Sunil vs State of U.P.

S.C. Nigam, J.—Under challenge is the judgment and order dated 11.2.2008, passed by learned Sessions Judge, Gautam Budh Nagar in S. T. No. 400 of 2004, State v. Sunil, under Sections 376 and 302, I.P.C., P. S. Sector 58, N.O.I.D.A., district Gautam Budh Nagar by which the Appellant-Sunil has been found guilty under Sections 302 and 376, I.P.C. He has been sentenced to death by hanging till death u/s 302, I.P.C. He has been further sentenced to rigorous imprisonment of 7 years and a fine of Rs. 5,000 u/s 376, I.P.C. In default of payment of fine, he shall undergo further imprisonment for one year.

Since learned Sessions Judge, G. B. Nagar has passed the sentence of death to the Appellant-Sunil, the proceedings have been submitted to this Court for confirmation of death sentence awarded to the Appellant-Sunil.

The prosecution story as unfolded during the trial is that the first informant-Mande, P.W. 1 and his wife Smt. Satto were sleeping on the terrace of their house in the intervening night of 9/10.9.2004. The deceased-Monica aged about 7 years, daughter of the first informant and his son Sachin aged about 4 years were sleeping in a room of the house in the ground floor. Master Sachin at about 1 a.m. in the night came on the terrace of the house where the first informant and his wife were sleeping. He awoke his parents and informed them that his sister Monica was missing from the cot where she was sleeping. The first informant and his wife alighted from the terrace and started making search for Km. Monica. They went towards the ''gher'' of Vishambhar. There, the couple heard the cries of Km. Monica. The cries of Km. Monica also attracted the attention of Chaman Singh-P.W. 2, brother of the first informant and Lillu who also joined the first informant and his wife. When the first informant-Mande-P.W. 1, his wife Smt. Satto, his brother, Chaman Singh-P.W. 2 and Lillu son of Kiran Singh reached near the ''gher'' of Vishambhar, they saw the Appellant-accused coming out of the ''gher'' of Vishambhar. The Appellant was given a hot chase by them but to no avail. These persons thereafter entered into the ''gher'' of Vishambhar and saw that Km. Monica was lying dead there. It is alleged that the Appellant-accused first committed rape upon Km. Monica and then pressed her neck. Km. Monica was found dead inside the ''gher'' of Vishambhar.

The first informant-Mande-P.W. 1 gave a written report Ext. Ka-1 in the police station on 10.9.2004 at about 1.50 a.m. on the basis of which a criminal case bearing Case Crime No. 259/04, u/s 376 and 302, I.P.C. was registered against the Appellant-accused-Sunil and the first information report-Ext. Ka-2 was prepared. The disclosure of this was made in G. D. No. 7 dated 10.9.2004 at about 1.50 a.m. by H.M.-85-Kalu Ram-P.W. 3 the copy of which is Ext. Ka-3.

The investigation of this was taken up by the then S.O., Ajay Kumar of P. S. Sector-58, district G. B. Nagar on 10.9.2004. He first recorded the statements of H. M.-58-Kalu Ram, the first informant-Mande, Chaman Singh, Lillu, Smt. Satto and Kaushal Kumar. The Investigating Officer-P.W. 8 Ajay Kumar thereafter inspected the scene of the occurrence with the help of the first informant and Lillu. This was the place from where the deceased was allegedly picked up by the Appellant-accused. He prepared the site plan Ext. Ka-11. Thereafter on the same day he visited the scene of the occurrence where Km. Monica after rape was allegedly killed. He prepared the site plan of the place which is Ext. Ka-12. The Investigating Officer thereafter collected the plain and blood stained earth from the place of occurrence and kept it in two different containers and sealed them. He also prepared the fard-Ext. Ka-9. He thereafter instructed S.I. Satish Kumar Paliwal, P.W. 9 to prepare the inquest report.

The Appellant was arrested on 14.9.2004. On the pointing out of the Appellant-accused, a pant of the Appellant-accused which he had worn at the time of the alleged occurrence was recovered from inside the house of the Appellant-accused. The pant was taken into custody and a fard was prepared which is Ext. Ka-8. He also collected the salwar and kurta of the deceased-Monica. He on 18.9.2004 recorded the statements of Veer Singh and Pawan Yadav. He on 25.9.2004 sent the plain and blood stained earth, pant, shirt of the Appellant-accused, salwar and kurta of the deceased for chemical examination to Joint Director, Vidhi Vigyan Prayogshala, U. P., Agra. Human blood was found in all the articles sent for chemical examination. The sperms were found on the pant of the Appellant-accused and on the salwar of the deceased.

The inquest report was prepared by P.W. 9, Satish Kumar Paliwal on the direction of P.W. 8, Ajay Kumar, the then S.O. of P. S. Sector-58, N.O.I.D.A., district G. B. Nagar, which is Ext. Ka-16.

The charge under Sections 302 and 376, I.P.C. was framed against the Appellant-accused. The Appellant-accused denied the charge and claimed to be tried.

The prosecution in order to prove its case has examined the first informant-Mande as P.W. 1 who is the father of the deceased-Km. Monica, Chaman Singh as P.W. 2 who is the elder brother of the first informant-Mande. Both the two brothers live in the same house. P.W. 2, Chaman Singh has stated on oath that he woke up after hearing some cries. His brother-Mande and his wife Satto also woke up. They came out of their house and went towards the ''gher'' of Vishambhar. They saw the Appellant-accused coming out of the ''gher'' of Vishambhar. The Appellant-accused became successful in fleeing from there. When they entered into the ''gher'' of Vishambhar, they found that Km. Monica was lying dead there. Her salwar was unfolded. Blood was oozing from her vagina H.M.-85-Kalu Ram is the scribe of the first information report.

P.W. 4 Pawan Yadav has stated that the police had brought the Appellant-accused-Sunil at about 2.30-3 p.m. in his house after the occurrence. He was present at that time. The Appellant-accused had given his one pant to the police which was kept inside his house and it was blood stained. The fard-Ext-8 was prepared and the pant was kept in a sealed cover. This witness has further clarified in his cross-examination that the Appellant-Sunil was brought to his house on the following day of his arrest.

P.W. 5-Veer Singh is the witness for the collection of plain and blood stained earth from the scene of occurrence.

P.W. 6-Kaushal Kumar has stated that he heard commotion in the intervening night of 9/10.9.2004 at about 1.30 a.m. He went towards the direction from where the commotion was coming. He noticed that the dead body of the deceased-Km. Monica was lying in the ''gher'' of Vishambhar. Mande and his family members were present there. This witness is also the scribe of the written report Ext.-Ka-1 given by the first informant to the police.

P.W. 7 Dr. Ramesh Chandra Vyas has conducted the post mortem examination on the dead body of the deceased on 10.9.2004 at about 3.30 p.m. He has found the following ante mortem injuries on the dead body of the deceased Km. Monica:

Multiple abrasion 6 x 3 cm. on the left side of face, 2 cm. below the left eye.

Vaginal bleeding.

Anus ruptured.

According to the statement of this witness, the cause of death of the deceased is asphyxia as a result of suffocation. He has further stated that Km. Monica was subjected to rape as well. He has further stated that the deceased might have been subjected to carnal intercourse against the order of nature.

P.W. 8 Ajay Kumar is the Investigating Officer of this case. P.W. 9 Satish Kumar Paliwal has prepared the inquest report of the deceased and other police papers relating to this case on the direction of P.W. 8 Ajay Kumar.

The statement of the Appellant-accused was recorded u/s 313, Cr. P.C. He has stated that Smt. Satto, wife of the first informant used to pressurize him to run away with her. She also threatened him to falsely implicate him in case he did not accept her demand. He has also caught Smt. Satto in an awkward position with one person. He has been falsely implicated in this case due to the aforesaid reasons.

Heard Sri V. K. Jaiswal and Sri Rahul Mishra, learned Counsel for the Appellant and Sri A. N. Mulla, learned A.G.A. for the State at length.

We have scrutinized and analysed the entire evidence available on record with the help of learned Counsels for the parties.

It is being submitted by learned Counsel for the Appellant that there is no direct evidence of rape and murder of Km. Monica. The case is based solely on circumstantial evidence. Learned Counsel for the Appellant would argue that it is not clear from the evidence available on record as to who had lifted Km. Monica from the place where she was sleeping. Km. Monica is a minor girl aged about seven years. She was sleeping in her house in a room with her younger brother-Sachin aged about 4 years. She would not go of her own to the ''gher'' of Vishambhar in the mid night. Therefore, it would not cause any adverse effect on the prosecution case as to who has lifted Km. Monica from the place where she was sleeping. Further, submission is that the first informant-Mande P.W. 1 awoke at the instance of his son Sachin aged about four years who had told him that "deedee" was missing from the cot. It is submitted that the statement of P.W. 2-Chaman Singh runs contrary in this regard. According to the statement of Chaman Singh-P.W. 2, he woke up on the hearing of cries. P.W. 1-Mande and P.W. 2-Chaman Singh are real brothers. Both reside in the same house. It might be that Chaman Singh-P.W. 2 was attracted by the cries and thereafter awoke from his sleep. P.W. 1-Mande would have woke up at the instance of his son Sachin. It is not a contradiction of such nature which would adversely effect the prosecution case. It has come from the statement of P.W. 1 Mande and Chaman Singh-P.W. 2 that Mande-P.W. 1, Chaman Singh P.W. 2, Smt. Satto, wife of Mande-P.W. 1 collectively came out from their house and proceeded towards the ''gher'' of Vishambhar. All these witnesses had seen the Appellant-accused coming out of the ''gher'' of Vishambhar. They gave a hot chase to the Appellant-accused but to no avail. Immediately thereafter, they went inside the ''gher'' of Vishambhar and found Km. Monica lying dead there. They all noticed that the salwar of Km. Monica was unfolded and blood was oozing from her vagina. This chain of circumstances points towards the guilt of the Appellant-accused. The medical evidence in the form of the statement of Dr. Ramesh Chandra Vyas P.W. 7 also supports the prosecution case in this regard. The blood was found in the private part of Km. Monica. Anus was found to be ruptured. It has also come from the statement of P.W. 7 Dr. Ramesh Chandra Vyas that Km. Monica was first raped because the blood was oozing from her vagina and anus was ruptured. He has also opined that Km. Monica might be subjected to carnal intercourse against the order of nature. It has also come from the statement of Dr. Ramesh Chandra Vyas P.W. 7 that the cause of death of Km. Monica is asphyxia as a result of suffocation.

The Appellant-accused was arrested on 14.9.2004. On his pointing out, one pant belonging to him was recovered from his house. This pant was sent to the Joint Director, Vidhi Prayogshala, U. P., Agra for its chemical examination. It contained human blood and male sperms.

Learned Counsel for the Appellant has tried to challenge such a recovery of the pant but it has never been averred that the pant did not belong to the Appellant-accused. Pawan Yadav P.W. 4 is a public witness who has supported the prosecution case in this regard. Learned Counsel for the Appellant has pointed out towards that part of the statement of Pawan Yadav P.W. 4 in which he had stated that the police personnel had made the search of the house of the Appellant and had recovered the pant from the house of the Appellant-accused. When such recoveries are made by the police, it might give the impression to the public witness as the search was being made by the police. Actually the search is made in such cases by the police with the help of the accused. This procedure in some cases causes such type of misconceptions in the minds of the witnesses. This is not such a circumstance on the basis of which any doubt may be caused on such recovery. Undoubtedly, the pant belongs to the Appellant-accused. It contains human blood and sperms. It is being submitted by learned Counsel for the Appellant that the blood could not be compared with the blood of the deceased and hence it could not be said that the blood on the pant of the Appellant-accused was that of the deceased-Km. Monica. The chemical examination report clearly indicates that no definite result could be gathered after making the analysis of the blood found on the pant.

Learned Counsel for the Appellant has placed reliance in the decision in 2008 Cr LJ 1816. In this case Hon''ble the Supreme Court found that the witnesses to "last seen" were untrustworthy and their evidence was full of contradictions. In the case in hand, it is not so. Thus, this decision of Hon''ble Supreme Court does not help the case of the defence. Reliance has also been placed in the decision in (2008) 1 SCC (Cri) 733. This decision also does not render any help to the case of the defence. In the case in hand, effort was made to analyse the blood contained on the pant of the Appellant but the same could not be done. In the case in hand, the Appellant-accused was seen at the scene of the occurrence by the parents and the uncle of the deceased and just thereafter the dead body of the deceased was found.

Thus, we find that the Appellant-accused was seen in the intervening night of 9/10.9.2004 at about 1 a.m. coming out of the ''gher'' of Vishambhar by P.W. 1-Mande and P.W. 2-Chaman Singh. They gave a hot chase to the Appellant-accused but to no avail. Immediately thereafter, they went inside the ''gher'' of Vishambhar and found that Km. Monica was lying dead there. This is a strong enough circumstance which points towards the guilt of the accused. The Appellant-accused could be arrested on 14.9.2004 and on the same day the pant of the Appellant-accused was recovered from his house on his pointing out which contained human blood and sperms. In this regard, the Appellant-accused has stated in his statement recorded u/s 313, Cr. P.C. that he was interrogated on 14.9.2004 by the police but he was not carried to any place from the police station. He had not uttered a single word that the pant allegedly recovered from his house did not belong to him. Thus, the recovery of the pant on 14.9.2004 from the house of the Appellant-accused on his pointing out is proved beyond reasonable and probable doubt. This circumstance cements the case of the prosecution that it was the Appellant-accused only who had committed rape upon Km. Monica and thereafter murdered her. In this case, the chain of circumstance is complete which points out towards the guilt of the accused alone. The reason for false implication of the Appellant-accused as stated by him is also not convincing. He has tried to say that Smt. Satto, mother of the deceased tried to seduce him but when she failed in that effort, she falsely implicated the Appellant-accused in this case.

Undoubtedly, Km. Monica was found lying dead inside the gher of Vishambhar. The plain and blood stained earth were recovered from inside the ''gher'' of Vishambhar. The concerned fard is Ext.-Ka-9 which has been duly proved by the prosecution. Thus, there is no confusion about the scene of the occurrence where Km. Monica was raped and murdered. The Appellant-accused was seen coming out of the ''gher'' of Vishambhar in the dead of night. The dead body of the deceased was noticed by the witnesses inside the ''gher'' of the said Vishambhar soon after the Appellant-accused was seen running from there. The Appellant was arrested on 14.9.2004. On the pointing out of the Appellant-accused, a pant of the Appellant-accused which he had worn at the time of the alleged occurrence was recovered from inside the house of the Appellant-accused. The human blood and sperms were found on the pant of the Appellant-accused. Thus, learned Sessions Judge, Gautam Budh Nagar has not committed any illegality in holding the Appellant-accused guilty under Sections 302 and 376, I.P.C.

The Appellant-accused has been awarded a sentence of death by hanging till death u/s 302, I.P.C. It is being submitted by learned Counsel for the Appellant that the death sentence is awarded only in the rarest of rare cases. Learned Counsel for the Appellant has placed his reliance on the decision in (XI) 2008 ACC 524, Criminal Appeal No. 1600 of 2006 and Criminal Reference No. 5 of 2006 in which this principle was laid down. On the other hand, learned A.G.A. submits that it is the fit case for awarding the death sentence. He places reliance on the decision inKamta Tiwari v. State of M. P., 1996 SCC 1298: 1997 ACR 212 .

In the decision Jagmohan Singh Vs. The State of U.P., the Hon''ble Supreme Court has observed that in India onerous duty is cast upon Judges and for more than a century the Judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter of sentence is, as already pointed out, liable to be corrected by superior Courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguards for the accused. Any exhaustive enumeration of aggravating or mitigating circumstances is impossible.

In the decision in Bachan Singh Vs. State of Punjab, , the Hon''ble Supreme Court has observed that there are numerous other circumstances justifying the passing of the lighter sentence ; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nevertheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency--a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law''s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

In the decision in Machhi Singh and Others Vs. State of Punjab, the Hon''ble Supreme Court has observed the following propositions emerge from Bachan Singh case:

(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 imprison-ment 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 a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

The Hon''ble the Supreme Court has further observed that in rarest of rare cases when the 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 community may entertain such sentiment in the following circumstances:

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.

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 cold-blooded murder for gains of a person vis-a-vis whom the murderer is an a dominating position or in a position of trust ; or murder is committed in the course for betrayal of the motherland.

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 death'' 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.

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.

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

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare case, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.

The Hon''ble Supreme Court in the decision in Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka JT 2008 SC (8): 2007 (3) ACR 2626 , has set up the sentencing policy for the accused who are found guilty for commission of heinous offences like murder which is substitute of death sentence. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. The Hon''ble Supreme Court has further observed that when an Appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence.

In the case in hand, the victim is a minor girl aged seven years. She was raped upon and even subjected to carnal intercourse against the order of nature and thereafter killed by the Appellant-accused. This case is entirely based on strong circumstantial evidence which points out towards the guilt of the accused. Thus, this case just falls short of the rarest of the rare category and we feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, we strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. We, therefore, substitute the death sentence with the sentence of imprisonment for life with the direction that the Appellant-accused shall not be released till rest of his life.

Thus, the death sentence awarded to the Appellant-accused by hanging till death is not confirmed and is modified with imprisonment till death with the direction that the Appellant-accused shall not be released for the rest of his life u/s 302, I.P.C. The sentence awarded u/s 376, I.P.C. is confirmed. The criminal appeal is, thus, partly allowed to the extent as stated above.

The reference is rejected.

Let this judgment and order be certified to the Court of Sessions Judge, Gautam Budh Nagar for passing such orders as are conformable to the judgment and order of this Court.