TaxTMI 
TaxTMI 
2022 (4) TMI 1573
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....substituted as the Appellant in view of the order passed by this Court on 21.10.2021. Case of Prosecution: 2. The case of the prosecution as unfolded before the trial court was that on 17.04.2013, at about 06:30 PM, one Rakesh Choudhary (original Accused No. 2) came to the house of the informant Ramkumari (mother of the victim) along with an unknown person (the present Appellant-original Accused No. 1) and requested the said Ramkumari and her mother Himmabai to provide an accommodation to the said unknown person for a day, however, Himmabai refused to provide such accommodation. Thereafter, Rakesh Choudhary left and his friend sat for a while at the courtyard of the house of the complainant, where the victim aged about four years was playing with her brother Ramkishan and other cousins. After sometime, Ramkumari found that her daughter was missing and the other person (the Accused No. 1) was also not there. She along with others tried to search her daughter at the nearby places, however, her daughter was not found. After sometime Ramkishan came with some bananas and told Ramkumari that Bhaijaan (Accused No. 1) had taken the victim with him. Ramkumari therefore went to the pol....
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....as charged for the offences Under Sections 363 and 366 r/w Section 34 and Under Section 109 of Indian Penal Code and Under Section 16/17 of the POCSO Act. Both the Accused having abjured their guilt and claimed to be tried, the prosecution examined as many as 34 witnesses to prove their guilt. Both the Accused denied the allegations levelled against them in their respective further statements recorded Under Section 313 of Code of Criminal Procedure and stated that they were falsely implicated in the case. The Accused No. 2 Rakesh Choudhary in his defence examined two witnesses i.e., DW-1 Virendra Choudhary and DW-2 Gopal Prasad Ahirwar. The Sessions Court at Seoni after appreciating the evidence on record convicted both the Accused for the offences charged against them and awarded death sentence to the Accused Firoz for the offence Under Section 302 of Indian Penal Code and directed to undergo rigorous imprisonment for a period of 07 years and pay fine of Rs. 2000/- for the offence Under Section 363, to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs. 2000/- for the offence Under Section 366 of Indian Penal Code, to undergo life imprisonment and pay fine o....
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....ere playing in the courtyard. She went inside the house and after some time when she came out, she saw that her daughter Pooja and her brother's son Ramkishan were not in the courtyard, and the said Firoz Bhaijaan was also not seen. She therefore started searching Pooja and Ramkishan, and she saw Ramkishan coming with bananas in a polythene bag. On being inquired by her as to where Pooja was, Ramkishan told her that Bhaijaan had taken Pooja along with him. She thereafter continued to search Pooja but could not find her. She, therefore, along with her sister Jyoti went to the Police Station, Ghansaur to lodge the report. The said report of missing person was lodged at about 20:35 at the police station, Ghansaur, (Exhibit P-1). She further deposed before the Court that on the next day, the persons who go out to defecate in open came to her house and told her brother Shyam that one girl was lying unconscious in the field. Her brother, therefore, went to the field and found that the victim was lying unconscious there and blood was oozing from her nose and genital organs. Thereafter, she alongwith her mother Himmabai and her brother Shyam took her daughter Pooja to the police statio....
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.... for Rs. 20/-. He also identified the Accused-Firoz sitting in the Court and stated that he had come to his shop. He further stated that the said person had given three bananas to the boy and asked him to go home and had taken the four years old girl with him, and then had gone towards the crossing. On the next day he came to know that a person named Firoz working in the Power Plant had committed rape on the girl and had killed her, and that he was the same person who had bought bananas from his shop. In the cross-examination, he had stated that after some days of the incident, the Tehsildar had asked him to come to a school, where he had identified the Accused Firoz. 9. PW-5 Shyam Yadav who happened to be the brother of Ramkumari and maternal uncle of the victim, had stated that he was not staying with his mother and sister, however, on the day, when the victim was found missing, he had stayed back with them. On the next day morning, the Village Kotwar Santosh Das had come and informed him that a girl was lying in the field of Badri Yadav. He therefore went to the field along with the Kotwar and saw that the girl-Pooja was lying unconscious and blood was oozing from her nostril....
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.... i.e., she died due to cardiorespiratory arrest due to deficiency of oxygen in the brain, due to pressing of mouth and neck and due to excessive injury in the genital organ. The medical report given by him was marked as Exhibit P-50. 12. The post-mortem of the victim was conducted by PW-24 Dr. Pradeep Gangadhar Dixit, Professor and H.O.D. in Forensic Medicine Department, Medical College, Nagpur, on 30th April, 2013, along with his colleagues. He had recorded the following in the post-mortem note (Exhibit P-44)- 1. The dead was wearing a shirt and Pajama of the Hospital. There were 8 teeth in upper portion and 10 temporary teeth on the lower portion of mouth. Right upper incisor tooth and left upper lateral incisor tooth were absent. Left upper central incisor tooth was loose with blue colored swollen gums of its surroundings. 1. On examination of the external genitals, I had found that labia majora and labia minora contused, oedematous with blue discolouration. Superficial partially healed vulva laceration present at 6 "O" clock position of size 0.3 cm x 0.3 cm. Vaginal canal oedematous and hyperemic. Hymen torn at 3.6 and 7 O'clock position. Dilatation of ....
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....pneumonia and cerebral hypoxia, which was caused by smothering the nose and mouth." 14. The Accused Firoz was medically examined by PW-18 Dr. Dipendra Sallame, the Medical Officer at C.H.C. Lakhnadon, District Seoni on 25.04.2021 and after his examination, he had opined that the Accused Firoz was capable to do sexual intercourse. Doctor had prepared and sealed two semen slides of the semen of Mohd. Firoz and had also sealed a black coloured underwear of the said Firoz encircling a white spot, and had handed over the same to the said Constable. His examination report was exhibited as Exhibit P-39. PW-23 Dr. Vinod Dahayat, the Medical Officer at District Hospital, Seoni to whom the Accused Firoz was brought on 04.05.2013, had taken his blood sample for the D.N.A. test. He had also attested the photograph of Accused Firoz. The said Doctor had identified the Accused Firoz sitting in the Court by stating that he was the same person whose blood sample was taken and whose photograph was attested by him. 15. PW-25 Dr. Pankaj Shrivastava, Scientific Officer at F.S.L., Sagar had received the Articles relating to the present case through the letter dated 21.04.2013 of the Superintendent....
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....rom a place near a mosque situated near the house of his aunt on 23.04.2013, and was brought back after obtaining the transit remand from the concerned Court at Bhagalpur as per the order at Exhibit P-50. 18. PW-33 In-charge Police Station, Ghansaur Mr. R.D. Barthi had conducted the investigation of the Missing Person Case No. 10/13, and during the course of investigation, it was found that the alleged offences were committed by the Accused-Firoz. He therefore had registered the Crime No. 68/13 for the offence Under Section 363, 366 of I.P.C. (Exhibit P-60) against the Accused. He had stated about the investigation carried out by him and about the arrest of the Accused Rakesh Choudhary. The D.S.P. Mr. R.N. Parteti who had carried out the further investigation was examined as PW-34. He had deposed about the details of investigation carried out by him till the chargesheet was filed in the case. PW-16 Tehsildar at Seoni Mr. Sudhir Jain had conducted the identification parade of the Accused-Mohd. Firoz. According to him, the witnesses Smt. Ramkumari, Preeti Yadav, Nitin Namdev and Himmabai had identified the Accused during the course of the T.I. Parade. 19. Significantly the Accu....
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...., which the prosecution had failed to prove. The trial court had also failed to bring to the knowledge of the Accused the clear questions with regard to the incriminating evidence against the Accused. The "last seen theory" as propounded by the prosecution was also not proved which could connect the Accused with alleged crime. Merely because the Accused had admitted his visit at the place of the victim, no inference could be drawn against the Accused that he had committed the alleged crime of rape and murder. Invoking the provisions of Section 313 of Code of Criminal Procedure he submitted that the said provisions must be observed faithfully and fairly. The attention of the Accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against him so that he may be able to give such explanation as he may desire to give. In this regard, Mr. B.H. Marlapalle has placed reliance on the observations made by this Court in the case of Ajay Singh v. State of Maharashtra (2007) 12 SCC 341. Mr. Marlapalle also submitted that there was a great media pressure on the investigating agency when the incident occurred and, ....
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....appellate stage, and the same is sought to be raised for the first time before this Court which should not be entertained. Analysis and Findings: 22. It is true that the entire case of the prosecution rested on the circumstantial evidence, inasmuch as though certain facts were admitted by the Appellant-Accused in his further statement Under Section 313 of Code of Criminal Procedure, like his visit to the house of the victim on the previous evening of the alleged incident, and he having been arrested and brought back from Bhagalpur, Bihar, as per the transit remand granted by the concerned court, there was no eye witness to the alleged incident. The law with regard to the appreciation of evidence when the case of the prosecution hinges on the circumstantial evidence is very well settled. The five golden principles laid down by this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra 1984 (4) SCC 116 and followed in catena of decisions, are worth reproducing: 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an Accused can be said to be fully established: (1) the circumstan....
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....ing with the issue of inculpatory and exculpatory statements of the Accused made Under Section 313 Code of Criminal Procedure has made very apt observations in case of Mohan Singh v. Prem Singh and Anr. (2002) 10 SCC 236- 27. The statement made in defence by the Accused Under Section 313 Code of Criminal Procedure can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement Under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement Under Section 313 Code of Criminal Procedure of the Accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of Bihar [(1969) 1 SCC 347 : AIR 1969 SC 422] : (SCC pp. 357-58, para 23) 23. In this case the exculpatory part of the statement in Exhibit 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the Appellant received....
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.... not be made merely on his admission of the circumstance of his visit to the house of the informant on the previous day evening of the fateful day, such admission could certainly be taken aid of to lend assurance to the evidence of the prosecution. 25. The next and most important circumstance was with regard to the theory of "last seen together" propounded by the prosecution. In this regard, if the version of the witnesses examined by the prosecution, more particularly of PW-1 Ramkumari i.e. the mother of the victim, PW-6 Himmabai i.e. the grandmother of the victim, PW-7 Preeti Yadav i.e. the aunt of the victim and PW-31 Ram Kishan are closely appreciated, there remains no shadow of doubt that it was duly proved that after Himmabai refused Rakesh Chaudhary to permit the Appellant-Accused to stay at their house, Rakesh Chaudhary had left the house, but the Appellant continued to sit in the courtyard of the house of the informant-Ramkumari. It was also proved that at that time the victim along with her cousins was playing in the said courtyard, and after sometime the Appellant-Accused, victim and Ram Kishan were not seen at the courtyard. According to Ramkumari, the mother of the ....
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.... the burden of the prosecution on the Accused, nor requires the Accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or non-furnishing of the explanation by the Accused would be a very crucial fact, when the theory of "last seen together" as propounded by the prosecution is proved against him, to know as to how and when the Accused parted the company of the victim. 27. In case of Rajender v. State (NCT of Delhi) (2019) 10 SCC 623, this Court has succinctly dealt with the doctrine of "last seen together" in the light of Section 106 of the Evidence Act. The relevant observations read as under: 12.2.4. Having observed so, it is crucial to note that the reasonableness of the explanation offered by the Accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. Section 106 of the Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the d....
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....reak in the link of chain of circumstances, the benefit of doubt must go to the Accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine. 29. Following the above ratio, in the case of Surajdeo Mahto v. The State of Bihar (2021) 9 Scale, it was held- 29. The case of the prosecution in the present case heavily banks upon the principle of 'Last seentheory'. Briefly put, the last seen theory is applied where the time interval between the point of when the Accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the Accused being the perpetrator of crime becomes impossible. Elaborating on the principle of "last seen alive", a 3-judge bench of this Court in the case of Satpal v. State of Haryana (2018) 6 SCC 610, has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the Accused, would by itself, only be a weak kind of evidence. The Court further held: ...Succinctly stated, it may be a weak kind of evidence by itself to fou....
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....im, the said Ramkumari along with her mother Himmabai and Ors. had immediately gone to the police station at Ghansaur to lodge a missing person report (Exhibit P-1). It is true that there was no direct allegation made by them against the Appellant in the said report, however, at that point of time, the informant was not aware about the ill-intention of the Appellant, and no such crime was reportedly committed. It was only when the victim, on the next day early morning, was found in the field of Badri Yadav lying unconscious, the FIR was registered against him. The victim was also immediately taken to the hospital at Ghansaur for her treatment, and thereafter, taken to the hospital at Jabalpur and Nagpur for better treatment as her health was deteriorating. As per the medical reports, she was raped and the injuries were found on the private parts of her body. She had remained unconscious all through out. She expired on 29th April, 2013 and the final cause of death reported was "bronchopneumonia and cerebral hypoxia which was caused by smothering the nose and mouth." Thus, the time gap between the victim being lastly seen with the Appellant-Accused and the time when she was found inj....
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....o see that the due procedure is followed during the course of trial. 34. So far as the facts of the present case are concerned, there is nothing on record to suggest that the due procedure was not followed or that theAppellant-Accused had suffered on account of deprivation of the legal aid or legal assistance to him. The trial court did provide legal assistance to both the Accused by appointing a lawyer at the expense of the State, who had thoroughly cross-examined all the witnesses examined by the prosecution, and had also examined two witnesses on behalf of Accused Rakesh Choudhary. Apart from the fact that no such contention was raised during the course of trial or even before the High Court in the two separate appeals filed by the Accused represented by two separate lawyers, no such contention has been raised by the Appellant-Accused even in the memorandum of the present appeal. The oral submission made by the learned Senior Advocate appearing on behalf of the Accused at the fag end of his arguments that there was no fair trial conducted, without substantiating the said submission, cannot be entertained. Even otherwise, it may noted that during the course of recording the fu....
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....he court, therefore, holds that the trial court had rightly convicted the Appellant-Accused for the offences punishable Under Sections 302, 376(2)(i), 376(2)(m), 363, 366 of Indian Penal Code and Section 5(i) read with Section 6 and Section 5(m) read with Section 6 of the POCSO Act. The said order of conviction was affirmed by the High Court; and is being further affirmed by this Court. 37. The next question that falls for consideration is with regard to the sentence to be imposed on the Appellant. The trial court while imposing various sentences for the other offences, had imposed the death penalty for the offence Under Section 302 of Indian Penal Code, which has been confirmed by the High Court in the impugned judgment. It may be noted that since the death of the victim was caused due to the injuries inflicted by the Appellant while committing offence Under Section 376(2)(i) and 376(2)(m), the provisions of Section 376A of the Indian Penal Code would also get attracted which had come into force w.e.f. 03.02.2013 i.e. prior to the alleged incident in question, and which provided for wide range of punishments upto death penalty. The High Court in the impugned order, though made ....
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.... the family members, the jail documents and the social inquiry report of the Appellant. 40. As demonstrated earlier, once again one of the most barbaric and ugly human faces has surfaced. A tiny bud like girl was smothered by the Appellant before she could blossom in this world. The monstrous acts of the Appellant suffocated the victim to such an extent that she had no option but to leave this world. Once again, all the Constitutional guarantees have failed to protect the victim from the clutches of the demonizing acts of the Appellant. In the opinion of the Court, any sympathy shown to the Appellant would lead to miscarriage of justice. However, it has been brought to the notice of this Court that in series of judgments, this Court has not treated such case as the rarest of rare case. 41. In case of Bachan Singh v. State of Punjab (supra), the Constitution Bench while upholding the constitutional validity of the death sentence held inter alia that the imposition of death penalty is required to be guided by the paramount beacons of the legislative policy discernible from Sections 354(3) and 235(2) of the Code of Criminal Procedure, namely-(i) the extreme penalty can be inflic....