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GUJARAT HIGH COURT
Bela M. Trivedi and A.C. Rao, JJ.
Anil Surendrasingh Yadav —Appellant
versus
State of Gujarat —Respondent
R/Criminal Appeal No.1973 of 2019 with R/Criminal Confirmation Case No.2 of 2019
Decided on 27.12.2019
(A) Protection of Children from Sexual Offences Act, 2012—Sections 3(a), 4, 5(a), 5(r) and 6—Indian Penal Code, 1860—Sections 302, 363, 366, 376AB, 377 and 201—Criminal Procedure Code, 1973—Section 366(1)—Kidnapping, rape and murder of minor girl—Death sentence—Though incriminating evidence was brought to notice of appellant/accused while recording his further statement, accused had failed to explain the same—Accused was given opportunity to answer incriminating circumstance which had come on record, however, except denial, he had not made any attempt to explain the same, nor had expressed any regret or repentance—Prosecution by leading cogent, trustworthy and credible evidence had conclusively proved guilt of appellant/accused, excluding any possibility of his innocence—Chain of circumstances duly proved by prosecution, taken cumulatively formed a chain so complete that it unerringly pointed to guilt of accused so far as charges levelled against him were concerned—Scale of justice tilts against appellant/accused—Aggravating circumstances proved beyond reasonable doubt like acts of accused in kidnapping a young girl of 3½ years, committing rape on her in her absolutely helpless and unprotected condition, and then murdering her in a brutal manner by strangulating her and then putting her in a gunny bag, fleeing away leaving dead body in locked house to decay and decompose, with no repentance or remorse after commission of crime overweigh mitigating circumstances like no criminal antecedents of accused or no evidence to suggest that he cannot be reformed—Plea that the case being based on circumstantial evidence be treated as a mitigating circumstance is also unsustainable, when Court has found that prosecution by its unimpeachable, trustworthy, cogent and credible evidence has proved guilt of accused beyond reasonable doubt—Abhorrent and atrocious nature of crime committed by appellant/accused in diabolical manner, on defenseless unprotected girl of 3½ years, without any remorse, has left Court with no option but to consider the case as “rarest of rare case” for awarding punishment of death penalty—Death penalty awarded to accused by Special Court confirmed.(Paras 34, 35, 51, 52 and 53)
(B) Indian Evidence Act, 1872—Section 26—Extra-Judicial confession—Evidentiary value—Extra-judicial confession made by accused before doctor, while he was in police custody, would be hit by Section 26 of Evidence Act and could not be read in evidence—It is also true that Medical Officer being an independent witness, he had no reason to falsely implicate accused by recording such history in the case paper, nonetheless, even if it is presumed that said history was given by accused, same having been given by him while in police custody and in presence of police officer, such admission or confession made by him would be inadmissible in evidence by virtue of Section 26 of Evidence Act. (Para 12)
(C) Criminal Procedure Code, 1973—Section 313—Examination of accused—Object of recording further statement of accused under Section 313 is to bring to notice of accused incriminating evidence and to give him an opportunity to explain the same, if he chooses to do so. (Para 33)
Result: Appeal dismissed and Death Reference confirmed.
JUDGMENT (CAV)
Bela M. Trivedi, J.—Both the proceedings arise out of the self-same judgement and order dated 31.7.2019 passed by the Additional Sessions Judge and Special Judge (POCSO), Surat (hereinafter referred to as “the Special Court”) in Special POCSO Case No.223 of 2018, whereby the Special Court has convicted the appellant – accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of IPC and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”), and has sentenced him to death penalty for the offence under Sections 302, 376AB of IPC and has awarded different punishments of different durations and directed to make payment of fine for the said offences. The Special Court has acquitted the accused for the offences under the Atrocities Act. The Special Court has not imposed separate punishment for the offence under Sections 3, 4, 5(a), 5(r) and 6 in view of Section 42 of POCSO Act. The appellant – accused has preferred the appeal under Section 374 of Cr.P.C., against the said judgement and order of the conviction and sentence, which has been registered as Criminal Appeal No.1973 of 2019, whereas the Special Court has submitted the proceedings to the High Court for confirmation of sentence of death penalty imposed by it in view of Section 366 and Section 368 of Cr.P.C., which has been registered as Confirmation Case No.2 of 2019.
Case of Prosecution:
2. The case as unfolded by the prosecution before the Special Court was that the appellant/accused was residing in a room situated on the ground floor of the house owned by one Shyam Narayan Pandey, situated on the plot No.44 at Someshwar Park Society, Surat, and the complainant was staying along with his family on the 1st floor of the said house as the tenant. The appellant on 14.10.2018 between 20.00 to 20.30 hours kidnapped the minor daughter (hereinafter referred to as “the victim”) aged about 3 years 6 months of the complainant Narayan Uttam Umale, who belonged to the scheduled caste. The appellant thereafter took the victim to his room and committed rape on her and killed her by throttling. The appellant thereafter with the intention to destroy the evidence put the body of the victim in a gunny bag in his room. He thereafter locked his room from outside and fled away. The complainant fervently searched his daughter in the society, but she was not found and therefore, he lodged a complaint at Limbayat Police Station, Surat on 15.10.2018 at about 1.15 hours, which was registered as CR-I No.209 of 2018 at the said police station. The Investigating Officer thereafter made inquiry and search at the said society. Since the room of the accused was found locked, he broke open the lock of the said room in presence of the panch witnesses, from where the corpse of the victim was found in a gunny bag in a decayed and decomposed condition. The complaint thereafter was registered for the offences under Sections 302, 363, 366, 376AB, 377, and 201 of IPC and under Sections 3(A), 4, 5(a), 5(r) and 6 of the POCSO Act and under Section 3(2)(5), Section 3(2)(5-A) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act (hereinafter referred to as “the Atrocity Act”). The case was investigated by the Investigating Officers at Surat as well as at the native place of the accused at Bihar. After collecting sufficient evidence against the accused, the charge-sheet was filed by the ACP Mr.Parmar before the Special Court, which was registered as Special POCSO Case No.223 of 2018.
3. The Special Court framed charge against the accused for the alleged offences, however, the accused denied the said charge and claimed to be tried. The prosecution examined following 38 witnesses and relied upon about 60 documentary evidence in order to prove the charges levelled against t
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