MADHYA PRADESH HIGH COURT
N.K. Gupta and S.A. Dharmadhikari, JJ.
State of Madhya Pradesh and Anr. —Appellants
versus
Veerendra and Anr. —Respondents
Criminal Appeal No.39 of 2015 with Criminal Reference Case No.01 of 2015
Decided on 14.7.2016

IMPORTANT POINTS
(1) Discovery of body at the instance of accused is most important circumstance.
(2) Even in case of circumstantial evidence death sentence can be awarded, if offence having great impact on social order and public interest exemplary treatment is required.

Headnote:(i) Criminal Procedure Code, 1973—Section 217—Rape and murder of eight years old girl—Charge under section 376(2)(i), 302 IPC and under POCSO Act was tried against accused—After examining all witnesses, trial court added charge under section 376-A IPC—Prayer of accused for recalling all witnesses for cross-examination was refused only on one line reasoning that summoning the examined witnesses was not for just decision of case—Appeal against conviction—Trial court should have passed speaking order that prayer was made with purpose of causing delay or vexation or defeating ends of justice but trial court failed to mention any such reason—Framing of charge under section 376A IPC created extra burden upon appellant—It prayer of appellant was not accepted for recalling of witnesses then prejudice was caused to him—Appellant could not be convicted under section 376A IPC

       Held: In the present case, when the learned counsel for the appellant had prayed for recalling of the witnesses then it was for the trial court to pass a speaking order that the prayer was made with the purpose of causing delay or vexation or defeating the ends of justice. The trial court has written a single sentence that in his opinion the evidence on record was clear and therefore, the witnesses were not required to be called for just decision of the case.

       When the charges of Sections 302 and 376 of IPC were also framed against the appellant then there was no necessity to frame the charge under Section 376-A of IPC by the trial court unless there was an additional effect of framing of such charge for or against the accused. If charges under Sections 302 and 376 of IPC were framed and it was found that the deceased/prosecutrix died during the course of rape and the accused did not intend to kill her then it was possible that crime of the appellant would be within the purview of Section 304 of IPC and the trial court could not record a death sentence against the appellant for any offence including Section 376 of IPC. The provision under Section 376-A of IPC is a special provision enacted with the object that if during commission of rape, accused inflicts any injury which causes death of that woman or causes woman to be in persistent vegetative state, though the accused did not intend to kill the deceased/prosecutrix even then death sentence can be inflicted and therefore, when a special provision was enacted and death sentence is provided for that offence then an opportunity could be given to the accused for recalling of all the witnesses. It was for the trial court to mention that prayer for recall was made only to cause delay or vexation and it was not in the interest of justice but the trial court did not mention any such reason in its order. As discussed above, the framing of charge under Section 376-A of IPC creates an extra burden upon the appellant and a death sentence could be recorded against him for offence of rape, even if offence under Section 302 of IPC was not proved and therefore if the prayer of the appellant was not accepted for recalling of the witnesses then a prejudice was caused to the appellant that he was not given the advantage of Section 217 of Cr.P.C. In the light of the aforesaid judgments passed by the Apex Court and the M.P. High Court, the Additional Sessions Judge, has committed an error in not following the provision contained under Section 217 of Cr.P.C. and therefore, the appellant cannot be convicted for the offence under Section 376-A of IPC. (Paras 8 and 9)

       (ii) Indian Penal Code, 1860—Section 376(2)(i) and 302—Rape and murder of eight years old girl victim conviction on circumstantial evidence—Appeal—PW 2 and PW 4 claimed to have seen appellant chasing victim when victim girl was passing through in front of house of PW 4—PW 12 saw appellant coming out of place of incident which was a ruined house dusting his clothes—Body of victim was got recovered by accused from ruined house which was a grave circumstance against accused—Pant and Shirt of appellant seized from accused were bearing human blood though serological part of report could not indicate about blood group—Vaginal swab of victim-girl showed presence of semen and human sperms—Absence of any DNA test would not mean that remaining evidence of prosecution was to be discarded—Injuries on male organ of accused depended upon several facts—Deceased victim was relative of appellant and was under mental and physical control of appellant and thus appellant was in a position to control and manage victim who was not in a position to resist—There was no possibility for appellant to receive any injury on his scortum or thigh—Injury was found on neck of victim as if it was pressed—Uterus was found torn and ruptured and thus act of accused was imminently dangerous and fall within ingredients of Section 300 IPC—Conviction under section 376(2)(i) and 302 IPC was liable to be confirmed.

       Held: If all the circumstances which are proved against the appellant are considered simultaneously then it is proved that the appellant had chased the deceased/prosecutrix when she left the house of Raju to fetch a bundle of Bidi form the shop of Sunil and the factum of last seen is proved. Secondly, he was found by the witness Madanlal (PW-12) at about 09 pm when he was coming out of the place of incident dusting his clothes. Thirdly on his information the dead body of the deceased was discovered. Fourthly the several injuries were found on the body of the deceased and in her vaginal swab semen and sperms were found which indicates that the rape was committed upon her before her death and blood also oozed out of her wounds. It was also proved beyond doubt that the death of the deceased was homicidal in nature. She might have sustained fatal injuries during the offence of rape committed upon her but she was definitely killed by throttling. In the alternate, it was established that the act of the appellant of rape and to continue with such an offence so that even uterus of the prosecutrix was badly torn and ruptured. His overt act falls within the purview of offence of murder. A full pant was recovered from the appellant having stains of human blood. Dr. Harish Arya (PW-17) found four scratches on the face and neck of the appellant. It is also proved that the age of the prosecutrix was eight years and hence rape committed upon her falls within the purview of Section 376(2)(i) of IPC. Out of these circumstances, crucial circumstance is that the dead body was discovered on the information given by the accused. If the appellant was not involved in the crime then how could he know as to where the dead body was kept. Hence, after considering all the circumstances, only conclusion can be drawn that the appellant had committed rape upon the deceased/prosecutrix and killed her.

       Hence, on the basis of the aforesaid discussion and the circumstances proved against the appellant, the trial court has rightly found that the appellant was guilty of offence under Section 376(2)(i) and Section 302 of IPC. Consequently, the accused is guilty of offence under Section 6 of the POCSO Act which is an analogous provision to Section 376 of IPC. (Para 32 and 33)

       (iii) Indian Penal Code, 1860—Section 376(2)(i) and 302—Rape and murder of eight years old girl—Death sentence by trial court—Reference and appeal—Perennial tear and position of uterus suffered by victim showed that it was smashed like vegetable which indicated diabolical and grotesque desire of appellant—Injuries caused to deceased showed the gruesome manner in which She was subjected to rape—Act of appellant was monsterous on innocent and helpless child—Case fall within purview of rarest of rare and death sentence was liable to be affirmed.

       Held: After considering the factual position of this case in the light of the aforesaid judgments passed by the Apex Court, the appellant being a near relative of the deceased/prosecutrix used his relations upon the innocent child. He is a matured youth of 25 years of age. Looking to the perennial tear and position of the uterus almost smashed like vegetable, it is clear that in order to execute his diabolical and grotesque desire, the appellant proceeded towards a lonely place of one Jagdish @ Jagan (PW-6). The girl was about eight years who was incapable of arousing lust in normal situation. Appellant had won the trust of the child and she did not understand the desire of the appellant, hence, while she was being taken away by the appellant no protest was made by the innocent child. The injuries caused to the deceased/prosecutrix show the gruesome manner in which she was subjected to rape. The victim of crime is an innocent child who did not provide even an excuse, much less a provocation for murder. Such cruelty towards a young child is appalling. The act of the appellant is his monstrous self on the innocent, helpless and defenceless child. This act, no doubt, had invited extreme indignation of the community and shocked the collective conscience of the society. Due to that act, a message has gone in the public that girls of such age even are unsafe while moving in the locality and a crowd was collected when the appellant had accepted his guilt and went to show the dead body of the deceased. Thereafter, when the deceased child had already suffered a great pain with a crushed childhood, she was killed by throttling. Under these circumstances, the present case falls within the purview of “rarest of the rare case”. Looking to the overt act of the appellant, a deterrent sentence is necessary to be passed so that a message should go to the society that such crime should not be repeated by anyone and such heinous crime is highly deprecated and therefore the trial court has rightly punished the appellant with death sentence for the offence of murder. We confirm the recording of death sentence against the appellant for the offence under Section 302 of IPC. (Para 39)

       Result: Appeal partly allowed. Reference sent by Trial court partly accepted.