State of Rajasthan vs Jamil Khan

N.N. Mathur, J.—The factual matrix leading to the instant Murder Reference made by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sri Ganganagar for confirmation of death sentence awarded to the accused Jamil Khan, a young man of 19 years of age, give an account of a sex maniac, who libidinously ravaged a tiny girt aged 4 to 5 years and finished her off. Learned Special Judge vide his judgment dated 15.4.2004 having found the charge of rape & murder proved against the accused Jamil Khan, convicted him for the offence under in Section 302 IPC and sentenced to death. He has made Reference to this Court for confirmation of death sentence in accordance with the provisions of Section 366 Cr.P.C.

Accused Jamil Khan, hereinafter referred-to as "appellant" has also preferred the appeal through jail, which has been registered as D.B. Criminal Jail Appeal No.425/ 2004 challenging his conviction & sentence awarded as follows:

302 IPC : Sentenced to death;

376 IPC: Sentenced to life imprisonment & to pay a fine of Rs.2,000/- & in default, to further undergo two months'' S.I.; and

201 IPC : Sentenced to 3 years'' R.I. & to pay a fine of Rs.500/- & in default, to further undergo one month''s S.I. The sentences awarded for the offence u/ss. 376 & 201 IPC have been ordered to run concurrently.

The appellant has been provided the services of the Amicus Curiae Shri Vineet Jain, Advocate, at the State expenses. He has been provided-with a copy of the paper book of the case and time to prepare the case.

Brief facts as unfolded during trial are that PW. 1 Puran Ram, father of deceased Pooja aged 4 to 5 years, lived in Ward No. 17 of Village Anoopgarh in a rented house alongwith his family consisting of his wife P. W.4 Harimati and deceased girl Pooja aged 4-5 years. The appellant was his neighbour. On 23.12.2002 when P.W. 1 Puran Ram returned to the house at about 6.00 P.M., his wife P.W.4 Harimati reported that their daughter Pooja was playing outside the house at about 11.00 A.M. but she was not seen after 12.00 Noon. A search did not yield any trace of the missing girl. He informed the police and also made an announcement about missing of the girl by means of drum beating (Munadi). While P.W.I Puran Ram was in search of the missing girl, a message was received at the Railway Station, Anoopgarh from P.W. 9 R.K.Mudgal, a Guard on passenger train to the effect that at Railway Station, Vijaynagar, an unclaimed bag was found lying in coach No. 14586. The train arrived at Anoopgarh at 6.45 P.M. Assistant Station Master, Anoopgarh informed the G.R.P, Railway Station, Sri Ganganagar. As it was Border area, he gave the information about the suspicious article lying in the coach to the Police and the Army as well. The coach was detached and parked in the yard as per the instructions received from Railway Traffic Control. In the morning, P. W.9 Ganga Singh, Sub Inspector, Police Station G.R.P, Sri Ganganagar reached on the spot. He found the bag lying beneath the seat. He got the bag removed from the coach & brought at the platform. The bag was got opened. Inside the bag, there was another plastic ''Katta'' (sack). On opening the plastic ''Katta'' (sack), the dead body of a tiny girl was found wrapped in a towel (Gamchha). The hands & legs were tied by a string. There was a frock on the dead body, but without underwear. There was swelling on her private parts. The dead body was identified as that of Pooja by her parents. A case was registered on24.12.2002 at Police Station G.R.P., Sri Ganganagar for the offences under ss. 302,376 & 201 IPC vide F.I.R. Ex.P.26. The Medical Board consisting of three doctors conducted autopsy on the dead body of deceased Pooja vide Ex.P.50. The doctors found ligature marks around the whole neck and abrasions on the neck and legs. The genital part was found blood stained. The hymen was ruptured. It would be convenient to extract the injuries noticed by the Medical Board on the person of deceased Pooja as follows :

"Ext. genital part blood stained & vaginal bleeding present, vaginal tear (2nd degree) extend upto anal orifice posteriorly, hymen rupture, cervix admits one finger loose, vaginal smear is taken, send for FSL & slide is prepared from vaginal secretion, send for FSL

Ligature mark 1 cm x 0.5 cm deep is present around the whole neck below the thyroid cartilage, base is brownish Red dry parchment lobe appearance on cut sectioned the sub out tissue beneath the ligature mark is echymosed;

Abrasions - 3cm x 0.2cm in size three in number parallel to each other, vertical position mid of the neck anteriorly below the ligature mark;

Ligature mark 1 cm breadth is present on antero lateral & post part of midd le of both legs, this mark is post mortem in nature.

Injury No. 1 & 2 ante mortem in nature."

In the opinion of the Medical Board, asphyxia due to strangulation was the cause of death. The vaginal smear & slide was sent to the Forensic Science Laboratory for ascertaining the presence of spermatozoa. Appellant was arrested on 25.12.2002 vide Ex.P.28. Pursuant to the information vide Ex.P.29, the place of occurrence was inspected on 27.12.2002. On search, incriminating articles were seized. In pursuance of the information given under Sec.27 of the Evidence Act, incriminating articles viz; the blood stained pant, shirt and other clothes were also recovered. As per the F.S.L. Report, they have been found smeared with human Wood. On the same day, the scene of crime was also inspected by the Assistant Director & Incharge of the F.S.L, Jodhpur alongwith his team. The team observed that the alleged place of crime was a room coated with cow dung, used as store. It was disturbed. Blood stains were visible on floor of the room in one corner. Few peanuts were scattered on the floor. A plastic ball was also present. The team took photographs of location of the house, close view showing blood stained floor (soil), blood stained shirt, blood stained plastic bag, baniyan etc. On the basis of the observations made, the team prepared its report Ex.P.35. In the opinion of the team, the room could be the place of alleged crime. After usual investigation, the police laid chargesheet against accused Jamil Khan for the offences u/ss. 302,376 & 201 IPC.

Before the trial commenced, an enquiry was conducted with regard to age of the appellant to verify, if he was a juvenile to be dealt with under the provisions of Juvenile Justice Act, 2000. The Court recorded the statements of Dr. Inderpal Singh & Dr.Ved Prakash. By order dated 12.10.2003, the Court held that the age of the accused Jamil Khan was above 19 years of age, as such, not a juvenile.

Appellant pleaded not guilty & claimed trial. The prosecution in support of the case adduced oral and documentary evidence. We have, with the assistance of the learned counsel, perused the documents & testimony of 14 witnesses.

P. W. 1 Puran Ram is the father of deceased Pooja. He stated that on the fateful day, when he returned to the house at about 6.00 P.M. after having finished his job at Gurukripa Furniture House, he was informed by his wife P. W.4 Harimati that their daughter was missing since 12.00 Noon. He informed the police and went in search of her. He came to know that the dead body of a girl has been found in a bag lying at the Railway Station. He alongwith his wife rushed to the Railway Station and identified the dead body as that of their daughter Pooja. A blue colour bag was lying near the dead body. When Pooja left the house, she was wearing a frock & underwear, but underwear was missing and dead body was naked with frock smeared with blood. The hands & legs of the dead body were tied by a string.

P.W.2 Charanjeet Singh stated that he had known Puran Ram as well as the appellant Jamil Khan. On the date of incident at about 11.30 or 12 Noon while he was returning from the Railway Station, he had seen the appellant proceeding towards his house from the side of Railway Station with a white Katta (sack) on shoulder and blue bag in hand. On the same evening, he came to know about disappearance of Pooja, daughter of Puran Ram. Next day in the morning he came to know that the dead body of a girl has been found in a bag at the Railway Station. He went to the Railway Station and found the dead body of Pooja. He knew her, as she often used to visit him. He identified both the bags in the Court stating that they were the same which appellant was carrying with him while proceeding towards his house on the fateful day. Nothing has been elicited in the cross examination to discredit the testimony of this witness.

P.W.3 Mangilal, who runs a shop in the locality where the alleged incident took place, has stated that at about 12.00 Noon, the appellant visited his shop and purchased groundnuts and "Madhu Gutkha". It appears that he had consumed liquor. At 1.45 P.M., he was seen proceeding towards the Railway Station with a blue bag on his shoulder. He has also given details with respect to recovery of articles from the house of the appellant during investigation. He also identified the blue bag (Article ''12'') stating that it was the same bag which the appellant was carrying while proceeding towards the Railway Station from his house. Inspite of lengthy cross examination, nothing has been elicited to discredit the testimony of this witness.

P.W, 4 Harimati is the unfortunate mother of deceased Pooja. She has stated that her daughter was playing outside the house with a ball at about 11.00 AM. At that time, she was wearing frock and underwear. But at about 12.00 Noon, she was found missing. Thus, she made a search in the neighbourhood. She sent a message to her husband with a lady viz; Chhotu but the message did not reach him. Her husband returned at about 6.00 P.M. She narrated the incident of missing of their daughter. Next day in the morning they came to know about the dead body of a girl found in a bag at the Railway Station. They rushed to the Railway Station and found the dead body of Pooja. There is no reason to discredit the testimony of this witness.

P. W.9 Dr.R.K.Mudgal was Guard on train No.4 SA shuttling between Suratgarh to Anoopgarh. He stated that when the train stopped at the Vijaynagar Station for two minutes, the passengers reported that an unclaimed bag was lying beneath the seat in coach No. 14586. He did not touch the bag, as it was found lying in suspicious circumstances. He sent a message to the Assistant Station Master at the Railway Station, Anoopgarh. The train reached at Anoopgarh at 6.45 P.M. He gave a memo in writing to the Station Master.

P.W.8 Ravindra Kumar was posted as Assistant Station Master, Railway Station, Anoopgarh, at the relevant time. He has stated that the train No.4 S A arrived at the platform at about 6.45 P.M. on 23.12.2002. The Guard on the tram viz; R.K. Mudgal gave a written memo stating that an unclaimed bag was lying beneath the seat in the coach No. 14586. He immediately gave an information to the Police Station Anoopgarh, Army, Railway Control Boom and the incharge of the Police Station GRP, Sri Ganganagar. He was directed from the Control Room to detach the bogie and park it in the yard. Two police personnel were put on guard on the direction of the S.H.O., Police Station, Anoopgarh. On 24.12.2002, the Railway Police (G.R.P.) arrived from Sri Ganganagar. The Incharge of the Police Station viz; Ganga Singh took out the bag with the help of certain persons and opened the same. In his presence, the dead body was identified as that of deceased Pooja. He also identified the blue bag (Article ''12''), white sack (Article ''13'') and a towel "Gamchha" (Article ''16''), wherein me dead body was found wrapped. There is nothing to discredit the testimony of this witness.

P.W.7 Ram Kumar was at the relevant time Pointsman at the Police Station, Anoopgarh. He has also given the details as to detaching the bogie and taking out the bag from the same.

P. W. 10 Sohanlal, the Gangman at the Anoopgarh Railway Station, has given the details, as given by other witnesses of Railways.

P.W.I 1 Mohanlal Sharma was incharge of the Malkhana at the GRP Police Station, Sri Ganganagar. He has given the details about receipt of incriminating articles from the investigating officer.

P.W.6 Ganga Singh is the Incharge of the Police Station, GRP, Sri Ganganagar. He has stated that on receiving the information from the Assistant Station Master, Railway Station, Anoopgarh on telephone to the effect that an unclaimed bag in suspicious circumstances was lying beneath the seat in a coach, after making an entry in the Rojnamcha vide Ex.P 20 at about 8.00 P.M., he proceeded to the spot in the early morning at about 4.00 A.M. and reached Anoopgarh at about 6.00 A.M. He got the bag removed from the coach and opened at the platform in the presence of motbirs and other persons. On opening the bag, he found another plastic bag wherein dead body of a teenager aged 4 to 5 years was found wrapped in a towel (Gamchha). The hands & legs of the dead body were tied by a string. He got the string removed. The dead body was naked. There was swelling on the vagina. The dead body was identified as that of Pooja by P.W.I Puran Ram and P.W.4 Harimati. The blood stained blue bag was seized vide Ex.P.23. He also seized the towel (Gamchha) and other articles. After completing necessary proceedings at the platform, he returned to the Police Station and submitted a report Ex.P. 1 on the basis of which the F.I.R. Ex.P.26 was registered. He arrested the appellant on 25.12.2002 vide Ex.P.27. The place of incident was identified as per the Information given by the appellant vide Ex.P.29. He was produced before the Railway Magistrate, Bikaner for remand on 26.12.2002. He was brought back to Anoopgarh. Incriminating articles were recovered from a locked room belonging to the appellant. The incriminating articles were seized & packed on the spot. They were sent for chemical examination to the Forensic Science Laboratory Thus, he has given the details of the investigation. Nothing has been elicited to discredit the testimony of this witness.

P. W.5 Ram Singh and PW. 12 Rajendra Singh are the police witnesses of link evidence to prove that the incriminating articles were delivered in the Forensic Science Laboratory In intact condition. P. W. 13 Dr. P.D. Chug, who was one of the members of the Medical Board, conducted the autopsy on the dead body of Pooja. P.W.I4 Dr.B.M. Sharma is the Medical Jurist. He examined the appellant vide Ex.P.51 and found him fit to perform sexual Intercourse.

In statement u/s 313 Cr.P.C. appellant denied the correctness of the evidence appearing against him. He also stated that he has been falsely implicated because of some incident of quarrel between his parents and that of deceased Pooja.

The learned trial Court found the following incriminating circumstances appearing against the appellant, proved :

(i) After committing rape, Pooja was murdered in the afternoon of 23.12.2002. Her blood was of group ''A'';

(ii) The crime was committed in the house of appellant;

(iii) On the date of Incident, appellant was seen proceeding towards his house from Railway Station about 11.30 AM or 12.00 Noon. At that tie, he was carrying in his hand bags of blue colour and another of while colour. The dead body of Pooja was found in the said two bags;

(iv) On the date of incident, appellant at about 12.00 Noon purchased groundnuts and "Madhu Gutkha" from the shop of Mangilal. Thereafter, he proceeded towards his house. At about 1.45 P.M., appellant was seen proceeding towards the Railway Station. He was carrying with him a bag of blue colour. In the house of appellant, groundnuts were found scattered;

(v) The underwear of deceased Pooja was recovered by the investigating officer from the house of appellant;

(vi) Semen was found on the underwear. Pursuant to the information given by the appellant, pants & shirt which he was wearing at the time of Incident, were recovered from the place of incident. The pants & shirt of appellant were stained with human blood Group ''A''. Human semen was also found on the recovered bag. The appellant failed to give any explanation as to the presence of human blood on pants & shirt;

(vii) The ''chappals'' and the ball belonging to deceased Pooja were recovered from the house of appellant. On search by the investigating officer, a sando baniyan, pillow cover, an old shirt, white bag and a towel of red colour (gamchha) were seized. Human blood of group ''A'' was found on baniyan, pillow cover, shirt & "gamchha", which tallied with the blood group of deceased Pooja. The control soil was lifted from the place of incident by the investigating officer, which also found to be stained with human blood. The appellant failed to establish the correctness of the statement given by him; and

(viii) The presence of human blood of the same group i.e. ''A''; and the semen on the clothes of deceased Pooja as well as of the appellant.

The learned trial Judge held that the prosecution succeeded in establishing each circumstance by cogent evidence. Taking the circumstances together, the trial Court concluded that it was the appellant and appellant alone, who after committing rape, murdered deceased Pooja. It was also found that after commission of crime, he caused evidence of the offences to disappear. Accordingly, the learned Judge held him guilty of offences u/ss. 376,302 & 201 IPC. In the opinion of the learned Judge, the fact that the appellant committed a heinous crime of committing rape on a teenager (sic) girl, betraying the faith of a neighbour to satisfy the sexual lust, and further he did not stop there and even killed the helpless girl, constitutes special reason for the case to fall in the category of rarest of rare case, for awarding of death sentence. Accordingly, the learned Judge has made the instant reference.

Challenging the conviction, it is urged by the learned Amicus Curiae, that the circumstances relied-on by the prosecution, have not been satisfactorily established and that in any event, the circumstances said to be established against the appellant, do not provide a complete chain so as to bring home the guilt. On the other hand, learned Public Prosecutor has supported the judgment of the learned trial Court.

We have scanned, scrutinized & evaluated the entire evidence exhaustively and have also considered the rival contentions. Infact, the circumstances which have been narrated above, are so interlinked in a chain of circumstantial evidence that it is difficult to truncate them. No hard & fast rule can be laid down as to what inference would be drawn from a particular circumstance. Broadly speaking, it is the combination of facts creating a network through which a reasonable inference of guilt can be drawn, in Anant Chintaman Lagu Vs. The State of Bombay, , Hidayatullah J. as his Lordship then was, quoting the observations of Baron Parke in TowelPs case where the Baron J. laid down the principle applicable to the case, observed that any circumstances which destroy the presumption of innocence, if properly established, can be taken into account to find out if the circumstances lead to no other inference but of guilt. What one has to see is whether taking the totality of the circumstances which are held to have been proved against the offender, it can be said that the case is established against the offender i.e. facts established are inconsistent with the innocence of the offender and incapable of explanation of any hypothesis other than of guilt. However, for the convenience, the incriminating circumstances appearing against appellant are set out as follows:

(i) The place of occurrence is the house of appellant adjacent to the house of the victim;

(ii) On the fateful day, exactly at the time the deceased Pooja was reported to be missing, appellant was seen proceeding towards the scene of occurrence with blue bag and white ''Katta'' (Sack), wherein on the next day, the dead body of deceased Pooja was found packed;

(iii) The presence of blood stains on the shirt of appellant recovered in pursuance of the information given by him and presence of blood stains on ''Gamchha'' (towel), wherein the dead body of Pooja was found wrapped which, on analysis, have been found to be matching with blood group ''A''. The appellant failed to give any explanation as to the presence of human blood stains of group ''A'' on his shirt;

(iv) The recovery of underwear of deceased Pooja and his own pant smeared with human blood in pursuance of the information given by the appellant; and

(v) The presence of blood stains on the incriminating articles recovered from the place of occurrence.

Before we proceed to deal with each circumstance set-out above, it would be profitable to re-state the settled position of law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts & circumstances of the case are found to be incompatible with the innocence of the accused or the guilt of any other person. We think it not necessary to swell those judgments by recapitulating all the decisions on the point. Most of the cases have been referred in a recent decision of the Apex Court viz; State of Rajasthan vs. Kheraj Ram, JT 2003(7) SC 419 . Suffice it to refer-to the case of Padala Veera Reddy Vs. State of Andhra Pradesh and others, , wherein the Apex Court held that when the case of the prosecution solely rests on circumstantial evidence, it 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 a definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is ho escape from the conclusion that within 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."

While appreciating the circumstantial evidence the Court has to adopt a very cautious approach and a conviction can be recorded only If all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. A groat cart must be taken in evaluating the circumstantial evidence. The circumstances relied upon must be found to have bean fully established and the cumulative effect of all the facts so established, must be consistent with the hypothesis of the guilt. This does not mean that the prosecution must meet every hypothesis put forward by the accused or the prosecution evidence must be rejected on slightest doubt.

Having regard to the principle enunciated with regard to the proof of guilt by circumstantial evidence, we shall now examine the various circumstances said to be appearing against the appellant However, before adverting to each circumstance, It is desirable to deal - with the link evidence in order to satisfy that the seized articles ware not tampered-with before they reached to the Forensic Science Laboratory.

P. W.6 Ganga Singh, the Incharge of the GRP Police Station, Sri Ganganagar has stated that on receiving the information from Assistant Station Master, Railway Station, Anoopgarh, he reached on the spot. The blue bag was taken out from the Coach and opened in the presence of motbirs vide memo Ex.P.5. The dead body of Pooja was found wrapped in a red ''Gamchha'' (towel). He prepared the inquest report Ex.P.22. The deceased child was wearing frock in black & white checks. The dead body was tied by a string. He seized all the five articles viz; the blue bag "Article 12", Gamchha (towel) "Article 2", white Katta (sack) "Article 13", string "Article 14" and frock "Article 15", sealed & packed them on the spot in Packet ''A'' vide Ex.P.23. On 25.12.2002, he arrested appellant vide Ex.P.27. Pursuant to the information given by appellant vide Ex.P.29, various articles were recovered. The blood stained underwear of deceased Podja "Article 8" was seized, sealed & packed in Packet ''B'' vide Ex.P.6. The blood stained ''baniyan'' "Article 7" and the blood stained pillow cover "Article 11" were seized, sealed & packed in Packet ''C vide Ex.P.7. The blood stained pants & shirt of the appellate were seized, sealed & packed in Packet ''D'' vide Ex.P.8. The blood smeared soil was lifted from the place of occurrence and sealed & packed in Packet ''E'' vide Ex.P.9. The control soil was sealed & packed in Packet ''F'' vide Ex.P.10. A pair of''chappals'', ball & groundnuts found on the floor were seized, sealed & packed in Packet ''H'' vide Ex.P. 11. Other blood stained clothes viz; a terrycot shirt, a white piece of cloth and a hanky type cloth were seized, sealed & packed in Packet ''G'' vide Ex.P. 12. He stated that all the packets were deposited in the Malkhana at the GRP Police Station, Sri Ganganagar in sealed condition.

P.W.fl Mohanlal Sharma, Head Constable, Incharge Malkhana, GRP Police Station, stated that he received the above referred packets from the S.H.O. P. W.6 Ganga Singh in sealed condition. He made an entry in the Malkhana Register vide Ex.P. 15 at S.No.31/2002. He further stated that two packets were received from the hospital, which were also entered in the Malkhana Register. All the eleven packets remained intact in the Malkhana. He further stated that on 31.12.2000, all the eleven sealed packets were handed-over to P. W.5 Ram Singh, alongwith the letter of the S.H.O. to be delivered in the Forensic Science Laboratory.

P. W.5 Ram Singh, Head Constable, at the Outpost Sarupsar has stated that he received the eleven packets from P.W.I 1 Mohanlal Sharma, Incharge of the Malkhana, GRP Police Station, Sri Ganganagar, in sealed condition. He took all the articles to the office of the Superintendent of Railway Police, Jodhpur for obtaining a forwarding letter in the name of Forensic Science Laboratory and after obtaining the same, deposited all the packets in the Forensic Science Laboratory, Jodhpur in seated condition and obtained receipt Ex.P. 13. He has also proved the forwarding letter issued by the Superintendent-of Railway Police, Jodhpur.

P.W.12 Rajendra Singh, a Constable in the office of the Superintendent of Police, Northern Railway, Jodhpur, stated that P.W.5 Ram Singh had brought eleven packets with a letter of the S.H.O., GRP Police Station, Sri Ganganagar. He gave Ram Singh a letter of the Superintendent of Police addressed to the Forensic Science Laboratory. All the packets were intact & in sealed condition,

The FSL Reports Ex.P.33 and Ex.P.34 bear the endorsement to the effect that all the 11 packets were received property sealed bearing impressions which tallied with the specimen seal impression forwarded. The seals were intact.

P. W.6 Ganga Singh has stated that the FSL Reports Ex.P 33 and Ex.P.34 were received. He has also stated that the team of the Forensic Science laboratory inspected the site and prepared the memo Ex.P.35.

Thus, on careful consideration of the link evidence, we are satisfied that the

prosecution has established that the seized articles were not tampered with, before they reached to the Forensic Science Laboratory.

CIRCUMSTANCENO.(i):

The victim family and the appellant lived in village Anoopgarh in Ward No. 17. P.W.I Puran Ram, who is the unfortunate father of deceased Pooja, has stated that appellant lived in his neighbourhood. Appellant was engaged as a labour at Ramsinghpur. His parents lived in his neighbourhood. He used to visit the house to meet his parents.

P.W.2 Charanjeet Singh also admitted in the cross examination that accused Jamil Khan was working at Ramsinghpur at the relevant time but on the date of incident, he had come to Anoopgarh.

P.W.6 Ganga Singh, the Investigating Officer stated that the inspected the scene of occurrence and prepared the site plan Ex.P.4. The site plan Ex.P.4 shows that the incident had taken place in the locality near the Railway Station, Anoopgarh. The victim family lived as tenant in the house of Nakshtra Singh. The house has been shown as point ''J'' in the site plan, adjacent to the residential house of parents of accused at point ''D''. There is a common chowk outside the house.

Thus, it can be safety concluded that though the place of work of appellant was Ramsinghpur, he used to visit his parents at Anoopgarh, living adjacent to the house of the victim'' family i.e. parents of deceased Pooja. P.W.6 Ganga Singh, SHO, made a search of the house of appellant pursuant to the information given by him vide Ex.P.29.. It is staled that the appellant took the police party to the place of occurrence. Appellant took them to a room inside a compound closed by four walls. The room was dosed but not locked. Another room was locked. Ganga Singh, SHO, found blood stains on the floor of the room. He also found a pair of''chappals'', a ball & groundnuts. He also found the blood stained clothes including the blood stained underwear of deceased Pooja. The articles were lying in the room scattered. All the articles were seized as indicated above. The articles seized, have been found to be stained with human blood as par the FSL Reports Ex.P.33 & Ex.P.34. It is significant to notice that a pair of''chappals'' and the ball of the tiny girl have been found in the said room. Similarly, the blood stained underwear of the deceased girl has been recovered from the place of occurrence. P.W.4 Harimati has identified all these articles as belonging to her daughter deceased Pooja. which leads to the irresistible conclusion that the tiny girl Pooja was taken to the said room. This shows that the incident of rape & murder must have taken place in the said room, adjacent to the house of the victim.

Thus, the prosecution has succeeded in establishing by cogent evidence that appellant was a close neighbour of deceased Pooja and that the place of occurrence was the house of appellant, which was adjacent to the house of the victim family.

CIRCUMSTANCE NO. (ii):

P.W.4 Harimati has stated that on the date of incident, she had seen her deceased daughter Pooja playing outside the house with the ball at about 11.00 AM. At that time, she was wearing the frock Ex.P. 15 and the underwear "Article 8". At about 12 Noon, she found her daughter Pooja missing.

P.W.2 Charanjeet Singh has identified the appellant as son of Bakshi Khan living in the same locality. He stated that at about 11.30 AM or 12 Noon while he was returning from the Railway Station, he had seen the appellant proceeding towards his house from the side of Railway Station with a white Katta (sack) on shoulder & a blue bag in hand. On the next day, he came to know that dead body of a girl has been found at the Railway Station. He went to the Railway Station and found that a dead body packed in a white Katta (sack) was taken out from a blue bag. The dead body was tied by a string & wrapped in a "Gamchha" (towel). He identified the dead body as that of Pooja.

He also identified the blue bag and white Katta (sack) which the appellant was carrying with him a day before while proceeding towards his house from the Railway Station.

P.W.3 Mangilal has stated that he resided in the same locality where the appellant and the victim lived. On the date of incident, the accused visited his shop at about 12.00 Noon or 12.15 P.M. He was not carrying anything with him. He purchased the groundnuts and Madhu ''Gutkha'' and went towards his house. At about 1.45 P.M., he again saw the appellant moving towards the Railway Station with a blue bag on his shoulder,

P.W.9 R.K. Mudgal, a Guard on the passenger Train No.4 S.A. Reported that an unclaimed bag was found lying in Coach No. 14586. The message was passed-on to the SHG, GRP Police Station, Sri Ganganagar. On receiving the said information, P. W.6 Ganga Singh SHO reached at the Railway Station, Anoopgarh in the early morning of the next day. He found the bogie parked in the yard. He entered into the bogie and found a bag lying beneath the seat He brought the bag on the platform and opened it. There was a polythene plastic Katta (sack) inside the bag. On opening the plastic Katta (sack), dead body of a girl aged 4-5 years was found wrapped in a Gamchha (towel). The hands & legs of the girl were tied by a string. There was no underwear on her person, as such, the dead body was naked. The dead body was identified as that of Pooja. The blue bag "Article 12" has been identified by RW. 2 Charanjeet Singh and P.W.3 Mangilal. It is stated by P.W. 2 Charanjeet Singh that the blue bag "Article 12", is the same which he had seen in the hands of appellant on the date of incident. Similar is the statement of P.W.3 Mangilal. P.W.2 Charanjeet Singh had also identified the white Katta (sack). It may further be stated that the blue bag and white Katta (sack) were seized by the police vide Ex.P.23 & sent to the Forensic Science Laboratory for analysis. As per the FSL Report Ex. P.34, both the articles were stained with human blood. This Incriminating circumstance to the effect that appellant was seen proceeding towards the place of occurrence with a blue bag and white Katta (sack) and returning after some time with blue bag in which the dead body of Pooja was found and further that both the bags were stained with human blood, is conclusive in nature which the prosecution has succeeded in establishing by positive evidence. -

CIRCUMSTANCE NO. (iii):

Appellant was arrested on 25.12.2002 vide Ex.p.27. While in custody, he made a disclosure statement Ex.P.29 to P. W.6 Ganga Singh, leading to the recovery of blood stained pants & shirt which he was wearing at the time of incident They were seized, sealed & packed in Parcel ''D'' vide Ex.P. 8. As per the FSL Report Ex.P.34, the blood stains on the shirt have been found to be of human origin. On grouping, the blood stains on the shirt have been found to be of Group ''A''. It may be stated that the dead body of Pooja was found wrapped in red ''Gamchha'' (towel). The said ''Gamchha'' was seized, sealed & packed in Packet ''A'' vide Ex.P.23. This was also subjected to chemical examination. As per the FSL. Report Ex.P.34, the blood stains on ''Gamchha'' (towel) have been found to be of human origin. On grouping, the blood stains on ''Gamchha'' have also been found to be of Group ''A''. Thus, the blood stains on ''Gamchha'' in which the dead body of Pooja was found wrapped and the Blood stains on shirt of the appellant which he was wearing at the time of incident, are not only of human origin but of the same group i.e. Group ''A''. The appellant has failed to give any explanation as to the presence of human hJood on his shirt. The matching of the blood group, as indicated above, has strengthened the circumstance more strongly against the appellant. Thus, the prosecution has succeeded in establishing the third circumstance by cogent evidence which is of conclusive nature.

CIRCUMSTANCE NO. (iv):

Pursuant to the information given by the appellant vide Ex.P.29, he led to recovery of blood stained underwear of the deceased Pooja. The underwear was seized, sealed & packed in presence of the motbirs PW.3 Mangilal and Darshan Singh vide Ex.P.6. He also led to recovery of his own pants & shirt, which were seized, sealed & packed in Parcel ''D'' vide Ex.P.8. The underwear of the deceased seized vide Ex.P.6 and the pant & shirt of the appellant seized vide Ex.P.8 were subjected to chemical examination. As per the FSL Report Ex.P.34, the blood stains on all the three articles have been found to be of human origin. The appellant has failed to explain the presence of human blood on his pants & shirt. The underwear of the deceased has been identified by P.W.4 Harimati, which was found concealed in the room of which the appellant alone had the knowledge. Thus, the prosecution has succeeded in establishing the fourth circumstance by cogent evidence, which is of conclusive nature.

CIRCUMSTANCE NO. (v):

Turning to the fifth circumstance, it may be stated that pursuant to the information given by the appellant vide Ex.P29, he ted to inspection of the place of occurrence and during the search of his house, various articles were recovered. The police seized the Blood stained ''baniyaan'' "Article 7" and pillow cover "Article 8". Both the articles were sealed & packed in Packet ''C vide Ex.P.7. A pair of''chappals'' "Article 1", ball "Article 2" and peanuts (alleged to have been purchased by the accused from the shop of PW.3 Mangilal) were seized, sealed & packed in Packet ''H'' vide Ex.Pl 1. Other incriminating articles like a terrycot shirt, a piece of white cloth, a hanky type cloth etc. were seized, sealed & packed in Packet ''G'' vide Ex.P. 12. The recovery of all these articles is incriminating in nature. The recovered ''chappals'' from the place of occurrence have been identified by P.W.4 Harimati as that of her daughter Pooja. The appellant has failed to give any explanation as to how the ''chappals'' of deceased girt were found in his house.

Thus, the prosecution has succeeded in establishing each circumstance by cogent evidence. The circumstances are conclusive in nature.

P.W.13 Dr.P.D.Chug has stated that there was a penetration in the private parts leading to rupture of the hymen. There was Weeding because of violence. There was also fracture of trachea. It was also opined that the deceased Pooja was raped & killed by strangulation. After taking smear, a slide was prepared. As per the FSL Deport Ex.P.33, semen was detected on the underwear of the deceased Pooja and that of the appellant. P.W.14Dr.B.M. Sharma examined the appellant vide report EX.P.51 and found that he was fit to perform sexual intercourse.

Taking ail the circumstances together, it leads to the hypothesis that while deceased Pooja was playing with a ball outside the house at about 11.30 to 12.00 Noon, appellant who was working at Ramsinghpur, came to visit his house, carrying with him a blue bag In his hand & another white Katta (sack) on shoulder. He came out of the house and went to the shop of P.W.3 Mangilal and purchased peanuts and Madhu Gutkha; must have allured the girl by providing peanuts; took her inside the "Kotha" of his house which was used as a store & committed rape on her. Realizing that he may fall in difficulty, killed her by strangulation; with a view to remove the dead body, tied it by string and packed in the Katta (sack); placed the said Katta in the blue bag; and went out. He was seen going towards his house with white Katta & bag and after sometime coming out of the house with blue bag on shoulder. He cleverly put the bag in the passenger train beneath a seat. The train went upto Suratgarh and on return at Vijay Nagar Railway Station, some passengers noticed the bag lying unclaimed. On the same day when the train reached at Anoopgarh at 6.45 P.M., information was given to the police and the policemen were deputed to guard the bogie containing the unclaimed bag. Next day morning i.e. 24.12.2002, the dead body of Pooja was recovered from the two bags referred to above. This completes the chain of circumstances leading to only hypothesis that it was the appellant & appellant alone, who was the perpetrator of the crime. The circumstances eloquently speak that the innocent and helpless girl was subjected to rape and mercilessly done to death by throttling so that there remains no direct evidence against him. Thus, we hold that the prosecution has succeeded in establishing beyond reasonable doubt that the appellant is guilty of committing rape on deceased Pooja and killing her by strangulation. Thus, the learned trial Court has rightly held him guilty for the offence under ss. 302,376 and 201 IPC.

Turning to the Death Reference, Section 302 IPC provides punishment of death or imprisonment for life for the offence of murder. There has been a shift in legislative emphasis in the matter of choice of award of sentence of death or life imprisonment. Prior to 1955, sub-section (5) of Section 367 of the Code of Criminal Procedure enjoined upon the Court convicting a person of capital offence to record reasons for awarding imprisonment for life instead of death sentence. Thus, the normal rule at the time was to award death sentence and imprisonment for life was an exception. The amending Act of 1955 deleted sub-section (5) of Section 367, thus leaving the Court with the discretion to either inflict death sentence or imprisonment for life according to the circumstances and exigencies of each case. However, keeping in view the current penological thought in the present Code of Criminal Procedure, 1973, a duty is cast upon the Court to record special reasons, if the death sentence is to be inflicted. Thus, imprisonment for life is a rule and the death sentence, an exception. The constitutional validity of the death sentence u/s 302 IPC has been upheld by the Hon''ble Supreme Court in Bachan Singh Vs. State of Punjab, . Recently, the Apex Court in State of Rajasthan v. Kheraj Ram, JT 2003(7) SC 419 has held that in the rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The Court further observed that the community may entertain such sentiments in the following circumstances :

"(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of''bride burning'' or ''dowry deaths'' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community."

In Triveniben Vs. State of Gujarat, , the Apex Court held that: "The circumstances in which the extreme penalty should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed and in this context in ultimate analysis it is not doubted that the Legislature therefore was right in leaving it to the discretion of the judicial decision as to what should be the sentence in particular circumstances of the case. But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the Court to give special reasons thereof."

In Mahesh and Others Vs. State of Madhya Pradesh, , three members of the family i.e. wife, mother and daughter and his neighbour who intervened, were axed to death by the accused, father and son, because the daughter of the accused had married aharijan. The High Court considering it extremely brutal, revolting and gruesome, which shocked the judicial conscience, confirmed the death sentence. The Apex Court observing that it will be a mockery of justice to permit the appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts, upheld the death sentence.

In Sevaka Perumal, etc. Vs. State of Tamil Nadu, , the plea to convert death sentence into life imprisonment on the ground that accused was a young man and bread winner of family consisting young wife, minor children and.aged parents were held to be not relevant for interference with the death sentence. The Court held that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.

In Dhananjay Chatterjee alias Dhana Vs. State of W.B., , the Court observed that in the recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. The Court expressed that the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless & unprotected state of the victim. The Court emphasized that the imposition of appropriate punishment is the manner in which the courts respond to the society''s cry for justice against the criminals, it was a case of rape & murder. Keeping in view the medical evidence and the state in which the body of the deceased was found, the Court considered that a most heinous type of barbaric rape and murder was committed on a helpless and defenceless school-girl of 18 years and the aggravating circumstances which the Court considered was the fact that the accused was a Guard. The Court observed that if the security guards behave in this manner, who will guard the guards? The Court refused to interfere with the death sentence confirmed by the High Court.

In Surja Ram Vs. State of Rajasthan, , the Apex Court observed that the Court has to balance aggravating and mitigating factors and exercise its discretionary judgment. The court considered that the accused had committed extremely barbaric and heinous crime of causing murder of four persons without any instigation or provocation and further the fact that there was a complete absence of any feeling of remorse of the accused. It was considered to be a fit case for award of death sentence.

In Kamta Tiwari Vs. State of M.P., , the accused committed rape on his Innocent & helpless niece of 7 years and then finished her off. The apex Court considering it to be a barbaric treatment by a person who was in a position of her trust, refused to interfere with the death sentence imposed on accused.

In Ravji alias Ram Chandra Vs. State of Rajasthan, , the accused committed murder of five persons including his wife and three minor children. The Apex Court considered it to be a brutal and heinous murder committed in coot and calculated manner while the victims were asleep. The Court while rejecting the plea of temporary psychic disorder, refused to interfere with the sentence of death.

In Molai and Another Vs. State of Madhya Pradesh, , a guard and a prisoner having taken advantage of loneliness of a 16 year old daughter of a jail officer alone in the quarter committed rape and killed her by strangulation. The Apex Court observed that the appellants committed a most shameful act of rape on a helpless girl. They did not stop there but strangulated her by using her undergarments and thereafter took her to septic tank alongwith the cycle and caused injuries with a sharp edged weapon. They did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body, in the opinion of the Apex Court, capital punishment to both the accused was the only proper punishment and there was no reason to interfere and, thus, refused to interfere with the sentence of death awarded by the trial Court and confirmed by the High Court.

We may also refer the cases in which the Apex Court has substituted the sentence of death by imprisonment for life.

In A. Deivendran Vs. State of Tamil Nadu, 1998(1) Apex Court Journal 169 (S.C.): 1998 AIR SCW 285, the accused killed two old ladies by strangulation. As soon as the car driver entered the house, he was also shot dead. In the opinion of the Apex Court, this itself was not sufficient that it was the act of a depraved mind. The Court also found that the evidence does not show that death of the persons was either diabolical, ghastly or gruesome, as such, it was not a case telling in the category of rarest of rare cases. The Court substituted the sentence of death by imprisonment for life.

In Om Prakash Vs. State of Haryana, , even though the act of the accused was found to be gruesome in killing seven members of the family in a preplanned manner, yet it was considered to be a result of human mind going astray because of constant harassment of the family members of the accused. The Court termed it to be a case of retribution or act of taking revenge. The Court did not consider it to be a rarest of rate cases. The Court further observed that it was not a crime committed because of lust for wealth or women, that is to say, murders are neither for money''such as extortion, dacoity or robbery; nor even for lust and rape. It was not an act of an antisocial element, kidnapping and trafficking in minor girls or of an anti-social element dealing in dangerous drugs. The accused was working in the B.S.F. As a member of the Para-military Force, he felt aggrieved for injustice meted out to his family members at the hands of the other party, who according to him were strong enough physically as well as economically and having influence with the authority which was required to protect him and his family. The Court did not consider it to be a rarest of rare case and substituted the sentence of death by life imprisonment

In Nirmal Singh and Another Vs. State of Haryana, , the High Court confirmed (sic) the death sentence considering that the accused, who was earlier a convict of the charge of rape, attacked and caused death of five persons, who were family members of the victim by giving axe blows. The Apex Court considered it to be an act of depraved mind not falling under the category of rarest of rare case and, as such, substituted the death sentence by imprisonment for life.

In Shri Bhagwan Vs. State of Rajasthan, , the gravity of the offence is reflected from para 1 of the judgment itself thus:

"The facts in this criminal appeal disclose acts of unparalleled evil and barbarity as five persons of a family were battered to death without mercy by a young culprit aged 20 years."

It was a case of murder and robbery. The Apex Court considering the fact that the appellant was a young boy of 20 years at the time of offence and further {hat since imposition of death penalty, he has been under the devastating and degrading fear, considered it a fit case for substituting death sentence by imprisonment for life. However, the Court in para 15 observed as follows:

"15. Of course, the nature of the crime committed by the appellant was so horrendous and exceptionally cruel and sadistic. However, we are inclined to take a lenient view having regard to the various facts and circumstances of the case. In dealing with criminal matters where death sentence is prescribed in law as the punishment for the crime, the Courts are required to answer new challenges as the object has to be not only to protect the society at large, but impose appropriate sentence lest there should be a tendency to undermine the public confidence in the criminal justice delivery system.

The Apex Court while substituting the death sentence by imprisonment for life, directed that the appellant shall not be released from the prison unless he has served out at least 20 years of imprisonment.

In Prem Sagar Vs. Dharambir and Others, , the Apex Court while refusing to enhance the sentence of imprisonment for life to death sentence observed as follows:

".....Brutality is inbuilt in every murder but in the case of every murder, death sentence is not imposed. Life imprisonment is the rule and death sentence is the exception. The latter sentence is imposed in rarest of rare cases. Taking note of the mitigating circumstances indicated by the High Court, we do not find any scope for interference with the life sentence awarded and to alter the same to death sentence.

However, the Apex Court in Simon and Others Vs. State of Karnataka, , enhanced the sentence of the accused persons from life imprisonment to death penalty. In the said case, on receiving an information about the place of hiding of notorious criminal Veerappan and his gang, a police party headed by the Superintendent of Police, proceeded to nab them. The party comprising of police personnel, forest watchers and informants went in two buses. As a result of Wasting of landmines that had been laid, the bus which was in front exploded. The explosion resulted in injuries to many and death of twenty-two persons. After the explosion of the landmines, there was exchange of fire also. The case was filed against 121 persons. Fifty persons were arrested and prosecuted. The trial resulted in conviction of the appellants before the Apex Court viz; Simon, Gnana Prakash, Madhiah and Bilavendra. the remaining accused persons were acquitted. The TADA Court convicted them for various offences under the TADA Act as well as Indian Penal Code. They were sentenced to imprisonment for We. The Apex Court after surveying large number of cases on the Issue of award of death sentence, found the case falling in the category of rarest of rare case calling for the sentence of death to each of the accused persons. The Apex Court observed in para 37 as follows:

"37. The facts of the present case do not show that the appellants were compelled to fall in line with the criminal activity of Accused 1 or that they joined his group on account of any duress or compulsion. The manner in which the crime was committed clearly shows that any person can contemplate the disastrous effect of blasting of landmines. It is evident that the crime was diabolically planned. The appellants are a threat and grave danger to society at large. They must have anticipated that their activity would result in elimination of a large number of lives. As a result of criminal activities, the normal life of those living in the area has been totally shattered. It would be a mockery of justice if extreme punishment is not imposed. Thus, having given anxious consideration to all the circumstances aggravating and mitigating, in our view, there can hardly be a more appropriate case than the present one to award maximum sentence. We have to perform this onerous duty for self-preservation i.e. preservation of persons who are living and working in the area where the appellants and their group operate.

Recently, the Apex Court in Surendra Pal Shivbalakpal, 2005(1) Criminal Court Cases 809 (S.C.): 2004(7) Supreme 107, in a case of offence of kidnapping, rape and murder of a minor girl considering the fact that the accused had no previous involvement in any criminal case and there was nothing to suggest that he would be a menace to the society, commuted the sentence of death to imprisonment for life.

Considering the cumulative effect of all the relevant factors, we are of the view that the instant case does not fall in the category "rarest of rare case" warranting death sentence.

Consequently, the Reference made by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sri Ganganagar for confirmation of death sentence is rejected. The appeal filed by the accused Jamil Khan being D.B. Criminal Jail Appeal No.425/2004 is partly allowed. While confirming his conviction for the offences u/ss. 302,376&201 IPC, the sentence of death penalty imposed on him for the offence u/s. 302 IPC is commuted to life imprisonment. The sentence awarded for the offences u/ss. 376 & 201 IPC shall remain intact.