JUDGMENT
Awasthy, J.
1. Appellant-accused had filed the Criminal Appeal No. 996 of 1998 under Section 374 of the Code of Criminal Procedure (for short “the Code”) and State has filed the Criminal Appeal No. 138 of 1997 under Section 377 of the Code and Criminal Appeal No. 144 of 1997 under Section 378 of the Code against the judgment and order dated 30th October, 1996 in Special Case No. 69/1994 by learned Special Judge, Shajapur. The appellant was convicted and sentenced under Section 302 of I. P. C. for the life imprisonment and fine of Rs. 5,000.00, in default, RI of 5 years, under Section 376(2)(f) of the I. P. C. for the rigorous imprisonment of 10 years and fine of Rs. 1,000.00, in default, RI of 1 year and under Section 201 of the I. P. C. for the rigorous imprisonment of 5 years and fine of Rs. 1,000.00, in default, R. I. of 1 year. State has filed the Criminal Appeal No. 138 of 1997 for enhancement of sentence and awarding the death sentence. The Criminal Appeal No. 144 of 1997 is filed against acquittal of the accused from the offence punishable under Sections 3(1)(xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The admitted facts of the case are that accused Mahesh Chandra used to live in a house near Sekawar Dharmashala situated near Vaikunth Lane at Shajapur. That the house of the father of the prosecutrix Sangeeta aged 7 years was near to the house of the accused. That on the day of the incident i.e. 11-3-1994 at about 6.00 p.m. D.K. Mishra (PW-17) Station House Officer of police Station, Shajapur directed his staff to apprehend the accused and soon thereafter the accused was arrested by the Station House Officer (PW-17).
3. The prosecution case is that the accused was in habit of calling the minor girls in his house. That on 11-3-1994 at about 2.45 p.m. the accused has committed the rape with Sangeeta aged about 7 years in his house and thereafter the injuries were caused on her cheek, her eyes and other part of the body and she was thrown out in the adjoining courtyard of the Dharmashala. That Mishrilal Sharma (PW-13) and others who were living near Dharmashala went to the police station and reported that the dead body of a girl was lying naked in the courtyard of the Dharmashala. After recording the Marg Ex. P/5. Station House Officer D.K. Mishra (PW-17) went to the spot and the Panchnama of the dead body of Sangeeta was prepared. That it was found that the vagina of the girl was bleeding and she was having the extensive injuries on her entire body and there was fracture of both the legs. That the plain and the blood soil earth was seized from the spot. The spot map Ex. P/ 25 was prepared. That on the same day 11-3-1994 at about 6.00 p.m. the accused was apprehended and arrested vide Memo Ex. P/13. That during the interrogation his statement under Section 27 of the Evidence Act was recorded and on the basis of his statement, the underwear, frock and the sandals were recovered which were kept hidden under the wall near the house of the accused. Thereafter the house of the accused was got opened from his key and the blood soil mattress and the cover-sheet were seized vide Ex. P/15.
4. On 11-3-1994 at about 5.00 p.m. Dr. N.K. Gupta (PW-10) conducted the autopsy of the dead body of Sangeeta and found that the blood was oozing from her vagina and she was having 20 injuries which were caused by hard and blunt object and it was opined that she was raped and the cause of her death was asphyxia. Ex. P/10 is the post-mortem report. On the same day at about 7.00 p.m. the accused was sent by the police for his medical examination to Civil Hospital, Shajapur, where he was examined by Dr. B.S. Mena (PW-7). Dr. B.S. Mena (PW-7) on seeing the blood stains on his pant seized it and gave it to the police. The garments of the deceased along with the slides of swab of the vagina and the pant of the accused were sent for the chemical examination to FSL Indore and it was reported that the same were having the stains of the blood. Station House Officer (PW-17) after the usual investigation, filed the charge-sheet against the accused.
5. The accused has abjured the guilt and denied the statements of the prosecution witnesses and pleaded his false implication. The accused has examined Dr. Rajesh Sanghvi (DW-1) to substantiate his defence that at the time of the incident, he was not mentally fit.
6. The prosecution has examined 17 witnesses and the defence has examined 1 witness. The learned Trial Court has relied on the circumstantial evidence and convicted and sentenced the accused as stated above. The appellant accused was acquitted from the charge under Sections 3(1)(xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
7. The appellant accused has assailed the conviction on the ground that the circumstantial evidence is not properly proved and it was insufficient to hold the accused guilty. The State has assailed the acquittal on the ground that the deceased was of Scheduled Caste and as such the acquittal of the accused from the offence punishable under Sections 3(1)(xi) and (xii) of the Act was uncalled for. It is prayed by the State that the offence committed by the accused was heinous and dastardly and as such the sentence of death be awarded to the accused.
8. The prosecution has relied on the following circumstances to prove the case against the accused :–
(1) That just after the murder of Sangeeta, her frock, underwear and sandals were recovered from the possession of the accused.
(2) That just after the incident, from the house of the accused, blood stained bed-sheet and mattress were recovered from his house.
(3) That the accused was in habit of calling the minor girls in his house with an ulterior motive.
(4) That the accused made an attempt to run away.
(5) That dead body of Sangeeta was found lying near the house of the accused and accused has falsely denied this fact.
Circumstance No. (1) :–
9. Station House Officer — D.K. Mishra (PW-17) has testified that on 11-3-1994 the information was received that dead body of a girl is lying in Sekwar Dharmashala and he reached with the police party and the dog on the spot, where naked body of Sangeeta was found which was bleeding on account of the innumerable injuries and the blood was also oozing from her private part. D.K. Mishra (PW-7) has stated that the accused was called at about 6.00 p.m. and during interrogation he disclosed that the frock, underwear and the chappals were hidden by him inside the wall of the house. That the accused took out the frock, underwear and the sandals of a child from the hidden place in the house and it was seized vide Ex. P/15.
10. Hardevsingh (PW-12) is a Panch witness and he has testified that the lock of the house of accused was opened by the accused and thereafter the statement of the accused was recorded that he has kept the frock, underwear and sandals of the deceased hidden near the wall and after recording the statement, accused took out the items which were seized by the police, Gulabsingh More (PW-8) has corroborated the fact that the frock, underwear and chappals of the deceased were recovered from the accused from his house by the police. Mishrilal Sharma (PW-13) is the witness of Memo Ex. P/14 and seizure Ex. P/15 and he has corroborated the aforesaid version. Consequently, from the statements of Investigating Officer (PW-17), Hardevsingh (PW-12) and Mishrilal Sharma (PW-13) it is established that the accused gave the statement to the police under Section 27 of the Evidence Act and thereafter he has taken out the underwear, frock and chappals from the hidden place of his house and gave to the police.
11. A.K. Sharma (PW-14), who was the Executive Magistrate, has conducted the identification and in the identification, the mother of the deceased has correctly identified the seized articles. Shakuntala (PW-9), who is the mother of the deceased, has stated on oath that in the office of the Executive Magistrate she has identified the garments and chappals of her daughter Sangeeta, Shakuntala (PW-9) has testified that frock Article-“A”, underwear Article-“B” and the sandals Article-“C” belongs to her daughter Sangeeta which she was wearing on the date of incident. Thus, the recovery of the frock, underwear and chappals of the deceased just few hours of the incident from the possession of the accused is proved.
12. The frock and underwear were examined by FSL Indore and it was reported vide Ex. P/22 that they were stained with the blood. The Serologist report of Government of India was that the frock and underwear were stained with the blood and on account of disintegration of the blood, their origin cannot be determined. The fact that the accused has kept the frock and undergarments of the deceased in the hidden place of his room which was stained with the blood is a circumstance indicating his involvement in the crime. It is pertinent that the recovery of these articles from the accused was within 5 hours of the alleged murder of deceased Sangeeta and accused has not given any explanation of such recent possession of the articles of the deceased.
Circumstance No. (2) :–
13. Station House Officer D.K. Mishra (PW-17) has stated that the lock of the room was opened by the accused by taking out its key from his pocket and the bed-sheet and mattress were having the stains of the blood. That in the bathroom of the accused, there were underwear and the bed cover which were having the marks of blood and semen. That these things were seized in presence of witnesses vide seizure memo Ex. P/12. After the chemical examinations of the mattress, underwear and the bed-sheet, it was found that all the three were haying the stains of blood. The accused has not tendered any explanation of the presence of the blood on these clothes in his house. The presence of the blood stains on the bed-sheet, mattress and the undergarments of the accused just after the incident is a circumstance pointing the involvement of the accused.
Circumstance No. (3) :–
14. Vijeyata Vyas (PW-4) aged about 13 years has testified that at about 9.00 a.m. when she was returning to her house, the accused called her and took her inside his house and the accused was gazing at her in a peculiar manner. Vijeyata Vyas (PW-4) has further stated that she was frightened and ran away and narrated the incident to her parents. Rekha (PW-5) aged about 8 years has testified that when she was returning from the shop to her house, the accused called her and he had an evil eye on her and thereafter due to fear she ran away from the house and narrated the incident to her uncle Ramchandra. The version of Ramchandra (PW-3) is that his niece Rekha (PW-5) narrated him that the accused had called her inside his house and he was having an evil eye on her. Vijeyata Vyas (PW-4) and Rekha (PW-5) were living near the house of the accused and there is no reason to disbelieve their statements. Consequently, from the statements of Ramchandra (PW-3), Vijeyata Vyas (PW-4) and Rekha (PW-5) the evil working of mind of the accused is indicated and it appears that he was in the habit of making an attempt to molest the minor girls living in his vicinity. In this connection it is pertinent to observe that Ramchandra (PW-3) has stated that deceased Sangeeta used to come to his house as she was the friend of his niece Rekha (PW-5).
Circumstance No. (4) :–
15. D. K. Mishra (PW-17) has stated that when on the date of incident at about 6.00 p.m. after the search by the police dog the accused was called, he made an attempt to run away. Gulabsingh More (PW-8) has also corroborated the aforesaid statement. The accused has denied in his statement under Section 313 of the Cr. P. C. of making an attempt to run away. The fact that the accused made an attempt to run away from the place and that he has falsely denied this circumstance also indicates his involvement in the crime.
Circumstance No. (5) :–
16. Mishrilal Sharma (PW-13) has stated that he is living near Sekwar Dharmashala and at about 2.00 p.m. he saw the dead body lying in the courtyard of Dharmashala. He has further testified that he had called Govind Vyas and others on the spot and thereafter the police was informed and the the parents of deceased Sangeeta came there and they have identified the body of Sangeeta. Govind Vyas (PW-1) has stated to the effect that he used to look after the Dharmashala and the son of Mishrilal Sharma told him that the dead body of a girl was lying in the courtyard and thereafter the police was called and the dead body of Sangeeta having innumerable injuries was found, in naked condition. The house of the accused is near to the courtyard of Dharmashala from where the dead body was recovered. The map of the spot is Ex. P/6 in which it is mentioned that the house of the accused is adjacent to the place from where dead body was recovered. The fact that the blood stains bed-sheet and mattress were found in the house of the accused and that the accused made an attempt to run away and that the dead body of Sangeeta was found lying near to his house are the circumstances which are in consonance to the allegation that accused was involved in her rape and murder. The accused has denied these circumstances. The false denial is circumstance against him.
17. Dr. N. K. Gupta (PW-10) has conducted the autopsy of the body of Sangeeta aged 7 years on 11-3-1994 at about 5.00 p.m. and he has reported that there were 20 injuries on her body and the blood was oozing from her vagina. That the labia majora had the lacerated wound and it was bleeding. That the swab from the vagina was taken and the slide was prepared. He has further stated that the cause of death was asphyxia and there is sign of the commission of rape with her. In the examination of the slide by the FSL, it was found that the swab was having the semen and the blood. The report of the FSL and the injury on the private part of the deceased is indicative of the commission of the rape. Dr. N.K. Gupta (PW-10) has stated that there were the marks of scratching on the neck of the girl and her left eye was punctured and there was lacerated wound on cheek. From the marks of the injury on the body of deceased and from the internal examination, the opinion in the autopsy report, that Sangeeta was murdered by pressing her neck cannot be assailed at all.
18. The cumulative effect of the aforesaid circumstances is that the accused has committed the rape and murder of Sangeeta. The learned Trial Court has not committed any error in holding the accused guilty for the offence punishable under Sections 376, 302 and 201 of the I. P. C.
19. The learned defence counsel has argued that the accused has committed the offence in the spell of the madness and as such he is entitled to get the benefit of Section 80 of the I. P. C. Dr. B.S. Mena (PW-7) has examined the accused on 11-3-1994 at about 7.00 p.m. and he has found the accused capable of doing the sexual intercourse and has further reported that the mental condition of the accused was fit and proper. In the cross-examination of Dr. B.S. Mena (PW-7) his statement that the accused was mentally fit was not challenged. It was not asked in the cross-examination that the accused was in spell of madness. In the cross-examination of the seizure witnesses and the Investigating Officer it was not asked that the accused was not mentally fit. There is nothing in the evidence of the Investigating Officer or any witness to suggest that on the date of incident on 11-3-1994 the accused was behaving abnormally and he did not know what he was doing. On the other hand from the statement of Dr. B.S. Mena (PW-7) who has examined the accused just few hours of the incident, it is clear that the accused was mentally fit. Dr. Rajesh Sanghvi (DW-1) was examined as a defence witness and he has stated that on 21-2-1994 accused Mahesh was examined by him and he has found that he was suffering from paranoid schizophrenia. From the statement of Dr. Rajesh Sanghvi (DW-1) it cannot be inferred that at the time of incident on 11-3-1994 the accused on account of his mental illness was unable to know and understand what he was doing. In the backdrop of the aforesaid circumstances and the material on record, it cannot be said that the accused has committed an offence while he was mentally unfit. The accused was examined by the jail doctor and it was reported that the accused has started suffering from mental illness. In view of the fact that the accused has started suffering from mental illness and looking to the fact that the incident is 11 years old, it will not be proper to award the sentence of death to him. This case does not fall under the category of “rarest of rare” cases to award death penalty. The prosecution has failed to prove that deceased Sangeeta was of the community from Scheduled Castes or Scheduled Tribes. Thus both the appeals filed by the State, one for the setting aside the acquittal under Sections 3(1)(xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; and another for awarding the death penalty deserve to be dismissed.
20. The impugned judgment is confirmed. All the three appeals are devoid of merits and they are hereby dismissed.