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2016 Supreme(SC) 757
SUPREME COURT OF INDIA
RANJAN GOGOI, PRAFULLA C. PANT, UDAY UMESH LALIT, JJ.
RAJESH – APPELLANTS
VERSUS
STATE OF MADHYA PRADESH – RESPONDENTS
CRIMINAL APPEAL NOS.1481-1482 OF 2014
Decided On : 08-09-2016
For Appellant(s) Mr. Sanjay R. Hegde,Sr.Adv., Mr. Yash S. Vijay, Adv., Mr. Atul Shankar Vinod, Adv., Mr. Pranjal Kishore, Adv., Mr. Rahul Raman, Adv., Ms. V.S.Lakshmi,Adv., Mr. A. Venayagam Balan,Adv.
For Respondent(s) Ms. Prachi Mishra, Adv., Ms. Sakhshi Kakkar, Adv., Ms. Sylona Mohapatra, Adv., Mr. C. D. Singh,Adv.
IMPORTANT POINT
If death is not caused due to act of the accused, he cannot be convicted u/s 302.
Headnote:Indian Penal Code, 1860 – Section 376 (2)(f) and 377
– Deceased, seven years old girl child in the care of the appellant – Repeatedly subjected to sexual assault, both natural and unnatural, by appellant – Courts below imposing sentence of life imprisonment – No error. (Para 6)
Indian Penal Code, 1860 – Section 302 – Courts below imposing death sentence – Death of deceased not occurring because of beatings by appellant – Conviction u/s 302 altered to one u/s 325 – Accordingly sentence also altered from death sentence to seven years rigorous imprisonment. (Para 9)
(1996) 6 SCC 250 – Referred
Kamta Tiwari v. State of M.P., (1996) 6 SCC 250 – Referred [Para 8]
Facts of the case:
It is an appeal against death sentence imposed for murder of a seven years old girl child.
Finding of the Court:
While conviction and sentence u/s 376 (2)(f) and 377 are justified, those u/s 302 need alteration to one u/s 325.
Result: Appeals partially allowed. The conviction and sentences awarded under Section 376 (2)(f) and 377 IPC maintained. Conviction under Section 302 IPC altered to one under Section 325 IPC. The death penalty set aside and punishment of rigorous imprisonment for seven years imposed. Both sentences directed to run concurrently.
ORDER :
1. The accused-appellant has been convicted for the offences under Section 302, 376 (2)(f) and 377 of the Indian Penal Code (for short, 'the IPC'). For the offence under Section 302 IPC, the accused-appellant has been sentenced to death whereas for the other offences, he has been sentenced to rigorous imprisonment for life.
2. We have heard the learned counsels for the parties.
3. The prosecution case in short is that the victim, a minor girl aged about seven years, was the daughter of one Param Singh (PW-6), who is related to the appellant. As the appellant and his wife were issueless, the appellant had requested Param Singh (PW-6) to hand-over the custody of his daughter so that he could bring her up as his own daughter. According to the prosecution while there were no problems with the upbringing of the child initially, soon, the child was treated with cruelty and subjected to beating and harassment which often led to the child weeping and crying aloud which could be heard by the neighbours. According to the prosecution, whenever the neighbours (who were examined in the case) used to ask the appellant and his wife the cause for the child crying, they were given vague and evasive answers. According to the prosecution on 26.09.2012, one Balram Rathore (PW-2), a neighbour of the accused-appellant, had lodged a report with the police that about 10.00 p.m. on that date he had met the appellant carrying the child in his arms and on being asked what had happened to the child, he was told by the appellant that the child has died. On the basis of the aforesaid report police had registered a case and after investigation thereof charge-sheeted the accused and sent him for trial where he was convicted as aforesaid.
4. Though several witnesses have been examined in the case, we find from a scrutiny of records that it is the post-mortem report (Ex.P-12), DNA Report (Ex.P-23) and the evidence of Dr. A.K. Rastogi (PW-15), who had conducted the post-mortem, which primarily would be relevant. The relevant part of the post-mortem report is extracted herein below :
“Injuries
1. After shaving scalp hair scalp contusion of size 3.0x1.0cm present over right parietal region.
2. After shaving scalp hair scalp contusion of size 3.0x2.0cm present over left parietal region.
3. Contusion of size 3.0x2.0cm present over right frontal region.
4. Contusion of size 3.0x3.0 cm present over left frontal region.
5. Contusion of size 2.0x1.0 cm present on right cheek.
6. Contusion of size 2.0x1.0 cm present on chin which is more right to midline.
7. Contusion of size 3.0x2.0 cm present on left cheek.
8. Multiple small contusion area covered 20x10 cm present over the chest.
9. Old healed scar mark of size 2.0x1.0 cm present just above umbilicus.
10. Old healed scar mark of size 3.0x1.0cm present on left iliac region.
11. Contusion of size 12x10 cm present on back side of chest.
12. Contusion of size 20.0x12.0 cm present over the antero lateral aspect of chest, on dissection intercostals muscles of ribs ecchymosed.
13. Contusion of size 3.2x2.0 cm present on right iliac.
14. Contusion of size 14x4.0 cm present on left arm postero lateral aspect.
15. Contusion of size 7.0x5.0 cm present on left forearm anteriorly.
16. Contusion of size 4.0x2.0 cm present on right forearm anteriorly.
17. Contusion of size 2.5x1.0 cm present on right arm posteriorly.
18. Contusion of size 3.0x1.0 cm present on right forearm anteriorly.
19. Scar mark of size 1.0x0.5 cm present on right forearm anteriorly.
20. Contusion of size 1.0 x 0.75 cm present on anterior aspect of the base of middle finger in right hand.
21. Contusion of size 1.0x1.0 cm present on right hand's index finger.
22. Contusion of size 1.0x1.0 cm present on right thumb.
23. Superficial Burn injury in healing phase of size 2.0.x1.0 present over upper and lateral part of right arm with intervening heating area 0.5 cm area wide.
24. Multiple contusion of size 8.0x6.0 cm over Lt Buttock.
25. Multiple contusion of size 14x6.0 cm present on ant
