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SUPREME COURT OF INDIA
H.L. Dattu, CJI., Sudhansu Jyoti Mukhopadhaya and Arun Mishra, JJ.
Kalu Khan – Appellant
Vs.
State of Rajasthan – Respondent
Criminal Appeal Nos. 1891-1892 of 2014
Decided On : 10-03-2015
(1980) 2 SCC 684; 1984 (2) R.C.R. (Criminal) 412 : (1983) 3 SCC 470; 2006 (1) R.C.R. (Criminal) 704 : (2006) 3 SCC 359; 2013 (3) R.C.R. (Criminal) 588 : 2013 (4) Recent Apex Judgments (R.A.J.) 166 : (2013) 5 SCC 546 – Relied upon
2013 (4) R.C.R. (Criminal) 924 : 2013 (6) Recent Apex Judgments (R.A.J.) 433 : (2013) 10 SCC 421; 2012 (2) R.C.R. (Criminal) 696 : 2012 (2) Recent Apex Judgments (R.A.J.) 385 : (2012) 4 SCC 37 – Referred
(b) Indian Penal Code, 1860 – Section 302 – Criminal jurisprudence – Death sentence –Appellant-accused committing rape on four year girl child, murdering her and trying to dispose her body – Evidence not sufficiently providing any direct indicia to draw irrefutable conclusions with regard to the nexus between "the crime" and "the criminal" – Case being entirely based on circumstantial evidence and extrajudicial confession of the co-accused – No criminal antecedent of appellant-accused – Death penalty not inescapable conclusion instantly – Instant case does not warrant death sentence – Life imprisonment would be adequate and will meet ends of justice. (Para 28, 29)
2007(3) R.C.R. (Criminal) 302 : 2007 (3) Recent Apex Judgments (R.A.J.) 451 : (2007) 12 SCC 288; 2010 (2) R.C.R. (Criminal) 221 : 2010 (2) Recent Apex Judgments (R.A.J.) 167 : (2009) 6 SCC 498; 2013(3) R.C.R. (Criminal) 159 : 2013 (4) Recent Apex Judgments (R.A.J.) 4 : (2013) 9 SCC 778; 2010 (5) R.C.R. (Criminal) 381: 2010 (5) Recent Apex Judgments (R.A.J.) 638 : (2010) 1 SCC 58; 2013(4) R.C.R. (Criminal) 653 : 2013 (5) Recent Apex Judgments (R.A.J.) 541 : (2014) 4 SCC 317; 2014 (2) R.C.R. (Criminal) 947 : 2014 (3) Recent Apex Judgments (R.A.J.) 362 : (2014) 4 SCC 292; 2013 (4) R.C.R. (Criminal) 694 : 2013 (5) Recent Apex Judgments (R.A.J.) 588 : (2014) 4 SCC 375 – Relied upon
Facts of the case:
The granddaughter of one Devilal Meghwal, a member of the Scheduled Caste aged four years, had gone missing since at about 8:30 AM on 03.05.2012.
The following day, on 04.05.2012, at about 10:00 AM, Jumman Khan, son of the Appellant-accused, was seen burying something in a pit in the courtyard of his residence. On being questioned, Jumman Khan failed to provide any satisfactory answer to his activity. When the villagers dug up the said spot, the dead body of the deceased was discovered. On further questioning, Jumman Khan disclosed that his father, the Appellant-accused, had lured the deceased into his house by offering her berries and then prompted him to commit rape on her and subsequently, himself raped her. He further divulged that since the deceased's physical condition was deteriorating, they killed her and concealed her dead body in the courtyard of their house.
The Trial Court had framed charges against the Appellant-accused and Jumman Khan for commission of the offence punishable u/ss 363, 364, 376(2)(f), 302 and 201of the Indian Penal Code and Sections 3(2)(v) and 3(2)(vi) of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act.
Since Jumman Khan was a juvenile at the time of commission of the offence his case was separated and referred to the Juvenile Justice Board for further proceedings.
The Trial Court convicted the Appellant-accused of the offence punishable u/ss 363, 364, 376(2)(f), 302 and 201 of the Indian Penal Code.
The Trial Court sentenced him to undergo imprisonment for life for the offence punishable u/s 364 IPC, rigorous imprisonment for seven years for the offence punishable u/s 363, life imprisonment for the offence punishable u/s 376(2)(f), rigorous imprisonment for seven years for the offence punishable u/s 201 and awarded death sentence for the offence punishable u/s 302 IPC.
The High Court confirmed the judgment of conviction and affirmed the death sentence passed by the Trial Court.
Finding of the Court:
Instant case does not warrant death sentence. Instead, life imprisonment would be adequate and will meet ends of justice.
Result: Appeal disposed of.
ORDER
1. These appeals are directed against the judgment and order passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal Murder Reference No. 02 of 2013 and D.B. Criminal Jail Appeal No. 293 of 2013, dated 09.04.2014. By the impugned judgment and order, the High Court has confirmed the judgment of conviction and order of sentence passed by the learned Special Judge, Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act Cases, Sriganganagar in Original Sessions Case No. 53 of 2012, dated 07.03.2013, whereby the learned Special Judge has convicted the Appellant-accused for of fence Under Sections 363, 364, 376(2)(f), 302 and 201 of the Indian Penal Code, 1860 (for short "the Indian Penal Code") and awarded death sentence.
Facts:
The Prosecution case in a nutshell is:
"On 04.05.2012, at 01:00 PM, one Devilal Meghwal (PW-1), a member of the Scheduled Caste, had submitted a written report to the Station House officer, Police Station Lalgarh Jatan stating that on 03.05.2012, at about 8:30 AM, his grand-daughter (referred to as "the deceased" hereinafter), aged four years, had gone missing while she was on her way back home from his younger brother- Kashiram's (PW-5) residence in the neighbourhood. He had stated that in spite of an intense search in entire village, her whereabouts could not be traced. The following day, on 04.05.2012, at about 10:00 AM, in the course of his search along-with other members of the village, it was noticed that Jumman Khan, son of the Appellant-accused, was burying something in a pit in the courtyard of his residence. On being questioned, Jumman Khan had failed to provide any satisfactory answer to his activity. Thus, dissatisfied by his suspicious response, PW-1 as well as other villagers had dug the said spot, whereat they discovered the dead body of the deceased. Thereafter, on further questioning, Jumman Khan disclosed that his father, the Appellant-accused, had lured the deceased into his house by offering her berries and then prompted him to commit rape on her and subsequently, himself raped her. He further divulged that since, the deceased's physical condition was deteriorating, they killed her and concealed her dead body in the courtyard of their house."
2. On the basis of the said written report, a case was registered as FIR No. 86 of 2012 against the Appellant-accused and Jumman Khan for the of fence punishable Under Sections 363, 364, 376(2)(f), 302, 201 and 34 of the Indian Penal Code and Sections3(2)(v) and 3(2)(vi) of the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, "the Act"). Thereafter, the investigating agency prepared an inquest report and recovered certain articles from the spot. The dead body of the deceased was sent for post-mortem. The post-mortem report disclosed the cause of death as extensive injuries at neck and other vital parts of the body and recorded medical conditions of having been raped before death. During the course of investigation, the Appellant-accused and Jumman Khan were arrested. The investigating agency recovered the weapon of offence an iron spade, blood stained shirt of the Appellant-accused, blood stained clothes of the deceased and other articles at the instance of the Appellant-accused. The said articles were sealed and thereafter, sent to the Forensic Science Laboratory (for short, "FSL") for their serological and chemical examination. The FSL Report recorded that the blood stains on the clothes of the deceased, the weapon of offence and the clothes of the Appellant-accused matched the deceased's blood samples.
3. After completion of the investigation, a police report was filed before the competent court and the case was committed to the Court of learned Special Judge, Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act Cases, Sriganganagar. The Trial Court had framed charges against the Appellant-accused and Jumman Khan for commission of the of fence punishable Under Secti
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