Mohd. Firoz vs State Of Madhya Pradesh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 355

SUPREME COURT OF INDIA
UDAY UMESH LALIT, S. RAVINDRA BHAT, BELA M. TRIVEDI, JJ.
Mohd. Firoz - appellant
Versus
State Of Madhya Pradesh - Respondent
Criminal Appeal No.612 of 2019
Decided on : 19-04-2022

Advocates appeared:
For the Appellant(s) : Mr. B.H. Marlapalle, Sr. Adv. Ms. Shreya Rastogi, Adv. Ms. Harini Raghupathy, Adv. Ms. Trisha Chandran, Adv. Mr. Ramnesh Kr. Sahu, Adv. Mr. Satya Mitra, AOR
For the Respondent(s): Mr. P.V. Yogeswaran, Adv./AAG Mr. Pashupathi Nath Razdan, AOR Mr. Kayesh Regg, Adv. Mr. Astik Gupta, Adv. Ms. Sneh Bairwa, Adv. Mr. Prakhar Srivastav, Adv.

Headnote:
(1) Criminal Trial -- case based on circumstantial evidence -- five golden principles -- reiterated. (1984) 4 SCC 116 relied on.
[Para 22
(2) Criminal P. C., 1973 -- S. 313 -- statement of accused -- admission -- conviction cannot be based on statement of accused recorded u/s. 313 -- prosecution has to prove guilt by independent and cogent evidence -- nonetheless, when accused makes inculpatory and exculpatory statements, inculpatory part of statement can be taken aid of to lend credence to case of prosecution. (2002) 10 SCC 236 relied on. (2007) 12 SCC 341 referred to. [Paras 23 & 24
(3) Witness -- related witness -- evidence could not be disbelieved merely because they happened to be relatives of informant -- some minor discrepancies -- could not be said to be major contradictions to throw case of prosecution overboard or disbelieve prosecution. AIR 1965 SC 202 referred to. [Para 25
(4) Criminal Trial -- circumstance of last seen together -- theory of "last seen together" established -- accused expected to offer explanation as to circumstances under which he parted company of victim. (2019) 10 SCC 623, (2018) 6 SCC 610 and (2021) 9 SCALE 94 relied on. [Para 26
(5) Evidence Act, 1872 -- S. 106 -- circumstance of last seen together -- failure of accused to throw light upon facts proved to be within his special knowledge may provide additional link in chain of circumstances required to be proved against him -- furnishing or non-furnishing of explanation as to how and when accused parted company of victim -- would be very crucial when theory of "last seen together" is proved against him. (2019) 10 SCC 623, (2018) 6 SCC 610 and (2021) 9 SCALE 94 relied on. [Para 26
(6) Constitution of India -- Arts. 21 and 39A -- Criminal P. C., 1973 -- S. 304 -- fair trial -- free and fair trial is sine qua non of Art. 21 -- procedure in criminal trials must be right, just and fair and not arbitrary, fanciful or oppressive -- right to fair and speedy trial applies as much to victim as accused -- considering gravity and seriousness of crime, if trial is expedited by Court, it could not be said that such trial was not fair to accused -- while expediting trial, it is imperative on Court to see that due procedure is followed during course of trial. (1978) 1 SCC 248 relied on. (2004) 3 SCC 767 and (2006) 3 SCC 374 referred to. [Para 33
(7) Criminal Trial -- fair trial -- deprivation -- nothing on record to suggest that due procedure was not followed -- legal assistance provided to both accused by appointing lawyer at expense of State, who thoroughly cross-examined all witnesses and also examined two witnesses on behalf of accused -- no such contention raised during course of trial or even before High Court -- no such contention raised in memorandum of present appeal -- oral submission by counsel at fag end of arguments that there was no fair trial -- without substantiating, said submission cannot be entertained. [Para 34
(8) Criminal Trial -- media trial -- in absence of any material on record, no inference could be drawn that because of media pressure, trial was not conducted in fair manner. [Para 34
(9) Criminal Trial -- fair trial -- duty of Court -- "Equality, Justice and Liberty" is the trinity of fair trial recognized in administration of justice -- concept of fair trial entails triangulation of interest of accused, victim and society at large -- rights of victim should not be undermined or neglected -- society at large would also be important stake-holder in cases involving heinous crimes -- Court conducting trial/appeal not only obliged to protect rights of accused but also of victim, and interest of society -- Judge presiding over criminal trial has not only to see that innocent man is not punished but has also to see that guilty man does not escape -- both are his public duties required to be discharged very diligently to maintain public confidence and uphold majesty of law. [Para 35
(10) Criminal P. C., 1973 -- S. 215 -- Penal Code, 1860 -- Ss. 302, 376 (2) (i), 376 (2) (m) and 376A -- non-mentioning of provision in charge -- death of victim caused due to injuries inflicted by appellant while committing offence u/s. 376 (2) (i) and 376 (2) (m) -- provisions of S. 376A of IPC would also get attracted, which came into force prior to alleged incident -- charge u/s. 376A not framed by Sessions Court -- accused charged for offence u/s. 302 of IPC, which is punishable with death or life imprisonment -- also charged for offences u/s. 376 (2) (i) and 376 (2) (m), as covered in S. 376A, which is also punishable up to death sentence -- non-mentioning of S. 376A in charge could not be said to have misled accused, nor any failure of justice could be said to have occasioned. [Para 37
(11) Sentence -- principle of restorative justice -- to give opportunity to offender to repair damage and to become socially useful when released from jail -- maximum punishment prescribed may not always be determinative for repairing crippled psyche of offender. (1980) 2 SCC 684, (1983) 3 SCC 470 and (2021) 1 SCC 596 referred to. [Para 43
(12) Penal Code, 1860 -- S. 376A -- sentence -- balancing scales of retributive justice and restorative justice, sentence of imprisonment for period of twenty years imposed instead of imprisonment for remainder of his natural life. [Para 43

JUDGMENT :

BELA M. TRIVEDI, J.

1. The present appeal was initially filed by the appellant-Bibi Sidhika, the mother of the accused Mohd. Firoz, challenging the legality and validity of the impugned common judgment and order dated 15.07.2014 passed by the High Court of Judicature, Madhya Pradesh at Jabalpur, in the Criminal Reference No. 09 of 2013, Criminal Appeal No. 2920 of 2013 and Criminal Appeal No. 3132 of 2013. During the pendency of the present appeal, the said appellant having expired, the accused Firoz has been substituted as the appellant in view of the order passed by this Court on 21.10.2021.

Case of Prosecution :-

2. The case of the prosecution as unfolded before the trial court was that on 17.04.2013, at about 06:30 PM, one Rakesh Choudhary (original accused no. 2) came to the house of the informant Ramkumari (mother of the victim) along with an unknown person (the present appellant-original accused no. 1) and requested the said Ramkumari and her mother Himmabai to provide an accommodation to the said unknown person for a day, however, Himmabai refused to provide such accommodation. Thereafter, Rakesh Choudhary left and his friend sat for a while at the courtyard of the house of the complainant, where the victim aged about four years was playing with her brother Ramkishan and other cousins. After sometime, Ramkumari found that her daughter was missing and the other person (the accused no. 1) was also not there. She along with others tried to search her daughter at the nearby places, however, her daughter was not found. After sometime Ramkishan came with some bananas and told Ramkumari that Bhaijaan (accused no. 1) had taken the victim with him. Ramkumari therefore went to the police station Ghansaur for lodging a missing report. On the next day i.e., on 18.04.2013 morning, some villagers found that one girl child was lying unconscious in the field of one Badri Yadav. On receiving such information, Shyam Yadav, the brother of Ramkumari went to the spot and found that the victim was lying unconscious and blood was oozing from her mouth and nostrils. He immediately took the victim first to the Police Station and then to the Government Hospital at Ghansaur, however, since the condition of the victim was deteriorating, she was shifted to the hospital at Jabalpur. The Doctors who examined and treated her confirmed that a rape was committed on the victim. Considering her serious condition, the victim was taken to the Care Hospital at Nagpur, however, on 29.04.2013, the victim expired at the said hospital. Dr. Pradeep Gangadhar Dixit, a professor and H.O.D. in Forensic Medicine Department, Medical College, Nagpur along with his colleagues conducted the postmortem of the dead body of the victim at about 10.35 AM on 30th April 2013 and noted the external and internal injuries on the body of the victim. The final cause of death was stated to be “bronchopheumonia and cerebral hypoxia, which was caused by smothering the nose and mouth.”

3. In the meantime, Mr. R.D. Barthi, In-charge Inspector, Police Station, Ghansaur, on the missing person report given by Ramkumari Bai had started investigation and found that the accused Firoz Khan (the present appellant), who was working in Jhabua Power Plant had taken away the victim deceitfully. He therefore registered an FIR being no. 68 of 2013 against the accused at about 06:40 AM on 18.04.2013 for the offences under Section 363 and 366 of IPC. The accused Rakesh Choudhary came to be arrested on 20th April 2013 and the appellant-accused Firoz was arrested on 23rd April, 2013 from Husainabad, Police Station Mojahidpur, Balsaur, Bhagalpur, Bihar.

4. The investigating officer after completing the investigation laid the chargesheet against both the accused before the trial court. The accused Mohd. Firoz was charged for the offences under sections 363, 366, 376(2)(i), 376(2)(m) and 302 of IPC and under section 5(i), 5(m) and Section 6 of the Protection of Children from the Sexual Offences Act, 20