2005 Supreme(Guj) 134

Gujarat High Court
Judgename :AKSHAY H.MEHTA, K.R.VYAS
STATE OF GUJARAT - Appellant
Versus
BABUBHAI UDESING PARMAR - Respondent
CRIMINAL CONFIRMATION CASE 4 of 2003
Decided On : 03/02/2005

Headnote:[Indian] Penal Code, 1860 (Central Act 45 of 1860) - Sections 363, 366, 376 & 302 - Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sections 163, 164, 280 & 313 - Conviction - Confession sentences and also order to be hanged till death - Propriety of - It is not disputed that deceased died homicidal death due to strangulation after committing rape - In the case there is no eye-witness to the commission of offence but there is confessional statement made by accused about commission of offence - The only and important draw-back pointed out with regard confessional statement of accused is that it was recorded under oath administered before reading of the statement - Court observed that when confession is true, voluntary and is recorded after administering due caution all the ingredients of the provision of recording confession stand satisfied - This is a defect in form and not in substance - Administering the oath is mere irregularity which does not render the impugned confession inadmissible - That apart circumstantial evidence and back ground of accused is independently considered same are sufficient to involve accused in the offence in question and trial Court having properly appreciated the evidence and has rightly convicted the accused appellant - Court also heard and considering the sentences awarded by trial Court and found no ground made out to interfere - Court accepted the reference and dismissed the appeal by accused.

       The confession is not only found to be true by the Court but it is found to be voluntary, made after due cautioning and hence it is in full compliance of Section 164. The additional measure of administering oath, which is not required in law, has been taken in the process of recording the confession and whatever the impropriety, it is in the manner of recording of the confessional statement which can fall in the category of question (2) of Law Commissions report. It is a defect in form and not a defect in substance. Such defect is curable. It is also found that except for administering the oath the confession has been recorded in accordance with all the ingredients of Section 281 and the section stands adequately complied with. [Para 21]

       On reading the complaint Exh. 22 together with Panchnamas Exhs. 8 and 10, it is clear that all the details of scene of offence are given. Apart from that, from the evidence of Dr. Mayur Trivedi at Exh. 24, the prosecution has established rape having been committed on the deceased Savita. Thus, medical evidence also corroborates the say of informant Shankarbhai, prosecution witnesses Revliben, Ramanbhai and Poonambhai. As stated above, these witnesses have clearly stated in their evidence that the dead body of the deceased was found in naked condition. Dr. Trivedi has clearly opined after examining the private part of the deceased that injury No. 9 confirmed the fact of deceased being subjected to rape. Medical certificate Exh. 21 clearly reveals that the probable cause of death is strangulation and rape. In fact, the defence has not seriously challenged the medical evidence. From the Forensic Science Laboratory report Exh. 42, the prosecution, in the present case, has established that vaginal swab smear, hair, nail and saliva of the deceased contained blood having AB group. The prosecution has also collected sample of blood from suspicious persons. From the report Exhs. 42 and 55 of the Forensic Science Laboratory, it is clear that the blood group of those persons was B. The prosecution in the instant case has also established that the deceased died due to strangulation with the help of the violet coloured frock worn by her. Forensic Science Laboratory report Exh. 50 mentions the violet coloured frock which is in conformity with the evidence of Dr. Trivedi Exh. 24. Over and above the aforesaid circumstances, the prosecution has also successfully established the modus operandi adopted by the accused in other cases. From the record of the case, it appears that the accused is also involved in other similar cases. Vidyanagar police station has registered cases bearing C.R. No. 127/97 on 06.08.1997, C.R. No. 48/97 on 07.03.1997, C.R. No. 85/98 on 03.05.1998, C.R. No.221/98 on 02.07.1998, C.R. No.128/98 on 17.08.1998 and CR No.122/97 on 05.08.1997. From the aforesaid, it appears that the accused is involved in committing a series of rapes as well as murders. All these offences except two have taken place between July and August during rainy season. Except in one offence, the victims were all women while in one case a minor child became the victim at the hands of the accused. As stated above, the modus operandi is almost same in all the offences inasmuch as the accused, after committing rape, used to throttle neck with clothes put on by the victim. All these incidents have taken place at or around Karamsad town. Thus the place, time and the manner in which the offence have taken place and the victims, all are almost same and identical. In view of this, it can well be described the accused as a sex maniac or a sexually disoriented and perverse person. Though the first incident had taken place on 06.08.1997, the accused was arrested in August, 2000. From that day onwards, all the misdeeds committed by the accused in the past have come on surface. [Para 25]

       The circumstances, if considered independently, are sufficient to involve the accused in the offences in question. These circumstances, if read together with the confession of the accused, leave no manner of doubt about the involvement of the accused in the offences for which he was charged. Taking into consideration the above aspects of the matter, Court is in total agreement with the findings recorded by the learned trial Judge that the prosecution has established the charges levelled against the accused beyond reasonable doubt. In that view of the matter, Court held the accused guilty of offences punishable under Sections 366, 376 and 302 of IPC. [Para 26]

       The trial Courts reasons are reflected in its judgment. While dealing with the question of sentence, has come to the conclusion that so far as the accused is concerned, he deserves to be awarded capital punishment because the crime committed by him falls in the category of rarest of the rare cases. While holding this, the factors which have mainly weighed with the trial Court are that the victim was a helpless minor girl aged 10 years; and the manner in which she was done to death. [Para 31]

       It is no doubt true that the human life must be valued but not of a human monster, who has got an end of human life of an innocent girl child hardly aged 10 years in a most barbaric manner after committing rape on her. [Para 32]

       Court is, therefore, of the opinion that the reasons assigned by the trial Court are just and proper and it has not committed any error in awarding capital punishment. [Para 33]

       Cases Referred :

       Devendra Prasad Tiwari vs. State of U.P., AIR 1978 SC 1544;; Parmananda Pegu vs. State of Assam, AIR 2004 SC 4197;; Akanman Bora vs. State of Assam, 1987 (3) Crimes 169;; Philips vs. State of Karnataka, 1980 CrLJ 171;; Chandrakant C. Desai vs. State of Gujarat, 1991 SC (Cri) 153;; Kashmira Singh vs. State of M.P., AIR 1952 SC 159;; K.L. Pavunny vs. Asstt. Collector (HQ) Central Excise Collectorate, Cochin, 1997 (3) SCC 721.

       Dhjananjoy Chatterjee vs. State of West Bengal, 1994 (2) SCC 220;; Ravji vs. State of Rajasthan, 1996 (2) SCC 175;; State of M.P. vs. Ghanshyam Singh, 2003 (8) SCC 13;; State of Karnataka vs. Puttaraja, 2004 (1) SCC 475.-Relied on