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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. L...I...T.......T.......T.......T.......T.......T.......T..J

   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@@                    JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Lal  which clearly establishes that accused enticed deceased@@ JJJJJJJJJJJJJJJJJJ 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.