Indian Penal Code, 1860 – Ss. 366(A), 363, 364, 376(2)(f)/511 & 201 – Death Penalty is not confirmed – The occurrence is of the year 2011 when the appellant was said to be about 27 years old. Considering the fact that the deceased, a helpless child fell victim of the crime of lust at the hands of the appellant and there may be probabilities of such crime being repeated in case the appellant is allowed to come out of the prison on completing usual period of imprisonment for life which is taken to be 14 years for certain purposes, the appellant should be inflicted with imprisonment for life with a further direction that he shall not be released from prison till he completes actual period of 25 years of imprisonment. With this modification in the sentence, the appeals of the appellant are dismissed.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[J. CHELAMESWAR] [SHIVA KIRTI SINGH] [ABHAY MANOHAR SAPRE] JJJ.
September 16, 2016
CRIMINAL APPEAL NOS. 292-293 OF 2014
Tattu Lodhi @ Pancham Lodhi …..Appellant Versus State of Madhya Pradesh …..Respondent
J U D G M E N T
SHIVA KIRTI SINGH, J.
1. The appellant, charge-sheeted for offences under
Section 366(A), 363, 364, 376(2)(f)/511 and 201 of the Indian Penal Code
(for brevity ‘IPC’) was tried by the Twelfth Additional Sessions Judge, Jabalpur in Sessions Trial No. 324 of 2011. He was found guilty of committing the murder of a minor girl, aged about seven years and also of kidnapping and attempt to commit rape on her and for destruction of evidence relating to the crime. The trial court awarded punishment of death under Section 302 IPC, RI for life and a fine of Rs.1,000/- with default stipulation for offence under Section 364 IPC, RI for seven years with similar fine for offence under Section 363 IPC, RI for seven years with similar fine for offence under Section 376(2)(f)/511 IPC and RI for seven years with similar fine for offence under Section 201 IPC. All the punishments of imprisonment were directed to run concurrently. By the impugned judgment the High Court of Madhya Pradesh agreed with the findings of the trial court and answered the criminal reference in affirmative, confirming the death sentence and dismissed the criminal appeal preferred by the appellant.
2. Learned senior advocate for the appellant, Ms. Meenakshi Arora initially made an attempt to challenge the conviction of the appellant itself by pointing out absence of any eye-witness of the incident and dependence of the entire prosecution case on circumstantial evidence alone. Learned counsel for the State countered the challenge to conviction by submitting that in law there is no hurdle in securing conviction purely on circumstantial evidence. On facts, he highlighted that the trial court considered the entire evidence on record fairly and in detail and found the following five circumstances proved against the accused:
(i) The accused asked the victim soon before the incident to purchase and bring “Gutka” for him and after sometime she became untraceable.
(ii) Victim was last seen alive with the accused.
(iii) The accused avoided to hand over the keys of his house for the search of victim.
(iv) Recovery and seizure of victim’s dead body in a gunny bag from the house of the accused.
(v) Seizure of blood-stained clothes including bed sheet from the house of accused pursuant to his memorandum statement.
3. In view of submission advanced on behalf of the appellant that the chain of evidence to prove his guilt beyond reasonable doubt was not complete, we have examined the relevant evidence and also the discussion thereof made by the trial court in detail from paragraphs 15 to 32 of its judgment and similar exercise by the High Court. On a careful consideration of the evidence of shopkeeker Anil Kumar Jain (PW-7) from where the victim bought “Gutka” for the accused and the evidence of complainant Gappu @ Kshirsagar, Hemraj, Ram Kumar, Sitaram, Maharaj Singh along with medical evidence, seizure report and report from the forensic science laboratory confirming the presence of human blood on the gunny bag, bed-sheet and bed-cover which were seized from the house of accused, we find no good reason to interfere with the findings of the trial court duly confirmed by the High Court that the appellant-accused kidnapped the victim and after subjecting her to sexual abuse, throttled her to death. The first submission on behalf of the appellant that the chain of circumstantial evidence is not complete and does not prove the guilt of accused is found to be without any substance. We have no hesitation in confirming the conviction.
4. Since there was no appeal before the High Court from the side of the State or the complainant nor there is any such appeal in this Court, We have confirmed the conviction as made by the trial court but we have no hesitation in indicating our disapproval of the error committed by the trial court in convicting the accused only for the attempted rape. The post-mortem report, besides showing injuries on the neck and face showed several bruise marks on the left and right side of the abdomen as well as an injury on the left side of the vagina. The internal examination clearly records thus:
“……………….. in the reproductive organ the hymen membrane was ruptured. Mild bleeding and inflammation were found. Vagina was congested and one finger could be inserted. White discharge was coming out of vagina.”
In view of aforesaid findings recorded in the post-mortem report of the seven year old victim duly proved by Dr. Khare (PW-9), there was no justification not to hold the accused guilty of rape simply because PW-9 in his oral deposition made a casual statement that there was attempt to commit rape on the deceased before her death. It may only be noticed that the Doctor confirmed that the death of the deceased was caused by asphyxia from choking out the throat by strangulation of the neck and all the injuries were ante mortem in nature. It may also be noted here that the post-mortem report (Ex. P-13) was prepared and signed not only by Dr. Rakesh Khare (PW-9) but also by his colleague Dr. Ashish Raj who had also participated in the autopsy of the deceased.
5. Be that as it may, we have now to consider the next plea advanced on behalf of the appellant that the facts of the case do not make the crime to be “rarest of rare” and hence in such a case the Courts below should not have awarded the death sentence. In support of the aforesaid plea, learned senior counsel has submitted that at the time of occurrence accused was aged only about twenty seven years and there was no material to negate the chance of accused being reformed on account of sentence of imprisonment and gaining further maturity. On the basis of injuries which can be associated with rape, learned senior counsel submitted that no doubt it was a heinous offence as the victim was only seven years old but there were neither any broken bones nor brutal tearing etc. to make out a case of extreme brutality. Learned senior counsel referred to the statement of the accused recorded under Section 313 of the Code of Criminal Procedure to point out that since sometime back the accused was living alone as his wife had deserted him and he also admitted that there was only one case under Section 354 IPC pending against him. Reference was also made to memorandum statement of the accused recorded by the police in presence of some witnesses to show that as per such statement the accused killed the deceased because of loud cries by her. According to learned counsel the murder was in a state of panic and not a premeditated act and therefore, the appellant deserves a lenient punishment, anything other than death.
6. Ms. Arora, learned senior counsel for the appellant placed reliance upon judgment in the case of