REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 2030-2031 of 2009
Haresh Mohandas Rajput ...Appellant
Versus
State of Maharashtra ...Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned
judgment and order dated 11.1.2008 in Criminal Appeal
Nos.1020/2001 and 401/2002 of the High Court of Bombay in which
the High Court has confirmed the order of conviction dated 19.9.2001
passed by the Additional Sessions Judge, Pune in Sessions Case No.41
of 2000 for the offences of rape and murder, however, altered the
sentence of life imprisonment awarded by the Trial Court to death
sentence while allowing the criminal appeal of the State for
enhancement of punishment.
2. FACTS:
A. On 24.10.1999, Pooja, deceased, aged 10 years was playing on
the road between her house and the house of the appellant at about 4
p.m. along with her brother Nitesh (PW.3) and sister. She was found
missing by Nitesh (PW.3) who searched for her but in vain. Smt. Tara
(PW.1) mother of Pooja, deceased, who had been away for work, on
being informed came back and looked around but Pooja could not be
traced. Smt. Tara (PW.1) reached the police station at 9.30 p.m. to
lodge the First Information Report (hereinafter called the "FIR").
While Smt. Tara (PW.1) was still in the police station, Khushal
(PW.10) son of the appellant arrived at the police station and informed
the police that the appellant, who was addicted to liquor, told him that
he had killed Pooja, deceased and her dead body was lying under the
cot in his house. The police acted on the information and reached the
spot and found that a large number of persons had gathered there and
the appellant was sitting outside his home.
B. The dead body of Pooja was recovered from the house of the
appellant and panchnama was prepared. Appellant was arrested and
after completing the investigation, the chargesheet was filed against
him under Sections 302 and 376 of the India Penal Code, 1860
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(hereinafter called "IPC") . During the trial, the prosecution examined a
large number of witnesses in support of its case and after conclusion of
the trial, the Trial Court vide judgment and order dated 19.9.2001
convicted the appellant and sentenced him to undergo life
imprisonment under Section 302 IPC and 10 years imprisonment under
Section 376 IPC. However, both the sentences were directed to run
concurrently.
C. Being aggrieved, the State of Maharashtra preferred the appeal
for enhancement of sentence and the appellant also filed an appeal
against his conviction. The High Court vide impugned judgment and
order dated 11.1.2008 upheld the conviction and enhanced the sentence
to death penalty, while disposing of both the appeals.
Hence, these appeals.
RIVAL SUBMISSIONS:
3. Shri D.N. Goburdhan, learned counsel appearing for the
appellant, has submitted that there is no evidence on record to connect
the appellant with the crime. Circumstantial evidence was not to the
effect that it would indicate towards the guilt of the appellant in
exclusion of any hypothesis of innocence. There are material
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inconsistencies in the statements of the witnesses which go to the root
of the case. There is no sufficient evidence on record on the basis of
which conviction of the appellant could be recorded. However, under
no circumstance the High Court could be justified in enhancing the
punishment from life imprisonment to death sentence. Thus, the
appeals deserve to be allowed.
4. Per contra, Shri Arun R. Pednekar, learned counsel appearing for
the State, has opposed the appeals contending that the courts below
have taken into consideration a large number of circumstances which
stood proved to establish the guilt of the appellant. The dead body of
Pooja, deceased, was recovered from the house of the appellant. The
medical report revealed that she had been killed by strangulation after
being subjected to sexual assault. The inconsistencies in the statements
of the witnesses, if any, are of trivial nature. The concurrent findings
of facts recorded by the courts below on the basis of which the
appellant has been convicted, do not require any interference. The
appeals lack merit and are liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
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FACTS UNDISPUTED:
6. Indisputably, the dead body of Pooja was found inside the house
of the appellant with blood stains under the cot. There had been blood
stains on the bed-sheet and on the floor underneath the cot. Appellant
could not offer any explanation whatsoever as how the dead body of
the victim girl could reach his house. More so, there is nothing on
record to controvert the evidence of the doctor who conducted the post-
mortem and opined that there had been sexual assault on the victim and
she died of strangulation and there had been ligature marks on her
neck. Appellant was present in his house when police arrived there.
The alibi taken by the appellant that he had gone to a liquor shop for
drinks leaving his house open remained unsubstantiated and was found
to be false.
INJURIES:
7. Dr. P.D. Rokade, PW-7, conducted the post-mortem examination
on 25.10.1999 on the body of Pooja and found the following injuries:
1. Contused abrasion over the labia majora from the
junction behind the backwards size 1 x 0.25 cm/oblique.
2. Crescent marks on the labia majnora near the clitoris
size 0.25 cm.
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3. Abrasion with radial from the labia minora behind and
backwards noted.
4. Four chit the torn radially and bruised.
5. Posterial commisure torn.
6. Hymen lacerated along 3 and 9 O'clock position.
Dr. P.D. Rokade (PW.7) found following injuries on external
examination:
1. Contused abrasion left frontal eminence size 0.25 x 0.25 cms.
Single.
2. Crescent abrasion right upper lip lateral aspect size 0.5 x 0.25
cm. horizontal.
3. Contusion right ala of nose 0.5 x 0.1 cms.
4. Contusion right orbital plate 2 cms below the outer canthus,
size 1 x 0.25 cms. Oblique.
5. Crescent abrasion right angle of mouth 0.25 x 0.25 cm .
6. Contused abrasion right cheek 4 in No.1 below another with
1 cm. apart oblique in direction of size 1.5 x 0.5 cm.
7. Ligature mark around the neck over the thyroid cartilage
extending from left sternclodomastoid upto the right posterior
triangle of neck size 15 cm. x 1.5 cm. on left and 1 cm. on
right side.
8. Ligature mark is 7 cm. below left ear 6.5 cm. below chin
and 8 cm. below right ear and is more prominent on left side.
9. Contusion right anterior triangle of neck 2 cm. x 0.5 cm.
irregular.
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10. Crescent abrasion over right forearm and wrist 7 in No. of
0.1 to 0.25 cm. and 1-2 cm. apart.
11. Crescent abrasion left forearm and wrist externally 2 in
number 4 cm. part size 0.1 to 0.2 cm.
12. Old unhealed seen over the left knee with recent scab
removal (granulate on tissue seen) size 2 x 1 cm. and 3 x 2 cm.
All the injuries were ante-mortem.
The doctor also opined that injuries to genitals mentioned in
column no. 151 may be possible due to sexual assault. There injuries
as well as internal injuries mentioned in para no. 20, organs of
generations may be possible due to rape by a fully developed person by
full penetration.
The age of the injuries was 24 hours before post-mortem
examination. Injuries caused by finger nails referred above may be
caused in sexual assault. Injuries mentioned in column no. 3 may be
possible due to resistance during sexual assault.
The witness further opined that Pooja was raped and then
murdered on 24.10.1999 between 4.00 p.m. to 10.00 p.m.
8. The instant case is based on circumstantial evidence as there is
no eye-witness of the incident and the High Court has awarded the
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death sentence to the appellant. Thus, we have to examine as to
whether the prosecution case meets the requirement of proof on
circumstantial evidence and the facts of the case warranted the
imposition of death sentence.
CIRCUMSTANTIAL EVIDENCE:
9. In Krishnan v. State represented by Inspector of Police,
(2008) 15 SCC 430, this Court after considering a large number of its
earlier judgments observed that when a case rests upon circumstantial
evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and
firmly established;
(ii) those circumstances should be of definite
tendency unerringly pointing towards guilt of the
accused;
(iii) the circumstances, taken cumulatively, should
form a chain so complete that there is no escape
from the conclusion that with all human
probability the crime was committed by the
accused and none else; and
(iv) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of
the guilt of the accused and such evidence should
not only be consistent with the guilt of the accused
but should be inconsistent with his innocence."
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Though a conviction may be based solely on circumstantial
evidence, however, the court must bear in mind the aforesaid tests
while deciding a case involving the commission of a serious offence in
a gruesome manner.
10. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR
1984 SC 1622, this Court observed that it is well settled that the
prosecution's case must stand or fall on its own legs and cannot
derive any strength from the weakness of the defence put up by the
accused. However, a false defence may be called into aid only to
lend assurance to the court where various links in the chain of
circumstantial evidence are in themselves complete. The
circumstances from which the conclusion of guilt is to be drawn should
be fully established. The same should be of a conclusive nature and
exclude all possible hypothesis except the one to be proved. The facts
so established must be consistent with the hypothesis of the guilt of the
accused and the chain of evidence must be so complete as not to leave
any reasonable ground for a conclusion consistent with the innocence of
the accused and must show that in all human probability, the act must
have been done by the accused. The Court also discussed the nature,
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character and essential proof required in a criminal case which rests on
circumstantial evidence alone and held as under:
"(a) The circumstances from which the conclusion of
guilt is to be drawn should be fully established;
(b) The facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(c) The circumstances should be of a conclusive
nature and tendency;
(d) They should exclude every possible hypothesis
except the one to be proved; and
(e) There must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused."
11. A similar view has been reiterated by this Court persistently
observing that the evidence produced by the prosecution should be of
such a nature that it makes the conviction of the accused sustainable.
(See: Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011
SC 200; Wakkar & Anr. v. State of Uttar Pradesh, (2011) 3 SCC
306; Mohd. Mannan @ Abdul Mannan v. State of Bihar, (2011) 5
SCC 317; Inspector of Police, Tamil Nadu v. John David, (2011) 5
10
SCC 509; and SK. Yusuf v. State of West Bengal AIR 2011 SC
2283).
DEATH
SENTENCE - WHEN WARRANTED:
12. The guidelines laid down in Bachan Singh v. State of Punjab,
AIR 1980 SC 898, may be culled out as under:
"(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty, the
circumstances of the offender also require to be
taken into consideration alongwith the
circumstances of the crime.
(iii) Life imprisonment is the rule and death sentence
is an exception. In other words, death sentence
must be imposed only when life imprisonment
appears to be an altogether inadequate
punishment having regard to the relevant
circumstances of the crime, and provided, and
only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously
exercised having regard to the nature and
circumstances of the crime and all the relevant
circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing
so, the mitigating circumstances have to be
accorded full weightage and just balance has to
be struck between the aggravating and the
mitigating circumstances before the option is
exercised."
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13. In Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC
957, this Court expanded the "rarest of rare" formulation beyond the
aggravating factors listed in Bachan Singh to cases where the
"collective conscience" of a community is so shocked that it will expect
the holders of the judicial powers centre to inflict death penalty
irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty, such a penalty can be inflicted.
But the Bench in this case underlined that full weightage must be
accorded to the mitigating circumstances in a case and a just balance
had to be struck between aggravating and mitigating circumstances.
14. "Rarest of the rare case" comes when a convict would be a
menace and threat to the harmonious and peaceful co-existence of the
society. The crime may be heinous or brutal but may not be in the
category of "rarest of the rare case". There must be no reason to
believe that the accused cannot be reformed or rehabilitated and that he
is likely to continue criminal acts of violence as would constitute a
continuing threat to the society. The accused may be a menace to the
society and would continue to be so, threatening its peaceful and
harmonious co-existence. The manner in which the crime is committed
must be such that it may result in intense and extreme indignation of the
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community and shock the collective conscience of the society. Where
an accused does not act on any spur-of-the-moment provocation and
indulges himself in a deliberately planned crime and meticulously
executes it, the death sentence may be the most appropriate punishment
for such a ghastly crime. The death sentence may be warranted where
the victims are innocent children and helpless women. Thus, in case
the crime is committed in a most cruel and inhuman manner which is an
extremely brutal, grotesque, diabolical, revolting and dastardly manner,
where his act affects the entire moral fiber of the society, e.g. crime
committed for power or political ambition or indulge in organized
criminal activities, death sentence should be awarded. (See: C.
Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718;
Rabindra Kumar Pal alias Dara Singh v. Republic of India, (2011) 2
SCC 490; Surendra Koli v. State of UP & Ors., (2011) 4 SCC 80;
Mohd. Mannan (supra); and Sudam @ Rahul Kaniram Jadhav v.
State of Maharashtra, (2011) 7 SCC 125).
15. Thus, it is evident that for awarding the death sentence, there
must be existence of aggravating circumstances and the consequential
absence of mitigating circumstances. As to whether death sentence
13
should be awarded, would depend upon the factual scenario of the case
in hand.
16. The instant appeals are required to be decided in the light of the
aforesaid settled propositions of law.
CIRCUMSTANCES:
17. The following circumstances have been taken into consideration
by the courts below while convicting the appellant:
(1) Incident occurred in the house of the appellant.
(2) Appellant was present at his house when the children
were playing.
(3) Appellant had an opportunity to take Pooja inside the
house.
(4) During play Pooja was found missing.
(5) Nitesh (PW.3) saw Pooja in the house of the appellant
and asked him about it and he denied.
(6) Appellant admitted before his mother and son Khushal
(PW.10) to have killed Pooja.
(7) Khushal (PW.10) had given information at the Police
Station that his father/appellant killed Pooja and put the
dead body below the cot in his house.
(8) Police Head Constable G.R. More (PW.4), Ashok (PW.2)
and Deepak Jawahar Agarwal (PW.8) went to the house
of the appellant and recovered the dead body of Pooja.
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Explanation given by the appellant that he had gone to
liquor shop for drinking leaving his house open was not
found to be acceptable.
(9) Recovery of rope used in the crime at the instance of the
appellant from his house.
(10) Person other than the appellant had no opportunity to
commit the crime.
18. So far as the first circumstance is concerned, material on record
reveals that:
I. Pooja's dead body was found in the house of the
appellant.
II. Ashok (PW.2) who took out the dead body stated that the
frock and knickers of the deceased were stained with blood.
III. Clothes of the deceased were seized under panchanama
Ex.20. Panchanama also shows that the clothes were stained
with blood. Ravindera Pawar, PSI who conducted this
panchanama has also stated about this fact. Cloth pieces and
bed sheet as well as the frock and knickers sent for chemical
analysis.
IV. As per the Chemical Analysis Report, Ex.49, these
articles were having human blood.
V. The medical evidence referred earlier as well as inquest
panchanama, the admitted document, point out that Pooja was
sexually assaulted before murder.
VI. Spot panchanama Ex.24 stood proved through panch
witness Mohd. Sharif. This witness has stated that there was a
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bed sheet on the cot and it was having blood stains over it. The
blood stains were also found below the cot on the floor.
VII. The bed sheet as well as two cloth pieces having blood
stains were seized by the police.
19. There is no reason to disbelieve the above evidence/factors.
Moreover, this aspect has not been challenged by the appellant at any
stage of the proceedings. The fact that blood was found on the bed
sheet, on the cot as well as on the floor below the cot clearly indicates
that the incident occurred there only. It is very unlikely that the culprit
committed the heinous act elsewhere and then placed Pooja's dead
body in appellant's house.
20. It has come on record that after finding Pooja missing, her
brother Nitesh (PW.3) searched for her. On receiving the information
that Pooja was missing her mother Smt. Tara (PW.1) came and
searched for her. In such a fact-situation, where people came to know
about the disappearance of Pooja within a very short span of time, the
culprit could not have had any opportunity to transfer the body from
any other place to the appellant's house. It was on the basis of the
above that the courts below came to the conclusion that Pooja was
raped and murdered in the house of the appellant. The appellant in his
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examination under Section 313 of Code of Criminal Procedure, 1973,
(hereinafter called `Cr.P.C.), while answering Question Nos. 27, 28 and
29 himself admitted that he was sitting outside his house when the
police arrived. The police had searched his house and the dead body of
Pooja lying below the cot in his house was recovered. We do not see
any cogent reason to interfere with finding of facts recorded by the
courts below on this count.
21. The second circumstance against the appellant had been that he
was present at the place of occurrence when the children were playing.
Both the courts below have appreciated the evidence on record
particularly deposition of Nitesh (PW.3) and held that appellant was
present at the place of occurrence at the relevant time. Nothing could
be brought to our notice to contradict the findings of the courts below.
Of course, the Trial Court did not accept the evidence of Nitesh
(PW.3), 12 years old child to the extent that the appellant had offered
chocolates to him and Pooja, though Pooja had accepted it but Nitesh
(PW.3) did not accept the same. The High Court while dealing with the
evidence of Nitesh (PW.3) held that the children had been playing in
front of his house and the appellant had called them and given them
chocolates. Discrepancy remained regarding acceptance of chocolate
17
by Nitesh (PW.3), which of course, is not relevant enough for the case
taking into consideration the other circumstances.
22. So far as the third circumstance is concerned, admittedly,
appellant had been living for a long long time in close vicinity of the
house of Pooja, deceased and was very well acquainted with the victim
as well as her family members. The admitted fact remained that
appellant's mother and son, who were the other inmates of his house,
had gone out to procure the medicines to cure his addiction and on the
fateful day, appellant was alone in his house. The children had been
busy in running here and there as they were playing hide and seek.
Thus, it was not possible in such a fact-situation that every child could
remain attentive on every moment about other children. Such
circumstance gives an opportunity to a person having evil design. Thus,
appellant had an opportunity to take the victim Pooja inside the house.
23. The fourth circumstance stood fully proved by the evidence on
record, particularly by the depositions of Smt. Tara (PW.1) and Nitesh
(PW.3). Nitesh (PW.3) deposed that as Pooja had disappeared he
searched for her and as he could not find her out, he went to inform his
mother Smt. Tara (PW.1), who at that relevant time had been at Shagun
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Chowk. Smt. Tara (PW.1) came back and searched for Pooja. More so,
this part of the prosecution case has never been challenged by the
defence and it stands proved that Pooja disappeared while playing in
front of the house of the appellant that evening.
24. The fifth circumstance had been that Nitesh (PW.3) saw Pooja
in the house of the appellant and on being asked, the appellant denied
her presence. Nitesh (PW.3) is a child witness as at the relevant time he
was 12 years of age. When he noticed that Pooja was not seen at the
place of play he searched for her and asked in the neighbourhood and
when he could not trace her, only then he went to inform his mother
Smt. Tara (PW.1) at Shagun Chowk and returned with her. They both
searched for Pooja and as they failed to find her out, Smt. Tara (PW.1)
went to the police and Nitesh (PW.3) stayed at home. Up to this extent,
the prosecution case has not been challenged by the appellant. Nitesh
(PW.3) has deposed that after his mother left for the police station, his
friend came and told him that his sister was in the house of the
appellant. So, Nitesh (PW.3) went there from the back side of the
house and saw Pooja lying in the room. He went to one Semabai and
told her about it. Semabai entered the house from the backside of the
house of the appellant, however, could not see Pooja there. Nitesh
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(PW.3) asked the appellant about Pooja but he denied that she was
there. The Trial Court after appreciating the entire evidence on the
issue came to the conclusion that it was nothing but an imagination of
Nitesh (PW.3) and this circumstance was not proved. We have
examined the evidence of Nitesh (PW.3) on this issue and we are of the
considered opinion that conclusion reached by the Trial Court on the
issue is correct and does not require any interference.
25. Circumstance No.6 relates to an extra-judicial confession by the
appellant before his mother and son Khushal (PW.10) to the extent that
he had killed Pooja. According to the prosecution, Khushal (PW.10)
alongwith his grandmother had gone to Kalyan and returned in the
night and found that the lights of the house were off and the appellant
was present therein. The appellant became annoyed as Khushal
(PW.10) put on the lights and so Khushal (PW.10) put the lights off.
When he again put on the lights the appellant became very angry, on
this the appellant's mother came in and at that time the appellant told
them that he had committed the murder of Pooja and threatened them
not to disclose to anybody. Khushal (PW.10) ran out of the house,
went to the police station and revealed this fact. The prosecution
examined Khushal (PW.10), however, he was declared hostile.
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Appellant's mother was not examined. Thus, the issue of extra-judicial
confession was not proved. There is not enough evidence on record to
prove this circumstance against the appellant
26. So far as the other part of this issue that Khushal (PW.10) had
informed the police that the dead body was lying below the cot in his
house, the courts below appreciated his evidence with full care and
caution, being a hostile witness, as Khushal (PW.10) denied that he had
gone to the police station in the night and gave information. The Trial
Court came to the conclusion that evidence of Smt. Tara (PW.1),
Ashok (PW.2), Deepak Jawahar Agarwal (PW.8), and G.R. More
(PW.4) were enough to establish that when police was recording the
complaint of Smt. Tara (PW.1), Khushal (PW.10) reached the police
station crying and told them that his father had killed Pooja and kept
the dead body below the cot in his house. None of the aforesaid
witnesses had any animosity with the appellant and thus, there could be
no reason to enrope him falsely. The evidence on this point
particularly, is nowhere shakened during their cross-examination. The
information was given to the police in close vicinity at the time of
commission of the crime, though exact time of death is not known. The
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courts below found the circumstance fully proved and we concur with
the said finding.
27. So far as the eighth circumstance is concerned, it relates to the
recovery of the dead body of Pooja from the house of the appellant. It
is admitted in view of the depositions of Ashok (PW.2), G.R. More
(PW.4) and Deepak Jawahar Agarwal (PW.8) that the dead body of
Pooja was recovered from the house of the appellant. According to
Deepak Jawahar Agarwal (PW.8), he had gone to police station along
with Smt. Tara (PW.1) and it was in his presence that Khushal (PW.10)
has reached the police station and revealed that his father had killed
Pooja and dead body was lying below the cot. He has further deposed
that they came with the police to the house of the appellant and entered
his house. During search, Ashok (PW.2) father of the deceased saw the
dead body. It was taken out and put on a handcart. The appellant was
standing in front of the house and the police caught him. In the
suggestion put to him, he has denied that he was deposing falsely.
Ashok (PW.2), father of Pooja, deceased has corroborated the evidence
of Deepak Jawahar Agarwal (PW.8) fully to the extent that he was also
at the police station when Khushal came and revealed the fact that his
father had killed Pooja. He further deposed that he along with the
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policemen, entered the house of the appellant and recovered the dead
body of his daughter, Pooja as it was lying below the cot in the house
of the appellant. Similarly, G.R. More (PW.4), Head Constable had
deposed in this regard that he entered the house of the appellant along
with Ashok (PW.2) and Deepak Jawahar Agarwal (PW.8). They
searched the house and saw that a girl was lying below the cot therein.
Ashok (PW.2) had taken her out. She was motionless. She was kept on
a handcart. Appellant has admitted the recovery of Pooja's body from
his house while answering Question No.29 in his examination under
Section 313 Cr.P.C. Thus, this circumstance to the extent that the dead
body was recovered from the house of the appellant stood fully proved.
The explanation furnished by the appellant that he had
gone to liquor shop for drinks leaving his house open, had to be proved
by him in view of the provisions of Section 106 of Indian Evidence
Act, 1872, which he miserably failed and the courts below have
disbelieved him. Learned counsel for the appellant could not point out
any single evidence on the basis of which a contrary inference can be
drawn.
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28. The recovery of rope used in the crime has been disbelieved by
the Trial Court on the ground that such ropes were easily available in
the market. Rope so recovered did not contain any special mark for
identification. The police had entered the house prior to Panchanama.
Therefore, it could not be established that the same rope had been used
while committing the crime. Death was caused by strangulation.
Though the High Court has found sufficient material to believe the
recovery of the rope but in view of the fact that there was nothing on
record to show that same rope had been used for committing the crime,
the finding so recorded by the High Court loses significance.
29. This brings us to the next circumstance as to whether any other
person had an opportunity to commit the crime. The dead body was
found from the house of the appellant. Any outsider may not know that
the appellant's mother and son had gone out and they would not return
till night. The outsider must not have an idea that house was lying open
and no person was present inside. It is not probable that a person
having no concern with such a house would dare to take a girl inside
the house to fulfill lust and to kill her. The rape was committed on the
cot that is why blood stains were found on it. No outsider could have
committed rape so comfortably using the cot in someone else's house.
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The dead body was found below the cot that indicates that the accused
attempted to conceal the body. Had any outsider done it, after
committing the crime he would have run away leaving the dead body
on the cot itself as he would have no reason to be afraid of search and
trace of the dead body. In fact, such a fear exists in the mind of a
person to whom the house belongs. The outsider would not make any
attempt to conceal the dead body, as his prime concern remains to run
away after commission of the crime.
The evidence led by the prosecution clearly establishes the
aforesaid circumstances.
30. Out of the aforesaid circumstances, only a very few which are
immaterial and are not vital to determine the case, stood fully proved
against the appellant. In such a fact-situation, we do not find any
cogent reason to interfere with the well-reasoned judgments of the
courts below so far as the conviction of the appellant is concerned, and
we affirm his conviction under Sections 302 and 376 IPC.
So far as the sentence part is concerned, in view of the law
referred to hereinabove, we are of the considered opinion that the case
does not fall within the "rarest of rare cases". The High Court was not
25
justified in enhancing the punishment. Thus, in the facts and
circumstances of the case, we set aside the punishment of death
sentence awarded by the High Court and restore the sentence of life
imprisonment awarded by the Trial Court.
With this modification, the appeals stand disposed of.
.................................J.
(P. SATHASIVAM)
.................................J.
(Dr. B.S. CHAUHAN)
New Delhi,
September 20, 2011
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