High Court dismissed Criminal Appeal against life sentence for rape and murder of a 2-year-old child, upholding conviction but deleting the non-parole condition imposed by the trial court.
Appeal dismissed; conviction and sentence upheld; order denying parole and commutation set aside.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
D.B. Criminal Appeal No. 295/2016
Safar Mohammed @ Golu Son of Mohammed Ajij age 21 years B/C Muslim R/o Near Masjid Lanka Colony Baran. (At present confined at District Jail, Baran)
----Accused/Appellant
Versus
State of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. Abdul Kalam Khan with Mr. Mahesh Chand Meena and Mr. Narendra Meena For Respondent(s) : Mr. Javed Choudhary-P.P.
HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
17/07/2019
Appellant had faced trial in FIR No. 270/2012 dated 26.04.2012, registered at Police Station Kotwali, Baran under Section 302 and 201 IPC.
Prosecution story in brief, as per the FIR is that on 25.04.2012, complainant-Tulsi Ram had gone to attend the marriage of his brother-in-laws alongwith his wife and children. After the marriage ceremonies had been performed, at night menfolk slept outside the room where the women-folk slept inside the room. His daughter Anshu aged about 2 years was sleeping with his wife in the room. At about 5.00 a.m., his wife woke up and told him that their daughter Anshu was missing from the room. Wife of
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the complainant told him that at about 1:30 a.m., she had given water to her daughter and had put her to sleep. They started searching for Anshu. Frock and underwear of Anshu lying outside the room were recovered. The underwear contained stool passed by his daughter and it had also blood stains. In the morning Brijmohan told them that a dead body of two year old girl was lying near the gate of Sati ke Chowk. Then they reached the spot and found that his daughter was lying dead. There were injury marks on her chest, stomach, shoulder and eyes and she was bleeding from her private parts.
After completion of investigation and necessary formalities, challan was presented against the appellant.
Charges were framed against the appellant under Section 376, 302, 201 IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘Act’). Appellant did not plead guilty and claimed trial.
In order to prove its case, prosecution examined twenty witnesses during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, after close of prosecution evidence, prayed that Jitendra @ Jeetu had taken Rs. 1,00,000/from him as loan towards marriage expenses. However, the said amount was not returned by Jitendra @ Jeetuand and due to this reason he had been falsely involved in this case. He further stated that he had not slept at the house of Jitendra @ Jeetu as there was too much rush and he had gone home.
Appellant examined three witnesses in his defence.
Trial Court vide impugned judgment dated 06.02.2016 ordered the conviction of the appellant under Section 302, 376
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and 201 IPC and Section 3 (2) (v) of the Act. Vide order dated 08.02.2016 appellant was sentenced to undergo imprisonment for life under Section 302 IPC and fine of Rs. 5000/-. It was ordered that in default of payment of fine, appellant shall further undergo simple imprisonment for fifteen days. Appellant was sentenced to undergo imprisonment for life qua offence under Section 376 IPC and fine of Rs. 5000/-, and it was ordered that in default of payment of fine, appellant shall further undergo simple imprisonment for fifteen days. Appellant was sentenced to undergo rigorous imprisonment for seven years qua offence under Section 201 IPC and fine of Rs. 3000/-, and it was ordered that in default of payment of fine, appellant shall further undergo simple imprisonment for seven days. Appellant was sentenced to imprisonment for life under Section 3(2)(v) of the Act and fine of Rs. 5000/-, and it was ordered that in default of payment of fine, appellant shall further undergo simple imprisonment for fifteen days. It was further ordered by the trial Court that imprisonment for life means for remaining life and the State Government would not commute the sentence and appellant would not be entitled to the benefit of parole. Hence, the present appeal by the appellant.
Learned counsel for the appellant has submitted that appellant has been falsely involved in this case merely on the basis of suspicion. There was no material on record to establish that the crime in-question had been in-fact committed by the appellant. Learned counsel has submitted that the trial Court had no jurisdiction to impose the condition that the appellant shall not be granted any parole or commutation of his sentence of imprisonment for life by the State.
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Learned State Counsel has opposed the appeal and has submitted that the offence committed by the appellant was a heinous one. Appellant had raped a child aged about 2 years and had murdered her and, thereafter, had thrown away her dead body.
Present case, relates to rape and murder of child Anshu aged about 2 years.
Ex. P1 is the post-mortem examination report of the deceased. The same was proved by PW1- Dr. Girriraj Kumar. A perusal of the post-mortem examination report reveals that there were seven injuries on the person of the deceased. She had suffered cheek bites, abrasions and her hymen was torn alongwith vaginal canal upto anterior rectum wall and cause of death of the deceased was due to hemorrhage peritoneum and massive trauma to external genital areas.
Complainant-Tulsi Ram, while appearing in the witnessbox as PW-2 has deposed as per the contents of the FIR. He has further deposed that he came to know that his daughter had been raped and murdered by the appellant.
PW-4 Jitendra @ Jeetu did not support the prosecution case during trial. In his cross-examination he deposed that appellant was his good friend and was like his brother. Appellant had carried out the entire work at the time of his marriage and he treated the appellant as his real brother. Name of the appellant was shown on the wedding card of his brother. Thus, due to his close relationship with the appellant, PW-4 did not support the prosecution case during trial.
PW-6-Neeraj Bai, mother of the deceased has deposed that two years back she had gone to attend the marriage of
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Jeetendra and Bhupendra, sons of her maternal aunt. After marriage ceremonies had been performed, she had slept with her daughter Anshu, whereas, her child Chandan had slept with her husband. During the night Chandan also came and slept with her. At night Anshu woke up and she had given her water and had put her to sleep. Thereafter, she had slept and at that time appellant was present there. Appellant was sitting in the courtyard of the house. She heard the noise of utensils and saw that appellant was going out. However, she went back to sleep and she had got up at about 4/5 a.m., and found that her daughter Anshu was missing. She informed her husband that their daughter was missing and they started looking for her. When she went out of the door she found that underwear of her daughter was lying there which was smeared with blood and her stool. Then they were told by some persons that a dead body was lying at “ Sati ke Chowk” . When they reached the spot they found that her daughter was bleeding from her private parts and had suffered injuries. She suspected that her daughter had been murdered by the appellant after raping her.
PW-9-Bhupendra @ Lalit has corroborated the statement of PW6-Neeraj Bai.
PW-11 Bharat Kumar has also corroborated the statement of PW-6 and has deposed that when appellant reached the spot, he was nervous and was saying that there was no point in crying now.
PW12-Hukum Bai has also corroborated the statement of PW6-Neeraj Bai.
PW-19 Jyoti has also corroborated the statement of PW6-Neeraj Bai. She further deposed that appellant was saying there
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was no point in crying because whatever was to happen, had already been happened.
The remaining witnesses have deposed with regard to the investigation conducted in the case.
Thus, from the statements of the prosecution witnesses, it stands duly established that the appellant was present at the spot in connection with marriage of Bhupendra and Jitendra. When the dead body of the deceased was recovered she was bleeding from her private parts and she has suffered injuries on her person.
In the present case, nobody had seen the deceased actually committing the crime. The case rests on circumstantial evidence. Apart from the statements of the prosecution witnesses to the effect that the appellant was also present at the spot, the important circumstances which points towards the guilt of the appellant is Ex.P25 report of the State Forensic Science Laboratory. A perusal of the same reveals that on the underwear of the deceased as well as underwear of the appellant semen stains found were of same the group, i.e., “A”.
In order to corroborate his plea taken by the appellant when he was examined under Section 313 Cr.P.C., he has examined DW-1 Akash, DW-2 Mohammed Saeed and DW-3 Jagdish.
DW1- Akash has deposed that he knew the appellant. Appellant was a good man and sister of Jitendra used to tie rakhi to the appellant. Two days prior to the marriage, appellant had given Rs. 1,00,000/- to Jitendra and it was agreed that the said amount would be returned after two days. The said witness in his cross-examination deposed that after the arrest of the appellant
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he had not gone to the police station and had not told them about the dispute between the parties with regard to Rs. 1,00,000/-. He also stated that in his presence no writing was done with regard to borrowing of Rs. 1,00,000/- by Jitendra. Thus, the statement of DW1 fails to advance the case of the appellant as it appears that the said witness had deposed in favour of the appellant being his friend.
DW-2 Mohammed Sayed has deposed that Jitendra and Bhupendra had taken Rs. 1,00,000/- from the appellant about two days prior to their marriage. However, the said amount was not returned to the appellant as agreed and due to this reason a dispute arose and appellant has been falsely involved in this case. In his cross-examination the said witness deposed that he had not gone to the police station and had not told them about the dispute between the appellant and Jitendra with regard to borrowing of Rs. 1,00,000/-. He stated that appellant was his friend. Hence, the statement of DW-2 also fails to advance the case of the appellant as it appears that the said appellant had deposed in favour of the appellant to help him being his friend.
Hence, it is evident that the defence witnesses have deposed with a view to help their friend/appellant. The plea taken by the appellant that he had given Rs. 1,00,000/- as loan to Jitendra appears to be afterthought. Moreover, in case the said amount had been taken by Jitendra from the appellant, then it could not have been returned by the borrower immediately after the marriage ceremony.
So far as the parents of the deceased are concerned they had no ill-will or enmity against the appellant to have falsely involved him in this case. Thus, from the circumstances brought
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on record, it is evident that the appellant was present in the house of his friend on the day of incident. It has also been brought on record by the prosecution that the appellant was nervous when the police arrived at the spot. Appellant had said that whatever had to happen had happened, and there was no use in crying. Moreover, as per the report of the Forensic Science Laboratry, the group of semen stains recovered from the underwear of the deceased as well as of the appellant matched with each other. Thus, in the present case the prosecution had been successful in bringing home the guilt of the appellant. All the circumstances brought on record by the prosecution cumulatively establish the guilt of the appellant with regard to commission of crime and negates the possibility of his innocence.
Learned trial Court had thus, rightly ordered the conviction and sentence of the appellant under Section 302, 376 and 201 IPC and Section 3(2)(v) of the Act. Consequently, this appeal is dismissed.
Impugned judgment/order dated 06.02.2016/ 08.02.2016 of conviction and sentence passed by the trial Court are upheld. However, part of the order of sentence dated 08.02.2016, whereby trial Court had directed that the State Government shall not give benefit of commutation of sentence to the appellant and would deny him the benefit of parole is set aside/deleted.
(GOVERDHAN BARDHAR)J.
(SABINA)J.
Ashu/42
1 issue framed by the court
Whether the High Court should have upheld the trial Court's order denying the appellant the benefit of parole or commutation of his life sentence.
4 provisions across 2 enactments
Safar Mohammed @ Golu
State of Rajasthan
SABINA
GOVERDHAN BARDHAR
As recorded by the court registry
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