@ Naresh Giri Vs. State of M.P  Insc 550 (17 October 2001)
Shah & Doraiswamy Raju Shah, J.
aggrieved and dissatisfied by the order passed by the High Court of Judicature
at Jabalpur, M.P., the accused has filed this
appeal. By the impugned judgment and order dated 19.3.2001, the High Court
confirmed the judgment and order passed by the Additional Sessions Judge, Umariya
in Sessions Case No.117/99 convicting the appellant for the offence punishable
under Sections 302 and 376 of Indian Penal Code and sentencing him to death.
the prosecution case that PW1 Mohan Lal Sahu when returned at his home at about
6.00 p.m. on 25th January, 1999, he found that his grand-daughter (daughter of his late
daughter) Jyoti aged about 6 years was not present in the house. He enquired
about her from his daughter-in-law and other persons. He was informed that she
had gone to visit cinema alongwith the accused. After some time when accused
Bantu @ Naresh visited his residence, he enquired about whereabouts of Jyoti
and accused stated that he did not know anything about Jyoti and that he had
not taken her alongwith him for going to cinema. Thereafter, he and other
family members and residents of the locality started searching Jyoti. During
the search, few people in the mohalla told his wife that deceased Jyoti was
seen accompanying the accused at about 4.00 p.m. and his wife informed him accordingly. Thereafter, he along with his
wife went at the house of accused to know the facts correctly but as the accused
became angry on such enquiry, they came back. On being advised by the people
from the neighbourhood, he lodged the report at the police station.
Subsequently, dead body of the deceased girl was noticed by PW13 Sanjay Dube
who was also neighbour of PW1. The dead body was found lying in the bushes
standing across the railway line. He noticed that underwear of the deceased was
lying near the dead body and that there were blood stains and tooth mark on her
cheek.. He thereafter informed the police station. On the basis of the said
information, investigating officer carried out necessary investigation.
accused-appellant was charge-sheeted alongwith Balu @ Balram Goswami. The
Additional Sessions Judge convicted the appellant but acquitted the other
the evidence on record, the Sessions Court as well as High Court arrived at the
conclusion that the accused Bantu was neighbour of complainant Mohan Lal Sahu
and was on visiting terms with him. After considering the other evidence, the
Court held that on the evening of the day of occurrence the accused visited the
house of PW1 and he took the deceased Jyoti for visiting cinema. As Jyoti was
not found at evening time and accused informed PW1 that Jyoti had not
accompanied him, the report was lodged at the police station.
the course of investigation by the police, accused absconded and was not found
in his house from 9.30
p.m. to 3.30 a.m. He was arrested on the next day evening by the
Sessions Court and the High Court relied on the evidence of PW6 Vimla,
daughter-in-law of PW1, PW4 Ravi, nephew of PW1 and PW5 child witness, and held
that deceased had gone with the accused after coming from the school.
Kumar Lalla is nephew of PW1 Mohanlal Sahu. He stated that he is resident of Ratheli,
district Umaria and PW1 resides at Khalesar. He further stated that on the day
of incident, he was present at the house of his uncle. When he was taking tea,
accused Bantu, whom he was knowing, also reached there. Accused asked him that he
wanted to take Jyoti to show her cinema and he forbid the accused. After a
short while, he left for his home but he returned as he had forgotten his bag
there. On the way, he noticed accused going towards the bazaar holding the hand
of deceased Jyoti. PW5 Vivek Kumar Sahu, 8 years old son of Vijay Kumar and
grandson of PW1.
identified the accused in the court and stated that at about 4.00 p.m. he and deceased Jyoti had come to home from school.
After keeping school bag in the house, Jyoti went away to play. He was
attending to his natural call on the drain near his house. He saw accused Bantu
alongwith Jyoti. He enquired from Jyoti as where she was going and she told him
that she was going with accused Bantu to see picture. He forbid Jyoti and told
that mother would beat her, on which Jyoti replied that she had taken
permission from her grandmother. He informed the same to his mother and
cross-examination, he denied the suggestion that he was giving his statement at
the instance of his mother and grand mother. PW10 Manju stated that on the day
of incident at about 3.00 to 4.00 p.m., he was sitting on the steps of the ghat
of river, which is also called Rajrang ghat of Khalesar. He saw accused Bantu
catching of a girl and carrying her, who was wearing school uniform. On
enquiry, accused informed him that he was going at his brothers residence.
disclosed the fact to the people in the mohalla and neighbourhood.
came to know about the dead body of a girl lying near the railway line on 26th
January at about 12.00
1.00 p.m. In the
cross- examination, to the question that why he did not tell the police about
the place where the dead body was lying, he replied that every body remains
afraid of police and why should one invite trouble, but when the police called
him and made enquiry from him he told them the truth.
Dr. (Smt.) S. Thakur who carried out post-mortem examination noticed that
deceased was in a school uniform and she stated that three doctors who had
examined the dead body arrived at the conclusion that rape had been committed
and the murder of deceased was committed by pressing her nose and mouth and
obstructing breath of the deceased. PW9 Dr. A.P. Dwivedi had examined the
accused and noticed that there was thin mark of scratch on the upper portion of
learned counsel (amicus curiae) appearing on behalf of accused appellant,
appointed by us to assist the Court has taken has through the entire evidence.
After going through the same, we do not find that the High Court or the
Sessions Court committed any error in appreciating the evidence led by the
prosecution. Hence, we confirm the conviction of the appellant for the offence
punishable under Sections 302 and 376 IPC.
the learned counsel for the appellant submitted that in any set of
circumstances, this is not the rarest of the rare case where accused is to be
sentenced to death. He submitted that age of the accused on the relevant day
was less than 22 years. It is his submission that even though the act is heinous,
considering the fact that no injuries were found on the deceased, it is
probable that death might have occurred because of gagging her mouth and nosetrix
by the accused at the time of incident so that she may not raise hue and cry.
The death, according to him, was accidental and unintentional one. In the
present case, there is nothing on record to indicate that the appellant was
having any criminal record nor it can be said that he will be a grave danger to
the society at large. It is true that his act is a heinous and requires to be
condemned but at the same time it cannot be said that it is rarest of the rare
case where accused requires to be eliminated from the society. Hence, there is
no justifiable reason to impose the death sentence.
result, we confirm the conviction of the appellant under Section 302 IPC but
modify the sentence by commuting the sentence of death to an imprisonment for
life. For the offence punishable under Section 376 IPC, he is sentenced to
undergo rigorous imprisonment for 10 years. Both the sentences to run
concurrently. The appeal is partly allowed accordingly.
we mention and appreciate the proper assistance rendered by the learned amicus