Important Point
Where evidence showed that victim was not initially unwilling for sexual intercourse but when accused started intercourse raised shout­ings and accused to prevent her shouting tied her salwar around her neck which resulted in strangulation causing her death, though the accused cannot be exonerated from the offence of rape and murder, extreme penalty of death sentence was not warranted.

Judgment

Nanavati, J.-The appellant has been convicted for committing offences punishable under Sections 376 and 302 IPC and Section 3(ii)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. For the offence punishable under Section 302 IPC death sentence has been imposed upon him. The appellant is challenging his conviction and sentence imposed under those Sections.

2. The prosecution case was that on 7.9.95 at about 7.00 a.m. Kumari Marri, aged about 14 years had gone to ease herself in a field near her house and that while she was so doing, the appellant pounced upon her, pinned her down on the ground, committed rape and when she start­ed resistin and raising shouts, strangulated and killed her by tieing her Salwar around her neck. It was also the prosecution case that hearing her shouts her father Mihilal (P.W. 1) and Avadh Ram (P.W. 2) who had also gone near that field for answring the call of nature, rushed to that place. It was also the prosecution case that they had seen the appellant committing rape and on seeing them the appellant got up and ran away. They had also chased the appellant but he was able to escape.

3. In order to prove its case, besides the medical other evidence the prosecution had led the evidence of Mihilal (P.W. 1), Abadh Ram (P.W. 2) who were the eye-witnesses. Believing their evidence the trial Court convicted the appellant for the offences punishable under Sections 376 and 302 IPC and also under Section 3(ii)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. As the trial Court had imposed death sentence upon the appellant for the offence of murder, it forwarded the record to the High Court for confirmation of that sentence. The appellant also filed an appeal challenging his conviction. The High Court after re-appreciating the evidence, agreed with the findings recorded by the trial Court and confirmed the death sentence by observing as under :

“It was he who, acting as a beast of prey, pounced upon an unprotect­ed, helpless and physically weak young girl, and just to satisfy his sexual lust defiled her despite the best possible resistance coming from the victim. And still the innate, albeit-depraved, urge for self survival was so strong in him that he would not hesitate a bit in squezing out the last breath of the poor little duck. His disabolic, vile and wicked deed was the worst form of degraded gender crime, sparing him from the gallows would be nothing short of letting loose a sex maniac onprowl.

Succinctly put mercy to the appellant under these circumstances would be quite misplaced. It would not only slight the valient resistance put up by the deceased in protecting her honour and chastity but also an insult to the entire womenhood. We, therefore, reject the appeal in its entirety and affirm the reference for confirmation moved by the trial Court.”

4. The evidence of both the eye-witnesses discloses that Mihilal (P.W. 1) was about 150 meters away from the place of the incident. The sight plan also shows that the place where Kumari Marri had gone was in northern corner of the field of Chhedu. The father was near the South Western corner of that field. The sight plan shows the distance be­tween the two places as 125 yards. Avadh Ram (P.W. 2) was at that time near the South East corner of the field of Chhedu at a distance of about 150 Sq. yards. Both Mihilal and Avadh Ram had reached the place of incident almost at the same time. They have stated that they had seen the appellant committing rape and that on seeing them he got up and started running away. Both of them had chased the appellant for some distance.

5. Both the Courts below have accepted their evidence as reliable and truthful. Even after close scrutiny we do not find any infirmity in their evidence which would create doubt regarding veracity of what they have stated. The High Court was, therefore, right in conforming the findings recorded by the trial Court that the appellant com