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PETITIONER: KUMUCH LAL

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       31/03/1999

BENCH: G.T.Nanavati, S.P.Kurdukar

JUDGMENT:

NANAVATI.  J

     The  appellant  has  been convicted for  cornmi  fling offences  punishable  under  Sections 376 and  302  IPC  and Section  3  (i1) (v) of the Scheduled Castes  and  Scheduled Tribes  (Prevention  of  Atrocities) Act.  For  the  offence punishable  under  Section 302 IPC death sentence  has  been imposed   upon  him.   The   appellant  is  challenging  his conviction and sentence imposed under those Sections.

     The  prosection case was that on 7.9.95 at about  7.00 a.m.   Kumari  Marri, aged about 14 year?  Lad gone to  ease herself  in a field near her house and that while she was so doing,  the  appellant pounced upon her, pinned her down  on the  ground,  committed rape and when she started  resisting and  raising  shouts, strangulated and killed her by  tieing her  Sal  war around her neck.  It was also the  prosecution case  that hearing her shouts her father Mihilal (PW-1)  and Avadh  Ram  (PW-2)  who had also gone near  that  field  for answering  the call of nature, rushed to that place.  It was also  the prosecution case that they had seen the  appellant committing  rape and on on seeing them the appellant got  up and ran away.  They had also chased the appellant but he was able to escape.

     In  order to prove its case.  besides the medical  and other  evidence  the  prosecution had led  the  evidence  of (PW-1),  Adadadh  Ram  (PW-2.) who were  the  eye-witnesses. Believing  their  evidence  the trial  Court  convicted  the appellant  for  the offences punishable under Sect ions  376 and  302  IPC  and  also  under Section  3  (ii)(v)  of  the Sechduled  Castes  and  Scheduled Tribes  (’Prevent  ion  of Atrootties)  Act.   As  the trial Court  had  imposed  death sentence  upon  the appellant for the offence of murder,  it forwarded  the record to the High Court for confirmation  of that   sentence.   The  appellant   a’iso  filed  an  appeal challenging   his   conviction.   The   High   Court   after re-appreciating  the  evidence,  agreed  with  the  findings recorded by the trial Court and confirmed the death sentence by observing as under :

     "It  was  he who, acting as a beast of  prey,  pounced upon  an  unprotected,  helpless and physically  weak  young girl,  and  just  to  satisfy his sexual  lust  defiled  her

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despite the best possibie resistance coming from the victim. And  stil}  the  innate, a t be it-depraved, urge  for  self survival  was so strong in him that he would not hesitate  a bit in squezing out the last breath of the poor little duck. His  disaboTic.  vile and wicked deed was the worst form  of degraded  gender crime, sparing hiir from the gallows  would be nothing short of ’ietting loose a sex maniac onprowl.

     Succintly  put  mercy  to the  appellant  under  these circumstances  would be quite misplaced.  It would not  oniy slight  the  valient  resistance put up by the  deceased  in protecting  .her  honour and chastity but also an insult  to the  entire womenhood.  We, therefore, reject the appear  in its entirety and affirm the reference for confirmation moved by the trial court."

     The  evidence of both the eye-witneasee discloset that Mihilal  {PW-1) was about 150 meters away from the place  of the  incident.   The  sight plan also shows that  the  place where  ’Kumari Marri had gone was in northern corner of  the field  of  Chhedu.   The father was near the  South  Western corner  of  that field.  The sight plan shows  the  distance between  the two places as 125 yards.  Avadh Ram (PW-2)  was at  that  time  near the South East corner of the  field  of Chhedu  at a distance of about 150 Sq.  yards.  Both Mi hi I at and Avadh Ram had reached the place of incident almost at the  same  time.   They have stated that they had  seen  the appellant  committing rape and that on seeing them he got up and  started  running  away.  Both of them  had  chased  the appellant for some distance.

     Both  the Courts below have accepted their evidence as reliable  and truthful.  Even after close scrutiny we do not find  any  infirmity  in their evidence which  would  create doubt  regarding veracity of what they have stated, The High Court  was,  therefore,  right in  confirming  the  findings recorded  by  the trial Court that the  appellant  committed rape on Marri and also killed her.

     But  the  evidence  on  record does  not  justify  the reasons  given  by the High Court for confirming  the  death sentence.   The  evidence does not indicate that  Marri  was taken  by  surprise and that the appellant had pounced  upon her  and  had  rendered her helpless.   She  had  completely removed  her Salwar which possibly was not necessary if  she had  merely  gone for easing herself.  No human excreta  was found  from near the place of incident, if she was assaulted in the manner believed by the High Court then she would have raised cries

     earlier and not after the appellant had started raping her.   The Dost-mortem notes show that she was average built and  was thus not a physically weak.  young girl.  Not  only she  had removed her Salwar but her Kurta was also rolled up to  the  neck and, therefore, it was stated by P.W.   1  and also  the  lnvest gating Officer that the body of Marri  was nude.   The evidence discloses that both P.Ws.  1 and 2 were at  a  short  distance of 120-150 yards and would  not  have taken  much time in reaching the place of occurrence.  They would have reached before the appellant could have committed rape  on  an  unwilling   "ring  girl.   The  circumstances indicate  that  probably she was not unwilling initially  to allow  the  appellant.  to have some liberty with her.   The appellant  not  being able to resist his urge for  sex  went ahead   "in  spite  of  her   unwillingness  for  a   sexual

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intercourse offered, some resistance and started raising

     ’".

     shouts  at  that stage.  In order to prevent her  from raising

     shouts  the appellant tied the Salwar around her  neck which   resulted  in  strangulation   and  her  death.   We, therefore,  do not consider this to be fit case in which the extreme  penalty  of death deserves to be imposed  upon  the appellant.   in  our  opinion, the High Court was  wrong  in confirming  the death sentence without considering all these aspects disclosed by the evidence on record.

     We,   therefore,  allow  this   appeal  partly.    His conviction  under Sections 376 and 302 I.P.C.  and Section 3 (ii)(v)  of  the  Scheduled   Castes  and  Scheduled  Tribes (Prevention of Atrocities) Act and the sentence imposed upon him  for  the offences punishable under Section  375  I.P.C. and

     Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes  (Prevention  of  Atrocoties)   Act  are   conf"rmed. However, we modify the order imposing death sentence for the offence  of  murder and alter it to imprisonment  for  life. All the sentences are ordered to run concurrently.