Amit Vs. State of
[Criminal Appeal No.
1905 of 2011]
J U D G M E N T
A. K. PATNAIK, J.
is an appeal by way of special leave under Article 136 of the Constitution of India
against the judgment dated 29.07.2009 of the Allahabad High Court in Criminal Appeal
No.7361 of 2007 and in Reference No.26 of 2007 confirming the conviction of the
appellant under Sections 364, 376, 377, 302 and 201 of the Indian Penal Code (for
short `IPC') as well as the sentences of imprisonments and death awarded by the
learned Additional Sessions Judge.
facts very briefly are that on 19.03.2005, one Radhey Shyam lodged a First
Information Report (for short `FIR') at the Daurala Police Station in District Meerut
at 21:15 hours alleging that while his mother Manno and wife Shakuntala were present
at house, his neighbour Amit, the appellant herein, took away his daughter Monika,
aged 3 years, from his house on the pretext that he would give biscuits to her
but neither his daughter nor the appellant returned and when at about 5.00 p.m.
the appellant came back to his house, he inquired about the whereabouts of Monika,
but the appellant did not reply and ran away. Crime No.90 of 2005 for the offence
under Section 364, IPC, was registered.
The appellant was apprehended
on 20.03.2005 near the Pawli Khas Railway Station, Modipuram, P. S. Daurala in
District Meerut and his shirt, which bore blood-stains on its right arm, was taken
off from his person. On the statement of the appellant, the dead body of Monika
kept in a plastic bag was recovered from the wheat field in the out skirts of village
Palhara in the presence of Radhey Shyam and Iqbal Singh. A pair of green colour
chappals, which were blood-stained, were also recovered from the corner of a
room of the house of the appellant on the statement of the appellant in presence
of Radhey Shayam and Iqbal Singh.
The shirt of the
appellant and the chappals, frock, underwear of Monika and a back thread were sent
to the Forensic Science Laboratory Uttar Pradesh, Agra, which confirmed presence
of human blood and human sperms on some of these materials. After
investigation, chargesheet was filed against the appellant under Sections 364, 376,
377, 302 and 201, IPC, and charges were accordingly framed by the learned
Additional Sessions Judge, Court No.12, Meerut, and Sessions Trial No.449 of 2005
the trial, Radhey Shyam was examined as PW-1. His wife and mother were examined
as PWs-2 and 3. Iqbal Singh, the witness to the seizures made pursuant to the statements
of the appellant, was examined as PW-4. Dr. Vikrama Singh, Senior Pathologist,
who carried out the post-mortem on the body of Monika, was examined as PW-5 and
the Investigating Officer was examined as PW-6. In his statement under Section 313,
Criminal Procedure Code (for short `Cr.P.C.'), the appellant denied having committed
the offences but no evidence was adduced by him in his defence. The trial court
considered the evidence, heard the arguments and found the appellant guilty of the
charges under Sections 364, 376, 377, 302 and 201, IPC.
After hearing the appellant
on the question of sentence, the trial court imposed the punishment of life imprisonment
and a fine of Rs.5,000/- for the offence under Section 364, IPC, and a further sentence
of six months if the appellant failed to pay the fine. For the offence under Section
376, IPC, the trial court also imposed the punishment of life imprisonment and a
fine of Rs.5,000/- and on failure to pay the fine, a further sentence of six months.
For the offence under Section 377, IPC, the trial court also imposed the punishment
of life imprisonment and a fine of Rs.5,000/- and on failure to pay the fine, an
additional sentence of six months' imprisonment.
For the offence under
Section 201, IPC, the trial court imposed a sentence of five years imprisonment
and a fine of Rs.2,000/- and on failure to pay the fine, an additional sentence
of two months' imprisonment. The trial court took the view that this is one of those
rarest of rare cases in which the appellant was not eligible for any sympathy of
the Court and imposed the sentence of death and a fine of Rs.5,000/- on the
appellant for the offence under Section 302, IPC. The High Court, as we have already
noted, has not only confirmed the convictions under Sections 364, 376, 377, 302
and 201, IPC, but also the sentences awarded by the trial court.
the hearing of the appeal, learned counsel for the appellant submitted that PW-3
was the only person who was witness to the appellant taking away Monika from the
house of PW-1, but PW-3 was an aged woman and she has admitted in her cross- examination
that she cannot see with her right eye. He submitted that PW-3 was an interested
witness inasmuch as she was the grandmother of Monika and her evidence should
not be relied on.
He argued that no Test
Identification Parade was conducted during investigation for the witness to identify
the appellant. He further submitted that no independent witnesses were taken by
the Police for recovery of the articles and instead the father of Monika (PW-1)
was made a witness to the recovery of various articles and there is evidence to
show previous enmity between PW-1 and the appellant and PW-1 has planted this case
against the appellant. He also argued that the weapon by which Monika was killed
has not been recovered and hence there is no proof that the appellant has committed
the offence under Section 302 IPC.
counsel for the State, on the other hand, took us through the evidence of
PWs-1, 2, 3 and 4 as well as the three memoranda of recovery made on 20.03.2005
pursuant to the confessional statements of the appellant admissible under Section
27 of the Evidence Act as well as the report of the Forensic Science Laboratory
to show that the trial court rightly convicted the appellant and the High Court
rightly confirmed the conviction under Sections 364, 376, 377, 302 and 201,
may first consider the contention of the learned counsel for the appellant that
the evidence of PW-3 who saw the appellant taking away Monika from her lap should
not be relied on. PW-3 is no doubt the grandmother of Monika but she is not an interested
witness. As has been held by this Court in State of Rajasthan v. Smt. Kalki and
another [(1981) 2 SCC 752], Myladimmal Surendran and others v. State of Kerala [(2010)
11 SCC 129] and Takdir Samsuddin Sheikh vs. State of Gujarat and another [(2011)
10 SCC 158], an interested witness must have some direct interest in having the
accused somehow convicted for some extraneous reason and a near relative of the
victim is not necessarily an interested witness.
There is no evidence
to show that PW-3 was somehow interested in having the appellant convicted. PW-3,
however, is an aged woman and she has admitted in her cross-examination that she
cannot see with her right eye but she has also stated in her cross-examination that
she can see with her left eye and the sight of her left eye has not diminished on
account of old age and she can fully see everything and can also pass a thread through
the eye of the needle and that she does not use spectacles and can see without spectacles.
Hence, the evidence of PW-3 that the appellant came to her house and took away Monika
from her lap on the pretext of giving biscuits to her cannot be disbelieved.
may now deal with the contention of the learned counsel for the appellant that no
Test Identification Parade was conducted during investigation for the witness to
identify the appellant as the person who had taken away the child from her lap.
Test Identification Parade would have been necessary if the appellant was unknown
to PW-3 but as the appellant was the neighbour of PW-3 and known to her no Test
Identification Parade was necessary for PW-3 to identify the appellant.
In fact when PW-1 returned
home, he was told by PW-3 that the appellant had taken away Monika on the pretext
of giving her biscuits because PW-3 knew the appellant. Moreover, on such information
received from PW-3, PW-1 lodged the FIR naming the appellant as the person who
had taken away Monika on the pretext of giving her biscuits. Hence, the argument
of learned counsel for the appellant that no Test Identification Parade was conducted
for PW-3 to identify the appellant is misconceived in the facts of this case.
the contention of learned counsel for the appellant that no independent witnesses
were taken by the police for recovery of the articles and PW-1, who was the
father of Monika and who was inimical to the appellant was made a witness to
the recovery of the articles, we find from the memo Ex.Ka-10 recording the recovery
of blood- stained shirt of the appellant that the recovery was made in presence
of two Constables, namely, Harender Singh and Jasbir Singh, and PW-1 was not a
witness to this recovery. Thereafter, the appellant made a confession that he had
concealed the dead body of Monika in the wheat field and pursuant to this confession
the dead body of Monika kept in a plastic bag was recovered in presence of not only
PW-1 but also PW-4 (Iqbal Singh).
The recovery memo
(Ext.Ka-2) with regard to the dead body of Monika and the recovery memo Ext.Ka-3
with regard to plastic bag bear the signatures of the two witnesses PW-1 and PW-4.
Pursuant to the statement made by the appellant, the chappals which Monika was wearing
at the time of murder were also recovered from the house of the appellant in presence
of PW-1 and PW-4 and the recovery memo with regard to the chappals (Ext.Ka-5) also
bears the signatures of PW-1 and PW-4.
Thus, it is not correct,
as has been submitted by learned counsel for the appellant, that only PW-1 was a
witness to the recovery of various articles and that this was a case which PW-1
had planted on the appellant on account of previous enmity. PW-4 was also a witness
to the recovery of the articles which implicate the appellant in the offence
and it is not the case of the appellant that PW-4 was in any way inimical to
to the argument of the counsel for the appellant that the weapon with which Monika
was killed has not been recovered, it appears from the evidence of the senior
pathologist Dr. Vikrama Singh, PW-5, who carried out the post mortem report on
the body of Monika that there were swelling marks on her head and left side of the
face which established that she has been hit on her head and her left side of the
face. PW-5 has also stated in his evidence that there was a ligature mark all
around her neck which indicates that she was also strangulated.
PW-5 has further
deposed that there was a lacerated wound on the anterior part of arms anus and her
vagina was inflamed and congested which prove that unnatural offence and rape was
committed on her. PW-5 has opined that all the injuries together are the cause
of the death of Monika. The report of the Forensic Science Laboratory (Ex.A-23)
confirms human blood and human sperms on the underwear of Monika.
Thus, even if the object
with which Monika was hit has not been identified and recovered, the evidence
of PW-3, the recovery of various articles made pursuant to the confession of the
appellant, the evidence of PW-5 and the report of the Forensic Science Laboratory
Ex.A-23 prove beyond all reasonable doubt that it is the appellant alone who
after having kidnapped Monika committed unnatural offence as well as rape on her
and killed her and thereafter caused disappearance of the evidence of the
offences. The High Court has, therefore, rightly confirmed the conviction of
the appellant under Sections 364, 376, 377, 302 and 201 IPC.
may now consider the contentions of the learned counsel for the parties on the sentence
for the offence under Section 302, IPC. Learned counsel for the appellant submitted
that the appellant was a young person aged about 28 years when he committed the
offences and may reform in future. He cited the judgments of this Court in Sebastian
Alias Chevithiyan v. State of Kerala [(2010) 1 13 SCC 58] and Rameshbhai Chandubhai
Rathod (2) v. State of Gujarat [(2011) 2 SCC 764] in which this Court in similar
cases of murder of a child after rape by a young person has held that
imprisonment for life and not death sentence is the appropriate punishment. He submitted
that the appellant, therefore, should not be awarded death sentence.
counsel for the State, on the other hand, submitted that the trial court has held
that kidnapping and raping a three years old daughter of a neighbour by another
neighbour on the pretext of offering biscuit is a heinous and inhuman act and comes
under the category of rarest of rare cases as has been held by this Court in several
decisions. He submitted that the view taken by the trial court is consistent
with the decisions of this Court in State of U.P. v. Satish [(2005) 3 SCC 114] and
Bantu v. State of Uttar Pradesh [(2008) 11 SCC 113]. According to him, death sentence
is the appropriate punishment for rape of a child followed by murder.
find that the trial court has relied on the decision of a two Judge Bench of
this Court in State of U.P. v. Satish (supra) in which the offence of rape of a
child followed by brutal murder of a child has been held to fall in the rarest
of rare category for which death sentence is appropriate. In Bantu v. State of
Uttar Pradesh (supra), a two-Judge Bench has similarly awarded death sentence
to the accused for having committed murder after rape of a young girl of 5 years.
In the subsequent decision in the case of Sebastian Alias Chevithiyan v. State of
Kerala (supra), however, a two-Judge Bench of this Court in a similar case of a
rape followed by murder of a young child by a young man of 24 years has taken a
different view and has modified the sentence of death to one imprisonment for
the rest of his life.
Chandubhai Rathod (2) v. State of Gujarat (supra), which was also a case of a rape
followed by murder of a girl child by a young man, while Dr. Arijit Pasayat, J.
took the view that death sentence is the appropriate punishment, A.K. Ganguly,
J. was of the view that as the accused was young in age and may be rehabilitated
in future, death sentence is not the appropriate punishment.
The difference between
the two Judges was referred to a three-Judge Bench of this Court and the
three-Judge Bench held that in such cases of rape followed by murder by a young
man, instead of death sentence a life imprisonment should be awarded with a direction
that life sentence imposed will extend to the full life of the appellant but subject
to any remission or commutation at the instance of the Government for good and sufficient
In the present case also,
we find that when the appellant committed the offence he was a young person aged
about 28 years only. There is no evidence to show that he had committed the offences
of kidnapping, rape or murder on any earlier occasion. There is nothing on
evidence to suggest that he is likely to repeat similar crimes in future.
On the other hand, given
a chance he may reform over a period of years. Hence, following the judgment of
the three-Judge Bench in Rameshbhai Chandubhai Rathod (2) v. State of Gujarat (supra),
we convert the death sentence awarded to the appellant to imprisonment for life
and direct that the life sentence of the appellant will extend to his full life
subject to any remission or commutation at the instance of the Government for
good and sufficient reasons.
therefore sustaining the conviction of the appellant for the different offences
as well as the sentences of imprisonment awarded by the trial court for the offences,
we allow the appeal in part and convert the sentence of death to life imprisonment
for the offence under Section 302 IPC and further direct that the life imprisonment
shall extend to the full life of the appellant but subject to any remission or commutation
at the instance of the Government for good and sufficient reasons. The appeal
stands disposed of.
(A. K. Patnaik)