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IN THE HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
S. K. Seth and Smt. Nandita Dubey, JJ.
In Reference (Received from District and Sessions Judge,
Dindori, M.P.) v. Bhagwani and another
CRRFC No. 5 of 2017 with Criminal Appeal No. 5446 of 2017 (Jabalpur); Decided on 9.5.2018
(2) Protection of Children from Sexual Offences Act, 2012 -- S. 5 (m), 5 (g) r/w S. 6 -- Penal Code, 1860 -- Ss. 376A and 302 - alarming increase in recent incidents of child rape -- rising anger of society over rape of minors across country -- death sentence is a measure of social necessity and also a means of deterring other potential offenders. [Paras 39 & 40
(3) Evidence Act, 1872 -- Ss.3 and 106 -- circumstantial evidence -- circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established -- circumstances, taken cumulatively, should also form a chain so complete that there is no escape from conclusion that within all human probability, crime was committed by accused and none else. AIR 1952 SC 343, AIR 1984 SC 1622, (2015)11 SCC 43 and (2016)1 SCC 550 followed. [Para 8
(4) Criminal P. C., 1973 -- S.313 -- answers given by accused persons -- can be used for proving their guilt as much as the evidence given by prosecution witnesses. (2002)10 SCC 236 followed. [Para 18
(5) Protection of Children from Sexual Offences Act, 2012 -- S.5 (m), 5 (g) r/w S. 6 -- Penal Code, 1860 -- Ss. 376A and 302 -- Evidence Act, 1872 -- Ss. 3 and 106 -- Criminal P. C., 1973 -- S. 313 -- DNA profile generated from blood sample and clothes of accused Satish recovered at his behest -- consistent with that of deceased -- is an unimpeachable evidence incriminating him -- lack of explanation by accused Bhagwani about scratches on his body -- failed miserably in discharging his burden of proving that he was not in company of accused Satish during commission of crime -- disclosure statements of accused persons relating to recovery of buttons and blood stained soil from place of occurrence which was exclusively within knowledge of accused -- recovery of shawl and blanket of deceased from house of accused Satish -- evidence adduced by prosecution formed a chain so complete that it excluded any hypothesis other than guilt of accused persons. [Paras 23 to 25
(6) Criminal Trial -- contention that case be remanded for retrial as accused were not given proper legal assistance and defence lawyer did not effectively cross-examine prosecution witnesses -- is sans merit because accused unable to show what prejudice has been caused by counsel defending them in trial Court. (2014) 4 SCC 747 followed. [Paras 27 & 29
¼1½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 && /kkjk 5 ¼M½] 5¼N½ lgifBr /kkjk 6 && naM lafgrk] 1860 && /kkjk 363] 376d rFkk 302 && e`rdk 11 o"khZ; vlgk; ckfydk &&- O;iâr vkSj rRi'pkr~ mlds lkFk cykRlax dj mldk xyk ?kksaVk x;k && vfHk;qDrx.k dks i'pkrki ugha && viuh dke&okluk dh iwfrZ ds fy, funksZ"k ckfydk dh fuanuh; vkSj ohHkRl gR;k djus ds fy, vfHk;qäx.k ftl ,dek= naM ds ;ksX; gSa] og e`R;q ds flok; dqN ughaA ¼1994½2 ,l lh lh 220] ¼2015½6 ,l lh lh 652] ¼2010½13 ,l lh lh 689] ¼2010½13 ,l lh lh 656] ¼2017½6 ,l lh lh 1 rFkk ¼2013½5 ,l lh lh 546 vuqlfjrA ¼iSjk 39 ,oa 40 ¼2½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 && /kkjk 5 ¼M½] 5¼N½ lgifBr /kkjk 6 && naM lafgrk] 1860 && /kkjk 376d rFkk 302 && cky cykRlax dh gky dh ?kVukvksa esa Hk;izn o`f) && ns'k Hkj esa vo;Ldksa ds cykRlax ij lekt esa c<+rk Øks/k && e`R;q naM lkekftd vko';drk dk mik; gS rFkk vU; laHkkO; vijkf/k;ksa dks Hk;ksijr djus dk lk/ku Hkh gSA ¼iSjk 39 ,oa 40 ¼3½ lk{; vf/kfu;e] 1872 && /kkjk 3 rFkk 106 && ikfjfLFkfrd lk{; && ftu ifjfLFkfr;ksa esa nksf"krk dk fu"d"kZ fudkyuk pkgk x;k gS og rdZiwoZd vkSj n`<+rkiwoZd LFkkfir gksuk vko';d && ifjfLFkfr;ksa ls lap;h :i ls] bruh iw.kZ Ük``a[kyk xfBr gksuk pkfg, fd bl fu"d"kZ ls cpk ugha tk lds fd leLr ekuoh; laHkkO;rkvksa esa] vijk/k vfHk;qDr }kjk fd;k x;k] fdlh vU; }kjk ughaA , vkb vkj 1952 ,l lh 343] , vkb vkj 1984 ,l lh 1622] ¼2015½11 ,l lh lh 43 rFkk ¼2016½1 ,l lh lh 550 vulfjrA ¼iSjk 8 ¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 313 && vfHk;qDrx.k }kjk fn, x, mÙkj -- mudk nks"k lkfcr djus ds fy, mruk gh mi;ksx fd;k tk ldrk gS ftruk vfHk;kstu lk{khx.k }kjk fn, x, lk{; dkA ¼2002½10 ,l lh lh 236 vuqlfjrA ¼iSjk 18 ¼5½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 && /kkjk 5¼M½] 5¼N½ lgifBr /kkjk 6 && naM lafgrk] 1860 && /kkjk 376d rFkk 302 && lk{; vf/kfu;e] 1872 && /kkjk 3 rFkk 106 && naM izfØ;k lafgrk] 1973 && /kkjk 313 && jDr ds uewus ls vkSj vfHk;qDr lrh'k ds crkus ij mlds oL=ksa ls tfur Mh,u, izksQkby && e`rdk ds Mh,u, ds leku && mls vijk/k esa fyIr djus okyk vlafnXèk lk{; gS && vfHk;qDr Hkxokuh }kjk vius 'kjhj ij [kjksapksa dk Li"Vhdj.k ugha && ;g lkfcr djus ds vius Hkkj ds fuoZgu esa nq[kn :i ls foQy fd vijk/k fd, tkrs le; og lrh'k ds lkFk ugha Fkk && ?kVuk LFky ls] tks vuU; :i ls vfHk;qDrx.k dh tkudkjh esa Fkk] cVuksa vkSj jDrjaftr feV~Vh dh cjkenxh ls lacaf/kr vfHk;qDr O;fDr;ksa ds izdVhdj.k dFku && e`rdk dh 'kkWy vkSj jtkbZ vfHk;qDr lrh'k ds ?kj ls cjken && vfHk;kstui{k }kjk izLrqr lk{; ls bruh iw.kZ Ük`a[kyk xfBr fd mlls vfHk;qDr O;fDr;ksa ds nks"k ds flok; vU; dksbZ Hkh ifjdYiuk oftZrA ¼iSjk 23 ls 25 ¼6½ nkafMd fopkj.k && izfrokn fd ekeyk iqufoZpkj.k ds fy, izfrizsf"kr fd;k tk, D;ksafd vfHk;qDrx.k dks mfpr fof/kd lgk;rk ugha nh xbZ vkSj izfrj{kk odhy us vfHk;kstu lkf{k;ksa dk izHkkoh izfrijh{k.k ugha fd;k && xq.kjfgr gS D;ksafd vfHk;qDrx.k ;g n'kkZus esa vleFkZ fd fopkj.k U;k;ky; esa mudh izfrj{kk djus okys dkmUlsy }kjk mUgsa fdl izdkj gkfu igqapkbZ xbZA ¼2014½4 ,l lh lh 747 vuqlfjrA ¼iSjk 27 ,oa 29
Smt. Dubey, J. -- 1. This death reference and connected appeal arise out of the Judgment of conviction passed by the Sessions Judge, Dindori holding the accused persons guilty of the charges levelled against them in the trial.
2. It is undisputed that the deceased and the accused persons are resident of the same village and on 14.4.2017, the family of the deceased as well as the accused Bhagwani had gone to attend the Chowk ceremony at the house of one Anil Maravi. It is also undisputed that in the early morning of 15.4.2017, both the accused had gone to the house of Jaipal (PW9) asking for liquor, and when the mother of accused appellant Bhagwani came there, they went away. It is also an admitted fact that the deceased had gone to the house of accused Satish to keep blanket and shawl.
3. The prosecution case, in nut shell, is that in the intervening night of 14.4.2017 and 15.4.2017, the accused kidnapped the deceased who was aged 11 years and after committing gang rape on her, throttled her to death. It is alleged that on 14.4.2017 at around 9 p.m., the deceased, aged 11 years had gone with her parents to attend the chowk ceremony, from where she went missing. She was last seen going to the house of accused Satish to keep blanket and shawl. Her father Brajlal (PW2) and mother Kalawati (PW1) searched for her all through the night, but their efforts were rendered futile. At AM on next morning i.e.15.4.2017 her dead body was ultimately found lying near a hand pump situated near the road. Her slacks were drawn below the knee and there were injuries and scratches on the neck and different parts of body of deceased, her genitals were blood soaked. It was suspected that between 11 p.m. to 4 a.m. some unknown person has kidnapped the deceased and committed the heinous offence of rape and after silencing her dumped the body near the hand pump. On the basis of this report, Marg was recorded and FIR was registered against unknown persons at Crime No. 39/2017.
4. During the investigation, from the statements of witnesses recorded under section 161 CrPC, it transpired that the accused persons who were absconding from the village had a verbal altercation with Brajlal, a day prior to the incident. The accused were taken into custody on suspicion of being involved in the horrendous crime. Thereafter, based on their memorandum, button and blood stained soil, packet of kurkure, etc. were seized from the spot vide Ex.P-8. Spot Map (Ex.P-13) of the place of occurrence was made.
5. On the memorandum of accused Satish, a shawl and blood stained blanket of the deceased as well as shirt, full pant and dhoti were recovered vide Ex.P-11. On the disclosure statement of accused Bhagwani, one shirt with some missing button, blood stained vest and jeans were seized vide Ex.P-12.
6. Pursuant to the investigation, both the accused were charge sheeted and put to trial for the offences punishable under sections 363, 366-A, 364, 346, 376D and 376A in the alternate under sections 302/201 of the IPC and section 5(m)(g) read with section 6 of the Protection of Children from Sexual Offences Act,2012.
7. The trial Court, after meticulous consideration of the material on record had concluded that the chain of circumstances has been established beyond any reasonable doubt and found that the accused committed the heinous offence of gang rape and murder of the deceased. The trial Court found both the accused guilty on each count and sentenced them to various terms of imprisonment, but so far as offence punishable under section 376 A and 302 of IPC, the trial Court awarded capital punishment, hence this reference for confirmation of death sentence and appeal by accused-appellants Bhagwani and Satish.
8. The case of prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that the c
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