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IN THE HIGH COURT OF MADHYA PRADESH
J. K. Maheshwari and Smt. Justice Anjuli Palo, JJ.
Afjal Khan v. State of M. P.
Criminal Appeal No. 458 of 2019 with Criminal Reference No. 2 of 2019 (Jabalpur): against the judgment dated 22.12.2018 passed by the 18th Additional Sessions Judge, Bhopal in Sessions Trial No. 609/2017; Decided on 17.5.2019
(1) Evidence Act, 1872 -- S.8 -- Penal Code, 1860 -- Ss. 302, 201, 377 and 376 -- Protection of Children from Sexual Offences Act, 2012 -- S.5 r/w S.6 -- motive -- circumstances relevant to prove motive -- deceased prosecutrix was daughter of accused/appellant -- appellant refused to have autopsy of deceased conducted -- demolished the structure of room where he committed offence with deceased -- it is a very material and incriminating circumstance -- relevant to connect him with crime -- it is indicative of the fact that the room was demolished with intent to destroy cogent evidence. [Paras 15 & 16
(2) Practice (Criminal) -- DNA sampling -- procedure and safe custody of samples -- no question asked during cross-examination regarding safe custody of samples and procedure -- such defence cannot be taken for the first time at appellate stage without showing any cogent evidence. (2010)8 SCC 747 followed. (1997)10 SCC 44 and AIR 1994 SC 117 referred to. [Para 22
(3) Practice (Criminal) -- plea of false implication -- nowhere explained why police was interested in falsely implicating appellant, what may be the object or on whose insistence -- police is duty bound to conduct fair investigation -- there is a presumption in favour of a public servant, particularly police. [Para 24
(4) Criminal P. C., 1973 -- S.354 (3) -- Penal Code, 1860 -- Ss. 302, 201, 377 and 376 -- Protection of Children from Sexual Offences Act, 2012 -- S. 5 r/w S. 6 -- death sentence -- prosecutrix, aged six years, was daughter of accused/appellant -- murder not committed with extreme brutality -- does not involve exceptional depravity -- accused was young -- probability that he would commit criminal acts of violence in future not available on record -- every probability that he can be reformed and rehabilitated -- possibility and options of other punishment are open -- in place of death penalty, appellant sentenced to life imprisonment with minimum 30 years of imprisonment (without remission) and fine of Rs. 20,000/-. 2018(4) Crimes 372 (SC), (1980)2 SCC 684, (2014)4 SCC 69, (2013)5 SCC 549, (2010)8 SCC 747, 2019(2) JLJ 256, 2019(2) JLJ 328, 2019(1) JLJ 219, (1983)3 SCC 470 and (2009)6 SCC 498 followed. AIR 1997 SC 221, 1995 Supp (3) SCC 217 and AIR 1997 SC 221 referred to. [Paras 31, 42 & 43
¼1½ lk{; vf/kfu;e] 1872 && /kkjk 8 && naM lafgrk] 1860 && /kkjk 302] 201] 377 rFkk 376 && ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 && /kkjk 5 lgifBr /kkjk 6 && gsrq&gsrq lkfcr djus ds fy, lqlaxr ifjfLFkfr;k¡ && e`r vfHk;ksD=h vfHk;qDr@vihykFkhZ dh iq=h Fkh && vihykFkhZ us e`rdk dh 'ko ijh{kk djkus ls euk dj fn;k && ml d{k dh lajpuk /oLr dj nh tgk¡ mlus e`rdk ds lkFk vijk/k fd;k && ;g cgqr rkfRod vkSj vijk/k esa Q¡lkus okyh ifjfLFkfr gS && mls vijk/k ls tksM+us ds fy, vR;f/kd lqlaxr gSA ¼iSjk 15
¼2½ izFkk ¼nkafMd½ && Mh ,u , dk uewuk && izfØ;k vkSj uewuksa dh fujkin vfHkj{kk && izfrijh{kk ds nkSjku uewuksa dh fujkin vfHkj{kk vkSj izfØ;k ds ckjs esa dksbZ iz'u ugha iwNk x;k && vihy ds izØe ij izFke ckj ,slh izfrj{kk dksbZ rdZiw.kZ lk{; nf'kZr fd, fcuk ugha yh tk ldrhA ¼1997½10 ,l lh lh 44 rFkk , vkb vkj 1994 ,l lh 117 fufnZ"VA ¼iSjk 22
¼3½ izFkk ¼nkafMd½ && feF;k vkysiu dk vfHkokd~ && dgha Li"V ugha fd;k x;k fd vihykFkhZ dks feF;k vkfyIr djus esa iqfyl D;ksa :fp ys jgh Fkh] D;k mís'; gks ldrk Fkk rFkk fdlds vkxzg ij ,slk fd;k tk jgk Fkk && iqfyl fu"i{k vUos"k.k djus ds fy, drZO;kc) gS && yksd lsod ds] fof'k"Vr% iqfyl ds] i{k esa mi/kkj.kk gksrh gSA ¼iSjk 24
¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 354¼3½ && naM lafgrk] 1860 && /kkjk 302] 201] 377 rFkk 376 && ySafxd vijkèkksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 && /kkjk 5 lgifBr /kkjk 6 && e`R;q naMkns'k && Ng o"khZ; vfHk;ksD=h vfHk;qDr@vihykFkhZ dh iq=h Fkh && gR;k pje ik'kfodrk ls ugha dh xbZ && vkiokfnd nqjkpkfjrk varoZfyr ugha && vfHk;qDr ;qok Fkk && ;g laHkkouk vfHkys[k ls miyC/k ugha fd og Hkfo"; esa fgalk ds vkijkf/kd ÑR; djsxk &&iwjh laHkkouk fd mls lq/kkjk tk ldrk gS rFkk iquokZl fd;k tk ldrk gS && vU; naMksa dh laHkkouk,¡ rFkk fodYi miyCèk gSa && e`R;q 'kkfLr ds LFkku ij vihykFkhZ dks U;wure 30 o"kZ ds dkjkokl ¼fcuk ifjgkj½ ds vkthou dkjkokl lfgr #- 20]000@& ds tqekZu ls naMkfn"V fd;k x;kA 2018¼4½ Økbe 372 ¼,l lh½] ¼1980½2 ,l lh lh 684] ¼2014½4 ,l lh lh 69] ¼2013½5 ,l lh lh 549] ¼2010½8 ,l lh lh 747] 2019¼2½ ts ,y ts 256] 2019¼2½ ts ,y ts 328] 2019¼1½ ts ,y ts 219] ¼1983½3 ,l lh lh 470 rFkk ¼2009½6 ,l lh lh 498 vuqlfjrA , vkb vkj 1997 ,l lh 221] 1995 lIyh-¼3½ ,l lh lh 217 rFkk , vkb vkj 1997 221 fufnZ"VA ¼iSjk 31] 42 ,oa 43
JUDGMENT
Palo, J : 1. Being aggrieved by the judgment dated 22.12.2018, passed by the 18th Additional Sessions Judge, Bhopal (MP) in Session Trial No. 609/2017 convicting the accused as mentioned below, the Criminal Appeal No. 458/2019 has been filed under section 374(2) of the Code of Criminal Procedure (hereinafter shall be referred to as “CrPC”) by the accused/appellant and for confirmation of the death sentence, Criminal Reference No. 02/2019 has been made by Eighteenth Additional Sessions Judge, Bhopal under section 366(1) of the Cr.P.C. The appellant has been convicted and sentenced as under :
| Section | Act | Sentence | Fine | In default of fine |
| 302 | Indian Penal Code | Death penalty (to be hanged till death) | Nil | Nil |
| 201 | Indian Penal Code | R.I. for 10 years | Rs. 5,000/- | R.I. for 6 months |
| 377 | Indian Penal Code | R.I. for life imprisonment | Rs. 5,000/- | R.I. for 6 months |
| 376(2)(F) | Indian Penal Code | R.I. for life imprisonment | Rs. 5,000/- | R.I. for 6 months |
| 376(2)(I) | Indian Penal Code | R.I. for life till death | Rs. 5,000/- | R.I. for 6 months |
| 376(2)(N) | Indian Penal Code | R.I. for life till death | Rs. 5,000/- | R.I. for 6 months |
| 5(l)(m)(n) r/w 6 | Protection of Children from Sexual Offences Act | - | - | - |
2. As per the prosecution case, the prosecutrix (since deceased) aged six years was the younger daughter of the appellant. She was residing with her mother and the appellant. The appellant was annoyed and having suspicion on his wife-Farida of questionable character. He wanted to take revenge from his wife and her former husband. Therefore, he allured the prosecutrix with chocolates and was in occupation to commit unnatural intercourse and rape with her. On the date of incident i.e. 15.3.2017 at about 4:00 pm. After committing rape with the prosecutrix, he murdered her and then hanged her from the ceiling with the help of a dupatta in the upper floor of his house, and he fled away from the spot. The other daughters of the appellant came to the room and saw the body of the deceased hanging from the ceiling. They informed other persons about the incident and brought down the body on floor. On receiving information about the incident, Police Station Koh-e-fiza registered merg under section 174 of CrPC. After conducting the postmortem, doctors found that, the deceased died due to asphyxia caused by strangulation. They also found that, the deceased had some bodily injuries. They opined that looking to the circumstances of the case and evidence available on record, there is a possibility of homicidal death and the possibility of commission of sexual violence also cannot be ruled out. Police registered offence under sections 376(2)(i), 376(a), 377, 302 and 201 of IPC and section 5(m) read with section 6 of the Protection of Children from the Sexual Offences Act 2012 against unknown person.
3. After receiving the DNA test report, it was found that the DNA profile of the appellant matched with the DNA profile present in the vaginal swab of the prosecutrix and sperms were also present in the vaginal swab. Some samples were collected from the frock of the deceased in which DNA profile of the appellant was found. Due to the aforesaid evidence, police filed charge-sheet against the appellant under sections 376(2)(i), 376(a), 377, 302 and 201 of IPC and section 5(m) read with section 6 of the Protection of Children from the Sexual Offences Act 2012.
4. After committal of the case, learned trial Court framed charges under sections 377, 376(2)(f)(i)(n)(k), 302 and 201 of the Indian Penal Code and section 5(l)(m)(n) read with section 6 of Protection of Children from Sexual Offences Act 2012. Appellant abjured guilt and pleaded that he has been falsely implicated by the police to protect the actual culprit. He also took the plea of alibi and examined defence witnesses in his support.
5. Learned trial Court mainly
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