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In Refrence vs Mahendra Singh Gond on 25 January, 2019

1 CRA No. 7332/2018
CRRFC No.15/2018

HIGH COURT OF MADHYA PRADESH AT JABALPUR
Criminal Appeal No. 7332/2018

Mahendra Singh Gond
Vs.
State of Madhya Pradesh

CRRFC No. 15/2018

In Reference
Vs.
Mahendra Singh Gond

Present : Hon’ble Shri Justice P.K. Jaiswal, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
———————————————————————————–
Shri V.C. Rai, Advocate for the appellant- Mahendra Singh
Gond in Criminal Appeal No.7332/2018.
Shri Siddharth Sharma, Amicus Curiae in Criminal Reference
No.15/2018.
Shri Bramhdatt Singh, Government Advocate for the
respondent/State.
———————————————————————————–
JUDGMENT

(25/01/2019)

Per : Smt. Anjuli Palo, J :-

1. The criminal appeal (CRA No.7332/2018) has been

preferred by the accused Mahendra Singh Gond to set aside the

impugned judgment of conviction and sentence. The criminal

reference (CRRFC No.15/2018) has been referred under Section

366 (1) of Criminal Procedure Code, 1973 for confirmation of

order of capital punishment of death awarded by the First Addl.

Session Judge, Nagod, District Satna in S.T. No.11/2018,

whereby the accused-Mahendra Singh Gond has been convicted
2 CRA No. 7332/2018
CRRFC No.15/2018

under Section 363 of I.P.C. and sentenced to undergo R.I. for

seven years and fine of Rs.5000/-, in default of payment of fine

R.I. for three months under Section 376(a)(b) of I.P.C., he has

been punished for death sentence.

2. In brief the prosecution case is that on 01.07.2018 at village

Parasmaniya, Police Station Uchehra, the prosecutrix aged about 4

years, was sleeping on cot with her father in the courtyard of her

house. At night about 10 pm, accused came there to meet with her

father and conversation with him. Thereafter, he went away. At about

12 pm Prahlad Singh/father of the prosecutrix went to natural call

towards the pond. At that time prosecutrix was sleeping alone on the

cot. When her father came back to his cot, he found the prosecutrix

was not there, someone took her. Prahlad Singh and his family

members searched the prosecutrix and found her in the field of Dheer

Singh. She was injured and unconscious. She had not worn

undergarment. They found blood stains on her frock and bleeding

from her vagina. The accused getting a chance and took away the

prosecutrix in the field side of Dheer Singh. From one hand he pressed

her mouth and from another hand he fingering in her private part. The

prosecutrix was attempted to cry but he pressed her mouth and

committed rape with her. So that the prosecutrix sustained severe

bleeding and injuries on her vaginal organs. The family members

informed the police and brought her to the hospital. Police also

reached in the hospital and lodged FIR against the appellant. Looking

to the serious critical condition of the prosecutrix, Senior Doctors of
3 CRA No. 7332/2018
CRRFC No.15/2018

the District Hospital and District Administration, Satna referred her to

All India Institute of Medical Sciences, New Delhi for her treatment.

After completion of necessary investigation, charge-sheet was filed

against the accused before the competent court.

3. After committal of the case, learned Trial Court framed the

charges against the appellant under Sections 363, 376(a)(b) of Indian

Penal Code and Section 5(j)(n) of Protection of Children from Sexual

Offences Act. The appellant abjured guilt. He pleaded his innocence.

He stated that due to old enmity with the family of the prosecutrix, the

police implicated him with concocted story and prepared false

evidence against him.

4. The learned Trial Court after relying the testimonies of the

prosecutrix and her family members along with medical opinion and

DNA test report found the appellant guilty of committing aforesaid

offences and sentenced as mentioned above.

5. The appellant challenged the findings of the trial Court on the

ground that there is no direct evidence against him. Learned trial

Court in hasty manner without giving proper opportunity of hearing to

the accused, convicted him with capital punishment. The trial Court

has not followed the principles of natural justice. The findings of the

trial Court are contrary to the law and facts. The trial Court has not

appreciated the defence of accused. It is also alleged by the appellant

that the trial Court ignored the testimony of Dr. Prashant Yadav

(PW/8) who examined the appellant and did not find any symptom of

the offence. He further submitted that the Court has not considered the
4 CRA No. 7332/2018
CRRFC No.15/2018

opinion of lady doctor, who did not give any definite opinion about

the recent intercourse with the prosecutrix. There are some material

infirmities in the prosecution case. Police did not find the actual

offender. Hence, falsely implicated the appellant. No case is made out

against him. Hence, his conviction is liable to be set aside and the

appellant is entitled for acquittal from the charges leveled against him.

6. Learned Government Advocate for the State opposed the

contentions of the appellant and submits that, there is sufficient

evidence is available on record to convict him in the aforesaid

sections. Hence, the findings of the learned trial Court are just and

proper, not warranted any interference by the appellate Court, hence,

capital punishment should be confirmed.

7. Having heard learned counsel for the appellant as well as

learned Government Advocate for the respondent-State at length.

8. Now, the questions arises (i) whether the appellant is rightly

convicted by the trial Court’ ? (ii) whether death sentence is a proper

sentence for the appellant ?

9. In Ex.P/7 the date of birth of the prosecutrix is 01.03.2014. In

this regard testimony of Santosh Namdeo (PW/4) is unchallenged,

hence, found reliable. As per Ex.P/7 and unrebutted testimony of her

parents viz mother Mamta Singh Gond (PW/19) and father Prahlad

Singh Gond (PW/20) it is proved that at the time of the incident on

01.07.2018, the prosecutrix was aged about 4 to 4½ years and she was

minor.

5 CRA No. 7332/2018

CRRFC No.15/2018

10. Prosecutrix (PW/18) and her parents Prahlad Singh (PW/20) and

Mamta Singh (PW/19) categorically stated about the incident and

corroborated the testimony of each other. In this regard, Prahlad Singh

(PW/20) father of the prosecutrix and his wife/mother of the

prosecutrix Mamta Bai (PW/19) clearly deposed that on the date of

incident at night the prosecutrix was sleeping with her father Prahlad

Singh (PW/20). At about 9 pm appellant/accused came to their house

and met with Prahlad Singh. After some time, he went away then

Prahlad Singh went to the pond for natural call and at that time he left

alone the prosecutrix on cot. When he came back to his cot, he found

that the prosecutrix was missing. Then, he called his wife and asked

her about the prosecutrix. With the help of his brothers, they searched

the prosecutrix, after knowing that the appellant was came there, the

brother of Prahlad Singh went to search him, but he did not find the

appellant. While coming back to their house, they found the

prosecutrix in unconscious condition at the field of Dheer Singh. Her

family members brought her to house. They found bleeding from her

vagina. She was not worn underwear that time. Hence, her mother

worn her another underwear.

11. Other witnesses Acchche Lal (PW/2) and Sunil Singh (PW/3)

have also corroborated their testimony. Sunil Singh (PW/3) deposed

that Prahlad Singh told him that Mahendra came to his house just

before the incident which relevant under Sections 6 and 8 of the

Indian Evidence Act. Anoop Singh (PW/14) clearly deposed that on

01.07.2018 at about 11:00 pm, he saw the appellant near the house of
6 CRA No. 7332/2018
CRRFC No.15/2018

Prahlad Singh. Hence, they had a doubt that appellant would have

committed the offence. Acchche Lal (PW/2) and Sunil Singh (PW/3)

also corroborated the physical condition of the prosecutrix. Just after

the incident, both the witnesses also saw the bleeding from her vagina

and her injuries.

12. Learned counsel for the appellant has failed to rebut the

testimony of all the above witnesses in their cross-examination.

Further, we do not find any material infirmities in their testimony.

13. Dr. A.P. Singh (PW-9) stated that on 02.07.2018 at CHC,

Uchehra at about 05:40 am, Prahlad Singh brought the prosecutrix for

her treatment that time she was partly unconscious. During her

checkup he found clotted blood around her vaginal parts and some

injuries in private parts. After giving primary treatment to the

prosecutrix, he referred her to the District Hospital, Satna and

prepared medical report (Ex.P/16). Both the MLC reports (Ex.P/11

and Ex.P/6) are similar. Then they informed the incident to the police.

Police came to the spot and brought her to the District Hospital, Satna

where her father lodged FIR (Ex.P/26) against the appellant.

14. Sundarlal Rawat (PW/15) ASI established that Acchchelal who

is the close relative of prosecutrix promptly informed to Police

Chouki Parasmniya. The appellant took away the prosecutrix and

committed rape with her. Sunderlal Rawat (PW/15) also stated that

just after he went to the village and saw the prosecutrix in critical

condition, hence, he brought her to the District Hospital Uchehra
7 CRA No. 7332/2018
CRRFC No.15/2018

along with her parents and informed the SHO, Uchehra about the

incident.

15. Abhilasha (PW-13) Sub-Inspector corroborated the testimony of

parents of the prosecutrix and deposed that on 02.07.2018, she

received an information that the prosecutrix was admitted in District

Hospital, Satna. She reached there and lodged Dehati Nalishi and FIR

against the appellant. She sent the prosecutrix for medical

examination.

16. Dr. Preetika Singh (PW/5) medically examined her on 2 nd July,

2018. At the time of her medical examination, she found severe

bleeding from her vagina. She further found some abrasion on her

back and her hymen was ruptured in fourth degree. Perineal tear

reached upto rectum. Rectum was also ruptured. There is swelling on

her private part. She prepared two vaginal slides and sealed her frock

and undergarment for examination. She also took her sample of blood,

nails and hairs and Buccal smear from inside of her mouth for DNA

examination and sent all the articles to the police.

17. On the contrary with the contention of the appellant that the

doctor has not given any definite opinion about intercourse. Dr.

Preetika Singh (PW/5) clearly opined that the prosecutrix was

subjected to sexual assault and recent intercourse. She further

explained that with the team of other lady doctors Dr. Rekha Tripathi

and Dr. Pathak, they examined the prosecutrix and found injury on her

anal canal admeasuring about 5 x 3 cm, her anal sphincter was entirely

torn. Similarly, her vagina entirely ruptured upto anus. Her hymen
8 CRA No. 7332/2018
CRRFC No.15/2018

totally ruptured. All the injuries are caused to the prosecutrix within

24 hours from her medical examination.

18. Expert doctors were called for her treatment. A team of 4

doctors from the Medical Hospital, Jabalpur reached there. Dr.

Preetika Singh (PW/5) examined her and case was referred to All

India Institute of Medical Sciences, New Delhi. All the facts are

narrated by Dr. Rekha Tripathi in MLC report Ex.P/11. The opinion of

Dr. Singh and medical report Ex.P/11 itself proved that the minor

prosecutrix was subjected to the severe sexual assault. The word

“sexual assault” may not be used in Ex.D/2 her hospital admission

card, but from the testimony of Dr. Preetika Singh and facts narrated

in Ex.P/11 and her treatment prescription, we are not inclined to

disbelieve the testimony of Dr. Prateeka Singh.

19. In our opinion, learned counsel for the appellant during the

cross-examination of Dr. Preetika Singh challenged her testimony

only on the irrelevant facts. In her examination, she clearly stated that

all the injuries found on the prosecutrix were fresh in nature. They

were caused within 24 hours from her medical examination.

20. During investigation on 3rd July, 2018, police interrogated the

appellant before Santosh Kuhwaha (PW/1) and Acchche Lal (PW/2).

Before these two witnesses, the appellant confessed and stated that

before committing rape with the prosecutrix, he fingering in the

vagina of the prosecutrix till the blood oozing out. Due to which and

intercourse by the elderly man with such a minor girl, the prosecutrix
9 CRA No. 7332/2018
CRRFC No.15/2018

was unconscious. Hence, he thrown underwear of the prosecutrix

nearby bush and went away from the spot.

21. Abhilasha Nayak, S.I. (PW/13) further stated that on the

memorandum of the appellant Ex.P/1 she recovered underwear of the

prosecutrix from the spot which was blood stained then she arrested

the appellant. Hence, his confession is relevant and also very material

to connect the appellant with the crime. Both the witnesses Santosh

Kushwaha (PW/1) and Acchche Lal (PW/2) are the villagers of the

same village where the appellant was residing. They have no enmity

with the appellant nor police was biased against the appellant to

involve him in this heinous crime. Hence, we inclined to rely on the

aforesaid evidence.

22. It is very important to note that the prosecutrix (PW/18) herself

identified the appellant in the Court and stated that he had committed

rape with her. Looking to the age of the prosecutrix which is four

years, we cannot expect from her to give a detailed statement. We rely

on her testimony along with other evidence which is sufficient to

establish the crime of the appellant.

23. Sushri Kiran Kiro, Investigating Officer (PW/21) arrested the

appellant and sent him for medical examination. Dr. Prashant Yadav

(PW-8) medically examined the appellant on 03.07.2018. He found

that the appellant was capable of performing intercourse. Doctor also

found injury on his finger of left hand of about 0.5×0.5′ and some

abrasion on his thumb and on 1 st and 2nd finger of his left hand. He
10 CRA No. 7332/2018
CRRFC No.15/2018

also prepared semen slide of the appellant and seized his under

garment. He sealed the article and handed over them to the police.

24. Medical evidence also corroborated the confession of the

appellant which established that by fingering in the vagina of the

prosecutrix, such type of injury was caused on his finger. At the

request of SDOP (Ex. P/17), Dr. A.P. Singh (PW/9) collected blood

sample from the appellant on 03.07.2018 for DNA examination. He

sealed the blood samples of the appellant before Sunil Singh and

Sushri Kiran Kiro and handed it over to the police. He also verified

the presence of appellant in Ex. P/18 and signed the same. Sushri

Kiran Kiro, Investigating Officer (PW/21) recovered blood stained

soil from the spot i.e. the field of Dheer Singh.

25. Dr. Mahendra Singh, Scientist (Scene of Crime), FSL Unit Satna

explained that he also investigated the scene of occurrence at the field

of Dheer Singh. He found some bushes and small plants on the spot.

He found dried blood stains and signs of friction. At a distance of

about 4-5 ft. they found another dried blood stains. The house of the

prosecutrix was situated at distance of about 525 ft. from the spot. He

further explained that the house of the prosecutrix was made of mud.

There was no gate. After inspecting the spot, he conducted Benzodine

test, the result of which came out positive due to the presence of blood

in the soil. All the articles recovered by the police were sent for

medical examination at FSL, Sagar. This entire evidence is found

unrebutted.

11 CRA No. 7332/2018

CRRFC No.15/2018

26. Sushri Kiran Kiro, Investigating Officer (PW/21) further stated

that she sent a draft to FSL, Sagar for DNA test of the prosecutrix and

the appellant. DNA report is Ex.P/21. Dr. Anil Kumar Singh found

that in vaginal slide of the prosecutrix and her undergarment he found

similar DNA profile of male. Similarly, he found similar DNA profile

on the nails of the prosecutrix. He further found hairs on the

undergarment of the prosecutrix with similar DNA profile of nail. All

the DNA profile which were found on vaginal slide and undergarment

of the prosecutrix are similar with the DNA profile of the appellant. In

this regard, learned trial Court rightly considered and relied on the

DNA test report Ex.P/28 to P/30 in the impugned judgment.

27. We do not find that while examining DNA profile of the

prosecutrix and the appellant, any mistake is committed by the

scientific officer nor it was challenged by the appellant. Presence of

similar DNA, on the vaginal swab and undergarment of the

prosecutrix is directly linked the appellant as he committed rape with

the prosecutrix.

28. Therefore, in our considered opinion, learned trial Court rightly

convicted the appellant for committing offence punishable under

Sections 363, 376(a)(b) of Indian Penal Code and Section 5(j)(n) of

Protection of Children from Sexual Offences Act. Hence, his

conviction under these sections is hereby maintained.

29. Learned counsel for the appellant submits that the case of the

appellant is not covered in the purview of ‘rarest of rare case’. He

placed reliance in the case of Ram Deo Prasad vs. State of Bihar
12 CRA No. 7332/2018
CRRFC No.15/2018

(2013) 7 SCC 725, in which death sentence was converted into life

imprisonment. But, facts of the present case are different, therefore,

aforesaid conversion is not appropriate in the case at hand. The

Hon’ble Supreme Court considered the norms of ‘rarest of rare case’ in

various judgments. After following the decision of the Bachan

Singh v. State of Punjab AIR 1980 SC 898 in the case of

Machhi Singh v. State of Punjab [AIR 1983 SC 957], the

Constitution Bench of the Supreme Court has held as follows:-

“In this background the guidelines indicated in
Bachan Singh’s case (supra) will have to be
culled out and applied to the facts of each
individual case where the question of imposing
of death sentence 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 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 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.”

[Also see Muniappan Vs. State of Tamil
13 CRA No. 7332/2018
CRRFC No.15/2018

Nadu : (2010) 9 SCC 567, Dara Singh Vs.
Republic of India : (2011) 2 SCC 490,
Surendra Koli Vs. State of UP : (2011) 4
SCC 80, Sudam Vs. State of Maharashtra :
(2011) 7 SCC 125.]

30. Learned counsel for the appellant urged that the appellant

is only aged about 28 years. He has no criminal antecedent. For

awarding appropriate punishment to him all the relevant factors

should be considered. In the present case, the appellant had

sexually assaulted a small girl aged about 4½ years in brutal

manner and raped her. From the injuries caused by him to the

child after putting hand on her mouth, there is ample possibility

that she may died.

31. In case of Purushottam Dashrath Borate Vs. State of

Maharshtra [(2015) 3 SCC (Cri.) 326], the Hon’ble Supreme

Court has held that,

“The age of the accused persons, their
family background and lack of criminal
antecedents cannot be said to be the
mitigating circumstance, the nature of
heinous offence and cold and calculated
manner in which it was committed by the
accused person. The agony suffered by the
family of the victims cannot be ignored.”

32. Such incident will have an everlasting effect on the mind

of the prosecutrix. The injuries caused to the prosecutrix who is

aged only 4 ½ years will also cause her mental and physical

agony in her lifetime.

33. In case of Mukesh Vs. State (NCT) of Delhi [(2017) 6

SCC 1], the Hon’ble Supreme Court has held that –
14 CRA No. 7332/2018

CRRFC No.15/2018

“Where a crime is committed with extreme
brutality and the collective conscience of the
society is shocked, courts must award death
penalty, irrespective of their personal opinion as
regards desirability of death penalty. By not
imposing a death sentence in such cases, the
courts may do injustice to the society at large.”

“Question of awarding sentence is a matter of
discretion and has to be exercised on
consideration of circumstances aggravating or
mitigating in the individual cases. The courts are
consistently faced with the situation where they
are required to answer the new challenges and
mould the sentence to meet those challenges.
Protection of society and deterring the criminal
is the avowed object of law. It is expected of the
courts to operate the sentencing system as to
impose such sentence which reflects the social
conscience of the society. While determining
sentence in heinous crimes, Judges ought to
weigh its impact on the society and impose
adequate sentence considering the collective
conscience or society’s cry for justice. While
considering the imposition of appropriate
punishment, courts should not only keep in
view the rights of the criminal but also the
rights of the victim and the society at large.
In State of M.P. v. Munna Choubey and Anr.

(2005) 2 SCC 710, it was observed as under:

Therefore, undue sympathy to impose
inadequate sentence would do more harm to the
justice system to undermine the public
confidence in the efficacy of law and society
could not long endure under such serious threats.
It is, therefore, the duty of every court to award
proper sentence having regard to the nature of
the offence and the manner in which it was
executed or committed etc. This position was
illuminatingly stated by this Court in Sevaka
Perumal v. State of Tamil Naidu (1991) 3 SCC

471. Another significant development in the
sentencing policy of India is the ‘victim-

centric’ approach, clearly recognised in
Machhi Singh (Supra) and re-emphasized 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
15 CRA No. 7332/2018
CRRFC No.15/2018

victim and their family. [Ref: Gurvail Singh
@ Gala and Anr. v. State of Punjab (2013) 2
SCC 713; Mohfil Khan and Anr. v. State of
Jharkhand (2015) 1 SCC 67; Purushottam
Dashrath Borate and Anr. v. State of
Maharashtra (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.”

34. In present scenario where day-by-day such type of crime

continuously increased, reformative ideas are totally ineffective.

Justice demands that the Court should impose punishment

befitting the crime so that it reflects public abhorrence of the

crime.

35. It is not in dispute that at the time of the incident the

appellant was working as a teacher. Hence, it is expected from

him that he live and act according to his moral liability so that

he teach the students in noble manner. It could not be

conceived from a person who is performing the pious duty of a

teacher, who is expected to nurture the character and morality in

children of the nation, to commit such kind of heinous act

which tantamount to moral turpitude also.

36. After considering the entire facts and circumstances of the

case and also mitigating circumstances, we come to the

conclusion that the instant case clearly comes within the
16 CRA No. 7332/2018
CRRFC No.15/2018

category of the “rarest of the rare case”. Hence, the capital

punishment is a proper punishment for the appellant. Any other

punishment is absolutely inadequate. In the light of principle

laid down by the Supreme Court in above various cases, we

confirm the capital punishment awarded by the learned trial

Court to the appellant and the manner of the execution of the

death sentence as prescribed by the learned trial Court is proper

under Section 354(5) of Cr.P.C.

37. Accordingly, appeal filed by the appellant is hereby

dismissed.

38. Let a copy of this judgment be retained in the file of the

connected Criminal Appeal No.7332/2018.

39. The office is further directed to sent a copy of the

judgment forthwith to the trial Court for taking necessary

appropriate action in accordance with law.

40. Before parting, we must put on record our unreserved

appreciation for the valuable assistance rendered by the learned

Amicus Curiae in the present case.

Appeal dismissed and Reference answered accordingly

(P.K. JAISWAL) (SMT. ANJULI PALO)
JUDGE JUDGE

RJ

Digitally signed by
RAJESH KUMAR JYOTISHI
Date: 2019.01.25 17:20:30
+05’30’

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