HIGH COURT OF CHATTISGARH AT BILASPUR
Division Bench
Coram Hon'ble Shri Dilip Raosaheb Deshmukh and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ.
Criminal Appeal No 1117 of 2007 and Criminal Reference No 3 of 2007
1. Ramnaresh
2. Vishwanath Singh
3. Amar Singh
4. Ranjeet Kewat
All Ro Village Gullidand
...Petitioners
versus
State of Chhattisgarh
...Respondents
! Smt. Fouzia Mirza and Shri R.K.Pali,counsel for the appellants accused.
^ Shri Bhaskar Payashi, Panel Lawyer for the State/respondent.
# State of Chhattisgarh
...Petitioners
versus
$ 1. Ramnaresh
2. Vishwanath Singh
3. Amar Singh
4. Ranjeet Kewat
All Ro Village Gullidand
...Respondents
! Shri Bhaskar Payashi, Panel Lawyer for the State/appellant.
^ Dr. Rajesh Pandey, counsel for respondents No.1 and 3/accused.Shri Arun Kochar, counsel for respondents No.2 and 4/accused.
Hon'ble Shri Dilip Raosaheb Deshmukh, Hon'ble Shri Rajeshwar Lal Jhanwar, JJ.
Dated:24/07/2009
: Judgement
Criminal Appeal under Section 374(2) of the Code of
Criminal Procedure
Criminal Reference under Section 366(1) of the Code
of Criminal Procedure
JUDGMENT
(Delivered on this 24th day of July, 2009)
The following judgment of the Court was
delivered by Dilip
Raosaheb Deshmukh, J.:
This judgment shall govern Criminal Appeal
No.1117/2007 preferred by the appellants/accused
Ramnaresh, Vishwanath Singh, Amar Singh and Ranjeet
Kewat and Criminal Reference No.3/2007 under Section
366(1) of the Code of Criminal Procedure (henceforth
`the Code’) by Shri Ram Kumar Tiwari, the Additional
Sessions Judge, Pendra Road, District Bilaspur in
Sessions Trial No.403/2006.
(2) The Additional Sessions Judge, Pendra Road,
District Bilaspur has, vide judgment dated 20-11-2007
delivered in Sessions Trial No.403/2006, convicted
the appellants/accused Ramnaresh, Vishwanath Singh,
Amar Singh and Ranjeet Kewat under Sections 449,
376(2)(g) and 302 read with Section 34 of the Indian
Penal Code and sentenced them to undergo rigorous
imprisonment for 10 years and fine of Rs.200/- each
and in default additional rigorous imprisonment for 1
month under Section 449 of the Indian Penal Code, to
imprisonment for life and fine of Rs.200/- each and
in default additional rigorous imprisonment for 1
month under Section 376(2)(g) of the Indian Penal
Code. Under Section 302 read with Section 34 of the
Indian Penal Code, the appellants/accused were
sentenced to death.
(3) Admittedly, appellant Ranjeet is the brother of
Indrajeet P.W.-1 and lives next door to his house.
Sugaribai P.W.-12 is the mother of the deceased
Rajkumari. Dhaniram P.W.-6 is also known as Rottam.
(4) Prosecution case is that on the night of 9-8-
2006, the date of Rakshabandhan, Indrajeet P.W.-1 had
gone to Rajnagar to meet his father. His wife
Rajkumari, the deceased was alone in the house with
her two minor children aged about 7 months and 3
years respectively. Sunita P.W.-2, Anita P.W.-3 and
Belabai P.W.-5 had left the house of Rajkumari around
7 P.M. after watching television with her for
sometime. Servant Dhaniram P.W.-6, aged 16 years,
was present at the house and continued watching
television after Rajkumari slept at about 9:30 P.M.
Sunita P.W.-2, Anita P.W.-3, Belabai P.W.-5 and
Dhaniram P.W.-6 had seen the appellants/accused with
one Kamlesh P.W.-10 at the adjacent house of
appellant Ranjeet. At about 10:30 P.M., all the
appellants/accused consumed liquor at the house of
appellant Ranjeet. At about 12 in the night, the
appellants/accused arrived at the house of Rajkumari
and told Dhaniram P.W.-6 that they would ravish
Rajkumari and would kill him if he told this to
anyone. Appellants Ramnaresh and Amar Singh sat with
Dhaniram P.W.-6. Appellants Ranjeet and Vishwanath
committed rape on Rajkumari after bringing her down
from the cot. Thereafter, appellants Ranjeet and
Vishwanath took Dhaniram P.W.-6 to the courtyard and
appellants Ramnaresh and Amar Singh entered the room
of Rajkumari. After sometime, appellants Ramnaresh
and Amar Singh emerged from the room and asked
Dhaniram P.W.-6 to go inside. Dhaniram P.W.-6
denied, whereupon appellants Ranjeet and Vishwanath
threatened to kill him if he did not go inside the
room. Dhaniram P.W.-6 entered the room and saw that
Rajkumari could not speak and was breathing very
heavily. Blood was coming out of her mouth and nose.
On seeing this, Dhaniram P.W.-6 left the room. The
appellants/accused threatened Dhaniram P.W.-6 that he
would be killed if he did not keep quiet. Appellants
Ranjeet and Vishwanath asked Dhaniram P.W.-6 to
inform Sugaribai P.W.-12, mother of Rajkumari that
Rajkumari was not awaking from sleep and left for
their homes after threatening to kill him. Dhaniram
P.W.-6 went and informed Sugaribai P.W.-12 at about 3
A.M. that Rajkumari was fast asleep and would not
awake. Sugaribai P.W.-12 came to the house of
Rajkumari and saw her lying dead with injury on the
throat and private parts and blood oozing from her
mouth and nostrils.
(5) On receiving information, Indrajeet P.W.-1 came
to Village Gullidand and saw the dead body of
Rajkumari. Merg Intimation Ex.P-1 was lodged by
Indrajeet P.W.-1 in P.S. Marwahi at 10:50 A.M. on 10-
8-2006. Head Constable Jagmohan Panna P.W.-14
reached the place of occurrence and noticed that dead
body of Rajkumari was lying in a supine position on a
black blanket. He prepared Naksha Panchayatnama Ex.P-
3 on 10-8-2006 at 4 P.M. As mentioned therein, a
small white piece of saree having blood like stains
and red coloured pieces of broken bangles of right
hand were seen lying near the dead body. On 10-8-
2006, the piece of saree (Article A) approximately 1+
feet in length and 3 feet in width having blood like
stains at 6-7 places and 7 pieces of red bangles were
seized by Head Constable Jagmohan Panna P.W.-14 from
the place of occurrence.
(6) Post mortem on the dead body of the deceased
Rajkumari was conducted by a team of doctors
comprising of Dr. Sheela Saha P.W.-7 and Dr. Mahesh
Singh on 10-8-2006 at 2:10 P.M (Ex.P-12). The body
was cold. Rigor Mortis was present in lower limbs
and absent in both upper limbs. Eyes and mouth were
semi-open. Blood mixed froth had oozed from the
nostril and mouth. There were two abrasions of the
size 0.5″x0.5″ with scratch mark by nails below the
angle of right mandible just in front of the sterno
cleado mastoid muscle with another scratch mark 1″ in
length above it. There was an abrasion on the left
side of neck below the angle of mandible to mastoid
process with scratch mark as shown in the diagram.
There was an abrasion in the thigh of the size of
1″x0.5″ with contusion 1″x1″ present on both medial
aspects of thigh. On internal examination, petechial
haemorrhage was present in both lungs, right side of
heart was filled with blood while the left ventricle
was empty. There were lacerations with abrasions 3
to 4 in number over perineum with blood mixed
discharge. Uterus was ante-verted normal size. Two
vaginal glass slides (Articles G1 and G2) were
prepared, sealed and handed over to the Police
Constable for chemical analysis. One orange saree
and one green petticoat (Article F) with blood like
and white stains, which were encircled and sealed,
were also handed over to Police Constable No.310
Suresh Lakda, P.S. Marwahi for chemical analysis. It
was opined that death was as a result of asphyxia due
to strangulation (throttling). There was evidence of
rape. All injuries were ante mortem in nature.
Nature of death was homicidal. Time elapsed since
death was 12 to 14 hours.
(7) Statement of Indrajeet P.W.-1 under Section 161
of the Code was recorded on 12-8-2006 in which he
stated that his servant Dhaniram P.W.-6 had shown
complete ignorance about cause of death of Rajkumari.
A doubt regarding involvement in the offence of one
Bhupendra whom Rajkumari had married about 3 years
prior to marrying Indrajeet P.W.-1, was cast.
Statement of Dhaniram P.W.-6 under Section 161 of the
Code was recorded on 12-8-2006 in which he narrated
for the first time regarding the commission of rape
by the appellants/accused on Rajkumari. Statement of
Dhaniram P.W.-6 under Section 164 of the Code was
recorded by the Judicial Magistrate First Class,
Bilaspur on 19-9-2006. The appellants/accused were
arrested on 13-8-2006 between 3:30 and 4:10 P.M. On
13-8-2006 at 4:30 P.M., one full sleeves shirt
(Article B) having blood like stains was removed from
the body of appellant Ranjeet and seized vide Ex.P-7.
On the same day at 4:50 P.M. one blue old nylon
underwear (Article C) having blood like stains was
removed from the body of appellant Vishwanath Singh
and seized vide Ex.P-8. On the same day at 5:10 P.M.
one old green nylon underwear (Article D) having
blood like stains was removed from the body of
appellant Amar Singh and seized vide Ex.P-9. On the
same day at 5:15 P.M., one maroon nylon underwear
(Article E) having blood like stains was removed from
the body of appellant Ramnaresh and seized vide Ex.P-
10. Slides Articles H1 and H2 of appellant Ranjeet,
I1 and I2 of appellant Vishwanath Singh, J1 and J2 of
appellant Amar Singh and K1 and K2 of appellant
Ramnaresh were seized vide Ex.P-13 at 5:20 P.M. on 19-
8-2006 from Police Constable Brijnandan Singh P.W.-
13. Report of the medical examination of the
appellants/accused was not produced in the documents
under Section 173 of the Code. The doctor who
examined the appellants/accused was also not cited as
a witness. Seizure memo Ex.P-13 did not show that
the slides were seminal slides. By memo Ex.P-21
dated 25-10-2006 of the Senior Superintendent of
Police, Bilaspur the abovementioned articles were
sent for chemical analysis to Forensic Science
Laboratory, Raipur through Police Constable No.310
Suresh Lakda and were received in the Forensic
Science Laboratory, Raipur on 6-11-2006 vide
acknowledgment Ex.P-22. After completion of
investigation, challan was filed against the
appellants on 6-11-2006 before the Judicial
Magistrate First Class, Pendra Road, who committed it
for trial to the Court of Session on 15-12-2006. The
learned Additional Sessions Judge, Pendra Road framed
charges under Sections 449, 376(2)(g) and 302 read
with Section 34 of the Indian Penal Code against the
appellants, who abjured the guilt.
(8) During trial, report of the Forensic Science
Laboratory, Raipur Ex.P-23 dated 31-7-2007 was
produced and admitted in evidence under Section 293
of the Code by which presence of blood on Articles A,
B, C, D, E, F1, F2 and presence of seminal stains and
human spermatozoa on Articles C, D, E, F1, F2, G1,
H1, I1, J1 and K1 was confirmed. Seminal stains and
human spermatozoa was not found on Articles A and B.
The seminal stains on Articles C, D, E, F1 and F2
were not sufficient for serological examination. The
Slides Articles G2, H2, I2, J2 and K2 were preserved
if D.N.A. Test was felt necessary. The prosecution
examined as many as 16 witnesses. The
appellants/accused examined Samelal D.W.-1 and Kamla
D.W.-2 wife of Ranjeet to establish that the
appellants/accused had slept in their respective
houses between 9 to 10 P.M. on 9-8-2006.
(9) Relying upon the sole testimony of Dhaniram P.W.-
6, which was duly corroborated by medical evidence of
Dr. Sheela Saha P.W.-7 and Sugaribai P.W.-12, the
learned Additional Sessions Judge, Pendra Road
convicted and sentenced the appellants/accused as
shown in paragraph 2 supra.
(10) Smt. Fouzia Mirza, learned counsel appearing for
the appellants/accused in Criminal Appeal
No.1117/2007 argued that the testimony of Dhaniram
P.W.-6 was not reliable because he did not disclose
the names of the appellants/accused to anyone or even
to the police till 12-8-2006. Laying stress on the
testimony of Indrajeet P.W.-1 in paragraph 10 which
revealed that on arrival at the scene of occurrence
he had noticed that shining material (Jalposh) of the
bangles worn by his wife Rajkumari was present on the
right side of the body of Dhaniram P.W.-6 who told
him that he had collected the broken bangles in a
container which he did not hand over to the police,
it was argued that the possibility that Dhaniram P.W.-
6, who was undoubtedly present at the scene of
occurrence, had committed rape and murder of
Rajkumari and had falsely implicated the appellants
could not be ruled out. According to the learned
counsel for the appellants/accused, this possibility
was further strengthened by the admission of Dhaniram
P.W.-6 in paragraph 11 that the police had detained
him at the police station for 8 days and in the lock-
up for 4 days and had also beaten him. Appellant
Ranjeet was not only married but was also the brother-
in-law of the deceased. The fact that appellant
Vishwanath was present at the time of taking the body
of Rajkumari for post mortem examination and
according to Sugaribai P.W.-12 on reaching the place
of occurrence, appellant Ranjeet was seen carrying
the minor daughter of Rajkumari in his arms and had
also gone to call Rewa Lohar for Jhaadphoonk belies
the prosecution case that they were responsible for
rape and murder of Rajkumari. The testimony of Kamla
D.W.-2, the wife of appellant Ranjeet that on the
date of occurrence appellant Ranjeet had slept at 9
P.M. in the house completely ruled out the
participation of appellant Ranjeet in the offence.
It was also argued that the testimony of Dhaniram
P.W.-6 revealed that appellants Vishwanath and
Ranjeet had, after entering the room where Rajkumari
was sleeping, emerged from the room after half an
hour and thereafter appellants Ramnaresh and Amar
Singh went inside the room and came out after half an
hour. Thus, if Rajkumari was alive when Ramnaresh
and Amar Singh entered the room, the charge for
commission of murder of Rajkumari against appellants
Vishwanath and Ranjeet could not be held to have been
established. The fact that hyoid bone of Rajkumari
was not fractured ruled out the possibility that
Rajkumari was throttled by four able bodied young men
while causing her death after ravishing her. Lastly,
it was argued that the testimony of Dhaniram P.W.-6
was neither wholly reliable nor wholly unreliable
and, therefore, unless it was corroborated in
material particulars by reliable testimony, direct or
circumstantial, conviction and sentence awarded
against the appellants by the learned Additional
Sessions Judge, Pendra Road was liable to be set
aside. Learned counsel further argued that the
prosecution had failed to establish that the
appellants were potent and capable of sexual
intercourse since no material was placed on record
with the documents under Section 173 of the Code to
show that the appellants were subjected to medical
examination as required under Section 53A of the
Code. So far as the presence of semen and human
spermatozoa on the slides H1, I1, J1 and K1 was
concerned, no material was produced by the
prosecution as to who had prepared these slides. In
other words, there was no material to show that the
slides H1, I1, J1 and K1 were the seminal slides of
the appellants. The memo Ex.P-13 also did not reveal
that the slides seized by the police were seminal
slides or were seized from the person who had
prepared such slides. In the absence of any material
to connect the slides H1, I1, J1 and K1 to the
appellants the report Ex.P-23 of the Forensic Science
Laboratory, Raipur was of no avail to the prosecution
against the appellants. It was further argued that
Sunita P.W.-2, Anita P.W.-3, Belabai P.W.-5 and
Kamlesh P.W.-10, who were alleged to have seen the
appellants in the house of appellant Ranjeet on the
night of 9-8-2006 did not support the prosecution
story and had turned hostile. The testimony of
Dhaniram P.W.-6 not being of a sterling quality could
not therefore form the basis for convicting the
appellants under Sections 449, 376(2)(g) and 302 read
with Section 34 of the Indian Penal Code. So far as
Criminal Reference No.3/2007 by the learned
Additional Sessions Judge, Pendra Road under Section
366(1) of the Code is concerned, on the above
premises, Smt. Fouzia Mirza, learned counsel
appearing for the appellants/accused in Criminal
Appeal No.1117/2007 argued that the
appellants/accused were liable to be acquitted after
giving them benefit of a reasonable doubt.
(11) Shri Bhaskar Payashi, learned Panel Lawyer
appearing for the State in Criminal Appeal
No.1117/2007 and Criminal Reference No.3/2007 argued
in support of the impugned judgment and contended
that presence of Dhaniram P.W.-6 at the place of
occurrence was established by the prosecution beyond
doubt. The non-disclosure of the occurrence by
Dhaniram P.W.-6 to anyone till recording of statement
under Section 161 of the Code by the police on 12-8-
2006 is explained by the fact that Dhaniram P.W.-6
was a boy of tender age of 16 years and would have
been aghast and extremely frightened after witnessing
the gruesome rape and murder by the
appellants/accused on the wife of his master
Indrajeet P.W.-1. Besides, the evidence led by the
prosecution revealed that appellant Ranjeet was
present through out when Indrajeet P.W.-1 returned
home. Similarly, appellant Vishwanath had also
accompanied the body of Rajkumari for post mortem.
Thus, two of the appellants were constantly keeping a
close watch on Dhaniram P.W.-6, who, therefore, could
not gather enough courage to disclose the commission
of offence by the appellants/accused to anyone.
Besides, according to Dhaniram P.W.-6, he was under a
threat by the appellants/accused that if he disclosed
the incident to anyone, they would also kill him,
which showed that the appellants/accused had not only
intended but did commit murder of Rajkumari after
committing gang rape on her. It was further argued
that since Rajkumari had bled from mouth and nose,
the fact that presence of blood stains was confirmed
on a white piece of saree showed that the appellants
had gagged Rajkumari by that cloth and, therefore,
she could not shout while being ravished by the
appellants/accused. It was further argued that in
the examination under Section 313 of the Code and the
reply to Question No.28, the appellants, on being
confronted with the testimony of Dhaniram P.W.-6, did
not deny that they had gone to the house of Indrajeet
P.W.-1 at night but merely showed ignorance. As
regards the testimony of Indrajeet P.W.-1 in
paragraph 10 referred above in paragraph 10 supra, it
was argued that Dhaniram P.W.-6 and Investigating
Officer R.P.Ahirwar Sub-Divisional Officer of Police
P.W.-15 were not confronted with it by the defence.
While deriving support from Modi’s Medical
Jurisprudence and Toxicology (Twenty-Third Edition,
Editors Shri K. Mathiharan and Shri Amrit K.
Patnaik), it was argued that asphyxial death of
Rajkumari due to throttling was clearly proved in
view of the finding that petechial haemorrhage of
lungs was present, right chamber was filled with
blood while left chamber was empty and bloody froth
was emerging from nostrils and mouth. During autopsy
the hands of the deceased were not clenched because
Rigor Mortis had passed away in the upper limbs. It
was argued that if the windpipe was not completely
closed, then by application of pressure on the throat
bleeding would occur from the mouth and nostrils and
death may not be instantaneous, but may be delayed
and the person would be rendered insensible
thereafter. So far as the confirmation of death
penalty is concerned, it was argued that the gruesome
rape and murder of the hapless sister-in-law on the
Rakshabandhan Day by the brother-in-law in concert
with three other co-accused was one of the most
aggravating circumstances which would justify the
extreme penalty, i.e., death sentence. It was
further argued that the act of the appellants/accused
was premeditated since before commission of rape they
had assembled in the house of appellant Ranjeet and
had consumed liquor. The manner in which a hapless
young married woman with two minor children was raped
and murdered by the appellants/accused in her house,
the case squarely fell into the category of the
rarest of rare cases and, therefore, death penalty
awarded by the learned Additional Sessions Judge,
Pendra Road was wholly justified and deserved
confirmation by the High Court.
(12) Dr. Rajesh Pandey, learned counsel appearing for
respondents No.1 and 3/accused namely Ramnaresh and
Amar Singh in Criminal Reference No.3/2007, replying
to the death reference, argued that the conduct of
Dhaniram P.W.-6, the solitary witness was unnatural
inasmuch as he did not disclose the names of the
respondents/accused to anyone for 2 days. Learned
counsel further argued that the testimony of
Sugaribai P.W.-12 did not disclose that when Dhaniram
P.W.-6 informed her, he was perplexed or was in a
state of shock. It was further argued that according
to Dhaniram P.W.-6 the offence had occurred sometime
before midnight whereafter he had informed Sugaribai
P.W.-12 and the testimony of Sugaribai P.W.-12
revealed that Dhaniram P.W.-6 had informed her at 3
A.M. Thus, there is material contradiction regarding
the time when Dhaniram P.W.-6 actually informed
Sugaribai P.W.-12. If the respondents/accused had
committed the gruesome rape and murder of Rajkumari,
they would not have asked Dhaniram P.W.-6 to inform
Sugaribai P.W.-12, but would have simply threatened
him to keep quiet. It was also argued that the
testimony of Indrajeet P.W.-1 revealed that his
brother Harjeet Prasad (which according to Shri
Bhaskar Payashi, learned Panel Lawyer appearing for
the State is a typographical error while recording
evidence and should have been Ranjeet) was also
present at the house on the date of occurrence, but
during investigation the whereabouts of Harjeet
Prasad were not explored. It was further argued that
the delay of 2 days in recording statement of
Dhaniram P.W.-6 rendered his testimony unworthy of
credit. The prosecution had miserably failed to
prove that the respondents/accused had been medically
examined to find out traces of skin in their nails or
to prove that they were potent and capable of sexual
intercourse. Breach of Section 53A of the Code
during investigation was thus a serious lacuna, which
created a serious dent in the prosecution story. The
testimony of Dhaniram P.W.-6 would reveal that the
needle of suspicion for being involved in commission
of the offence also revolved around him. It was,
therefore, incumbent upon the investigating officer
to have got the pattern of nails of Dhaniram P.W.-6
examined during investigation. Learned counsel also
submitted that conduct of respondent/accused Ranjeet
in being present through out on the following day on
arrival of Indrajeet P.W.-1 at the place of
occurrence also ruled out his participation in the
crime. The fact that the police had on 19-9-2006 got
the statement under Section 164 of the Code of
Dhaniram P.W.-6 recorded would go to show that the
police wanted to pin him down to the statement
recorded under Section 161 of the Code per force
while detaining him in the lock-up. Learned counsel
argued that the possibility that Dhaniram P.W.-6,
whose presence at the scene of occurrence was not in
dispute, had committed rape and murder of Rajkumari
could not be ruled out. It was also argued that the
prosecution had failed to bring home the guilt of the
respondents/accused beyond the shadow of doubt and in
the facts and circumstances awarding death penalty to
the respondents/accused was wholly uncalled for
because the case did not fall into the category of
the rarest of rare cases.
(13) Shri Arun Kochar, learned counsel appearing for
respondents No.2 and 4/accused namely Vishwanath
Singh and Ranjeet Kewat in Criminal Reference
No.3/2007 adopted the arguments advanced by Dr.
Rajesh Pandey, learned counsel for respondents No.1
and 3/accused namely Ramnaresh and Amar Singh.
(14) Having considered the rival submissions, we have
perused the record with utmost circumspection. There
is absolutely no material on record to show that the
appellants/accused Ramnaresh, Vishwanath Singh, Amar
Singh and Ranjeet Kewat had consumed liquor in the
house of appellant Ranjeet prior to commission of the
offence. Sunita P.W.-2, Anita P.W.-3, Belabai P.W.-5
and Kamlesh P.W.-10 turned hostile and did not
support the prosecution story. Even Dhaniram P.W.-6
did not depose that the appellants/accused had
consumed liquor in the house of appellant Ranjeet
before commission of the offence. Sunita P.W.-2,
Anita P.W.-3, Belabai P.W.-5 and Kamlesh P.W.-10 did
not depose that the appellants/accused had assembled
at the house of appellant Ranjeet while they were
watching television with Rajkumari. Only
circumstantial evidence available against the
appellants/accused is the opinion given by the
Forensic Science Laboratory, Raipur in the report
Ex.P-23, whereby presence of blood on the shirt
Article B of appellant Ranjeet, underwears Articles
C, D and E of appellants Vishwanath Singh, Amar Singh
and Ramnaresh respectively and the presence of
seminal stains and human spermatozoa on the slides
H1, I1, J1 and K1 of the appellants/accused was
confirmed. However, the prosecution did not produce
report of the medical examination of the
appellants/accused and also did not examine the
doctor who had prepared their seminal slides. The
seizure memo Ex.P-13 does not, in any manner, show
that the slides were seminal slides. Thus, there is
no evidence as to who had prepared the slides of the
appellants/accused and when. Blood group of the
stains found on the shirt `Article B’ of appellant
Ranjeet was not matched with the blood group of the
deceased. Serological test was not performed to
prove that blood found on the shirt `Article B’ was
human blood. By any stretch of imagination if the
seminal slides were prepared on the date when seized,
i.e., on 19-8-2006, it would, in no manner, show the
complicity of the appellants/accused in the
commission of rape on Rajkumari on 9-8-2006.
(15) The memo Ex.P-21 of the Senior Superintendent of
Police, Bilaspur clearly shows that the seminal
slides of the appellants/accused had been preserved
after they were medically examined. It is true that
the prosecution did not produce the medical
examination report of the appellants/accused as
contemplated by Section 53A of the Code. However,
neither in their examination under Section 313 of the
Code nor in their defence the appellants/accused took
the plea that they were impotent or incapable of
sexual intercourse. Kamla D.W.-2, wife of appellant
Ranjeet also did not state anything in this regard.
Had the appellants/accused taken the defence that
they were impotent or incapable of sexual intercourse
then non-compliance of Section 53A of the Code could
have enured to their benefit. In this view of the
matter, in the absence of any specific defence that
the appellants/accused were impotent or incapable of
sexual intercourse, non-production of report of their
medical examination and non-examination of the doctor
conducting the medical examination of the
appellants/accused would not be fatal to the
prosecution. The argument of Shri Bhaskar Payashi,
learned Panel Lawyer for the State that as the names
of the appellants/accused were disclosed by Dhaniram
P.W.-6 as late as 12-8-2006, the possibility that
during this period due to bathing and cleaning etc.
by the appellants/accused the evidence as to
commission of the offence of rape would have
disappeared and, therefore, non-production of the
report of medical examination of the
appellants/accused was not fatal to the prosecution,
is well merited. Under Section 53A of the Code
during investigation the medical examination of a
person accused of rape would be non-productive if
there are no reasonable grounds for believing that
such medical examination would afford evidence as to
the commission of such offence. Since the seminal
stains and traces of skin in the nails, if any, would
have disappeared due to bathing and cleaning for 3
days, it cannot be said that there were reasonable
grounds for the investigating officer to believe that
production of the report of medical examination of
the appellants/accused would afford evidence as to
the commission of rape. It is also pertinent to note
that despite there being no material to show that the
appellants/accused were medically examined, the
appellants/accused did not take the plea till
culmination of the trial that they were impotent or
incapable of sexual intercourse. To reiterate, in
the facts and circumstances of the case, non-
production of the report of medical examination of
the appellants/accused would not enure to the benefit
of the appellants/accused since the
appellants/accused did not take the plea that they
were impotent or incapable of sexual intercourse.
(16) The findings and opinion recorded by Dr. Sheela
Saha P.W.-7 after conducting the autopsy on the body
of the deceased Rajkumari have been mentioned in
paragraph 6 supra which are fully established by her
wholly unrebutted testimony and proves beyond doubt
that gang rape was committed on Rajkumari and that
thereafter she had died a homicidal death. It is
pertinent to note that Dhaniram P.W.-6 was not at all
confronted by the defence with his statement under
Section 161 of the Code. It is well settled that the
statement of a witness recorded under Section 161 of
the Code can be used only for the purpose of
contradicting the witness or for proving an omission
therein and for no other purpose. It is thus not
permissible under law to read any part of the
statement of a witness recorded by the police under
Section 161 of the Code unless the witness has been
confronted during cross-examination with his
statement to the police. The substantive evidence of
a witness is his testimony before a Court of law
during trial.
(17) Dhaniram P.W.-6 deposed that while he was
watching television at about 10-11 P.M. in the
Parchhi, all the appellants/accused arrived and
hurling filthy abuses told him that they would commit
rape on Rajkumari and brought him from the Parchhi to
the courtyard. Appellants Ramnaresh and Amar Singh
held him in the courtyard while Vishwanath and
Ranjeet went in the room where Rajkumari was
sleeping. Vishwanath and Ranjeet emerged from the
room after half an hour and thereafter Ramnaresh and
Amar Singh went inside the room. It is very
important to notice that Dhaniram P.W.-6 did not
depose that Vishwanath and Ranjeet had held him in
the courtyard while Ramnaresh and Amar Singh had
entered the room where Rajkumari was sleeping. It is
also very important to notice that during inquest by
Head Constable Jagmohan Panna P.W.-14 he had found a
white piece of saree having blood like stains by the
side of the dead body of Rajkumari. There is an old
saying that witnesses may lie, but circumstances do
not. The autopsy report Ex.P-12 proves that blood
mixed froth had oozed from the nostril and mouth of
Rajkumari, abrasions and scratch mark were present
around the neck and petechial haemorrhage was present
in both lungs, which according to Modi’s Medical
Jurisprudence and Toxicology are positive indications
of asphyxial death. There is no room for any doubt
that the appellants/accused had used the piece of
saree for gagging the mouth of Rajkumari at the time
of commission of rape, which is precisely the reason
why Rajkumari could not shout. Dhaniram P.W.-6 did
not depose as to what appellants Vishwanath and
Ranjeet did after appellants Ramnaresh and Amar Singh
entered the room. He deposed that after appellants
Ramnaresh and Amar Singh came out of the room all the
four appellants/accused had threatened that they
would also kill him if he disclosed the incident to
anyone. His testimony in paragraph 3 that before
visiting the house of Rajkumari all the appellants
had assembled at the house of appellant Ranjeet and
consumed liquor is wholly unrebutted in cross-
examination as nothing has been elicited in cross-
examination to discredit this testimony. In cross-
examination, the defence even did not deny the above
assertion made by Dhaniram P.W.-6. Testimony of
Dhaniram P.W.-6 that all the four appellants/accused
had threatened that they would also kill him if he
disclosed the incident to anyone has also remained
unrebutted in cross-examination. Dhaniram P.W.-6 was
not at all confronted with his statement under
Section 161 of the Code. Dhaniram P.W.-6 deposed
that before going to inform Sugaribai P.W.-12, he had
seen a glimpse of the body of Rajkumari lying covered
on the cot. Considering the testimony of Dhaniram
P.W.-6 in its totality there does not remain any
doubt that the appellants/accused had, after
committing gang rape on Rajkumari throttled her to
death and had only thereafter threatened Dhaniram
P.W.-6 that they would also kill him if he disclosed
the incident to anyone.
(18) The testimony of Sugaribai P.W.-12 further
proves that on reaching the house of Indrajeet P.W.-1
upon information received from Dhaniram P.W.-6, she
saw that Rajkumari was lying dead on the cot. Her
hair and clothes were untidy. Bangles of a hand and
an ear ring were missing. The blouse was raised and
her body was covered by a blanket. She also saw that
impressions of fingers and thumb were present on the
throat of Rajkumari. Blood had oozed from her
private parts. Testimony of Dr. Sheela Saha P.W.-7
proves beyond doubt that there were two abrasions of
the size 0.5″x0.5″ with scratch mark by nails below
the angle of right mandible just in front of the
sterno cleado mastoid muscle with another scratch
mark 1″ in length present above it. There was an
abrasion on the left side of neck below the angle of
mandible to mastoid process with scratch mark as
shown in the diagram drawn by her. There was an
abrasion in the thigh of size of 1″x0.5″ with
contusion 1″x1″ present on both medial aspects of
thigh. There were lacerations with abrasions 3 to 4
in number over perineum with blood mixed discharge.
Eyes and mouth were semi-open. Blood mixed froth had
oozed from the nostril and mouth. These findings
leave no room for any doubt that the
appellants/accused had throttled Rajkumari after
commission of gang rape on her. So far as the
absence of a finding that there was fracture of the
hyoid bone is concerned, according to Modi’s Medical
Jurisprudence and Toxicology the hyoid bone and
superior cornuae of the thyroid cartilage are not, as
a rule, fractured in a case of death by throttling.
All the appellants/accused shared the common
intention to commit murder of Rajkumari, which is
also borne out from the fact that after causing the
death of Rajkumari, all the four appellants/accused
had asked Dhaniram P.W.-6 that he should not disclose
the incident to anyone or else they would also kill
him. The exact words used by Dhaniram P.W.-6 need
reproduction. He deposed in paragraph 2 that “eSa ml
le; jktdqekjh ds ?kj ds ijNh esa Vhoh ns[k jgk Fkk
rks pkjksa vfHk0x.k vk;s vkSj eq>s ekWa cgu dh
xkfy;ka nsrs gq, cksys fd jktdqekjh ds lkFk cykRdkj
djsaxs vkSj eq>s ?kj ds vkaxu esa fudky fn;sA
………….. eSa vkaxu esa gh Fkk A mlds ckn
pkjksa vkjksih eq>s cksys fd fdlh dks ?kVuk ds ckjs
esa er crkuk ugha rks rq>s Hkh ekj nsaxsA” (emphasis
supplied by me) It is wholly immaterial as to which
of the appellants/accused actually throttled
Rajkumari to death since all the four
appellants/accused shared the common intention to
commit murder after committing gang rape with her.
Obviously, none of the appellants/accused would have
wanted Rajkumari to be alive since she would have
named them as the persons who had gang raped her.
Thus, all the four appellants/accused had the
requisite intention required under law to commit
murder of Rajkumari in furtherance of which all of
them or some of them throttled Rajkumari to death
after committing gang rape with her. All the
appellants/accused had threatened Dhaniram P.W.-6
that they would also kill him (emphasis supplied by
me) if he disclosed the incident to anyone which
shows that while committing murder of Rajkumari the
appellants/accused were acting in furtherance of
their common intention. Thus, absence of evidence as
to which of the appellants/accused actually throttled
Rajkumari to death does not, in any manner, either
dilute the guilt of the appellants/accused under
Section 302 read with Section 34 of the Indian Penal
Code or justify imposition of the lesser penalty on
them. Thus, the testimony of Dhaniram P.W.-6 an eye
witness, medical evidence of Dr. Sheela Saha P.W.-7,
the findings recorded in the memo of inquest Ex.P-3
and the testimony of Sugaribai P.W-12 leave no room
for any doubt that the appellants/accused had, after
committing house trespass with intent to commit gang
rape and murder of Rajkumari, committed gang rape
with her and committed her murder thereafter by
throttling her.
(19) The question which arises for our consideration
now is whether the learned Additional Sessions Judge,
Pendra Road was justified in convicting the
appellants/accused under Sections 449, 376(2)(g) and
302 read with Section 34 of the Indian Penal Code on
the basis of the sole testimony of Dhaniram P.W.-6, a
lad aged 16 years.
(20) The law is well settled that the Court may
convict on the basis of the testimony of a single eye
witness, but the Court must be satisfied that the
testimony of the solitary eye witness is of such
sterling quality that it is safe to base a conviction
solely on the testimony of such witness. In doing
so, the Court must test the credibility of the
witness by reference to the quality of his evidence.
The evidence of such witness must be free from any
blemish or suspicion and must impress the Court as
wholly truthful and so convincing that the Court
would have no hesitation in recording a conviction
solely on the testimony of such witness. In Joseph
vs. State of Kerala, (2003) 1 SCC 465, the Supreme
Court of India held as under:
“When there is a sole witness to the
incident his evidence has to be accepted
with an amount of caution and after testing
it on the touchstone of the evidence
tendered by other witnesses or evidence as
recorded. Section 134 of the Indian
Evidence Act provides that no particular
number of witnesses shall in any case be
required for the proof of any fact and,
therefore, it is permissible for a court to
record and sustain a conviction on the
evidence of a solitary eyewitness. But, at
the same time, such a course can be adopted
only if the evidence tendered by such
witness is cogent, reliable and in tune
with probabilities and inspires implicit
confidence. By this standard, when the
prosecution case rests mainly on the sole
testimony of an eyewitness, it should be
wholly reliable.”(21) We shall now undertake a very close scrutiny of
the evidence of Dhaniram P.W.-6 with a view to
ascertain whether it is of such sterling quality that
the conviction of the appellants/accused for the
offence of house trespass, gang rape and murder could
safely rest on it.
(22) The presence of Dhaniram P.W.-6 at the scene of
occurrence is beyond doubt. He is the servant of
Indrajeet P.W.-1 and also works for appellant Ranjeet
as narrated by his wife Kamla D.W.-2. Kamla D.W.-2
has clearly mentioned that alias name of Dhaniram
P.W.-6 is Rottam. It has been argued by all the
learned counsel appearing for the
appellants/respondents/accused Ramnaresh, Vishwanath
Singh, Amar Singh and Ranjeet Kewat in Criminal
Appeal No.1117/2007 and Criminal Reference No.3/2007
that the possibility of Dhaniram P.W.-6 committing
rape and murder of Rajkumari and falsely implicating
the appellants/respondents/accused could not be ruled
out. Thus, the presence of Dhaniram P.W.-6 at the
place of occurrence at the time of offence is
unquestionable.
(23) Rajkumari was a married woman aged 24 years and
had two children sleeping by her side. The testimony
of Dhaniram P.W.-6 in paragraph 8 shows that
occasionally Sugaribai P.W.-12 used to sleep at the
house of Rajkumari in the absence of Indrajeet P.W.-
1, but on the date of occurrence, she did not come.
He further deposed that he had gone to sleep at the
house of Rajkumari because she had met him at the
shop and had asked him to sleep at the house.
Dhaniram P.W.-6 is a young boy of 16 years.
Stretching our imagination to the farthest, we are
unable to accept the argument of the defence that
possibly Dhaniram P.W.-6 had committed rape and
murder of Rajkumari.
(24) If Dhaniram P.W.-6 alone had committed rape on
Rajkumari, there would have been a struggle between
them as the 24 years old Rajkumari, a mother of two
children who were sleeping by her side, would not
have allowed Dhaniram P.W.-6 to have an easy go with
her. She would have resisted by scratching Dhaniram
P.W.-6 and resisting to the maximum. Her hands and
feet would have been free to resist and defend if
Dhaniram P.W.-6 alone had attempted rape on her.
Injuries, scratch marks would have been found on
Dhaniram P.W.-6. Had Dhaniram P.W.-6 committed rape
and murder of Rajkumari, he would not have gone to
inform Sugaribai P.W.-12 that Rajkumari would not
awake from sleep. He would have disappeared. After
Sunita P.W.-2, Anita P.W.-3 and Belabai P.W.-5 left
the house after watching television, he would not
have waited till 11-12 P.M. if Rajkumari had already
slept at 9:30 P.M. Thus, while presence of Dhaniram
P.W.-6 at the time and place of occurrence is proved
beyond doubt, the possibility that he might have
committed rape and murder of Rajkumari is, in our
considered opinion, not even the remotest by the
farthest stretch of our imagination.
(25) Indrajeet P.W.-1 deposed in paragraph 10 that
the shining material of the bangles of his wife was
noticed by him on the right side of the body of
Dhaniram P.W.-6. He further narrated that while they
were cleaning the house and the room, pieces of
bangles were found in a box, which Dhaniram P.W.-6
had collected in the box. However, Dhaniram P.W.-6
was not at all confronted with this evidence by the
defence. It appears that Indrajeet P.W.-1 was
completely misled by the skillful cross-examination
by the defence as it would be impossible for any
human being to identify the shining material of the
bangles of his wife on the body of another.
Panchnama of the dead body Ex.P-3 shows that the
bangles of only the right hand and not the left hand
were found broken and the bangles were lying by the
side of Rajkumari on the bed. Thus, it is not a case
where there was a struggle with Rajkumari all over
the place where she was sleeping so as to scatter the
pieces of her bangles all over. The testimony of
Indrajeet P.W.-1 in paragraph 10 would clearly show
that it is only after the holding of inquest and
removing of the dead body, the cleaning of the room
would have taken place. Being the servant, if
Dhaniram P.W.-6 had found some bangles and kept them
in a box, it would not, by any stretch of imagination
raise any suspicion of Dhaniram P.W.-6 being the
perpetrator of the crime.
(26) If Dhaniram P.W.-6, a lad of 16 years, had
committed the gruesome rape and murder of Rajkumari
alone, he would not have been able to maintain his
equilibrium so as to calmly stay at the house of
Sugaribai P.W.-12 till she returned after visiting
the place of occurrence and then work at the house of
Indrajeet P.W.-1 the very next day when the police
held the inquest.
(27) The defence did not ask a single question to
Dhaniram P.W.-6 in his entire cross-examination,
which would indicate that he had any axe to grind
against the appellants/accused or bore any grudge
against them. No reason has been shown by the
defence as to why Dhaniram P.W.-6 would shield the
real culprit and implicate the appellants/accused, if
they were innocent. Kamla D.W.-2, the wife of
appellant Ranjeet also did not divulge any reason as
to why Dhaniram P.W.-6 would falsely implicate her
husband. She deposed that at 3-4 A.M., Rottam alias
Dhaniram P.W.-6 had knocked at her door and informed
her that Rajkumari was unconscious. She thereafter
sent Dhaniram P.W.-6 to inform Sugaribai P.W.-12.
This conduct of Dhaniram P.W.-6 also completely
belies the possibility of his involvement in the rape
and murder of Rajkumari.
(28) The delay in recording the statement of Dhaniram
P.W.-6 under Section 161 of the Code has been blown
out of proportion by the defence. Dhaniram P.W.-6 is
a lad of 16 years. The learned trial Judge rightly
relied on the observation of the Supreme Court in
Narayan Singh and others vs. State of M.P., AIR 1985
SC 1678 that it is not uncommon for persons when they
see a ghastly and dastardly murder being committed in
their presence that they almost lose their sense of
balance and remain dumb founded until they are able
to compose themselves. This is precisely what must
have happened to Dhaniram P.W.-6 when he saw the
hapless wife of his master Indrajeet P.W.-1 being
gang raped and murdered by his master’s brother and
three other able bodied appellants/accused who
threatened to kill him.
(29) Dhaniram P.W.-6 made no effort to flee from the
place of occurrence but remained present and
available through out. He kept mum when asked by
Indrajeet P.W.-1 and Sugaribai P.W.-12 and the merg
intimation by Indrajeet P.W.-1 also did not disclose
suspicion on anyone. Nobody tried to falsely
implicate anyone. Even during inquest, suspicion was
not raised on anyone since the actual culprits were
not known. It is only in the statement under Section
161 of the Code of Indrajeet P.W.-1 that he had
pointed a mere suspicion on one Bhupendra, whom
Rajkumari had married 3 years before he married her.
Investigating Officer R.P.Ahirwar Sub-Divisional
Officer of Police P.W.-15 has deposed in paragraph 7
that the suspicion raised by Indrajeet P.W.-1 was not
found to be true during investigation. Since
Dhaniram P.W.-6 was undoubtedly present at the scene
of occurrence and did not divulge the names of the
real culprits, he was detained at the police station
and probably given some beating by the police.
Placed in such a situation a person even though
innocent, on being called by the police would be
scared and apprehensive of the likelihood of his
being implicated for the crime which he did not
commit. Therefore, his statement that he feared
false implication by police for the crime which he
did not commit is natural. The detention of Dhaniram
P.W.-6 at the police station or in the lock-up is
thus natural and can, by no stretch of imagination,
be taken to raise a doubt that the police suspected
his involvement in the gruesome gang rape and murder
of Rajkumari. If the witness, who was undoubtedly
present at the scene of occurrence did not divulge
the names of the culprits for 2 days, the treatment
given by the police to Dhaniram P.W.-6 was not at all
unnatural or uncalled for. For the foregoing reasons
the mere fact that Dhaniram P.W.-6 disclosed the
involvement of the appellants/accused in the
commission of gang rape and murder of Rajkumari for
the first time on 12-8-2006 does not in any manner
render him unworthy of credit.
(30) So far as the statement of Dhaniram P.W.-6 under
Section 164 of the Code recorded by the Judicial
Magistrate First Class, Bilaspur on 19-9-2006 is
concerned, suffice it to say that Dhaniram P.W.-6 was
the sole eye witness to the gruesome gang rape and
murder of Rajkumari and had named the
appellants/accused for the first time on 12-8-2006 in
his statement under Section 161 of the Code.
Considering his age and the threat given by the
appellants/accused and to rule out the possibility
that he would retract from his statement under
Section 161, the police must have got his statement
under Section 164 recorded before a Magistrate.
However, no inference can be drawn that he was
compelled by the police to depose under pressure. In
any case, since Dhaniram P.W.-6 did not resile from
his statement under Section 161 and deposed
truthfully against the appellants/accused before the
trial Court, his statement under Section 164 is of no
avail to the defence especially because the defence
did not contradict Dhaniram P.W.-6 from his statement
under Section 164. A perusal of the statement under
Section 164 recorded by the Judicial Magistrate First
Class, Bilaspur on 19-9-2006 also goes to show that
it was not recorded in conformity with law because
the Magistrate did not append beneath the statement
the essential certificate that she had explained to
Dhaniram P.W.-6 that he is not bound to make a
confession and that, if he does so, any confession he
may make may be used as evidence against him and she
believed that this confession was voluntarily made,
taken in her presence and hearing, and was read over
to Dhaniram P.W.-6 and admitted by him to be correct
and contained a full and true account of the
statement made by him. In other words, the recording
of statement of Dhaniram P.W.-6 under Section 164 is
of no avail to the defence in this case.
(31) Perusing the testimony of Dhaniram P.W.-6 with
utmost circumspection, we thus find that he has
withstood the test of skillful cross-examination by
the defence counsel. When he was asked as to whether
he went to call appellant Ranjeet when Rajkumari was
struggling for life, he replied that Ranjeet was
involved in the crime and, therefore, why would he go
to call him. The testimony of Dhaniram P.W.-6 proves
that all the four appellants/accused after hurling
filthy abuses told him that they would commit rape on
Rajkumari and had drawn him out in the courtyard. It
could be that the son of Rajkumari, who was lying by
her side, was also given by the appellants/accused to
Dhaniram P.W.-6, who admitted that he was carrying
the son of Rajkumari while the daughter was crying.
The counsel for the defence made the best endeavour
to elicit favourable answers from Dhaniram P.W.-6 by
skillful cross-examination but the learned trial
Judge rightly ensured that the witness has understood
the questions before answering them which is in
conformity with the decision of the Supreme Court of
India in Zahira Habibulla H. Sheikh and another vs.
State of Gujarat and others, (2004) 4 SCC 158 in
which the Court held as under:
“The courts have to take a participatory
role in a trial. They are not expected to
be tape recorders to record whatever is
being stated by the witnesses. Section 311
of the Code and Section 165 of the Evidence
Act confer vast and wide powers on
presiding officers of court to elicit all
necessary materials by playing an active
role in the evidence-collecting process.
They have to monitor the proceedings in aid
of justice in a manner that something,
which is not relevant, is not unnecessarily
brought into record.”(32) The purpose of asking questions during
examination under Section 313 of the Code is to
afford the accused personally an opportunity of
explaining any incriminating circumstance so
appearing in evidence against him. The accused may
or may not avail the opportunity for offering his
explanation. The appellants/accused did not avail
the opportunity and on being confronted with the
testimony of Dhaniram P.W.-6 that they had visited
the house of appellant Ranjeet at 9 P.M. by question
No.28 stood short by simply stating that they would
not know. The appellants/accused did not deny that
they had assembled at the house of appellant Ranjeet
around 9 P.M.
(33) It is also pertinent to note that after the
occurrence the appellants/accused were keeping a
constant watch over Dhaniram P.W.-6. Appellant
Ranjeet was present near the dead body of Rajkumari
till it was taken for post mortem examination and
appellant Vishwanath had even accompanied the dead
body of Rajkumari for post mortem. In other words,
due to the presence of his master appellant Ranjeet
and co-accused Vishwanath who had threatened to kill
Dhaniram P.W.-6 if he disclosed their involvement in
the offence to anyone, it was natural for Dhaniram
P.W.-6, a lad of 16 years, to have kept quiet for 2
days till he was questioned by the police.
(34) The testimony of Dhaniram P.W.-6 is fully
corroborated by medical evidence of Dr. Sheela Saha
P.W.-7 and the testimony of Sugaribai P.W.-12. The
confirmation of blood on the piece of saree used for
gagging the mouth of Rajkumari and the confirmation
of presence of semen and human spermatozoa on the
vaginal slides of Rajkumari and the findings during
autopsy duly proved by Dr. Sheela Saha P.W.-7 leave
no room for any doubt that the appellants/accused had
committed house trespass with intent to commit gang
rape and murder, an offence punishable with death and
had thereafter committed gang rape with Rajkumari and
thereafter committed her murder by throttling her to
death.
(35) So far as the mention of the name of Harjeet in
paragraph 1 of his testimony by Indrajeet P.W.-1 as
being present in his house with servant Dhaniram P.W.-
6 at the time of occurrence, it is nothing but a
typographical error. No question was put to any
witness that besides appellant Ranjeet, Indrajeet
P.W.-1 also had a brother named Harjeet.
(36) Having thus undertaken a very close and critical
scrutiny of the evidence of Dhaniram P.W.-6, we are
of the considered opinion that his evidence is of
such sterling quality that conviction of the
appellants/accused for the commission of gang rape
and murder after house trespass with that intention
can safely be rested on it. We find that the
evidence of Dhaniram P.W.-6 is free from any blemish
or suspicion and impresses us as wholly truthful,
natural and so convincing that we have no hesitation
in upholding the conviction of the appellants/accused
recorded by the learned Additional Sessions Judge,
Pendra Road for the offences under Sections 449,
376(2)(g) and 302 read with Section 34 of the Indian
Penal Code solely on the basis of the testimony of
Dhaniram P.W.-6 the lone eye witness.
(37) The evidence led by the appellants/accused does
not prove the defence of alibi. The testimony of
Samelal D.W.-1 and Kamla D.W.-2 wife of Ranjeet is
nothing but an afterthought. It is unbelievable that
Samelal D.W.-1 an agriculturist was keeping a watch
as to when they would go to sleep. His testimony
that he would frequently go to the house of Ramnaresh
to confirm that he was sleeping, is nothing but a
bundle of falsehood. The testimony of Kamla D.W.-2
wife of Ranjeet that she had slept with Ranjeet at 9
P.M. on the date of occurrence is contradicted by
Samelal D.W.-1 who stated in paragraph 3 that Ranjeet
had gone to sleep at his house at 10 P.M. Thus, the
evidence led by the defence is nothing but an
afterthought and does not provide any alibi to the
appellants/accused.
(38) Having thus carefully scrutinised the evidence
led by the prosecution and the defence in its
entirety and for the foregoing reasons, we are of the
considered opinion that the learned Additional
Sessions Judge, Pendra Road was wholly justified in
convicting the appellants/accused under Sections 449,
376(2)(g) and 302 read with Section 34 of the Indian
Penal Code. The sentence awarded by the learned
Additional Sessions Judge, Pendra Road for the
offences under Sections 449 and 376(2)(g) of the
Indian Penal Code are wholly commensurate to the
offences committed by the appellants/accused and do
not call for any interference. Criminal Appeal
No.1117/2007 preferred by the appellants/accused
Ramnaresh, Vishwanath Singh, Amar Singh and Ranjeet
Kewat is, thus, without merit and is liable to be
dismissed.
(39) The only question which now remains for our
consideration is whether the case in hand is the
rarest of rare cases and whether the learned trial
Judge was justified in awarding the extreme penalty
to the appellants/accused for the offence under
Section 302 read with Section 34 of the Indian Penal
Code.
(40) It is well settled that death penalty can be
awarded only in the rarest of rare cases. For the
offence of murder life imprisonment is the rule and
death sentence is an exception. 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.
(41) In Machhi Singh and others vs. State of Punjab,
(1983) 3 SCC 470, the Supreme Court observed as
under:
“The following questions may be asked and
answered as a test to determine the `rarest
of rare’ case in which death sentence can
be inflicted:(a) Is there something uncommon about
the crime which renders sentence
of imprisonment for life
inadequate and calls for a death
sentence?(b) Are the circumstances of the
crime such that there is no
alternative but to impose death
sentence even after according
maximum weightage to the
mitigating circumstances which
speak in favour of the offender?”(42) In Shivu and another vs. R.G., High Court of
Karnataka and another, 2007 Cri.L.J. 1806, the
Supreme Court narrated the guidelines emerging from
the case of Bachan Singh vs. State of Punjab, (1980)
2 SCC 684 which have to be applied to the facts of
each individual case where the question of imposition
of death sentence arises. They are as under:
“(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 along with the circumstances
of the `crime’.(iii) Life imprisonment is the rule and death
sentence is an exception. 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
imprisonment 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.In rarest of rare cases when 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:(1) 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.(2) 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 a cold-blooded
murder for gains of a person vis–vis whom the
murderer is in a dominating position or in a position
of trust, or murder is committed in the course for
betrayal of the motherland.(3) 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 deaths’ 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.(4) 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.(5) 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 cases, the
circumstances of the case are such
that death sentence is warranted, the
court would proceed to do so.”
(43) In Shivu and another vs. R.G., High Court of
Karnataka and another (supra), a young girl of 18
years was murdered by the appellants and to avoid
detection the appellants committed the heinous and
brutal act of her murder. Considering the view
expressed by the Supreme Court of India in Bachan
Singh vs. State of Punjab (supra) and Machhi Singh
and others vs. State of Punjab (supra), it was held
that the case fell in rarest of rare category and
death sentence awarded by the trial Court and
confirmed by the High Court was affirmed.
(44) In Dhananjoy Chatterjee alias Dhana vs. State of
W.B., (1994) 2 SCC 220, it was held that the sordid
episode of the security guard, whose sacred duty was
to ensure the protection and welfare of the
inhabitants of the flats in the apartment, to gratify
his lust and murder a resident of one of the flats in
retaliation for his transfer on her complaint, the
appellant committed the most heinous type of barbaric
rape and murder on a helpless and defenceless school-
going girl of 18 years. The Supreme Court held as
under:
“16. The sordid episode of the security
guard, whose sacred duty was to ensure the
protection and welfare of the inhabitants
of the flats in the apartment, should have
subjected the deceased, a resident of one
of the flats, to gratify his lust and
murder her in retaliation for his transfer
on her complaint, makes the crime even more
heinous. Keeping in view the medical
evidence and the state in which the body of
the deceased was found, it is obvious that
a most heinous type of barbaric rape and
murder was committed on a helpless and
defenceless school-going girl of 18 years.
If the security guards behave in this
manner who will guard the guards? The
faith of the society by such a barbaric act
of the guard, gets totally shaken and its
cry for justice becomes loud and clear.
The offence was not only inhuman and
barbaric but it was a totally ruthless
crime of rape followed by cold blooded
murder and an affront to the human dignity
of the society. The savage nature of the
crime has shocked our judicial conscience.
There are no extenuating or mitigating
circumstances whatsoever in the case. We
agree that a real and abiding concern for
the dignity of human life is required to be
kept in mind by the courts while
considering the confirmation of the
sentence of death but a cold blooded
preplanned brutal murder, without any
provocation, after committing rape on an
innocent and defenceless young girl of 18
years, by the security guard certainly
makes this case a “rarest of the rare”
cases which calls for no punishment other
than the capital punishment and we
accordingly confirm the sentence of death
imposed upon the appellant for the offence
under Section 302 IPC. …….”
(45) In Molai and another vs. State of Madhya
Pradesh, AIR 2000 SC 177, the appellants had, taking
advantage of the prosecutrix a girl aged 16 years
being alone, committed rape on her and thereafter
strangulated her by using her undergarments, caused
injuries on her person with a sharp edged weapon and
threw her body into a septic tank at the backside of
the house. The Supreme Court held that it was the
rarest of rare cases where capital punishment was
rightly awarded to each appellant.
(46) In Shivaji @ Dadya Shankar Alhat vs. State of
Maharashtra, AIR 2009 SC 56, in a case where the
appellant who was residing nearby and was known to
the deceased and her family and had asked the
deceased a minor girl of 9 years to accompany him to
a hill on the pretext of giving her firewood and
thereafter committed rape and murder, it was held by
the Supreme Court of India that the case at hand fell
in the rarest of rare category. The circumstances
established cruel acts of the accused and called for
only one sentence, i.e., death sentence. In
paragraphs 25 and 26, it was observed as under:
“25. …… It will be a mockery of justice
to permit the accused to escape the extreme
penalty of law when faced with such
evidence and such cruel acts. To give the
lesser punishment for the accused would be
to render the justicing system of the
country suspect. The common man will lose
faith in courts. In such cases, he
understands and appreciates the language of
deterrence more than the reformative
jargon.
26. Therefore, undue sympathy to impose
inadequate sentence would do more harm to
the justice system to undermine the public
confidence in the efficacy of law and
society could not long endure under such
serious threats. It is, therefore, the
duty of every court to award proper
sentence having regard to the nature of the
offence and the manner in which it was
executed or committed etc. This position
was illuminatingly stated by this Court in
Sevaka Perumal etc. v. State of Tamil Nadu
(AIR 1991 SC 1463).”
(47) Having gone through the various decisions of the
Supreme Court of India, the gruesome and ghastly gang
rape and murder of the hapless Rajkumari on the
Rakshabandhan Day by her brother-in-law appellant
Ranjeet and three other appellants/accused, i.e.,
Ramnaresh, Vishwanath Singh and Amar Singh shows the
depravity and meanness of the appellants/accused,
who, to satisfy their lust, did not hesitate to
commit gang rape on a married woman and thereafter
murdered her inside her house when her husband had
gone out. The injuries found on Rajkumari,
externally as well as on her private parts, narrate
the ghastly act committed by the appellants/accused
who were all able bodied young men. The action of
the appellants/accused was premeditated and well
planned. Gang rape and murder of the helpless,
defenceless and innocent Rajkumari was cold-blooded,
premeditated and gruesome. The manner in which four
able bodied young men, i.e., the appellants/accused
had, for satisfying their lust, committed gang rape
on Rajkumari and throttled her to death shows that
the act of the appellants/accused was so uncommon and
so aggravating that sentence of imprisonment for life
would be inadequate and imposition of death penalty
alone would be justified for the offence of murder.
It is a case of gravest and extreme culpability. It
shocks the collective conscience of the community
which would expect the holders of the judicial power
centre to inflict death penalty in a case of murder
of a hapless woman inside her house by four able
bodied young men after satisfying their lust by
committing gang rape on her. The commission of gang
rape and murder of a hapless woman by four young and
able bodied appellants/accused is an extremely
brutal, grotesque, diabolical, revolting and
dastardly so as to arouse intense and extreme
indignation of the community. Appellant Ranjeet,
being the brother-in-law of the hapless Rajkumari,
was in a position of trust at least on the day of
Rakshabandhan when he, Ramnaresh, Vishwanath and Amar
Singh found the lonely Rajkumari an easy prey and
after overpowering her gang raped her purely for
satisfying their lust and brutally committed her
murder by throttling her thereafter. The act of the
appellants/accused was not on account of any enmity
or revenge. There are no mitigating circumstances in
this case which would call for imposition of a lesser
penalty. Gang rape of a woman is a most brutal
offence against humanity and destroys the very soul
of the woman completely. If after gang rape she is
murdered, nothing more is required to be done so as
to make the act so brutal and diabolical so as to
justify the extreme penalty since the act of gang
rape by four men on a lonely woman inside her house
and the commission of her murder thereafter by
throttling her surpasses all acts of brutality that
one can imagine.
(48) In State of H.P. vs. Shree Kant Shekari, (2004)
8 SCC 153, it was observed by the Supreme Court of
India as under:
“3. Sexual violence apart from being a
dehumanising act is an unlawful intrusion
on the right of privacy and sanctity of a
female. It is a serious blow to her
supreme honour and offends her self-esteem
and dignity – it degrades and humiliates
the victim and where the victim is a
helpless innocent child or a minor, it
leaves behind a traumatic experience. A
rapist not only causes physical injuries
but more indelibly leaves a scar on the
most cherished possession of a woman i.e.
her dignity, honour, reputation and not the
least her chastity. Rape is not only a
crime against the person of a woman, it is
a crime against the entire society. It
destroys, as noted by this Court in
Bodhisattwa Gautam v. Subhra Chakraborty,
(1996) 1 SCC 490 the entire psychology of a
woman and pushes her into deep emotional
crisis. It is a crime against basic human
rights, and is also violative of the
victim’s most cherished of the fundamental
rights, namely, the right to life contained
in Article 21 of the Constitution. The
courts are, therefore, expected to deal
with cases of sexual crime against women
with utmost sensitivity. Such cases need
to be dealt with sternly and severely. A
socially sensitised Judge, in our opinion,
is a better statutory armour in cases of
crime against women than long clauses of
penal provisions, containing complex
exceptions and provisos.”
(49) Taking an overall global view of all the
circumstances, we are of the considered opinion that
the circumstances of the case are such that the
present case falls into the category of the rarest of
rare cases and death penalty awarded to the
appellants/accused under Section 302 read with
Section 34 of the Indian Penal Code is wholly
justified. We do hope and trust that Parliament does
consider providing for the extreme penalty for the
offence of gang rape, which completely destroys the
soul of a woman and her right to live with dignity.
(50) In the result, we dismiss Criminal Appeal
No.1117/2007 by the appellants/accused Ramnaresh,
Vishwanath Singh, Amar Singh and Ranjeet Kewat and
allow Criminal Reference No.3/2007 under Section
366(1) of the Code by Shri Ram Kumar Tiwari, the
Additional Sessions Judge, Pendra Road, District
Bilaspur in Sessions Trial No.403/2006. Under
Section 368(a) of the Code, we confirm the sentence
of death awarded to the appellants/accused under
Section 302 read with Section 34 of the Indian Penal
Code by the learned Additional Sessions Judge, Pendra
Road. We also confirm the sentences awarded to the
appellants/accused by the learned Additional Sessions
Judge, Pendra Road under Sections 449 and 376(2)(g)
of the Indian Penal Code. We further order that the
death sentence awarded by the learned Additional
Sessions Judge, Pendra Road to the appellants/accused
under Section 302 read with Section 34 of the Indian
Penal Code and confirmed by us shall not be executed
until the period allowed for preferring an appeal has
expired, or, if an appeal is presented within such
period, until such appeal is disposed of.
(51) The Additional Registrar (Judicial) shall,
without delay, send a copy of this judgment and order
under the seal of the High Court and attested with
his official signature to the Additional Sessions
Judge, Pendra Road, District Bilaspur under Section
371 of the Code.
JUDGE JUDGE
24-7-2009 24-7-2009