkeqag nck j[kk Fkk
tc eSus dgk fd eS ?kj ifjokj xkao okyksa dks ?kVuk
crkÅxh rc 'kqHke us feV~Vh ds rsy dh dqIih tks ?kj

-11- Cr.R. No.12/2018
Cr.A. No.6748/2018

ds ckgj j[kh Fkh tku ls ekjus dh fu;r ls esjs Åij
mMsy nh vkSj jCcw us vkx yxk nh nksuksa cksy jgs Fks
fd tc rw cpsxh rHkh rks crk;sxh dg dj Hkkx x;s eSa
tyrh gqbZ voLFkk esa cpko gsrq dejs ds ckgj fudyh
rks esjs ckck us dFkjh m+kbZ vkSj esjs pkpk lanhi o
pkph izhfr ok xkao okys Hkh vk x;s rc 108 ls eqs
chuk ljdkjh vLirky yk;s gSA eqs 'kqHke ,oa jCcw lsu
us cqjk dke djds feV~Vh rsy Mkydj tyk;k gSA
fjiksVZ djrh gwa dk;Zokgh dh tkosA"

20. The third dying declaration is in the shape of statement recorded
under
Section 164 of Cr.P.C by Smt. Suchita Shrivastava, JMFC, Sagar
(PW-23). This statement has been recorded on 09.12.2017 between 08:43
to 09:10 A.M. at Bhundekhand Medical Hospital, Sagar. Smt. Suchita
Shrivastava (PW-23) deposed that on 09.12.2017 she was posted as JMFC
in District Court, Sagar. Upon the oral instructions of the CJM and the
written application of Police Station, Bhangarh she recorded the statement
(Ex.P/44) under
Section 164 of Cr.P.C. At about 08:43 P.M she reached in
the burn ward No.20 of Bhundelkhad Medical Hospital, Sagar. The
witness said that after satisfaction regarding the willing of the prosecutrix
she recorded her statement (Ex.P/44). The witness said in para-4 that she
recorded the verbettam statement of the deceased and also took the
signature of the deceased, but she was not able to put her signature in
proper way. Therefore, she also took thumb impression of the prosecutrix.
The witness said that she also took the opinion (Ex.P/45) from Dr.
Bhupendra regarding competency of giving the statement and the doctor
gave the certificate about the fit mental condition of the prosecutrix for
giving the statement. The witness also proved the order sheet (Ex.P/46)
written by her and the written application (Ex.P/43) given by Police
Station Bhangarh to CJM in para-5. The witness again said that the
statement was recorded during the period of 08:43 to 09:10 P.M.. She
denied the suggestion of the defence that at the time of recording the
statement, the police personnel were also present there. In para-5 she said
that hands of the deceased were burnt, but she was able to hold the pen to
write.

                                          -12-              Cr.R. No.12/2018
Cr.A. No.6748/2018

21. Dr. Bhupendra (PW-24) also supported the statement of Smt.
Suchita Shrivastava. The witness said that on 09.12.2017 he was posted as
Junior Resident Surgeon in Bhundelkhand Medical Hospital, Sagar. On the
said date at about 09:00 P.M when he was on duty, the deceased was
admitted in the hospital and the Magistrate came for recording her
statement. Upon the request of the Magistrate he examined the deceased
before recording her statement and he also examined the deceased after
recording of her statement. In this regard the witness issued the certificate
(Ex/P/43).

22. Therefore, it appears that Smt. Suchita Shrivastava, JMFC, Sagar
(PW-23) recorded the statement (Ex.P/44) at Bhundelkhand Medical
Hospital, Sagar under
Section 164 of Cr.P.C and she also obtain the
verification regarding fit mental condition of the deceased from Dr.
Bhupendra Patel (PW-24). Dr. Bhupendra Patel (PW-24) also supported
the aforesaid facts. The statement (Ex.P/44) which has been proved by
Smt. Suchita Shrivastava (PW-23) is as under:-

"jkr ds vkB cts eSa vius ?kj ij Fkh rHkh ckgj dk
rkyk rksM+dj f'koe ;kno ,oa jCcw [kckl ?kj ds vanj
vk x;s esjh nknh vkSj pkpk Hkksiky x;s FksA eka ekek ds
?kj x;h FkhA esjk nknk dks fn[kkbZ lqukbZ ugha nsrk gSA
nksuksa us eqs xanhxanh fQYe fn[kkbZA fQj f'koe us
viuh pM~Mh mrkjdj esjh Hkh pM~~Mh mrkj nh vkSj esjs
Åij p+dj dqN djus yxk ftls eqs is'kkc dh txg
esa nnZ gksus yxkA eSa fpYyk Hkh ugha ik jgh FkhA esjk
eaqg ewan fy;k Fkk mlds ckn jCcw us Hkh viuh pM~Mh
mrkj dj esjs Åij p x;k eqs is'kkc esa cgqr nnZ
gqvkA
eSa tSls rSls /kDdk nsdj mBh vkSj fpYykbZ rHkh
nksuksa us dsjkslhu esjs ?kj ls mBkdj esjs Åij Mky fn;k
vkSj vkx yxk nh vkSj Hkkx x;s esa Hkh ?kj ds ckgj
vk;haA eSa iafMr ds ?kj ?kql x;h vkSj iafMr ds yM+dh
yM+dh vkSj lHkh us eqs cpk;kA
dFku esjs }kjk BMC vLirky esa fy;s x;saA
JMFC SAGAR"

                            -13-                         Cr.R. No.12/2018
Cr.A. No.6748/2018

23. Therefore, it appears that three dying declarations are available in
this case. First dying declaration is recorded by Executive Magistrate,
second dying declaration in the shape of Dehat Nalishi, recorded by
Anjana Parama (PW-16) and third dying declaration is recorded by JMFC.

In all three dying declarations, it is mentioned that both the appellant
committed rape upon the prosecutrix and set her ablaze. Therefore all three
dying declarations are supported the case of prosecution, which also
supported by the oral dying declaration made by the deceased to PW-1,
PW-2, PW-13 and PW-14.

24. It is not in dispute that the death was homicidal and was a result of
burn injuries. The postmortem was conducted by Dr. Saroj Bhuriya (PW-

8) and Dr. K.K. Jain, (PW-10). Postmortem report (Ex.P/23) shows that
the death was result of extensive burn.

25. As far as rape is concerned the evidence of doctor is also available
on the record. Dr. Avinash Saxena (PW-9) is the first doctor who examined
the prosecutrix. On 07.12.2017 Dr. Saxena was posted as Medical Officer
at Civil Hospital, Bina. On the said date the deceased was brought by dial
100 vehicle. After giving primary treatment he referred the patient to burn
ward, District Hospital Sagar. He also said that smell of kerosene was
coming from the clothes of the deceased and her clothes were also burnt.
She was burnt at about 90%. He also said that burning was within six
hours of the examination. He proved his report (Ex.P/25).

26. Dr. Yogmaya (PW-4) is the Medical Officer posted at Government
Hospital, Sagar on 08.12.2017. The witness said that prosecutrix was
brought by female Constable Gyaneshwari No.43 of Police Station
Gopalganj in Bhundelkhand Medical College, Sagar. The witness took the
consent of the mother of the prosecutrix, thereafter examined the
prosecutrix, upon which sexual assault was made on 07.12.2017. The
witness said that after examination she cannot deny the possibility of
sexual assault. Therefore, she prepared two vaginal slide and two swab
slides, which were handed over to the Constable for confirmation by FSL.
She proved her report (Ex.P/14).

                                            -14-                 Cr.R. No.12/2018
Cr.A. No.6748/2018

27. Ramendra Mishra, (PW-15) is the Incharge Officer of Medical
Record posted at Bhundelkhand Medical Hospital, Sagar. He proved the
documents (Ex.P/15 to P/20), which are related to the treatment of the
deceased.

28. Narayan Singh (PW-19) is the Station House Incharge of Police
Station Bhangarh, who investigated the matter. In para-8 the witness said
that on 09.12.2017 he produced the accused Rabbu alias Sarvesh before
the doctor in Civil Hospital, Bina and the doctor took the sample of blood
for the purpose of DNA test. He also said that the aforesaid samples
alongwith other relevant articles were sent for chemical examination and
DNA examination. In this case DNA report (Ex.P/42) was also proved. As
per DNA report, it is reported that:-

^^vkgr vatyh jktiwr ds lzksr ¼izn'kZ B ,oa izn'kZ D½ ls izkIr
iq:"k fefJr Autosomal STR DNA Profile esa] vkjksih jCcw lsu
ds lzksr ¼izn'kZ G1½ ,oa vipkjh ckyd 'kqHke ;kno ds lzksr
¼izn'kZ G2½ dh DNA Profile Hkh mifLFkr gSA^^

29. Therefore, it appears that in the medical examination of the
prosecutrix the possibility of forcible rape was found and as per DNA
report (Ex.P/42) the DNA has been matched. Therefore, it is proved
beyond reasonable doubt that the accused committed rape with the
deceased. Therefore, looking to the aforesaid entire evidence it appears
that the oral dying declaration and all three written dying declarations are
found reliable and the trial Court did not commit any mistake by relying
upon the aforesaid all statements. The accused has rightly held guilty by
the trial Court for the offence under
Sections 450, 376(D), 376(A) and 302
of IPC.

30. Now the question arises for consideration that in the aforesaid
evidence and the circumstances as to whether this is one of rarest of rare
case wherein the penalty of death may be confirmed on account of
aggravating circumstances or due to having some mitigating
circumstances, it may be converted into the imprisonment for life. In this
regard, the guidance can be taken from the various judgments of Hon'ble

-15- Cr.R. No.12/2018
Cr.A. No.6748/2018

the Supreme Court.

31. Learned counsel for the appellant submits that the death sentence is
not appropriate in the present case. The appellant / accused is a boy aged
about 22 years. He has no criminal antecedents. Therefore, he is first
offender, hence he is liable to get opportunity of rehabilitation and
reformation.

32. On the other hand, learned Government Advocate prays for
confirmation of death sentence of the appellant in the light of the crime
committed by the appellant.

33. Learned counsel for the appellant submits that the appropriate
opportunity of hearing has not been provided to the accused by the trial
Court. If, trial Court convicted the accused for the offence under the
Section in which death penalty may be awarded, the Court should
postpone the hearing upon sentence. But, the trial Court heard upon the
sentence on the same day, on which judgment was passed. In this regard,
he drawn our attention towards Rajendra Prasad Vs. State of U.P. (1979)
3 SCC 646.

34. In cases where an Accused is convicted for offence Under Section
302,
Indian Penal Code, minimum sentence that is to be awarded is the life
imprisonment. However, in rarest of rare cases, the Sessions Court may
award death sentence as well. As per the provisions of
Section 235 of the
Code of Criminal Procedure, it is mandatory for the sessions court to give
a proper hearing to the Accused on the question of sentence as well. The
necessity and importance of such a hearing is explained in
Rajesh Kumar
v. State Through Government of NCT of Delhi MANU/SC/1130/2011 :
(2011) 13 SCC 706 wherein after referring to various earlier judgments,
this Court summed up in the following manner:

"44. In Santa Singh [MANU/SC/0167/1976 : (1976) 4 SCC 190 :

1976 SCC (Cri.) 546] this Court noted that in most countries of the
world problem of sentencing the criminal offender is receiving
increasing attention and it is so in view of rapidly changing attitude
towards crime and criminal. In many countries, intensive study of
sociology of the crime has shifted the focus from the crime to the
criminal, leading to a widening of the objectives of sentencing and

-16- Cr.R. No.12/2018
Cr.A. No.6748/2018
simultaneously of the range of the sentencing procedures.

45. Bhagwati, J. (as His Lordship then was) giving the judgment in
Santa Singh [MANU/SC/0167/1976 : (1976) 4 SCC 190 : 1976
SCC (Cri.) 546] pointed out and which was later on accepted in
Bachan Singh v. State of Punjab [MANU/SC/0111/1980 : (1980) 2
SCC 684 : 1980 SCC (Cri.) 580] that proper exercise of sentencing
discretion calls for consideration of various factors like the nature
of offence, the circumstances--both extenuating or aggravating, the
prior criminal record, if any, of the offender, the age of the offender,
his background, his education, his personal life, his social
adjustment, the emotional and mental condition of the offender, the
prospects for the rehabilitation of the offender, the possibility of his
rehabilitation in the life of community, the possibility of treatment
or training of the offender, the possibility that the sentence may
serve as a deterrent to crime by the offender or by others. After
referring to all the aforesaid facts, the learned Judge opined as
under: (Santa Singh case [MANU/SC/0167/1976 : (1976) 4 SCC
190 : 1976 SCC (Cri.) 546], SCC p. 195, para 3)
"3 . ... These are factors which have to be taken into account
by the court in deciding upon the appropriate sentence, and,
therefore, the legislature felt that, for this purpose, a separate
stage should be provided after conviction when the court can
hear the Accused in regard to these factors bearing on
sentence and then pass proper sentence on the Accused.
Hence the new provision in
Section 235(2)".

46. After analysing the aforesaid aspects, the learned Judge in
Santa Singh case [MANU/SC/0167/1976 : (1976) 4 SCC 190 :
1976 SCC (Cri.) 546] posed the question: What is the meaning and
content of expression "hear the Accused"? By referring to various
aspects and also the opinion expressed by the Law Commission in
its Forty-eighth Report, Bhagwati, J. (as His Lordship then was)
opined that the hearing contemplated Under
Section 235(2) is not
confined merely to oral submissions but it is also intended to give
an opportunity to the prosecution and the Accused to place before
the court facts and material relating to various factors bearing on
the question of sentence. However, there was a note of caution that
in the name of such hearing, the court proceedings should not be
unduly protracted.

47. This Court held in Santa Singh [MANU/SC/0167/1976 : (1976)
4 SCC 190 : 1976 SCC (Cri.) 546] that non-compliance with such
hearing is not a mere irregularity curable Under
Section 465 of the
1973 Code. This Court speaking through Bhagwati, J. (as His
Lordship then was) emphasised that this legal provision under our
constitutional values has acquired a new dimension and must reflect
"new trends in penology and sentencing procedures" so that penal
laws can be used as a tool for reforming and rehabilitating the
criminals and smoothening out the uneven texture of the social
fabric and not merely as a weapon for protecting the hegemony of
one class over the other (see p. 197, para 6 of the Report).

48. In Muniappan v. State of T.N. [MANU/SC/0187/1981 : (1981)

-17- Cr.R. No.12/2018
Cr.A. No.6748/2018

3 SCC 11 :1981 SCC (Cri.) 617] Chandrachud, C.J. delivering the
judgment again had to consider the importance of
Section 235(2)
and
Section 354(3) Code of Criminal Procedure in our sentencing
procedure. The learned Chief Justice held that the obligation to
hear the Accused on the question of sentence Under
Section 235(2)
of the 1973 Code is not discharged by putting a formal question to
the Accused as to what he has to say on the question of sentence.
The learned Chief Justice made it clear that the Judge must make a
genuine effort to elicit from the Accused all items of information
which will eventually bear on the question of sentence. All such
items of information that would furnish a clue to the genesis of the
crime and the motivation of the criminal are relevant and the
learned Chief Justice emphasized that in such an exercise, it is the
bounden duty of the Judge to cast aside the formalities of the court
scene and approach the question of sentence from a broad,
sociological point of view.

49. The learned Chief Justice further said that in the sentencing
procedure it is not only the Accused but the entire society is at stake
and therefore the questions the Judge puts and the answers the
Accused gives may be beyond the narrow constraints of the
Evidence Act. In the words of the learned Chief Justice the position
of the Court in an exercise Under
Section 235(2) is as follows:
(Muniappan case [MANU/SC/0187/1981 : (1981) 3 SCC 11 : 1981
SCC (Cri.) 617], SCC pp. 13-14, para 2)

"2 . ... The court, while on the question of sentence, is in an
altogether different domain in which facts and factors which
operate are of an entirely different order than those which
come into play on the question of conviction."

50. To the same effect is the judgment of Ahmadi, J. (as His
Lordship then was) in
Allauddin Mian v. State of Bihar
[MANU/SC/0648/1988 : (1989) 3 SCC 5: 1989 SCC (Cri.) 490].
Explaining the purpose of
Section 235(2), this Court in Allauddin
Mian [MANU/SC/0648/1988 : (1989) 3 SCC 5 : 1989 SCC (Cri.)
490] held that
Section 235(2) satisfies a dual purpose; first of all it
satisfies Rules of natural justice by according to the Accused an
opportunity of being heard on the question of sentence. Under such
sentencing procedure the Accused is given an opportunity to place
before the court all relevant materials having a bearing on the
question of sentence. The Court opined that it is a salutary principle
and must be strictly observed and is not a matter of mere formality.
This Court further held that in such hearing exercise the Accused
should be given a real and effective opportunity to place his
antecedents, social and economic background, etc. before the court,
for the court to take a fair decision on sentence as otherwise the
sentence would be vulnerable.

51. The Court therefore opined: (Allauddin Mian case
[MANU/SC/0648/1988 : (1989) 3 SCC 5 : 1989 SCC (Cri.) 490],
SCC p. 21, para 10)

10 . ... We think as a general Rule the trial courts should after

-18- Cr.R. No.12/2018
Cr.A. No.6748/2018
recording the conviction adjourn the matter to a future date
and call upon both the prosecution as well as the defence to
place the relevant material bearing on the question of
sentence before it and thereafter pronounce the sentence to
be imposed on the offender.

52. Therefore, it is clear from the purpose of Section 235(2) as
explained in the aforesaid cases, that the object of hearing Under
Section 235(2) being intrinsically and inherently connected with the
sentencing procedure, the provision of
Section 354(3) which calls
for recording of special reason for awarding death sentence must be
read conjointly with
Section 235(2) of the 1973 Code. This Court is
of the opinion that special reasons can only be validly recorded if
an effective opportunity of hearing as contemplated Under
Section
235(2) Code of Criminal Procedure is genuinely extended and is
allowed to be exercised by the Accused who stands convicted and is
awaiting the sentence. These two provisions do not stand in
isolation but must be construed as supplementing each other as
ensuring the constitutional guarantee of a just, fair and reasonable
procedure in the exercise of sentencing discretion by the court.

53. These changes in the sentencing structure reflect the "evolving
standards of decency" that mark the progress of a maturing
democracy and which is in accord with the concept of dignity of the
individual--one of the core values in our Preamble to the
Constitution. In a way these changes signify a paradigm shift in our
jurisprudence with the gradual transition of our legal regime from
"the Rule of law" to the "due process of law", to which this Court
would advert to in the latter part of the judgment."

35. In the case of Vasanta Sampat Dupare v. State of Maharashtra,
AIR 2017 S.C.2530 separate date was not fixed for hearing upon the
sentence, the Supreme court said in para 15 :-

"15. In a recent judgment rendered by three learned Judges of this
Court in
B.A. Umesh v. High Court of Karnataka [10. (2016) 9
Scale 600 : (AIR 2017 SC (Cri) 78).], the facts were more or less
similar, in that no separate date for hearing on sentence was given
after recording conviction. Para 8 of that decision of this Court is
quoted for ready reference:-

"8. In addition to above, it is contended on behalf of the
petitioner (Review Applicant) that since no separate date for
hearing on sentence was given in the present case by the trial
court, as such for violation of
Section 235(2) Cr.P.C., the
sentence of death cannot be affirmed. We have considered the
argument of Ms. Suri. It is true that the convict has a right to
be heard before sentence. There is no mandate in
Section
235(2) Cr.P.C. to fix separate date for hearing on sentence. It
depends on the facts and circumstances as to whether a
separate date is required for hearing on sentence or parties
feel convenient to argue on sentence on the same day. Had
any party pressed for separate date for hearing on the

-19- Cr.R. No.12/2018
Cr.A. No.6748/2018

sentence, or both of them wanted to be heard on some other
date, situation could have been different. In the present case,
the parties were heard on sentence by both the courts below,
and finally by this Court, as is apparent from the judgment
under review. As such, merely for the reason that no separate
date is given for hearing on the sentence, the Review Petition
cannot be allowed."

This Court then relied on the principle laid down in Dagdu v.

State of Maharashtra (AIR 1977 SC 1579) (supra) which was
followed subsequently by another Bench of three learned Judges in
Tarlok Singh v. State of Punjab[(1977) 3 SCC 218 : (AIR 1977 SC
1747)]. In the circumstances, merely because no separate date was
given for hearing on sentence, we cannot find the entire exercise to
be flawed or vitiated. Since we had allowed the petitioner to place
the relevant material on record in the light of the principles laid
down in
Dagdu v. State of Maharashtra (AIR 1977 SC 1579)
(supra), we will proceed to consider the material so placed on
record and weigh these factors and the aggravating circumstances
as found by the Court in the judgment under review."

36. Therefore per law, there is no mandatory requirement to postpone
each and every case for hearing on the sentence. Only it is advisable that
when the Court is going to impose death penalty, appropriate opportunity
for hearing upon sentence should be provided to the accused. In this, it
appears from para-55 of the impugned judgment that when the trial Court
held guilty the appellant, then the Court explain to the accused that if he
wants to say something about the sentence or he wants to produce any
evidence then he can call any witness through the Court. After that the
Court postpone the hearing for sometimes. Thereafter at 03:30 P.M. the
matter was heard on sentence. The accused was represented by the counsel
of his own choice but the accused or his counsel did not requested to the
Court for seeking any adjournment for arguments or for submission of any
type of evidence. Therefore, it can be said that no prejudice has been
caused against the applicant.

37. Learned counsel for the appellant relied upon some judgments in
reference to the sentence. It is argued that his case does not comes under

-20- Cr.R. No.12/2018
Cr.A. No.6748/2018
the purview of "rarest of rare". Therefore, death penalty should not be
imposed. The purpose of justice may be served by awarding the life
imprisonment. In the case of Mohinder Singh Vs. State of Punjab
2013(3) SCC 294, the Court relied upon the judgment passed by
Constitution Bench passed in Bachan Singh case (1980) 2 SCC 684 and
said that not only circumstance of crime, but also circumstance of criminal
have to be considered in applying the "rarest of rare doctrine".

38. In the case of B. Kumar Vs. Inspector of Police (2015) 2 SCC

346. It has been said that two fundamental objectives of punishment are -

(a) deterrence and (b) reformation. Other factors such as seriousness of
crime, criminal history of accused and also propensity of offender to
remorselessly commit similar crime in future, must be considered. It is
also said that it is not sufficient to given reason pertaining to cruel and
heinous act of the accused, but the Court must considered special reasons
for awarding death sentence.

39. In the case of Lalit Kumar Yadav Vs. State of U.P. (2014) 11 SC
129, Supreme Court said in para 43 that nature, motive, impact of a crime,
culpability, quality of evidence, socio-economic circumstances,
impossibility of rehabilitation are the factors, which the Court may take
into consideration while dealing with such cases as was spell out in
Santosh Kumar Satishbhushan Bariyar Vs. State of Maharastra
(2009) 6 SCC 498.

40. In the case of Ram Deo Prasad Vs. State of Bihar, (2013) 7 SCC
725 rape and murder was committed by the accused. Victim was a four
years old child. The Court observed that there are serious lapses in conduct
of investigation and trial. Appellant was represented before trial Court by a
lawyer appointed by Court from penal of Advocates. Though facing death
penalty, he did not file any appeal before High Court. Only reference was
made by trial Court. In Supreme Court, his appeal came through Jail
Superintendent. Supreme Court said that it shows that the appellant did not
have sufficient resources to engage a lawyer of his own choice and get
himself defended upto his satisfaction. Supreme Court set-aside the death
sentence and awarded life imprisonment.

                              -21-                        Cr.R. No.12/2018
Cr.A. No.6748/2018

41. In the case of Tattu Lodhi Vs. State of M.P. (2016) 9 SCC 675 the
accused kidnapped minor girl, aged about 7 years, attempted to commit
rape on her, thereafter murdered her and destroyed the evidence related to
crime. After consideration, in the circumstances of the case Supreme Court
said that the case do not make out "the rarest of rare", therefore, in place
of death penalty Supreme Court awarded life imprisonment with the
direction that the accused shall not be released from prison till he complete
actual period of 25 years.

42. In the case of Amar Singh Yadav Vs. State of U.P. (2014) 13 SCC
44, appellant was a Police Constable, who took his wife and four children
in a Maruti Van and set them on fire in Maruti Van itself after pouring
petrol on them and locking the doors thereof. Appellant had and extra-
marital affair with two women and his wife receiving half salary of
accused from the department directly. In the circumstances of case death
sentence commuted to life imprisonment for a fixed period of 30 years
without any remission by Supreme Court.

43. In the case of Sandeep Vs. State of U.P. (2012) SCC 107 murder
was committed inside Car by hitting her with Car tools (Jack and spanner),
cutting her with shaving blades and throwing acid on her. Murder was a
pre-plan act. Supreme Court said that brutality though writ large, yet the
case was not exceptional enough to warrant death sentence. Death
sentence imposed by Court below, commuted by Supreme Court to life
imprisonment with the condition that main culprit would serve minimum
imprisonment for 30 years without remission.

44. The Full Bench of Hon'ble the Supreme Court in the case of Machhi
Singh Others Vs. State of Punjab, AIR 1983 SC 957, relying upon
the guidelines drawn by the Apex Court in Bachan Singh Vs. State of
Punjab, AIR 1980 SC 898 laid down the test on the individual facts while
pronouncing the sentence. In Paragraph Nos.37,38,39, the Apex Court has
observed as under:-

"37. In this background the guidelines indicated in
Bachan Singh's case (supra) will have to be
culledout and applied to the facts of each individual

-22- Cr.R. No.12/2018
Cr.A. No.6748/2018
case where the question of imposing of death
sentences arises. The following propositions emerge
from Bachan Singh's case:

"(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 alongwith 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 has 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."

38. 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 ?

39. If upon taking an overall global view of all the
circumstances in the light of the aforesaid
proposition and taking into account the answers to
the questions posed here in above, the
circumstances of the case are such that death
sentence is warranted, the court would proceed to
do so."

45. In the case of Mofil Khan Versus State of Jharkhand reported in
(2015) 1 SCC 67, the Hon'ble Apex Court has explained the meaning of
"the rarest of rare case". The relevant portion of Paragraph No.64 is
reproduced as under:-

"The rarest of the rare case" exits when an

-23- Cr.R. No.12/2018
Cr.A. No.6748/2018

accused would be a menace, threat and antithetical
to harmony in the society. Especially in cases
where an accused does not act on 27 provocation,
acting on the spur of the moment but meticulously
executes a deliberately planned crime in spite of
understanding the probable consequence of his act,
the death sentence may be the most appropriate
punishment."

46. In the case of Haresh Mohandas Rajput Versus State of
Maharashtra reported in (2011) 12 SCC 56, the Apex Court has
emphasized the connotation "the rarest of the rare". The relevant portion
of Paragraph No.56 is reproduced as under:-

"The rarest of the rare case comes when a convict
would be menace and threat to the harmonious and
peaceful coexistence of the society. The crime may
be heinous or brutal but may not be in the category
of "the rarest of the rare case."

47. In the case of Anil @ Anthony Arikswamy Joseph Versus State of
Maharashtra reported in (2014) 4 SCC 69, the Apex Court in Paragraph
No.27 has clarified the real test of "the rarest of the rare case" which is
reproduced as under:-

"The rarest of the rare test depends upon the
perception of the society that is "societycentric"
and not "Judge-centric", that is, whether the
society will approve the awarding of death
sentence to certain types of crimes or not. While
applying that test, the Court has to look into the
variety of factors like society's abhorrence, extreme
indignation and antipathy to certain types of
crimes like sexual assault and murder of minor
girls, intellectually challenged minor girls, minors
suffering from physical disability, old and infirm
women, etc."

48. In the case of Santosh Kumar Versus State Through C.B.I
reported in (2010) 9 SCC 747, the Apex Court has explained the
philosophy behind "the rarest of the rare case". The relevant portion of in
Paragraph No.98 is reproduced as under:-

"Undoubtedly, the sentencing part is a difficult
one and often exercises the mind of the Court but
where the option is between a life sentence and a
death sentence, the options are indeed extremely
limited and if the Court itself feels some difficulty
in awarding one or the other, it is only 29
appropriate that the lesser sentence should be
awarded. This is the underlying philosophy behind
"the rarest of the rare" principle."

                                     -24-              Cr.R. No.12/2018
Cr.A. No.6748/2018

49. In the case of Rameshbhai Chandubhai Rathod Vs. State of
Gujarat, reported in the judgment of Hon'ble Supreme Court in the case
of Panchhi another Vs. State of U.P., (1998) 7 SCC 177, the Apex
Court has held that it is now well settled that as on today the broad
principle is that the death sentence is to be awarded only in exceptional
cases. The Court deciding the issue has accepted the view whereby in a
similar case of rape and murder of a minor girl below the age of 12 years,
the Court has given weightage to the fact that 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 the society in
case he was given a change to do so. The Apex Court relying upon the
judgment of Ramraj Versus State of Chhattisgarh reported in (2010) 1
SCC 573 and Mulla Another Versus State of Uttar Pradesh
reported in (2010) 3 SCC 508, has observed that the term "imprisonment
for life" which is found in
Section 302 of the I.P.C, 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, however, converted the capital
punishment into the punishment for imprisonment of life. In Mulla's case
(supra), the Apex Court has said:

"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."

50. Therefore, the Apex Court has given the punishment of life
sentence, which may extend to their full life subject to any remission by
the Government for good reasons. Thus, relying upon the ratio of Ramraj
(supra) and Mulla (supra), the Apex Court in the case of Rameshbhai
Chandubhai Rathod (supra) maintained the same sentence in the similar

-25- Cr.R. No.12/2018
Cr.A. No.6748/2018

terms. Therefore, by the three Judges Bench, the Apex Court recognized
that it is obligatory on the Trial Court to have given a finding as to a
possible rehabilitation and reformation and the possibility cannot be ruled
out that he may be a useful member of the society in case he is given a
chance.

51. In the present case it is a horrendous crime when a Girl aged about
15 year 11 months and 6 days on the date of incident i.e. 07.12.2017
(Date of birth 01.01.2002) is violated by a person, who is living in the
close vicinity of the family of the child and thus, was known to the child.
The Supreme Court in a judgment rendered in
Shankar Kisanrao Khade
v. State of Maharashtra, MANU/SC/0476/2013 : (2013) 5 SCC 546,
examined the entire case law where the penalty of death sentence was set
aside inthe case of an offence under
Section 376 of IPC. The Court laid
down the aggravating circumstances called "crime test", mitigating
circumstances called "criminal test" and "the rarest of rare cases test". The
Court noticed that total 7112 cases of child rape were reported in the
country during 2011. The State of Madhya Pradesh has reported highest
number of cases i.e. 1262. However, the situation has not improved even
after more than five years, A report on "Crime in India" in the year 2016
published by National Crime Records Bureau, Government of India,
provides information about all the FIRs registered under
the Indian Penal
Code and Special Local Laws (SLL) by the police of 36 States/UTs. As
per such report, 19765 are the cases of child rape under
Section 376 of IPC
and Section 4 and 6 of POCSO Act. The highest number of cases in this
category was again in State of Madhya Pradesh being 2467. In view of the
above, the issue is required to be examined as to whether the imposition of
death penalty will deter the prospecting offenders from indulging in
horrendous offence of rape and/or murder.

52. In a Judgment B.A. Umesh v. Registrar General, High Court of
Karnataka reported as MANU/SC/0082/2011 : (2011) 3 SCC 85 the
imposition of death sentence was maintained recording the following
findings:

"83. On the question of sentence we are satisfied
that the extreme depravity with which the offences
were committed and the merciless manner in

-26- Cr.R. No.12/2018
Cr.A. No.6748/2018
which death was inflicted on the victim, brings it
within the category of the rarest of rare cases
which merits the death penalty, as awarded by the
Trial Court and confirmed by the High Court.
None of the mitigating factors as were indicated
by this Court in
Bachan Singh v. State of Punjab
MANU/SC/0111/1980 : (1980) 2 SCC 684 or in
Machhi Singh v. State of Punjab,
MANU/SC/0211/1983 : (1983) 3 SCC 470 are
present in the facts of the instant case. The
appellant even made up a story as to his presence
in the house on seeing P.W.2 Suresh, who had
come there in the meantime. Apart from the above,
it is clear from the recoveries made from his house
that this was not the first time that he had
committed crimes in other premises also, before
he was finally caught by the public two days after
the present incident, while trying to escape from
the house of one Seeba where he made a similar
attempt to rob and assault her and in the process
causing injuries to her."

53. Review petition was dismissed by circulation vide order dated
07.09.2011. Subsequently, another review petitions were filed, which were
decided vide order dated 3rd October, 2016 in judgment reported as
MANU/SC/1289/2016 : (2017) 4 SCC 124 (B.A. Umesh v. Registrar
General, High Court of Karnataka). The Court held as under:-

"23. Therefore, on careful comparison of
aggravating and mitigating circumstances in the
present case, as above, and keeping in view the
principle of law laid down by this Court on the
point, we are of the firm opinion that the
aggravating circumstances are grave and far
more serious as against the mitigating
circumstances pointed out on behalf of the
petitioner. As such, even after open hearing, we
are not inclined to allow the review petitions or
modify the judgment and order passed by this
Court in
B.A. Umesh v. High Court of Karnataka
MANU/SC/0082/2011 : (2011) 3 SCC 85
dismissed by this Court on 1-2-2011. Accordingly,
Review Petitions (Criminal) Nos. 135-36 of 2011
stand dismissed. The criminal miscellaneous
petitions stand disposed of."

54. A three Judge Bench of the Supreme Court in a judgment reported
as
Vasanta Sampat Dupare v. State of Maharashtra
MANU/SC/1098/2014 : (2015) 1 SCC 253 maintained the death sentence
when it was held as under ( Paras 59 to 62) :-

                     -27-                         Cr.R. No.12/2018
Cr.A. No.6748/2018

"58. Presently, we shall proceed to dwell upon
the manner in which the crime was committed.

Materials on record clearly reveal that the
appellant was well acquainted with the
inhabitants of the locality and as is demonstrable
he had access to the house of the father of the
deceased and the children used to call him
"uncle". He had lured the deceased to go with
him to have chocolates. It is an act of taking
advantage of absolute innocence. He had taken
the deceased from place to place by his bicycle
and eventually raped her in a brutal manner, as if
he had the insatiable and ravenous appetite. The
injuries caused on the minor girl are likely to
send a chill in the spine of the society and shiver
in the marrows of human conscience. He had
battered her to death by assaulting her with two
heavy stones. The injured minor girl could not
have shown any kind of resistance. It is not a
case where the accused had a momentary lapse.

It is also not a case where the minor child had
died because of profuse bleeding due to rape but
because of the deliberate cruel assault by the
appellant. After the savage act was over, the
coolness of the appellant is evident, for he
washed the clothes on the tap and took proper
care to hide things. As is manifest, he even did
not think for a moment the trauma and torture
that was caused to the deceased. The gullibility
and vulnerability of the four year girl, who could
not have nurtured any idea about the maladroitly
designed biological desires of this nature, went
with the uncle who extinguished her life spark.

The barbaric act of the appellant does not
remotely show any concern for the precious life
of a young minor child who had really not seen
life. The criminality of the conduct of the
appellant is not only depraved and debased, but
can have a menacing effect on the society. It is
calamitous.

59. In this context, we may fruitfully refer to a passage from
Shyam Narain V. State (NCT of Delhi), MANU/SC/0543/2013 :
(2013) 7 SCC 77, wherein it has been observed as follows:

"1. The wanton lust, vicious appetite, depravity of senses,
mortgage of mind to the inferior endowments of nature, the
servility to the loathsome beast of passion and absolutely
unchained carnal desire have driven the appellant to commit
a crime which can bring in a "tsunami" of shock in the mind
of the collective, send a chill down the spine of the society,
destroy the civilised stems of the milieu and comatose the
marrows of sensitive polity".

                                      -28-              Cr.R. No.12/2018
Cr.A. No.6748/2018

In the said case (Shyam Narain Case, SCC p.88, para 26),
while describing the rape on an eight year old girl, the Court observed :

"26. ... Almost for the last three decades, this Court has been
expressing its agony and distress pertaining to the increased
rate of crimes against women. The eight year old girl, who
was supposed to spend time in cheerfulness, was dealt with
animal passion and her dignity and purity of physical frame
was shattered. The plight of the child and the shock suffered
by her can be well visualised. The torment on the child has
the potentiality to corrode the poise and equanimity of any
civilised society. The age-old wise saying that "child is a gift
of the providence" enters into the realm of absurdity. The
young girl, with efflux of time, would grow with a traumatic
experience, an unforgettable shame. She shall always be
haunted by the memory replete with heavy crush of disaster
constantly echoing the chill air of the past forcing her to a
state of nightmarish melancholia. She may not be able to
assert the honour of a woman for no fault of hers."

60. In the case at hand, as we find, not only was the rape
committed in a brutal manner but murder was also committed in a
barbaric manner. The rape of a minor girl child is nothing but a
monstrous burial of her dignity in the darkness. It is a crime against
the holy body of a girl child and the soul of the society and such a
crime is aggravated by the manner in which it has been committed.
The nature of the crime and the manner in which it has been
committed speaks about its uncommonness. The crime speaks of
depravity, degradation and uncommonality. It is diabolical and
barbaric. The crime was committed in an inhuman manner.
Indubitably, these go a long way to establish the aggravating
circumstances.

61. We are absolutely conscious that mitigating circumstances
are to be taken into consideration. Learned counsel for the
appellant pointing out the mitigating circumstances would submit
that the appellant is in his mid fifties and there is possibility of his
reformation. Be it noted, the appellant was aged about forty-seven
years at the time of commission of the crime. As is noticeable, there
has been no remorse on the part of the appellant. There are cases
when this Court has commuted the death sentence to life finding
that the accused has expressed remorse or the crime was not
premeditated. But the obtaining factual matrix when unfolded stage
by stage would show the premeditation, the proclivity and the
rapacious desire. Learned counsel would submit that the appellant
had no criminal antecedents but we find that he was a history-
sheeter and had number of cases pending against him. That alone
may not be sufficient. The appalling cruelty shown by him to the
minor girl child is extremely shocking and it gets accentuated, when
his age is taken into consideration. It was not committed under any
mental stress or emotional disturbance and it is difficult to
comprehend that he would not commit such acts and would be
reformed or rehabilitated. As the circumstances would graphically
depict, he would remain a menace to society, for a defenceless child
has become his prey. In our considered opinion, there are no

-29- Cr.R. No.12/2018
Cr.A. No.6748/2018

mitigating circumstances.

62. As we perceive, this case deserves to fall
in the category of rarest of the rare cases. It is
inconceivable from the perspective of the society
that a married man aged about two scores and
seven make a four year minor innocent girl child
the prey of his lust and deliberately causes her
death. A helpless and defenceless child gets
raped and murdered because of the acquaintance
of the appellant with the people of the society.
This is not only betrayal of an individual trust but
destruction and devastation of social trust. It is
perversity in its enormity. It irrefragably invites
the extreme abhorrence and indignation of the
collective. It is an anathema to the social
balance. In our view, it meets the test of rarest of
the rare case and we unhesitatingly so hold."

55. The review petition against the said order was dismissed on 3rd
May, 2017 in a judgment reported as MANU/SC/0570/2017 : (2017) 6
SCC 631 (
Vasanta Sampat Dupare v. State of Maharashtra), wherein,
the Court observed as under:-

"20. It is thus well settled, "the Court would consider the
cumulative effect of both the aspects (namely aggravating factors as
well as mitigating circumstances) and it may not be very
appropriate for the Court to decide the most significant aspect of
sentencing policy with reference to one of the classes completely
ignoring other classes under other heads and it is the primary duty
of the Court to balance the two." Further, "it is always preferred not
to fetter the judicial discretion by attempting to make excessive
enumeration, in one way or another; and that both aspects namely
aggravating and mitigating circumstances have to be given their
respective weightage and that the Court has to strike the balance
between the two and see towards which side the scale/balance of
justice tilts." With these principles in mind we now consider the
present review petition.

21 . The material placed on record shows that after the Judgment
under review, the petitioner has completed Bachelors Preparatory
Programme offered by the Indira Gandhi National Open University
enabling him to prepare for Bachelor level study and that he has
also completed the participated in drawing competition organized
sometime in January 2016. It is asserted that the jail record of the
petitioner is without any blemish. The matter is not contested as
regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of
the decision in
Bachan Singh v. State of Punjab
MANU/SC/0111/1980 : (1980) 2 SCC 684 but what is now being
projected is that there is a possibility of the accused being reformed
and rehabilitated. Though these attempts on part of the petitioner
are after the Judgment under review, we have considered the
material in that behalf to see if those circumstances warrant a
different view. We have given anxious consideration to the material

-30- Cr.R. No.12/2018
Cr.A. No.6748/2018
on record but find that the aggravating circumstances namely the
extreme depravity and the barbaric manner in which the crime was
committed and the fact that the victim was a helpless girl of four
years clearly outweigh the mitigating circumstances now brought
on record. Having taken an overall view of the matter, in our
considered view, no case is made out to take a different view in the
matter. We, therefore, affirm the view taken in the Judgment under
review and dismiss the present review petitions."Gandhi Vichar
Pariksha and had participated in drawing competition organized
sometime in January 2016. It is asserted that the jail record of the
petitioner is without any blemish. The matter is not contested as
regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of
the decision in
Bachan Singh v. State of Punjab
MANU/SC/0111/1980 : (1980) 2 SCC 684 but what is now being
projected is that there is a possibility of the accused being reformed
and rehabilitated. Though these attempts on part of the petitioner
are after the Judgment under review, we have considered the
material in that behalf to see if those circumstances warrant a
different view. We have given anxious consideration to the material
on record but find that the aggravating circumstances namely the
extreme depravity and the barbaric manner in which the crime was
committed and the fact that the victim was a helpless girl of four
years clearly outweigh the mitigating circumstances now brought
on record. Having taken an overall view of the matter, in our
considered view, no case is made out to take a different view in the
matter. We, therefore, affirm the view taken in the Judgment under
review and dismiss the present review petitions."

56. On 05.05.2017, another three Judge Bench judgment in Mukesh
and another Vs. State (NCT of Delhi) (2017 6 SCC 1, Supreme court
maintained the death sentence on the four accused. The relevant extracts of
the said decision ( Paras 508 to 510, 515 t0 517, 520 521) are
reproduced as under :-

"508. In the same judgment in Shankar Kisanrao Khade v. State of
Maharashtra MANU/SC/0476/2013 : (2013) 5 SCC 546, Madan B.
Lokur, J. (concurring) while elaborately analysing the question of
imposing death penalty in specific facts and circumstances of that
particular case, concerning rape and murder of a minor, discussed
the sentencing policy of India, with special reference to execution of
the sentences imposed by the Judiciary. The Court noted the prima
facie difference in the standard of yardsticks adopted by two organs
of the government viz. Judiciary and the Executive in treating the
life of convicts convicted of an offence punishable with death and
recommended consideration of Law Commission of India over this
issue. The relevant excerpt from the said judgment, highlighting the
inconsistency in the approach of Judiciary and Executive in the
matter of sentencing, is as under: (SCC p.614, para 148)
"148. It seems to me that though the Courts have been
applying the rarest of rare principle, the Executive has taken
into consideration some factors not known to the Courts for

-31- Cr.R. No.12/2018
Cr.A. No.6748/2018

converting a death sentence to imprisonment for life. It is
imperative, in this regard, since we are dealing with the lives
of people (both the accused and the rape-murder victim) that
the Courts lay down a jurisprudential basis for awarding the
death penalty and when the alternative is unquestionably
foreclosed so that the prevailing uncertainty is avoided.
Death penalty and its execution should not become a matter
of uncertainty nor should converting a death sentence into
imprisonment for life become a matter of chance. Perhaps the
Law Commission of India can resolve the issue by examining
whether death penalty is a deterrent punishment or is
retributive justice or serves an incapacitative goal."

In Shankar Kisanrao's case MANU/SC/0476/2013 : (2013) 5
SCC 546), it was observed by Madan B. Lokur, J. that Dhananjay
Chatterjee's case [Dhananjay Chatterjee V. State of W.B.

MANU/SC/0626/1994 : (1994) 2 SCC 220] was perhaps the only
case where death sentence imposed on the accused, who was
convicted for rape was executed.

509. Another significant development in the sentencing policy of
India is the 'victim-centric' approach, clearly recognised in
Machhi
Singh (Supra) [Machhi Singh v. State of Punjab
MANU/SC/0211/1983 : (1983) 3 SCC 470] and reemphasized in a
plethora of cases. It has been consistently held that the courts have
a duty towards society and that the punishment should be
corresponding to the crime and should act as a soothing balm to the
suffering of the victim and their family. [Ref:
Gurvail Singh @ Gala
and Anr. v. State of Punjab MANU/SC/0111/2013 : (2013) 2 SCC
713;
Mohfil Khan and Anr. v. State of Jharkhand
MANU/SC/0915/2014 : (2015) 1 SCC 67;
Purushottam Dashrath
Borate and Anr. v. State of Maharashtra MANU/SC/0583/2015 :
(2015) 6 SCC 652]. The Courts while considering the issue of
sentencing are bound to acknowledge the rights of the victims and
their family, apart from the rights of the society and the accused.
The agony suffered by the family of the victims cannot be ignored in
any case. In Mohfil Khan (supra), this Court specifically observed
that 'it would be the paramount duty of the Court to provide justice
to the incidental victims of the crime - the family members of the
deceased persons.

510 . The law laid down above, clearly sets forth the sentencing
policy evolved over a period of time. I now proceed to analyse the
facts and circumstances of the present case on the anvil of above-
stated principles. To be very precise, the nature and the manner of
the act committed by the accused, and the effect it cast on the
society and on the victim's family, are to be weighed against the
mitigating circumstances stated by the accused and the scope of
their reform, so as to reach a definite reasoned conclusion as to
what would be appropriate punishment in the present case- 'death
sentence', life sentence commutable to 14 years' or 'life
imprisonment for the rest of the life'.

*** *** ***
515 . In Purushottam Dashrath Borate and Anr. v. State of
Maharashtra MANU/SC/0583/2015 : (2015) 6 SCC 652, this Court
held that age of the accused or family background of the accused or

-32- Cr.R. No.12/2018
Cr.A. No.6748/2018
lack of criminal antecedents cannot be said to be the mitigating
circumstance. It cannot also be considered as mitigating
circumstance, particularly taking into consideration, the nature of
heinous offence and cold and calculated manner in which it was
committed by the accused persons.

516 . Society's reasonable expectation is that deterrent punishment
commensurate with the gravity of the offence be awarded. When the
crime is brutal, shocking the collective conscience of the
community, sympathy in any form would be misplaced and it would
shake the confidence of public in the administration of criminal
justice system. As held in
Om Prakash v. State of Haryana
MANU/SC/0129/1999 : (1999) 3 SCC 19, the Court must respond to
the cry of the society and to settle what would be a deterrent
punishment for what was an apparently abominable crime.

517. Bearing in mind the above principles governing the sentencing
policy, I have considered all the aggravating and mitigating
circumstances in the present case. Imposition of appropriate
punishment is the manner in which the courts respond to the
society's cry for justice against the crime. Justice demands that the
courts should impose punishments befitting the crime so that it
reflects public abhorrence of the crime. Crimes like the one before
us cannot be looked with magnanimity. Factors like young age of
the accused and poor background cannot be said to be mitigating
circumstances. Likewise, post-crime remorse and post-crime good
conduct of the accused, the statement of the accused as to their
background and family circumstances, age, absence of criminal
antecedents and their good conduct in prison, in my view, cannot be
taken as mitigating circumstances to take the case out of the
category of "the rarest of rare cases". The circumstances stated by
the accused in their affidavits are too slender to be treated as
mitigating circumstances.

*** *** ***
520 . The statistics of the National Crime Records Bureau which I
have indicated in the beginning of my judgment show that despite
the progress made by women in education and in various fields and
changes brought in ideas of women's rights, respect for women is on
the decline and crimes against women are on the increase. Offences
against women are not a women's issue alone but, human rights
issue. Increased rate of crime against women is an area of concern
for the law-makers and it points out an emergent need to study in
depth the root of the problem and remedy the same through a strict
law and order regime. There are a number of legislations and
numerous penal provisions to punish the offenders of violence
against women. However, it becomes important to ensure that
gender justice does not remain only on paper.

521. We have a responsibility to set good values and guidance for
posterity. In the words of great scholar, Swami Vivekananda, "the
best thermometer to the progress of a nation is its treatment of its
women." Crime against women not only affects women's self esteem
and dignity but also degrades the pace of societal development. I
hope that this gruesome incident in the capital and death of this
young woman will be an eye-opener for a mass movement "to end
violence against women" and "respect for women and her dignity"
and sensitizing public at large on gender justice. Every individual,

-33- Cr.R. No.12/2018
Cr.A. No.6748/2018

irrespective of his/her gender must be willing to assume the
responsibility in fight for gender justice and also awaken public
opinion on gender justice. Public at
large, in particular men, are to be sensitized on gender justice. The
battle for gender justice can be won only with strict implementation
of legislative provisions, sensitization of public, taking other
proactive steps at all levels for combating violence against women
and ensuring widespread attitudinal changes and comprehensive
change in the existing mind set. We hope that this incident will pave
the way for the same."

57. The review against the said judgment bearing Review Petition
(Crl.) No. 570 of 2017 (
Mukesh v. State of NCT of Delhi) stand
dismissed on 09.07.2018.

58. The Supreme Court in Purushottam Dashrath Borate and
another v. State of Maharashtra reported in MANU/SC/0583/2015 :
(2015) 6 SCC 652, while confirming the death sentence, has held that the
age of accused or family background or lack of criminal antecedents
cannot be said to be a mitigating circumstance. It cannot also be
considered as a mitigating circumstance, particularly taking into
consideration the nature of heinous offence, the brutality and the
calculated manner in which it was committed by the accused persons.

59. In Satya Narayan Tiwari Alias Jolly and another v. State of
Uttar Pradesh MANU/SC/0910/2010 : (2010) 13 SCC 689 and
Sukhdev
Singh and another v. State of Punjab MANU/SC/1331/2010 : (2010) 13
SCC 656, the Supreme Court has held that crime against women are not
ordinary crimes committed in a fit of anger or for property. They are social
crimes. They disrupt the entire social fabric and hence they call for harsh
punishment.

60. In Deepak Rai etc. v. State of Bihar, MANU/SC/0965/2013 :
(2013) 10 SCC 421, the Supreme Court held that the young age of the
accused is not a mitigating circumstance for commutation to life.

61. The death sentence was also maintained by the Supreme Court in
the judgments reported as MANU/SC/7863/2008 : (2008) 11 SCC 113
(
Bantu v. State of Uttar Pradesh) and MANU/SC/0700/2009 : (2009) 6
SCC 667 (
Ankush Maruti Shinde and others v. State of Maharashtra)

-34- Cr.R. No.12/2018
Cr.A. No.6748/2018
and MANU/SC/0649/2015 : (2015) 6 SCC 632 (Shabnam etc. v. State of
Uttar Pradesh).

62. Within this Court, a Division Bench in Criminal Reference No.
05/2015 (in Reference received from the First Addl. Sessions Judge,
Maihar v. Sachin Kumar Singhraha) vide judgment delivered on
03.03.2016 has affirmed the death sentence in case of rape of a victim
aged near-about five years. Another Division Bench of this Court in
CRRFC No. 5/2017 (In Reference Received from District Sessions
Judge, Dindori v. Bhagwani and another) 2018 (2) JLJ 309
MANU /MP/ 0113/ 2018 vide judgment delivered on 09.05.2018 has also
affirmed the capital punishment awarded to two accused persons by the
Trial Court. In the said case also a girl aged about 11 years was victimized
and murdered and the Court expressed concern over the alarming increase
in the recent incidents of child rapes coupled with the rising anger of the
society over rape of minors across the country. Another Division Bench in
Cri. Ref. No. 01 of 2018 (In Reference Received from Special Judge,
Shahdol v. Vinod and another) 2018 (3) Crimes 545 (M.P.) MANU
/MP/ 0357/ 2018 vide judgment delivered on 08.08.2018 has affirmed the
death sentence of appellant who was aged about 22 years, in case of rape
of a victim aged near-about four years. The court said :-

"66. In the light of the evidence and the judgments referred to
hereinabove, we find that there is no mitigating circumstance in
favour of the appellant in the present case. The appellant was young
unmarried boy aged 22 years at the time of commission of offence
but he breached the trust of a girl child of four years when he
tempted her by offering biscuit to accompany him to meet her
father. He violated her and took her life within 3-4 hours of taking
her with him. It is an act of extreme depravity when the appellant
prompted a young child whose only fault was that she believed the
appellant to be her well-wisher. The crime against the girl child are
on rise, therefore, extreme punishment may deter the other
criminals indulging in such crime. Such crime sends shock wave in
the society when it is committed against a girl child. This Court has
the social responsibility to make the citizen of this country know
that law cannot come to the rescue of such person on the basis of
humanity. The extreme punishment may convey a message to these
predators that it is not a soft State where the criminals committing
such serious crimes may get reprieve in the guise of humanity. The
humanity is more in danger in the hands of the persons like the
appellant. Therefore, we find that the capital punishment awarded
to the appellant is one of the rarest of rare cases where the extreme
capital punishment is warranted."

                             -35-                          Cr.R. No.12/2018
Cr.A. No.6748/2018

63. In the light of the evidence and the judgments referred to herein
above, we find that there is no mitigating circumstance in favor of the
appellant in the present case. The appellant was young boy aged 22 years
at the time of commission of offence but he breached the trust of a girl
child of about 16 years when he entered with co-accused in her room by
asking water but committed gang rape and set her ablaze. She expired after
7 days from the date of incident. During this period she suffered extreme
physical and mental pain which can not be imagine. He violated her and
took her life within a short time. It is an act of extreme depravity when the
appellant prompted a young girl whose only fault was that she believed the
appellant to be her well-wisher. The crime against the girl child are on rise,
therefore, extreme punishment may deter the other criminals indulging in
such crime. Such crime sends shock wave in the society when it is
committed against a girl child. This Court has the social responsibility to
make the citizen of this country know that law cannot come to the rescue
of such person on the basis of humanity. The extreme punishment may
convey a message to these predators that it is not a soft State where the
criminals committing such serious crimes may get reprieve in the guise of
humanity. The humanity is more in danger in the hands of the persons like
the appellant. Therefore, we find that the capital punishment awarded to
the appellant is one of the rarest of rare cases where the extreme capital
punishment is warranted.

64. Under the facts and circumstances of the case, the only punishment
which the accused deserve for having committed the reprehensible and
gruesome gang rape and murder of innocent girl to satisfy their lust, is
nothing but death. We are immensely appalled by the alarming increase in
the recent incidents of child rapes and also being aware of the rising anger
of the society over rape of minor across the country, therefore, consider
death sentence as a measure of social necessity and also a mean of
deterring other potential offenders. In view of the aforestated, in our
considered view, the capital punishment to the accused is the only proper
punishment and we see no reason to take a different view than the one
taken by the trial Court.

65. In view of the foregoing reasons, we affirm the death sentence

-36- Cr.R. No.12/2018
Cr.A. No.6748/2018
awarded to the appellant by the Trial Court while dismissing the Criminal
Appeal No. 6748 of 2018 preferred by the accused against his conviction
and sentence. We order accordingly.

66. Let a copy of this judgment be retained in the file of the connected
Criminal Appeal No. 6748 of 2018.

67. The office is further directed to send a copy of the judgment forthwith
to the Trial Court for taking appropriate action in accordance with law.

                        (P.K.Jaiswal)                  (B.K.Shrivastava)
Judge Judge

Vin**

Digitally signed by VINOD
SHARMA
Date: 2019.01.18 13:14:06 +05'30'

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2019 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

Web Design BangladeshWeb Design BangladeshMymensingh