Haresh Mohandas
Rajput Vs. State of Maharashtra
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 (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 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.
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:
a. Contused abrasion over
the labia majora from the junction behind the backwards size 1 x 0.25
cm/oblique.
b. Crescent marks on the
labia majnora near the clitoris size 0.25 cm. 3. Abrasion with radial from the
labia minora behind and backwards noted.
c. Four chit the torn
radially and bruised.
d. Posterial commisure
torn.
e. Hymen lacerated along
3 and 9 O'clock position.
Dr. P.D. Rokade (PW.7)
found following injuries on external examination:
a. Contused abrasion
left frontal eminence size 0.25 x 0.25 cms. Single.
b. Crescent abrasion
right upper lip lateral aspect size 0.5 x 0.25 cm. horizontal.
c. Contusion right ala
of nose 0.5 x 0.1 cms.
d. Contusion right
orbital plate 2 cms below the outer canthus, size 1 x 0.25 cms. Oblique.
e. Crescent abrasion
right angle of mouth 0.25 x 0.25 cm .
f. 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.
g. 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.
h. 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.
i. Contusion right anterior
triangle of neck 2 cm. x 0.5 cm. irregular.
j. Crescent abrasion
over right forearm and wrist 7 in No. of 0.1 to 0.25 cm. and 1-2 cm. apart.
k. Crescent abrasion left
forearm and wrist externally 2 in number 4 cm. part size 0.1 to 0.2 cm.
l. 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. 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 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.
" 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, 9character 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 10SCC 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."
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 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 13should 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:
a. Incident occurred in
the house of the appellant.
b. Appellant was present
at his house when the children were playing.
c. Appellant had an opportunity
to take Pooja inside the house.
d. During play Pooja was
found missing.
e. Nitesh (PW.3) saw Pooja
in the house of the appellant and asked him about it and he denied.
f. Appellant admitted before
his mother and son Khushal (PW.10) to have killed Pooja.
g. 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.
h. 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. Explanation given by
the appellant that he had gone to liquor shop for drinking leaving his house
open was not found to be acceptable.
i. Recovery of rope used
in the crime at the instance of the appellant from his house.
j. 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 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 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 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 18Chowk. 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 (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. 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 21courts 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 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.
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.
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 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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