Full Judgment Text
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CASE NO.:
Appeal (crl.) 581 of 2000
PETITIONER:
RAJU
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT: 02/05/2001
BENCH:
M.B. Shah & Brijesh Kumar
JUDGMENT:
Shah, J.
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In Sessions Case No. 7 of 1997 after appreciating the
evidence, the Sessions Judge, Gurgaon by order dated
7.9.1999 convicted the appellant for the offence punishable
under Section 302, 376 and 363 I.P.C. and sentenced him to
death under Section 302, to 7 years rigorous imprisonment
under Section 376 and 3 years rigorous imprisonment. under
Section 363. The High Court of Punjab and Haryana at
Chandigarh by order dated 26th April, 2000 in Murder
Reference No. 3 of 1999 and Criminal Appeal No. 463-DB of
1999 confirmed the conviction and sentence. That judgment
and order is under challenge in this appeal.
It is the prosecution case that Rinku aged about 11
years was missing from the evening of January 5, 1997. Her
body was found on the next day at about 6.30 a.m. The
prosecution story as revealed by PW 1 Ram Kewal was that he
lodged the FIR at 7.30 a.m. on finding the dead body of
Rinku near the bushes at Medical College ground. It is his
say that on 5.1.1997, she had gone out of the house at about
6.00 p.m. to bring milk. After she brought milk, he saw
Raju (accused) offering toffees to Rinku and other children.
PW2 Makhan Lal a neighbour had also seen Rinku and Raju
going towards Chandan Nagar. As Rinku had not returned till
9.00 p.m., they looked for her as well as Raju throughout
the night. In the morning, they found the dead body of
Rinku. Blood stained brick and blood was also found lying
on the spot. Immediately, after asking PW2 to wait at the
scene of offence, PW1 Ram Kewal reached at the Gurgaon
Police Station and lodged the FIR at about 7.30 a.m.
Further prosecution version is that on 6.1.1997 accused
contacted PW3 Subhash Sharma and made confessional statement
to him that he committed rape and murder of Rinku near the
boundary wall of college building. He stated that he caused
injury to the deceased by the brick on her head and mouth as
the deceased stated that she would report at the house with
regard to the rape committed by him. Accused sought his
help to save him. It is the say of the witness that when he
was taking the accused towards the police station, the uncle
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of the girl and the police met him and he handed over the
accused to the police. After completing the necessary
investigation, the accused was charged and convicted as
stated above.
Mr. Tara Chand Sharma, learned counsel for the appellant
submitted that the High Court committed error in convicting
the appellant as there is no evidence on record to connect
the accused with the crime. The circumstantial evidence
upon which reliance is placed by the High Court is not
sufficient so as to convict the appellant for the offence
for which he is charged and in any case, it is not a case
for imposing the punishment of death. It is his contention
that if Ram Kewal PW1 and Makhan Lal PW2 were knowing that
the deceased child had accompanied the accused by evening
time, and she did not return till midnight, they would have
immediately lodged the FIR for kidnapping. As they have not
done so, it would mean that they were not knowing that the
deceased had gone in the company of the accused who was the
tenant of PW1 for few months and thereafter residing in
neighbourhood.
As against this, learned counsel for the State submitted
that the crime committed by the accused is heinous. There
is sufficient circumstantial evidence on record to connect
the accused with the crime and the courts below have rightly
convicted the accused and imposed the death sentence.
We have gone through the entire evidence on record,
particularly, the evidence of PW1 Ram Kewal and PW2 Makhan@@
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Lal which clearly establishes that accused enticed deceased@@
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Rinku young girl aged about 11 years to accompany him on
5.1.1997 at about 6 p.m. PW1 has stated that he saw Raju
taking Rinku towards Rajinder Nagar. It has come in
evidence of PW1 that when she did not return to the house up
to 8 or 9 p.m., the whole night they searched for Rinku and
accused Raju, but could not locate them. On the next
morning, Ram Kewal PW1 along with Makhan Lal PW2 reached
near the bushes at Government College compound and found the
dead body of Rinku lying there. Immediately PW1 went to the
police station City Gurgaon and lodged the FIR Ex. PA. The
I.O. prepared the necessary panchnama and blood stained
earth, blood stained brick on which hair were also stuck,
shawl and pair of chappal were taken into possession vide
recovery Memo Ex.PB. Dr. Suresh Bakshi PW5 along with Dr.
Vandana Narula PW 13 conducted the post mortem examination
and noticed three injuries on her person. The cause of
death in their opinion was due to shock and haemorrhage as a
result of injuries which were ante-mortem in nature and
sufficient to cause death in ordinary course of nature. The
evidence of PW1 is also corroborated by the evidence of PW2
Makhan Lal who is resident of the same locality and is not
related to the deceased or the accused. He was ironing the
clothes in front of house of PW1 in the same locality. He
saw accused distributing toffees to the children at about
6.00 p.m. and noticed that Raju was talking with the
deceased Rinku while going towards Chandan Nagar. He
accompanied PW1 for search of Rinku. In view of the
aforesaid evidence, in our view, the prosecution has
established beyond any doubt that accused enticed minor
Rinku on 5.1.1997 at evening time and took her towards
Chander Nagar at Gurgaon. The accused and deceased were
last seen together going towards Chandan Nagar by PW2.
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Secondly, accused along with the deceased was not traceable
on the night of the incident. The dead body of Rinku was
traced in the morning in the Government College compound
near bushes. Search continued for the whole night.
Therefore, not lodging of FIR during the night time would
not at all be a ground for doubting the evidence of PW1 and
PW2. Apart from the aforesaid evidence, in our view, there
is no reason to discard the extra judicial confession made
by the accused before PW3 Subhash Sharma. PW3 is also
resident of the same locality and was working on a lathe
machine in Patel Nagar, Gurgaon. After making confession,
accused sought his help to save him. It has come on record
that father of the accused was plying rickshaw and PW3 was
sending his goods in his Rickshaw and that the accused was
coming to his work-shop quite often. The witness has also
stated that the father of the accused was meeting him on
number of occasions. On 8.1.1997, the father of the accused
asked PW3 to inquire about the case and, therefore, he had
gone to the police station. At the police station, he
accompanied the police with Raju at the scene of offence.
The accused pointed out the place where he committed rape
and where he had thrown the dead body. He had denied the
suggestion that as he was having good relations with PW1, he
was making false statement. In our view, there is no reason
to discard the confessional statement made before an
independent witness who was known to the accused and his
father.
Further, FSL report establishes that the pant put on by
the accused was stained with numerous small dark brown
stains/streaks especially on the front. Similarly, the
multi coloured printed terrycot shirt of the accused was
also stained with numerous darkish stains specially on his
sleeves and contained human blood as per the FSL report. On
the underwear worn by the accused, blood and semen was
found. There is no explanation given by the accused how the
blood was there on the shirt put on by him and that how
there were blood stains on the pant and underwear. We would
add at this stage that in his statement under Section 313
Cr. P.C. the accused abjured his guilt and denied all the
allegations made against him. According to him he had paid
advance rent of one year to Ram Kewal PW1 but he was turned
out of the house after six months and that he had been
falsely implicated in the case as there was quarrel between
him and Ram Kewal PW1. In our view, this defence is totally
baseless. If the accused was turned out of the house after
taking one years rent in advance, there was no reason for
PW1 to implicate the accused in the crime.
In this view of the matter, in our view, the High Court
after appreciating the entire evidence has rightly confirmed
the conviction order passed by the Sessions Court. However,
the next question is whether this would be a rarest of rare
cases where extreme punishment of death is required to be
imposed. In the present case, from the confessional
statement made by the accused, it would appear that there
was no intention on the part of the accused to commit the
murder of the deceased child. He caused injury to the
deceased by giving two brick blows as she stated that she
would disclose the incident at her house. It is true that
learned Sessions Judge committed error in recording the
evidence of SI Shakuntala, PW 15 with regard to the
confessional statement made to her, but in any set of
circumstances, evidence on record discloses that accused was
not having intention to commit the murder of the girl who
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accompanied him. On the spur of the moment without there
being any premeditation, he gave two brick blows which
caused her death. There is nothing on record to indicate
that the appellant was having any criminal record nor he can
be said to be a grave danger to the society at large. In
these circumstances, it would be difficult to hold that the
case of the appellant would be rarest of rare case
justifying imposition of death penalty.
We, therefore, uphold the conviction of the appellant
under Section 302, but commute the sentence of death to
imprisonment of life. Subject to the aforesaid modification
of sentence, this appeal is dismissed.