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Judgments of Supreme Court of India and High Courts

Sunil Adiwasi vs The State Of Madhya Pradesh on 17 August, 2018

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HIGH COURT OF MADHYA PRADESH AT JABALPUR

BEFORE DIVISION BENCH JUSTICE J.K.MAHESHWARI

JUSTICE AKHIL KUMAR SRIVASTAVA

Criminal Reference No.5/2018

IN REFERENCE
(Received From II Additional Sessions Judge
Khurai, District Sagar

Versus

Sunil Adiwasi
S/o Hargovind Adiwasi
Aged 21 years
Occupation Labour
R/o Villge Ujnet
Police Station Bandari
District Sagar (MP) ACCUSED

Criminal Appeal No.5015/2018

Sunil Adiwasi
S/o Hargovind Adiwasi
Aged 21 years
Occupation Labour
R/o Villge Ujnet
Police Station Bandari
District Sagar (MP) APPELLANT

Versus

State of M.P. through
Police Station Bandari
District Sagar (MP) RESPONDENT

******
For the Accused : Shri , P.S.Gaharwar, Advocate.
For the State : Shri Anubhav Jain, Government Advocate
Smt.Manjeet P.S.Chuckal, Panel Lawyer.
******
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JUDGMENT

17.8.2018
Per : J.K.MAHESHWARI, J

Being aggrieved by the judgment dated 19/06/2018 passed
in Special Sessions Trial No.16/2017 by the Second Additional Sessions
Judge Khurai, District Sagar convicting the accused for the charge under
Sections 376A, 302, 342, 201/511 of the Indian Penal Code (hereinafter
shall be referred to as “I.P.C”) so also for the offence under Section 6 of
the Protection of Children From Sexual Offences Act, 2012 (hereinafter
shall be referred to as “POCSO Act”) and directing him to undergo
death sentence, rigorous imprisonment for life, rigorous imprisonment
for three years and three years with fine and default stipulation, the
Criminal Appeal No.5015/2018 has been filed under Section 374(2) of the
Code of Criminal Procedure (hereinafter shall be referred to as “Cr.P.C”)
by the accused/appellant and for confirmation of the death sentence,
Criminal Reference No.5/2018 has been made by Second Additional
Sessions Judge Khurai, District Sagar under Section 366(1) of the Cr.P.C.

2. As per the prosecution story, on 13/04/2017 at about 11:00
am, a nine year old girl rushed towards the field near the Power House
and the alleged hut of the accused to collect Mahua from the trees and
when she did not return back, her neighbour and relatives started
searching her and on seeing them near the Power House, the accused
ran away from his hut. The mother of the prosecutrix, namely, Dameti
(PW.2) entered into the hut under apprehension and saw the body of
her daughter is tied in a white plastic bag. She immediately called her
husband complainant Laxman (PW.1). The body of the prosecutrix tied
in a white plastic bag was also seen by Gokal (PW.3), Khushal (PW.5),
Kanhaiya, Pravesh Rani, However, keeping the dead body of the girl on
floor, they visited to the Police Station to lodge the report. The merg
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intimation was registered vide Exhibit P/1 and thereafter the first
information report was lodged by Laxman (PW.1) vide Exhibit P/2.

3. On the basis of the information, the police investigation
commenced and they immediately rushed towards the spot.
Statements of the witnesses were recorded. Naksha Panchayatnama
was prepared vide Exhibit P/4. The seizures of the white plastic bag,
shirt and clothes of the girl including her chappal were made. The
postmortem of the dead body of the deceased/prosecutrix was
conducted by Dr. Rohit Pant (PW.7) vide Exhibit P/7. The accused was
arrested by the Police on 15/04/2017. The slides of the vaginal-swab of
the prosecutrix and the semen of accused were prepared and sent to
the Forensic Scicence Laboratory for examination. Certain articles from
“A” to “I” were sent for D.N.A. examination vide Exhibits P/31, P/32, P/33
to which the reports have been received vide Exhibits P/34, P/35. After
completion of the investigation, the Challan was filed to the Court of
Judicial Magistrate First Class Khurai, District Sagar but as the case was
triable by the Court of Sessions, therefore, it was committed to the
Court of Sessions wherefrom it was received to the Second Additional
Sessions Judge Khurai, District Sagar for trial.

4. The Trial Court framed the charges against the accused
under Sections 376A, 302, 342, 201/511 of the IPC and Section 6 of the
POCSO Act. The charges were read over to the accused, who abjured his
guilty and demanded for trial taking the defence of false implication
because he belonged to the tribal community in the village and residing
separately from the family.

5. The Trial Court found it to be a case of circumstantial
evidence. The Court relying upon the testimony of Laxman (PW.1),
Dameti (PW.2) and Gokal (PW.3), Ravishankar (PW.4), Khushal (PW.5)
recorded the finding that while they were making search of the
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prosecutrix near the Power House, the accused ran away from his hut.
The Trial Court also relied upon the testimony of Dr.Rohit Pant (PW.7),
who conducted the postmortem of the deceased/prosecutrix vide
Exhibit P/7 and Dr.S.Jain (PW.8), who conducted the medical
examination of accused vide Exhibit P/8 and found that the sign of
commission of rape on the person of the prosecutrix was present and
she was found dead due to asphyxia in a hut, which is corroborated by
the D.N.A report (Exhibit P/34). The Court observed that the charges
levelled against the accused are found prove beyond reasonable doubt.
The Trial Court also observed that this is one of the case wherein an
offence is committed with a girl below the age of 12 years, therefore,
taking the aid of Section 42 of the POCSO Act, awarded the capital
punishment of death to the accused being rarest of rare case for
committing rape and murder. Being aggrieved by the said judgment of
conviction and order of death sentence, the accused has filed Criminal
Appeal No.5015/2018 and for confirmation of the death sentence, the
Second Additional Sessions Judge Khurai, District Sagar has made
Criminal Reference No.5/2018 to this Court.

6. Shri P.S.Gaharwar, learned counsel representing the
accused has strenuously urged that looking to the F.I.R (Exhibit P/2) and
the statements of Laxman (PW.1), Dameti (PW.2), Gokal (PW.3), the
time of the incident varies. The alleged hut wherefrom the body of the
deceased/prosecutrix was recovered at the place where only the Power
House is situated and no inhabitants are residing and anybody can enter
in the said hut. The hut may be accessible by others being situated at
the distant place. Merely lying the body of the deceased/prosecutrix in
the said hut is not sufficient to implicate the accused for the alleged
offence. It is also urged that the evidence to run away from the hut by
the accused is not sufficient to prove the charges as levelled against
him. It is true that the accused is the person residing in the said hut but
this itself is not sufficient to prove the allegation of commission of rape
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and murder of prosecutrix against him. It is contended that looking to
the postmortem report and the internal examination of the deceased
conducted by the doctor, all the internal parts of the body of the
deceased/prosecutrix were found in order. No external or internal injury
has been seen. It is not a case of strangulation but it is a case of
asphyxia, therefore, merely for the said reason, the intention to commit
the murder of the prosecutrix after rape cannot be gathered without
having any cogent evidence on record. It is urged that the prosecution
is not able to prove its case beyond reasonable doubt even for
committing rape or murder of the prosecutrix by the accused in absence
of any eye-witness to the incident. The prosecution has also not
brought any evidence to the effect that the accused after committing
the rape attempted to commit murder of her and on seeing the
persons, he ran away from the spot. Lastly, it is prayed that it is not a
rarest of rare case of commission of rape and murder so that the
accused could be dealt with by the capital punishment, however, prayed
for alteration of sentence.

7. In support of the said contention, learned counsel for the
accused has placed reliance on various judgments of Hon’ble the
Supreme Court in the cases of Bachan Singh Versus State of Punjab
reported in AIR 1980 SC 898, Machhi Singh Others Versus State of
Punjab reported in AIR 1983 SC 957. He has also placed reliance on the
judgment of Hon’ble the Supreme Court in the case of Amit Versus
State of Uttar Pradesh reported in AIR 2012 SC 1433 to contend that in
absence of having any evidence that the accused may repeat a similar
crime in future, the possibility of his reform cannot be ruled out in the
coming years looking to the age and under such circumstances, the
Hon’ble Supreme Court in the said case relying upon the judgment of
Rameshbhai Chandubhai Rathod Versus State of Gujarat reported in
AIR 2011 SC 803 converted the death penalty into the imprisonment for
life for the remaining term. He has further placed reliance on the
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judgment of Hon’ble the Supreme Court in the case of Panchhi
Another Versus State of U.P reported in (1998) 7 SCC 177 to explain the
circumstance as to when the death penalty is not justified. He has also
placed reliance on the judgment of Bombay High Court in Case
No.1/2007 in Reference Additional Sessions Judge Hingoli Versus
Bhagwat Another decided on 11.1.2018 converted the capital
punishment having commission of the rape and murder of the similar
circumstances, took note that both the accused are between 18 to 19
years having no criminal antecedents, therefore, it is not rarest of the
rare case and directed for life imprisonment not less than 30 years
without remission.

8. On the other hand, Shri Anubhav Jain, learned Government
Advocate and Smt.Manjeet P.S.Chuckal, Panel Lawyer representing the
respondent/State have argued in support of the findings recorded by
the Trial Court and contended that the minor discrepancy as regards the
timing of the incident is not sufficient particularly when the finding is
recorded by the Court in a case of circumstantial evidence proving the
commission of the offence by those circumstances completing chain
beyond reasonable doubt. In a case where a minor girl aged about 9
years is raped and murdered adherence to the demand of the society,
the capital punishment as directed by the Court is just and proper. In
such cases, interference by the High Court is not warranted. In support
of their contention, reliance has been placed on the Division Bench
Judgments of this Court in Criminal Reference No.5/2017 received from
District Sessions Judge Dindori Versus Bhagwani Another decided
on 9.5.2018 and Criminal Reference No.5/2015 received from First
Additional Sessions Judge Maihar, District Satna Versus Sachin Kumar
Singhraha decided on 3.3.2016 wherein the reference made to the Court
has been answered maintaining the capital punishment. Reliance has
also been placed on the Judgment of Hon’ble the Supreme Court in the
case of B.A.Umesh Versus Registrar General, State of Karnataka
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reported in (2011) 3 SCC 85. It is contended that in this case the
prosecutrix died during commission of rape due to asphyxia as per
postmortem report. The said asphyxia would come within the purview
of causing injuries as specified in Section 376A of the I.P.C resulting into
her death. In such cases, the penalty for whole life of imprisonment or
punishment of death has been specified in Section 376A of the I.P.C. In
the present case, the trial was conducted against the accused for the
offence under Sections 376A, 302, 342, 201/511 of the I.P.C so also the
offence under Section 6 of the POCSO Act, therefore, with the aid of
Section 42 of the POCSO Act, the death penalty as directed by the Trial
Court is just and proper to which interference is not warranted by this
Court.

9. After hearing learned counsel appearing on behalf of both
the parties, it is not a case of eye-witness account. The conviction and
sentence is based on impeachable circumstance brought by the
prosecution to prove the charge against the accused at home. The F.I.R
was lodged by Laxman (PW.1) stating that at about 11:00 am, her
daughter had gone to collect the Mahua from tree. When she did not
return, he alongwith other family members started searching her and
when they reached nearby to hut situated near the Power House, they
saw the accused running away from the said hut. Under apprehension,
his wife Dameti (PW.2) entered in the said hut and saw the body of her
daughter tied in a white plastic bag inside the hut. She immediately
called her husband and other family members and thereafter they
proceeded to the police station for lodging the first information report.
In the Court statement, Laxman (PW.1) deposed that her daughter had
left the house at about 8 in the morning and when she did not return
upto 11, they started searching her. By the said narration, the time varies
from the first information report. His testimony is ocular on the point to
see the incident inside the hut in place of his wife stating that he has
seen the foot of her daughter laid in a white plastic bag. He also
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deposed that he has opened the white plastic bag and found her
daughter to be dead and thereafter he immediately proceeded to the
police station for lodging the first information report. Dameti (PW.2)
(mother of prosecutrix) deposed that her daughter had gone to collect
the Mahua from trees at around 7 to 8 am in the morning. She did not
say that she alone entered in the said hut and opened the white plastic
bag. Similar is the statement of Gokal (PW.3), who is the uncle of the
prosecutrix. Ravishankar (PW.4) and Khushal (PW.5) have also deposed
regarding the visit of the prosecutrix to collect Mahua but the
testimony of all the witnesses remained in-ocular on the point that the
accused ran away from the said hut. It is also apparent that there is a
difference of three hours in the timing of the incident as mentioned in
the first information report (Exhibit P/2) and in the statement of the
complainant Laxman (PW.1). If it is correlated with the merg intimation
(Exhibit P/1), it reveals that the incident was shown in between 11 am to
16 pm. The first information report lodged at 17 pm though the police
station is only one kilometer far away from the place of incident.
However, the said change of timing is having some substance but
looking to the in-ocular testimony of Laxman (PW.1), Dameti (PW.2) and
Gokal (PW.3), Ravishankar (PW.4), Khushal (PW.5), who saw the
accused running away from the spot corroborating the same with the
medical and scientific evidence i.e. opinion of the doctor as well as
D.N.A. report, the allegation of commission of rape upon the
prosecutrix has been proved by the prosecution beyond reasonable
doubt. On the point of murder of the prosecutrix, nothing has been
brought in the evidence that under what circumstance she died. In the
postmortem report (Exhibit P/7), no external injuries were found on the
person of the deceased and the internal parts of body were also healthy
and the cause of death is asphyxia. As per Medical Jurisprudence,
Asphyxia has different kinds. In the present case, looking to the
statement of Dr.Rohit Pant (PW.7), who conducted the postmortem of
the deceased (Exhibit P/7), it can safely be observed that the said
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asphyxia may be due to suffocation, which may occur because of
smothering or closure of the mouth or nostrils. But, in the postmortem
report, no sign is available either on the mouth or on the nostrils that
using force by the accused over the face, smothering took place. In the
present case as to how the asphyxia took place is not explained either
by the medical evidence or by any cogent evidence brought on record.
On perusal of the medical of the girl, the sign of commission of rape is
present but brutality to the body is not present though she was found
dead. Therefore, in the said incriminating circumstances in which the
accused was last seen while running away from his hut and the person
of prosecutrix/deceased was found coupled with the sign of rape, the
finding recorded on the said charge appears to be just. But, similarly
looking to the postmortem report (Exhibit P/7) and the other evidence
brought on record, the intention of accused to cause death of the
prosecutrix does not reflect. The cause of death is asphyxia, which may
be possible by smothering. In any case, in our considered opinion, the
finding of conviction recorded against the accused for the offences
under Sections 376A, 302, 342, 201/511 of the I.P.C and Section 6 of the
POCSO Act do not warrant interference in the facts of the present case.

10. Now the question arises for consideration 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 the Supreme Court.

11. The constitutional validity of the provision of Section 302
of the I.P.C and Section 354(2) of the Cr.P.C was put to challenge before
Hon’ble the Supreme Court in the case of Bachan Singh (supra). The
Apex Court by the majority view has declined to interfere into the
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matter but drawn the guidelines on the “aggravating circumstances”
and “mitigating circumstances” and directed that the Court has to
decide each case in their own facts looking to those circumstances. The
“aggravating circumstances” suggested in Bachan Singh (supra) are
reproduced as under:-

“Aggravating circumstances:- A Court may, however,
in the following cases impose the penalty of death in
its discretion:-

(a) if the murder has been committed after previous
planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed
forces of the Union or of a member of any police
force or of any public servant and was committed –

(i) while such member or public servant was on
duty; or

(ii) in consequence of anything done or attempted
to be done by such member or public servant in
the lawful discharge of his duty as such member or
public servant whether at the time of murder he
was such member or public servant, as the case
may be, or had ceased to be such member or
public servant; or

(d) if the murder is of a person who had acted in the
lawful discharge of his duty under Section 43 of the
Cr.P.C, 1973, or who had rendered assistance to a
Magistrate or a police officer demanding his aid or
requiring his assistance under Section 37 and Section
129 of the said Code.”

The mitigating circumstances explained in Bachan Singh
(supra) are reproduced as under:-

“Mitigating circumstances:- In the exercise of its
discretion in the above cases, the Court shall take
into account the following circumstances:-
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.

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(2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death.
(3) The probability that the accused would not
commit criminal acts of violence as would constitute
a continuing threat to society.

(4) The probability that the accused can be reformed
and rehabilitated. The State shall by evidence prove
that the accused does not satisfy the conditions 3
and 4 above.

(5) That in the facts and circumstances of the case
the accused believed that he was morally justified in
committing the offence.

(6) That the accused acted under the duress or
domination of another person.

(7) That the condition of the accused showed that he
was mentally defective and that the said defect
unpaired his capacity to appreciate the criminality of
his conduct.”

12. In the case of Bachan Singh (supra), the Apex Court
referring both “aggravating circumstances” and “mitigating
circumstances” has further observed that these are undoubtedly
relevant circumstances must be given great weight in determination of
the sentence but there may be numerous other circumstances justifying
the passing of the lighter sentence as there are countervailing
circumstances of aggravation. “We cannot obviously feed into a judicial
computer all such situations since they are astrologically imponderables
in an imperfect and undulating society. The scope and concept
mitigating factors in the area of death penalty must receive a liberal and
expensive construction by the Court in accord with sentencing policy.

The Judges should never be bloodthirsty. Hanging of the murderers has
never been too good for them. It is imperative of voice the concerned
that the Courts aided by the broad illustrative guidelines indicated by us,
will discharge the onerous function with ever more scrupulous care and
humane concern directed along the highroad of legislative policy
outlined in Section 354(3) of the Cr.P.C. For a person convicted of
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murder, life imprisonment is rule and the death sentence is exception. A
real and abiding concern for the dignity of human life postulates
resistance to taking a life through law’s instrumentality. That ought not
to be done save in the rarest of rare cases when alternative option is
unquestionably foreclosed”.

13. The Full Bench of Hon’ble the Supreme Court in the case of
Machhi Singh (supra), relying upon the guidelines drawn by the Apex
Court in Bachan Singh (supra) 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 culled
out and applied to the facts of each individual 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
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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.

14. 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
accused would be a menace, threat and
antithetical to harmony in the society. Especially
in cases where an accused does not act on
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.”

15. 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:-

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“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.”

16. 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 “society-
centric” 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.”

17. 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 appropriate that the lesser sentence should
be awarded. This is the underlying philosophy
behind “the rarest of the rare” principle.”

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18. In the case of Rameshbhai Chandubhai Rathod (supra), 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
by one of the Judge 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.”
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
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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.

19. Learned Government Advocate and Panel Lawyer
representing the respondent/State has relied upon two Division Bench
Judgments of this Court in the cases of Bhagwani (supra) and Sachin
Kumar Singhraha (supra). In Bhagwani (supra), the girl aged 11 years
was raped and thereafter throttled to her death and the death sentence
has been confirmed by this Court. Similar is the position in the case of
Sachin Kumar Singhraha (supra) wherein a 5 year girl was raped and
throttled to her death and various injuries were found on her person.
Both the above referred cases are distinguishable on facts except the
age of the girl and commission of rape and the manner in which the girls
done away with brutality was the factor aggravated to find those cases
within the connotation “the rarest of the rare case”.

20. In the present case as discussed hereinabaove, the sign of
commission of rape on the person of the prosecutrix by the accused is
on record but the cause of death is asphyxia by unknown reason. The
mitigating circumstances to the accused in the present case is that he
was only 21 years of age on the date of commission of the offence while
in above referred two cases, the age of the accused persons were
between 32 to 33 years. Nothing has been brought on record by the
prosecution that the accused was having any criminal antecedent. On
the other hand, the record indicates that he was left by his mother and
residing alone, therefore, the accused was the first offender living
separate from his family at the age of 21 year and the probability of his
being rehabilitation and reformation is there, cannot be ruled out.
Nothing is available on record to suggest that he cannot be a useful
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member of the society. In our considered opinion, it is not a case in
which the alternative punishment would not be sufficient to the facts of
the case. Therefore, the judgments of Bhagwani (supra) and Sachin
Kumar Singhraha (supra) relied by learned Government Advocate and
Panel Lawyer representing the respondent/State are distinguishable
and of no help to them. The judgment of B.A.Umesh (supra) relied by
the Government Advocate and Panel Lawyer representing the
respondent/State is also distinguishable from the facts of the present
case because in B.A.Umesh (supra), there was a violent sexual assault
on a minor girl having injuries on her body that includes the private part
and the Apex Court has upheld the capital punishment.

21. Now reverting to the argument of Section 42 of the POCSO
Act with respect to the alternative punishment, when an act or omission
constitutes an offence of Section 376A of the I.P.C coupled with the
offence punishable under the provisions of the POCSO Act and on found
guilty to the accused for such offence, the punishment under the
POCSO Act or under the provisions of the I.P.C, whichever is greater in
degree may be awarded. In the present case, the charge under Section
376A of the I.P.C has been framed coupled with the charge of Section 6
of POCSO Act. The punishment is prescribed in Section 6 of POCSO Act
of not less than “ten years which may extend to imprisonment for life
and also liable to fine”. While in Section 376A of the I.P.C, if any offence
has been committed punishable under Sub-section (1) of Sub-section (2)
of Section 376 of the I.P.C and in course of such commission inflicts an
injury which causes the death of the woman or the causes the woman
to be in a persistent vegetative state then such accused shall be
punished with the sentence not less than twenty year which may
extend to the imprisonment for life (for remainder life of that person or
with death). Therefore, the distinction which is drawn from the
punishment specified under Sub-section (1) or Sub-section (2) of
Section 376 to make out a case of Section 376A of I.P.C in commission of
18

rape, the infliction of injury which causes the death of a woman or
causes the woman to be in a persistent vegetative state is essential then
the sentence of Section 376A of the I.P.C is greater from sentence as
specified in Section 6 of POCSO Act may be awarded. In this regard, we
have already discussed above that on the person of the deceased either
on the external part of the body or the internal parameters, no external
or internal injury has been found which may cause the death of the
woman. The argument advanced that asphyxia would fall within the
connotation of infliction of injury causing death but the said argument
do not find support from the medical evidence because either on the
face or on the nostrils or any other part of the body including throttling,
no signs of injury were found, therefore, the argument advanced by
learned Government Advocate and Panel Lawyer for the State in this
regard is hereby repelled.

22. In view of the foregoing discussion, looking to “the
aggravating circumstances” and “the mitigating circumstances” as
indicated hereinabove, in our considered opinion, it is not one of “the
rarest of the rare case” wherein capital punishment to hang the accused
till death awarded by the Trial Court can be maintained. Therefore,
maintaining the finding of conviction of the accused for the charge of
Sections 376A and 302 of the I.P.C and Section 6 of the POCSO Act, he is
sentenced for the remainder life subject to any remission by the
Government for good reasons as specified in Ramraj (supra) and the
sentence as specified in Rameshbhai Chandubhai Rathod (supra).

23. Accordingly, the Criminal Reference No.5/2018 made by the
Second Additional Sessions Judge Khurai, District Sagar under Section
366(1) of the Cr.P.C for confirmation of the death penalty of the accused
is answered. The Criminal Appeal No.5015/2018 filed by the accused
stands allowed in part and the finding of conviction is maintained for
the charges under Sections 376A, 302, 342, 201/511 of the IPC and
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Section 6 of the POCSO Act but the capital punishment for the offence
under Section 376A of the I.P.C stands set aside instead the accused is
sentenced for the remainder life subject to remission. The conviction
and sentence of the accused for the offences under Sections 302, 342,
201/511 of the IPC and Section 6 of the POCSO Act is also maintained
with a direction to run all the sentences concurrently.

24. Let copy of this judgment be retained in the record of
Criminal Appeal No.5015/2018.

25. Office is directed to send a copy of this judgment
immediately to the Trial Court concerned to take appropriate steps as
per law.

(J.K.Maheshwari) (Akhil Kumar Srivastava)
Judge Judge
amit

Digitally signed by AMIT JAIN
Date: 2018.08.20 17:52:34
+05’30’
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