ALLAHABAD HIGH COURT
Shashi Kant Gupta and Prabhat Chandra Tripathi, JJ.
Pappu —Appellant
versus
State of U.P. —Respondent
Capital Cases No.6601 of 2016 and Reference No.13 of 2016
Decided on 6.10.2017

IMPORTANT POINT
The accused took police party and pointed out the place from where dead body of the deceased was recovered, in absence of explanation by accused as to how dead body was kept and concealed there, court can draw inference that it was accused who murdered deceased and concealed dead body and such interpretation is not inconsistent with principle embodied in Section 27 of Evidence Act.

Headnote:Indian Penal Code, 1860—Sections 376, 303 and 201—Rape and murder of young seven year old girl—Victim deceased was playing with children when accused entered her and took her to secluded place, committed rape on her and committed her murder by causing injuries on her person and dumped body behind bushes on river bank—Dead body was recovered pursuant to statement given by accused to police—Post mortem report revealed that vagina was found in tear position and death was due to haemorrhage and shock as a result of ante-mortem injuries—Child witnesses including sister of vicitim deposed that while they were playing accused came and took deceased with him on a pretext—While considering defence argument regarding variations in evidence, rustic background of witnesses was to be kept in mind and they had deposed after more then a year of alleged incident—FIR was lodged on next day but delay stood explained by reason that family remained in search of victim—Evidence of a close relative who was a natural witness could not be characterized as an “interested witness”—Accused took police party and pointed out the place from where dead body of victim was recovered and in absence of explanation by accused as to law dead body was there concealed, court could draw interference that accused had murdered deceased—Presumption in favour of prosecution under Section 29 of POCSO Act shifted burden on accused—No reason to interfere with conviction—It was a Brutal rape and murder of young girl and considering vulnarability of victim, enormity of crime, case fell in a “rarest of rare” category and death sentence was desirable.

       Held: As far as objections raised regarding application of Section 27 The Indian Evidence Act, 1872 is concerned. It is apt to say that Section 27 of the Evidence Act is an exception to Section 25 of the Act. Section 25 mandates that no confession to a police officer while in police custody shall be proved as against a person accused of any offence. Section 27, however, provides that any fact deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

       “Information is ‘genus’ while discovery of fact or instrument is species and to put it in other words information is the cause and discovery of fact is its effect. 1992 UP Cri R 521 (410) (All).”

       Learned trial Judge has legally and correctly interpreted the ocular testimony of the witnesses. Here the accused took police party and pointed out the place from where dead body of the deceased was recovered, in absence of explanation by accused as to how dead body was kept and concealed there, court can draw inference that it was accused who murdered deceased and concealed dead body and such interpretation is not inconsistent with principle embodied in Section 27 of Evidence Act.

       In the present case, the declarant accused person was in the custody of the police and alleged information received from the accused person was made in consequence of his statement which resulted into the recovery of the dead body of the minor girl at the pointing out of the accused person.

       Only this component or a portion which was immediate cause of the recovery of the corpse of minor girl would be legal evidence and not the rest. This may therefore pro tanto (to that extent) permits the derivative use of custodial statements in the ordinary course of events.

       The post-mortem report of the deceased minor girl Amrata confirms the commission of rape upon her at the relevant time mentioned in the First Information Report.

       Following rulings are relevant in this case:—

        Raju Versus State of Haryana (2001) 9 Supreme Court Cases 50 (Criminal Appeal No.581 of 2000, decided on May, 2, 2001) (ii) State of U.P. Versus Devendra Singh (2004) 10 Supreme Court Cases 616 (Criminal Appeal No.617 of 1998, decided on April 13, 2004) (iii) State of U.P. Versus Satish (2005) 3 Supreme Court Cases 114 (Criminal Appeals Nos.256-57 of 2005, decided on February 8, 2005) (iv) Kamta Tiwari Versus State of M.P. (Criminal Appeal No.267 of 1996, decided on 4.9.1996).

       Thus, the ocular testimony of P.W.1 Smt. Nisha, P.W. 2 Km. Anita and P.W. 3 Km. Ashana is wholly reliable and trustworthy. We see no reason to disbelieve the testimony of P.W. 6 Dr. Himanshu Kumar. The oral evidence of P.W. 6 Dr. Himanshu Kumar fully supports prosecution version. The medical evidence of P.W. 6 Dr. Himanshu Kumar who conducted the autopsy found that the death of Km. Amrata aged about 7 years minor girl had taken place due to ante-mortem injuries and the time of death mentioned in the post-mortem report (Exhibit Ka-11) corresponds to the time mentioned in the F.I.R. (Exhibit Ka-1) as well as in the ocular testimony of P.W. 1 Smt. Nisha, P.W. 2 Km. Anita and P.W.3 Km. Ashana.

       In this case the evidence adduced was found sufficient to sustain the conviction and we find no good ground to take a different view from the one taken by the court below and also with the findings and views by giving our reasons mentioned supra. Onus probandi has been fairly discharged by the prosecution.

       Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. It is a crime against humanity. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country’s future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. It is necessary for the courts to have a sensitive approach when dealing with cases of child rape. The effect of such a crime on the mind of the child is likely to be life long. A special safeguard has been provided for children in Article 39 (e) [(f) of the Constitution of India, 1950.

       The sex maniacs are prowling in the society like wild wolves to quench their sinful bodily lust. They leave no stone un-turned. In this evil pursuit they even do not spare infants and children.

       In this case, the accused person-appellant Pappu who belonged to the same caste, social strata and native place of the deceased minor girl Amrata; allured her to provide her Lychee apparently as a prelude to his sinister design which resulted in her kidnapping, brutal rape and gruesome murder-as the numerous ante-mortem injuries on her person testify; which culminated in concealing her dead body near the banks of the river beside the bushes and innocent helpless and hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position to win her trust. His culpability is of enormous proportion and arouses a sense of revulsion in the mind of the common man.

       In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a ‘rarest of rare cases’ where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society’s a abhorrence of such crime.

        (Paras 42 to 45, 52 to 54 and 58 to 62)

       Result: Appeal dismissed.