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MADHYA PRADESH HIGH COURT
Sujoy Paul, Mohd Fahim Anwar, JJ.
Deepak @ Nanhu Kirar - Appellant
Versus
State Of M.P. - Respondent
Criminal Appeal No. 7544 of 2019; Criminal Reference No. 11 of 2019
Decided On : 20-02-2020
CRIMINAL APPEAL - CONVICTION AND SENTENCE - MURDER - RAPE - POCSO ACT - CIRCUMSTANTIAL EVIDENCE - DNA TEST - SENTENCING POLICY - CAPITAL PUNISHMENT - MITIGATING CIRCUMSTANCES - MODIFICATION OF SENTENCE.
Fact of the Case:
The appellant was convicted and sentenced to death for the rape and murder of a five-year-old girl. The prosecution's case was based on circumstantial evidence, including CCTV footage, DNA evidence, and the appellant's confession. The appellant appealed the conviction and sentence, arguing that the evidence was insufficient to support a conviction and that the death sentence was excessive.
Finding of the Court:
The court found that the evidence was sufficient to support the conviction. The CCTV footage showed the appellant leading the victim away from her home, and the DNA evidence linked the appellant to the crime scene. The court also found that the appellant's confession was voluntary and reliable. However, the court found that the death sentence was excessive. The court noted that the appellant was a young man with no prior convictions, and that he had expressed remorse for his crime. The court also found that the crime was not particularly heinous or depraved. Accordingly, the court modified the sentence to life imprisonment without the possibility of parole for 35 years.
Issues: 1. Whether the evidence was sufficient to support the conviction. 2. Whether the death sentence was excessive.
Ratio Decidendi: 1. The court held that the evidence was sufficient to support the conviction. The CCTV footage showed the appellant leading the victim away from her home, and the DNA evidence linked the appellant to the crime scene. The court also found that the appellant's confession was voluntary and reliable. 2. The court held that the death sentence was excessive. The court noted that the appellant was a young man with no prior convictions, and that he had expressed remorse for his crime. The court also found that the crime was not particularly heinous or depraved. Accordingly, the court modified the sentence to life imprisonment without the possibility of parole for 35 years.
Final Decision: The court partly allowed the appeal. The conviction and other sentences were confirmed, but the death penalty was modified to life imprisonment of an actual period of 35 years (without any remission).
JUDGMENT
Sujoy Paul, J. - This appeal filed under section 374 of the Code of Criminal Procedure (Cr.P.C) is directed against the judgment passed in S.T.No.158/2018 dated 29.07.2019. The appeal was heard alongwith the Reference. The details of conviction and sentence are as under :-
| Serial No. | Conviction under Section | Sentence | Fine imposed | Imprisonment in default of payment of Fine amount |
| 01. | 363 of IPC | R.I of Three years | Rs.200/- | Three months |
| 02. | 366 of IPC | R.I. of Five years | Rs.300/- | Six months |
| 03. | 201 of IPC | R.I. of Seven years | Rs.400/- | One year |
| 04. | 376AB of IPC | Life Imprisonment | Rs.500/- | Two years |
| 05. | 302 of IPC | Capital Punishment | Rs.500/- | Two years |
| 06. | 5(m) r/w Sec.6 of POCSO Act, 2012 | No separate sentence is imposed as higher sentence under the IPC has already been imposed. | - | - |
Brief story :-
2. Draped in brevity, the case of prosecution is that the victim was playing near her house with her brother Nihal (P.W.3). The appellant lured the victim by stating that he will take her to her father's shop. He kidnapped her on a bicycle, took her to a remote place, raped and murdered her. The prosecution story was supported by producing sizeable number of witnesses, documents and articles.
Story of the Prosecution :-
3. To elaborate, Lakhan Chourasiya (P.W.1) informed Police Station Pipariya on 31.10.2018 that her daughter (hereinafter called as "victim"), aged about 5 years, student of KG-I of PPS School, Pipariya was playing with her brother Nihal Chourasiya (P.W.3) aged about 6 years at around 4 P.M. Nihal Chourasiya (P.W.3) was riding a bicycle and victim was running after him. Lakhan Chourasiya (P.W.1) was on his dining table when Nihal (P.W.3) informed him that a "Bhaiya" took the victim on his bicycle. Lakhan Chourasiya (P.W.1) father of the victim and family members immediately searched the victim on various places including Pachmari Road, Silari Chouraha, Bus stand, Railway Station etc. The details of victim and description of her clothes were mentioned in the missing person report (Ex.P/1) which was recorded by Sub Inspector Tejraj Singh (P.W.10). The F.I.R bearing Crime No.410/2018 (Ex.P/2) was simultaneously recorded relating to offence under section 363 of I.P.C.
4. Rooplal Uikey (P.W.12) prepared the spot map (Ex.P/3) as per description given by father of victim. The birth certificate of victim (Ex.P/4) was furnished by Lakhan Chourasiya (P.W.1) and, in turn, it was taken by police through seizure memo Ex.P/5 by Rooplal Uikey (P.W.12). Since the victim could not be recovered, the police made efforts to search her through CCTV footage of various shops of the town. The CCTV footage of RCC agency was seen by police and Lakhan (P.W.1) and, in turn, identification memo Ex.P/6 was prepared. Kanhiyalal Kahar (P.W.11), after perusal of CCTV footage, identified the accused and a search identification memo was prepared which was marked before the court below as Ex.P/19. CCTV footage was recovered from the owner of RCC agency Prabhudayal Chourasiya (P.W.19) and from Gopaldas Agarwal (P.W.20) of Railway Station Cycle Stand. A request through Ex.P/36 and Ex.P/37 was made to said persons for providing CCTV footage and, in turn, they provided the CCTV footage through CDs (Article B and H). In addition, they provided certificates under section 65-B of the Indian Evidence Act (Evidence Act) which were marked as Ex.P/43 and Ex.P/44. This material was taken through seizure memo Ex.P/20 and Ex.P/34 by Rooplal Uikey (P.W.12).
5. Praveen Kumar (P.W.28) was the investigating off
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