Mr. G.K. Vyas, J. - The D.B. Cr. Murder (Death) Reference No.1/2015 had been filed by the State of Rajasthan for confirmation of the capital punishment awarded by the learned District & Sessions Judge, Pratapgarh vide judgment dated 18.9.2015 in Sessions Case No.149/2013 to the accused Prahald for committing offence under Section 302 IPC and under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012.
2. The D.B. Cr. Appeal No.970/2015 as well as the D.B. Cr. Jail Appeal No.1011/2015 have been filed by the accused appellant Prahalad under Section 374(2) of the Cr.P.C. to assail the judgment dated 18.9.2015 passed by learned Sessions Judge, Pratapgarh in Sessions Case No.149/2013 whereby the accused appellant was held guilty for offence under Section 302 IPC and for offence under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 and following sentence was passed against him by the learned trial court:
|
Under Section 302, IPC |
Death Sentence. |
|
Under Section 3 r/w 4 of POCSO Act, 2012 |
10 years RI with fine of Rs.10,000/- and in default of payment of fine to further undergo one year RI. |
3. Brief facts of the case are that on 6.7.2013 at about 1.00 pm the complainant Prabhu Lal filed a written complaint under his thumb impression alleging therein that his daughter (x) aged about 8 years was playing with other children at his home, at that time, the accused Prahalad S/o Kamaru Meena, resident of Bhatodiya came there and took her daughter at about 4"O Clock in the evening for providing chocolate from the shop but his daughter (x) did not come back.
4. It is stated in the complaint what when her daughter (x) was taken by accused Prahald, he, his brother Bhanwar Lal and other family members were not in the house in the evening, when they came back his niece Lali informed that accused Prahalad came and took his daughter (x) with him while offering chocolate. The complainant specifically mentioned in the complaint that in whole of the night they made search but she was not found, but in the morning at the time of search the body of (x) was found near the house of Nagji S/o Gautam Meena. The complainant specifically alleged that accused Prahald after committing rape murdered his daughter, therefore, action may be taken against him.
5. Upon aforesaid typed complaint (Ex.P/1), FIR no.193/2013 was registered at Police Station Arnod for the offences under Sections 376 AZH and 302 IPC and investigation was handed over to the Circle Inspector Surendra Singh (PW-14). The Investigating Officer commenced the investigation and immediately went on spot and made inspection of the place of occurrence. The Investigating Officer prepared the site plan (Ex.P/4), upon which the witnesses Bhanwar Lal Thori and Roop Lal put their thumb impression. The Panchnama of body of deceased (x) was prepared in presence of one Rajpal, Ratan Lal, Ramesh and Jagdish, therefore, they put their signatures as witness. Similarly, the complainant Prabhu Lal Thori also put his thumb impression upon ''Panchnama''. The photographs of the deceased (x) were also taken. After preparation of Panchnama, the body of the deceased was taken to the hospital for post mortem. The post mortem was conducted in the District Hospital, Pratapgarh by the medical board at 5.30 pm on 6.7.2013 and post mortem report (Ex.P/15) was given by the medical board to the investigating officer in which the doctors gave their opinion that death was caused due to hemorrhage shock.
6. During investigation the accused Prahald was arrested vide Ex.P/24 on 7.7.2013 at 5.15 pm and his cloth Jeans (Pent) was taken in possession and sealed on spot. Upon information (Ex.P/26) given by the accused Prahald under Section 27 of the Evidence Act the stone used for inflicting injury to the deceased (x) was recovered vide Ex.P/15 on 10.7.2013 at 4.30 pm in front of two witnesses Jagdish and Dasharth. During post mortem the vaginal semen of the deceased (x) was taken for chemical examination vide (Ex.P/16). The accused Prahald was also medically examined by the medical jurist on 8.7.2013 at 12.30 pm in the District Hospital, Pratapgarh in which medical jurist gave its opinion that "nothing is suggested that person examined is unable to perform sexual act". To prove the fact that deceased was 8 years of age, a certificate of Government Primary School, Bhatodiya (Ex.P/18) was collected by the investigating officer in which the date of birth of deceased (x) was 15.4.2005. The blouse (Polka) and Lehanga of deceased (x) were also seized vide Ex.P/23 on 6.7.2013 in the mortuary of Government Hospital and the same was sealed to send for chemical examination in front of two independent witnesses Jagdish and Rajpal. The seized articles blouse, Lehanga, pent, vaginal semen, blood and saliva were sent for chemical examination to the office of the Forensic Science Lab, Rajasthan, Jaipur under the receipt (Ex.P/27) on 24.7.2013. The Investigating Officer PW-14 Surendra Singh recorded statement of all the prosecution witnesses and after completion of investigation filed charge-sheet under Section 376(2)(i), 376-A, 302 IPC and under Section 3 and 4 of the POCSO Act, 2012 against the accused Prahald in the court of ACJM, Arnod from where the case was committed to the court of Sessions Judge, Pratapgarh for trial.
7. During trial, the report from FSL (Ex.P/28) dated 28.4.2015 and 28.5.2015 (Ex.P/29) of chemical examinations were received and placed before the court.
The learned Sessions Judge, after providing an opportunity of hearing to the accused Prahalad framed charge under Section 376(2)(i), 376-A and under Section 3/4 of the POCSO Act, 2012 but accused Prahald denied the charges and prayed for trial. In the trial, statements of 14 prosecution witnesses were recorded and 31 documents were exhibited from prosecution side, thereafter statement of accused Prahald under Section 313 Cr.P.C. were recorded in which he denied all the allegations made by the prosecution witnesses and said that on the date of incident he was in his in-laws house with his wife from where police took me and my wife at Arnod Police Station and obtained signatures of witness and me. Further said, I am wearing underwear. The accused Prahald did not produce any evidence in defence.
8. The learned trial court after hearing final arguments acquitted the accused appellant Prahald from the charge levelled against him under Section 360, 376(2)(i) and 376-A IPC but held him guilty for offence under Section 302 IPC and under Section 3/4 of the POCSO Act, 2012 vide judgment dated 18.9.2015 and passed sentence aforesaid and made reference under Section 366 Cr.P.C. for confirmation of death sentence whereas the accused Prahald preferred appeal against the judgment for acquittal.
9. The learned counsel for the appellant submits that learned trial court has failed to appreciate the statement of prosecution witnesses in the light of the facts available on record. While inviting attention towards the statement of PW-1 Prabhu Lal (complainant) it is submitted that the said witness accepted in his statement that typed FIR (Ex.P/1) was lodged by him, that too, after delay, therefore, it is obvious that the FIR was filed with consultation, with explanation of delay is explained in lodging the FIR. The finding of the learned trial court on the basis of circumstantial evidence of last seen cannot be treated to be reliable so as to hold accused appellant guilty for the offence.
10. The contention of the learned counsel for the appellant is that entire prosecution case depends upon circumstantial evidence. In the FIR, the first circumstance of last seen is incorporated that two witnesses PW-2 Ms. Lalli alias Lalita and PW-4 Chameli informed the complainant-father of the deceased that on the date of incident accused appellant Prahalad Meena took deceased daughter of complainant Prabhu Lal while offering her chocolate to the 8 years old child of age and wife of the deceased was treating Prahalad Meena as her brother, so also, Prahald Meena used to visit their home, therefore, PW-2 Ms. Lalli alias Lalita and PW-4 Chameli thought that he might be taken deceased for providing chocolate.
11. The learned counsel for the appellant submits that the aforesaid circumstance of the last seen deserves to be rejected because if a girl of 8 years was taken away by the accused appellant in front of them, then why these witnesses did not object, therefore, the testimony of PW-2 Ms. Lalli & Lalita and PW-4 Chameli deserves to be rejected.
12. Learned counsel for the appellant further vehemently argued that the learned trial court has wrongly relied upon the statement of other witnesses PW-1 Prabhu Lal (complainant), PW-2 Smt. Narangi, PW-5 Smt. Sattu, PW-6 Nagji, PW-7 Shyam Lal and PW-9 Dashrath because none of the witness is eye witness of the incident, more so, most of the witnesses are hear say witnesses, therefore, the finding of learned trial court so as to convict the accused appellant for offence under Section 302 IPC and under Section 3/4 of the POCSO Act are not sustainable in law. While attacking medical evidence, it is submitted that PW-10 Dr. O.P. Dayma who conducted the post mortem found simple injury upon the body of the deceased and his opinion for cause of death was excessive bleeding. The doctor specifically stated before the court and mentioned in the post mortem report that no injury was found upon the private part of the deceased, but semen slides were taken for reaching at the conclusion of rape. There was no apparent symptom of committing rape or physical assault by the accused appellant, therefore, the learned trial court was under obligation to consider the medical evidence in right perspective but failed to consider the medical evidence so as to arrive with the finding of guilt. According to the learned counsel for the appellant the finding of the learned trial court is perverse and without application of mind. With regard to offence under POCSO Act it is submitted that prosecution has not proved the motive of the accused appellant for committing alleged crime, therefore, in absence of any motive, it cannot be said that there was any reason for appellant to kill the deceased, while inviting attention towards the fact that there was no injury upon the private part of the body of the deceased, it is submitted that in absence of any medical evidence, nothing can be suggested that accused appellant has committed rape with the deceased or any offence for which the provisions of POCSO Act can be attacked. The finding of the learned trial court is based upon assumption and presumption, so also, only on the fact that murder was committed of minor girl, that too, without any evidence against the accused appellant. The appellant neither committed rape nor committed murder of the deceased but without proper examination of evidence and truthfulness of the witnesses, the learned trial court gave finding of guilt which is totally erroneous because even if entire evidence is accepted then also, it cannot be said that prosecution has proved its case beyond reasonable doubt for commission of alleged offence.
13. It is also argued that in the statement recorded under Section 313 Cr.P.C. the accused appellant that he is servant of Thakur at Ramnagar and before one day of incident, he went to his in-laws house with his wife and after the incident he along with his wife were brought at the Police Station, Arnod by the police from his in-laws house but the learned trial court disbelieved the explanation given by the accused appellant and held him guilty. Therefore, the judgment impugned deserves to be quashed. Without prejudice to the aforesaid arguments, it is submitted by the learned counsel for the appellant that the death penalty imposed against the accused appellant is totally illegal, more so, far from the basic principle of law enumerated by the Hon''ble Supreme Court that death penalty which is maximum punishment can be imposed in rarest of rare case. The present case is based upon circumstantial evidence only, therefore, this case does not fall under the category of rarest of rare case in which death penalty can be imposed, therefore, if this court come to the conclusion that finding of the learned trial court to hold accused appellant guilty is justified then death sentence awarded to the accused appellant may not be confirmed and it may be altered to the life imprisonment. In support of his arguments learned counsel for the accused submits that as per the following judgments if no injury on the private part of prosecutrix and accused or semen stained is not matching then no conviction can be based on the basis of circumstantial evidence. He has invited attention towards the following judgments:
1. AIR 1973 SC 353 : Rahim Beg v. State of Rajasthan.
2. 2011 (7) SCC 130 Kishan Kumar Malik v. State of Haryana
3. 2013 CRLR SC 589 : Sujeet Bishwas v. State of Asam
4. 2010 CRLR Sc 487 : Niranjan Punja v. State of West Bangal
While citing the following judgments it is submitted that it is not a case of rarest of rare case in which the death penalty is required to be imposed:
1. 2014 (4) SCC 317: Sushil Sharma v. NCT of Delhi
2. 2014 (3) SCC 421 : Birju v. State of M.P.
3. 2014 (11) SCC 129: Lalit Kumar v. State.
Per contra, learned Public Prosecutor vehemently argued that there is ample reliable circumstantial evidence is on record to prove the fact that on 5.7.2013 at 3.00 pm, the accused appellant Prahald Meena came to the house of complainant and first asked question to the deceased where is your father and mother, the deceased replied that they are not at home, they went for bringing wheat, then the accused appellant Prahald Meena went to the shop for purchasing chocolate and Miraz. After sometime came back and while catching finger of deceased took her with him. The child witness PW-2 Ms. Lalli alias Lalita categorically stated that at the time when deceased was taken by the accused appellant with him, I was present. Similarly, PW-4 Smt. Chameli who was also sitting in front of her house reiterated the statement of PW-2 Ms. Lalli alias Lalita and specifically said that father and mother of the deceased went to the village Kharkhada for bringing wheat, at that time, the children of the complainant Prabhu lal were at the home and all were playing outside the house, at that time, near about 3.00 pm accused appellant came there and asked daughter (x) of the complainant to take chocolate and toffee. On that date, accused Prahalad Meena came on spot twice, first time he asked the deceased where is your father and mother and second time, he came back and took her while giving chocolate and toffee. Meaning thereby, there is trustworthy and reliable evidence of two eye witnesses of last seen and both these witnesses informed the PW-1 Prabhu Lal complainant about the fact that deceased daughter of complainant was taken away by the accused appellant in between 3-4 pm. The father of the deceased first went to the house of Prahalad Meena and searched, but accused was not at his home, thereafter, he searched her daughter everywhere but till the night on 5.7.2013 his daughter was not traced out. On next day in the morning when they were searching near the agricultural field of Nagji Meena at about 8-9 am, the dead body of the daughter of the complainant was lying and near the body one blood stained stone was also lying.
14. During post mortem, the vaginal smear and slides were taken and sent to the FSL for chemical examination, so also, upon medical examination of the body of the deceased, six injuries were found. As per the statement of Dr. O.P. Dayma (PW-10) six injuries were found upon the body of the deceased, so also, in the FSL report (Ex.P/28) dated 28.4.2015 it is reported that upon Langa of deceased and pent of accused and in vaginal smear human semen was detected but no semen was detected upon blouse. Meaning thereby, if semen was detected upon Langa of the deceased and pent of the accused appellant, so also, in vaginal smear taken from the body of the deceased then obviously no error had been committed by the learned trial court to hold accused appellant guilty for offence under Section 302 and under Section 3/4 of the POCSO Act. While inviting attention towards the FSL report (Ex.P/29) about the report of blood it is submitted that the blood was found upon the blouse and Lahanga of the deceased and pent of accused appellant, however, blood group was reported to be inconclusive but this fact is established that blood was found upon the cloths of the deceased as well as upon the pent of the accused appellant, so also in the vaginal smear of the deceased.
15. According to the learned Public Prosecutor the learned trial court not only considered the statements of the witnesses of last seen of PW-2 Ms. Lalli alias Lalita and PW-4 Chameli but categorically considered the medical evidence, and held that there is no doubt that deceased was killed by the accused appellant. The learned trial court minutely assessed the entire evidence so as to give finding that it is a case in which the accused appellant is guilty for committing offence of murder punishable under Section 302 IPC and under Section 3/4 of the POCSO Act, so also, it is a case of rarest of rare case in which only death penalty should be imposed because deceased was helpless girl of 8 years old, who went along with the accused appellant Prahalad Meena to whom she was asking maternal-uncle but accused crossed all the bed limits of relationship and committed an offence, which is punishable under Section 302 IPC and under Section 3/4 of the POCSO Act. Therefore, the appeal filed by the accused appellant may kindly be dismissed and the death sentence awarded by the learned trial court may kindly be confirmed.
16. After hearing the learned counsel for the parties we have minutely scanned the entire evidence. No doubt there is no eye witness in this case, but PW-1 Prabhu Lal author of the FIR, PW-2 Ms. Lalli alias Lalita, PW-3 Narangi and PW-4 Chameli, all these witnesses categorically proved the fact that mother of the deceased was treating accused appellant Prahald Meena as her brother and on the eve of Rakhi she used to tag Rakhi upon his hand, therefore, the children of the complainant Prabhu Lal were treating the accused appellant Prahalad Meena as maternal-uncle and this fact was in the knowledge of all the villagers also because accused appellant used to visit the residence of complainant PW-1 Prabhu Lal being his brother-in-law and their family members were having trust upon him.
17. In the FIR PW-1 Prabhu Lal stated that I am having children and the deceased was his elder daughter, so also, in the evening of 5.7.2013 when I came back to my residence with my wife, my deceased daughter was missing from the home, upon enquiry my niece PW-2 Ms. Lalli alias Lalita informed that accused appellant Prahalad Meena came in their absence and took his daughter with him. Upon such information the complainant searched his daughter along with his family members, but till night, she was not traced out. The phone calls were also given to the relatives but in whole of the night no whereabouts of his daughter found, on the next day, during search near the house of Nagji Meena the dead body of the deceased daughter was found and near the body one blood stained stone was also lying. The complainant gave information (Ex.P/1) upon that FIR (Ex.P/2) was registered at Police Station Arnod. The complainant PW-1 Prabhu Lal further said that police came on spot and seized the articles from the place of occurrence including clip of hairs, sleepers and prepared site plan and after post mortem handed over the body of the deceased to him.
In the cross-examination, it is stated that deceased was my eldest daughter out of four children and on the date of incident an information was given by his niece PW-2 Ms. Lalli alias Lalita with regard to the fact that accused appellant Prahald Meena took his deceased daughter with him for providing chocolate and toffee. The witness PW-2 Ms. Lalli gave the following statements on oath in the trial, which reads as under:
''kiFk fnykbZ xbZ%&
izHkq esjk dkdk yxrk gSA nksuksa ds edku ikl&ikl gSA pesyh esjh dkdh yxrh gSA djhc lky Hkj igys dh ckr gSA eSa esjs ?kj ij FkhA pesyh Hkh ?kj ij FkhA cPps cPph edku ds ckgj [ksy jgs FksA djhc 3 cts gkftj vnkyr eqyfte izgykn ,d ckj vk;kA ftldks esa tkurh gwWaA jk[kh Mksjk gksus ls ;g gekjs dkdh ds ;gkWa vktk tkrk gSA izgykn us vkdj ds ''khyk ls iwNk fd rsjs ekrk firk dgkWa gS] rks ''khyk us dgk fd esjs ikik eEeh ?kj ij ugha gS] xsgwa ysus x;s gSA fQj izgykn nqdku ls xksfy;kWa vkSj fejkt ysdj vk;k FkkA fQj ''khyk dks maxyh idM+ dj ys x;k FkkA ftldks eSaus ns[kk FkkA
''khyk izgykn dks ekek dgrh FkhA tc izgykn rhu pkj cts ''khyk dks ys x;k] mlds ckn ''khyk ?kj ij ugha vkbZA esjs dkdk izHkqyky] dkdh ukjaxh nksuksa [kj[kM+k ls ''kke dks vk;s FksA rc rd Hkh ''khyk ?kj ij ugha vkbZ FkhA fQj ''khyk dks lHkh ifjokj okyksa us b/kj&m/kj dkQh ryk''k fd;k] fQj nwljh fnu lqcg 8 cts irk yxk fd ''khyk ukxth ds [ksr esa ejh gqbZ feyh FkhA ''khyk dh mez ml le; 8 lky dh Fkh ''khyk dks izgykn us cykRdkj djds ekj nh FkhA
ftjg }kjk cpko i{k%&
;g lgh gS fd esjs firk dk edku vkSj izHkqyky esjs dkdk dk edku vyx&vyx gS esjs ikl ikl gSA gekjk edku izHkqyky ds edku ds utnhd gS ij FkksM+k lkbZM esa vk x;k gSA izHkqyky ds pkj cPps gS] tks lHkh lkFk jgrs gSaA izHkqyky esjs dkdk vkSj dkdh dgha vkrs tkrs gSa rks gesa irk pyrk gS] ?kj rks ikl gh gSA
fdj.k] deys''k] ''khyk rhuksa [ksy jgs FksA fdj.k us Vh''kVZ igu j[kk Fkk] deys''k us jkrs dyj dk ''kVZ igu j[kk Fkk] ''khyk us ?kk?kjh Cykmt igu j[kk FkkA lkM+h dk ?kk?kjk cuk;k gqvk Fkk] ftl ij ped Fkh] Cykmt ihys jax dk FkkA ?kk?kjh dkys jax dh FkhA ;g eSa ugha crk ldrh fd izgykn ?kj ij nk: ihdj vk;k gksA tc izgykn vk;k rc mlds gkFk esa xksfy;kWa tks feBh Fkh] tsc ds vUnj fejkt FkhA izgykn ds diM+s dk dyj /;ku ugha gS] izgykn us vkdj ''khyk dks mBk;k ugha FkkA esjs izgykn ls dksbZ ckr ugha gqbZA bl ?kVuk ls igys dHkh izgykn ''khyk dks ugha ys x;kA
;g dguk xyr gS fd izgykn tc vk;k gks rc mlds lkFk ,d vkSj vkneh gksA ;g lgh gS fd tc cPph ugha feyh rks mlds eEeh ikik lRrq dh nqdku ij x;s FksA rks ogkWa nqdku ij lRrq us dgk Fkk fd fnu esa izgykn vk;k Fkk vkSj xksyh fcLdhV ys x;k Fkk] mlls ekywe iM+h dh izgykn vk;k Fkk] ;g dguk xyr gS fd lRrq dh nqdku ls esjs dkdk dkdh dks ''khyk ds ckjs esa irk pyk gks] cfYd igys eSaus crk;k Fkk fd izgykn vk;k FkkA ;g lgh gS fd mu fnuksa ckfj''k dk ekSle Fkk ml fnu iqjs fnu gYdk&gYdk ikuh fxj jgk Fkk] fdpM+ gks x;k FkkA
;g dguk xyr gS fd eSaus izgykn dks esjh vkWa[kksa ls ''khyk dks ys tkrs gq, ugha ns[kk gks vkSj eq>s ckn esa bl rjg ls dguk fl[kk;k gksA ;g dguk Hkh xyr gS fd esa izHkqyky ds dgus ls ,sls c;ku ns jgh gksmWaA cfYd eSaus izgykn dks vkWa[kksa ls ns[kk Fkk] eq>s fdlh us c;ku nsuk ugha le>k;k FkkA eq>ls fMIVh lk0 us iwNrkN dh FkhA
iqu% ijh{k.k ''kwU;
18. The witness PW-4 Smt. Chameli witness of last seen gave the following statement to prove the incident, which reads as under:
"''kiFk fnykbZ xbZ %&
izHkqyky esjs tsB yxrs gSA ukjaxh esjh tsBkuh yxrh gSA vkSj izHkqyky th esjs th;kth Hkh yxrs gSA djhc ,d lky gksus vk;k gSA izHkqyky vkSj mldh iRuh [kj[kM+k xsgwWa ysus x;s FksA ;s yksx lqcg ds le; xsgqWa ysus x;s FksA vkSj buds cPps cPph ?kj ij [ksy jgs FksA ml fnu ''khyk] fdj.k] deys''k] ?kj ij Fks] ''khyk izHkqyky dh yM+dh gS] tks 8 lky dh FkhA esjk ?kj buds edku ds ikl gh gSA
lHkh cPps ?kj ds ckgj [ksy jgs Fks] ''khyk Hkh muds lkFk gh [ksy jgh FkhA fnu esa rhu cts izgykn gkftj vnkyr eqyfte vk;k Fkk] eSa vkSj yYyh nksuksa ikl&ikl cSBs Fks] izgykn us ''khyk dks dgk fd rq>s xksyh vkSj pkWdysV f[kykrk gwWa ml fnu izgykn nks ckj vk;k FkkA tc igyh ckj rhu cts izgykn vk;k rks mlus ''khyk ls iwNk fd rsjs eEeh ikik dgkWa x;s gS] rks ukuh us dgk fd og rks [kj[kM+k x;s gSA rks iwN dj ''khyk dks ys x;kA ml le; iwN dj pyk x;kA
fQj nwljh ckj izgykn pkj cts vk;kA vkSj dgk fd ''khyk rsjs ikik&eEeh cqyk jgs gS vkSj mldks pkWdysV fcLdqV fnykus dk cgkuk djds ''khyk dks ys x;kA izgykn dks ''khyk ekek dgrh Fkh] izgykn vkSj izHkqyky dh iRuh ds chp jk[kh Mksjs dk O;ogkj Fkk] ml fnu ''kke dks ''khyk ?kj ij ugha vkbZ FkhA fQj esjh tsBkuh ''kkek dks 5&6 cts ?kj ij vk;s FksA mUgksaus iwNk fd ''khyk dgkWa gS rks eSaus vkSj yYyh us crk;k fd ''khyk dks izgykn ys x;k gSA tks pkWdysV xksyh fnykus dk cgkuk djds ''khyk dks ys x;kA
fQj ''khyk ds ugha vkus ij jkr Hkj ge lHkh ifjokj okyksa us ryk''k dh rks jkr esa ''khyk dgha ij ugha feyh] esjk tsB izHkqyky izgykn ds ?kj ij iwNus x;s rks izgykn ?kj ugha feykA fQj lqcg esa ''khyk ejh gqbZ voLFkk esa ukxth ds [ksr esa feyh FkhA izgykn us ''khyk ds lkFk cykRdkj djds mldks ekj fn;kA
ftjg n~okjk cpko i{k%&
esjs tsB vkSj tsBkuh fdrus cts lqcg ?kj ls x;s Fks le; ;kn ughaA lHkh cPpksa cPph;ksa esa deys''k us Vh''kVZ] ''khyk us ?kk?kjh vkSj Cykmt igu j[kk Fkk] mldk jax vkt irk ughaA ml le; ckfj''k dk ekSle FkkA ml fnu Hkh ckfj''k gqbZ FkhA ysfdu fdpM+ ugha gqvk FkkA tc eEeh ikik dk cgkuk djds izgykn cPph dks ys x;k] rks geus blfy;s euk ugha fd;k vkSj vkifRr ugha dh] D;ksa fd ''khyk ds ekWa vkSj izgykn ds chp jk[kh Mksjs dk O;ogkj FkkA
;gh lgh gS izHkqyky vkSj ukjaxh us lRrqckbZ nqdku okyh ls cPph ds ckjs iwNk Fkk] esjs iqfyl esa c;ku gq, Fks] fMIVh lk0 vk;s FksA nwljs fnu lqcg iqfyl 10&10-30 cts vkbZ Fkh] iwNrkN mlh fnu gks xbZ FkhA iqfyl c;ku iz0Mh0 2 esa izgykn }kjk ''khyk dks ;g dgdj ys x;k Fkk fd rsjs eEeh ikik cqyk jgs gSaA ;g ckr eSaus iqfyl dks crk nh Fkh] iqfyl us D;ksa ugha fy[kh irk ughaA esjs lkeus izgykn us ''khyk dks pkWdysV nh Fkh] vkSj ys x;k FkkA izgykn us eqB~Bh Hkj dj pkWdysV nh Fkh ;g ckr eSaus iqfyl dks crk nh Fkh] iqfyl us c;ku iz0Mh0 2 esa D;ksa ugha fy[kh irk ughaA
eSausa vkSj yYyh nksuksa us gh izgykn }kjk ''khyk dks ys tkus dh ckr izHkqyky o mldh iRuh dks crk nh Fkh] ysfdu iqfyl c;ku iz0Mh0 2 esa dsoy yYyh }kjk crk;s tkus dh ckr gh fy[kh gS] iqfyl us D;ksa ugha fy[kk irk ugha bl ?kVuk ls igys izgykn us dHkh Hkh cPpksa dks pkWdysV ugha nh] blls igys Hkh izgykn dHkh ''khyk dks ugha ys x;kA esjs ifjokj okyksa ls gh irk pyk Fkk fd izgykn us ''khyk ds lkFk cykRdkj fd;k vkSj mldks ekj fn;kA
tgkWa cPph ''khyk dh yk''k feyh og LFkku esjs ?kj ls djhc 500&700 fQV nwjh ij gksxkA
iqu% ijh{k.k ''kwU;
"19. Upon perusal of the statement of both the witnesses of last seen and the statement of other witnesses we have no hesitation to say that by leading trustworthy circumstantial evidence, prosecution has established the fact that there was closeness of accused appellant Prahalad Meena with the family of deceased and 8 years old deceased was treating him as maternal-uncle, therefore, due to trust upon him she went with the accused appellant when accused offered chocolate and toffee to the deceased. The testimony of both the witnesses PW-2 Ms. Lalli and PW-4 Chameli cannot be rejected upon the argument of the learned counsel for the appellant that they are not trustworthy, more so, there is no reason to disbelieve the testimony of these witnesses because they were present when accused appellant took the deceased with him and ultimately found dead near the house of Nagji Meena on next day of the incident.
20. The PW-3 Smt. Narangi wife of PW-1 and mother of deceased categorically stated on oath that I was treating Prahald Meena as my brother and on the date of incident, she and her husband went out for bringing wheat and her all the children were in the home along with other family members.
21. PW-5 Smt. Sattu is shopkeeper from where the accused appellant purchased Chocolate, Biscuit and Miraz. The said witness gave the following statement, which reads as under:-
"''kiFk fnykbZ xbZ%&
djhc lky Hkj igys dh ckr gSA esjs edku ds ikl ''kadj] ukxth] o Fkksjh tkfr ds yksxksa ds edku gSA esa [ksrh dk dke djrh gwWa vkSj ?kj ij pkWdysV fcLdhV] fejkt cspus dh NksVh nqdku gSaA fnu esa 3&4 cts izgykn vk;kA tks egqfM+;k dk jgus okyk gS bldks eSa tkurh FkhA mlus dgka fd eq>s fejkt o 7&8 pkWdysV nks] ,d :i;s dh xkyh;ksa yh Fkh] vkSj okfil pyk x;kA jkr dks 8&9 cts ukjaxh iRuh izHkq esjs ?kj vkbZ vkSj iwNk fd esjh cPph ''khyk vkbZ D;k mls ns[kk D;k eSaus dgk fd eSaus ugha ns[kkA
eq>s losjs irk pyk fd ukxth ds [ksr ds ikl taxy esa ''khyk dks ekj dj Qsad fn;kA vkSj dqN ugha lqukA vkSj lquk fd izgykn us [kksVk dke fd;kA eSaus dqN ugha lqukA
ftjg }kjk cpko i{k%&
esjh nqdku ij 10&20 ls de xzkgd vkrs gSA izgykn us fejkt dh NksVh iqfM+;k yh FkhA ;g lgh gS fd ukxth ds [ksr ij tkus dk jkLrk esjh nqdku ds vkxs ls gksdj tkrk gSA ;g lgh gS fd ukxth ds [ksr ds ikl cLrh gS] dbZ edku cus gq, gS] dbZ yksx cPps] cPph] vkneh] vkSjr jgrs gSA ukjaxhckbZ 7&8&9 cts vkbZ gksxhA vkt ls ijlksa esjh nqdku ij dkSu dkSu xzkgd D;k&D;k lkeku ys x;k bldk eq>s irk ughaA
iqu% ijh{k.k ''kwU;"
22. PW-6 Nagji though turned hostile, but accepted that dead body of deceased was found near his house in agricultural field but I don''t know what happened on the place of occurrence.
23. PW-7 Shyam Lal categorically deposed in his statement that on the date of occurrence at about 3-4 pm accused appellant came to his residence and asked my sister Anshu to bring Miraz from the shop but I said that rain is likely to come, therefore, she will not go, therefore, accused Prahalad himself went to purchase Miraz and in the evening at 6-7 pm the complainant Prabhu Lal came and made an enquiry about his daughter but I was not aware therefore, went with him to search his daughter. It is also stated by PW-7 Shyam Lal that PW-2 Lalli informed that Prahald came there and for providing chocolate to the daughter of the complainant, took her with him. The said witness further accepted that I along with complainant and other family members made search of the daughter of complainant in whole of the night and also made enquiry at the house of accused appellant, but he was not in the house and on the next date, the body of the deceased daughter of the complainant was found near the house, in the agricultural field of Nagji (PW-6). Meaning thereby, this independent witnesses are also supporting the prosecution case.
24. PW-8 Rooplal stated that on the date of occurrence I received call from Dashrath elder brother of complainant Prabhu lal at about 10-11 pm, who gave information that daughter of Prabhu Lal is missing and made enquiry whether she came to your residence. Again on next date at about 5-6 am I received call from Dashrath (PW-9) and get information that still the daughter of my brother Prabhu Lal is not traced out. The said witness proved the fact that memos Ex.P/7, P/8, P/9, P/10, P/11 and P/12 bears my thumb impression because all the memos of the place of occurrence and photography were prepared in front of me on spot. Though this witness is not eye witness or witness of last seen but he has supported the entire investigation and the fact that complainant and his family members were searching his daughter on the date of incident but dead body was found on next day.
25. PW-9 Dashrath is elder brother of complainant Prabhu Lal. He has reiterated the fact that as per information given by my daughter PW-2 Ms. Lalli, Prahalad came to the house of Prabhu Lal at about 3-4 pm and while providing chocolate to the daughter of Prabhu lal took her with him. Further, this witness specifically stated that all efforts were made by him along with the complainant to search the daughter of the complainant but her body was found in the agricultural field of Nagji. Meaning thereby, all the witnesses are categorically supporting the prosecution case and allegations levelled against the accused appellant.
26. PW-10 Dr. O.P. Dayma stated on oath that on 6.7.2013 when I was working as medical jurist in the Government Hospital, Pratapgarh being member of medical board along with Dr. Partihar and Dr. Neelam Sukhla examined the dead body of 8 years old daughter of complainant Prabhu Lal and preserve smear from vagina of deceased girl and prepared slides and after sealing the same sent to the FSL for examination. It is also stated by the witness that on medical examination five injuries were found upon the thy, nose and wrist of right hand upon the body of the deceased girl. After examination, the post mortem report (Ex.P/15) was given with opinion that "in the my opinion cause of death is hemorrhage shock". The following statement were given by the witness PW-10 Dr. O.P. Dayma on oath, who was one of the member of the medical board working as medical jurist in the Government Hospital, Pratapgarh, which reads as under:-
''kiFk fnykbZ xbZ%&
eSa fnukad 06-07-2013 dk ftyk fpfdRlky; izrkix<+ esa esMh T;qjhLV ds in ij rSukr Fkk ml fnu Fkkukf/kdkjh vjuksn ls e`rdk lqJh ''khyk iq=h izHkqyky Fkksjh mez 8 o"kZ fuoklh HkkVksfy;k Fkkuk vjuksn ds ''ko ijh{k.k gsrq izeq[k fpfdRlk vf/kdkjh ftyk fpfdRlky; izrkix<+ dks esMhdy cksMZ xBu gsrq vkosnu fd;k Fkk] ftl ij ih0,e0vks0 MkW0 izfrgkj us esjs lkFk MkW0 uhye ''kqDyk efgyk fpfdRld dks lnL; uksfer dj esMhdy cksMZ dk xBu fd;k Fkk] rgjhj iz0ih0 14 gSA ftl ij , ls ch esjs gLrk{kj gSA rFkk lh ls Mh MkW0 ''kadjyky izfrgkj ds gLrk{kj gSA fnukad 06-07-2013 dks gh lqJh ''khyk dk ''ko ijh{k.k fd;k x;kA ''ko dh igpku izHkqyky iq= ekWaxhyky Fkksjh firk us dh FkhA ''ko dks fuHkZ; flag ,p0lh0 ua0 414 Fkkuk vjuksn ysdj vk;s FksA ''ko ijh{k.k ds le; e`R;q yxHkx 12 ls 24 ?k.Vs ds vUnj dh FkhA ''ko ijh{k.k ''koxzg ftyk fpfdRlky; esa fd;k x;k FkkA
''ko dh ;ksuh ls Lokc ysdj LykbZV rS;kj dj lhy fpV dj ,Q0,l0,y0 tkWap gsrq iqfyl dks e; i= ds lwiqnZ fd;k FkkA iqfyl rgjhj ds vuqlkj izdj.k 193@13 376,@302 esa esMhdy cksMZ dk xBu dj ih0,e0 djkosa lwpuk nh FkhA e`rdk dk ''kjhj dhpM+ o /kwy ds d.kksa ls luk gqvk Fkk] ''kjhj ij e`R;q i''pkr~ dh vdM+u ekStwn FkhA e`rdk dh nksuksa vkWa[kksa dh dUtsDVhok yky FkhA ''ko ij fuEu [kjksaps tks e`R;q iwoZ dh FkhA
3x1 lseh ck;ha tkWa?k ij ck;sa ?kqVus ij lkeus dh rjQ\\
6x1 lseh nk;sa iSj ij [kjksap
2x1 lseh [kjksap nk;ha tka?k ij
1x1.5 lseh ukd ij [kjksap
1x1 lseh [kjksap nk;sa gkFk dh dykbZ ij
;g lHkh pksVsa e`R;q iwoZ dkfjr dh xbZ FkhA nksuksa vkWa[kksa dh iqrfy;kWa QSyh gqbZ FkhA flj fnekx dh f>Yyh o fnekx lgh FksA lhuk [kksyus ij ck;ha rjQ ls [kwu Hkjk gqvk FkkA ck;sa vkSj dh 10&11 uacj dh ilyh lkeus dh rjQ ls VwVh gqbZ FkhA ''olu uyh Bhd FkhA nk;kWa QsQM+k lgh Fkk] ck;kWa QsQM+k QVk gqvk Fkk] 2x1x1 lseh uhps dh rjQ lkeus dh rjQ gzn; ck;kWa [kkyh Fkk] nk;kWa vk/kk Hkjk gqvk Fkk vk/kk Hkjk gqvk vFkkZr vkaf''kd Hkjk gqvk Fkk cM+h [kwu dh uyh;kWa [kwu ls Hkjh gqbZ FkhA isV dh nhokj lgh FkhA eqgwWa xyk lgh FkkA ijUrq ukd ij [kwu tek gqvk FkkA mijh gksaV 1x1x.5 lseh QVk gqvk FkkA vek''k; v/kipk Hkkstu ekStwn FkkA NksVh vkWar v/kipk Hkkstu ekStwn FkkA cM+h vkWar esa foLVk Fkk] yhoj] frYyh] lgh FksA ij lQsnh fy;s gq, FksA fdMuh lgh FkhA ;qfjuy CysMj [kkyh FkkA tuukax lgh FksA esMhdy cksMZ dh jk; esa e`rdk dh e`R;q vR;f/kd jDr L=ko ls e`R;q gksuk ik;k FkkA iksLVekVZe fjiksVZ iz0i0 15 gSA ftl ij , ls ch esjs gLrk{kj gSA lh ls Mh cksMZ dh jk; vafdr gSA
;ksuh dh LykbZM iqfyl dks ftl i= ds ek/;e ls lwiqnZ dh Fkh] ml i= dh QksVks izfr iz0ih0 16 gSA ftl ij , ls ch esjs gLrk{kj gS] ,Dl LFkku ij uequk lhy vafdr gSA fnukad 08-07-2013 dks iqfyl miv/kh{kd izrkix<+ }kjk ,d fyf[kr rgjhj okLrs vfHk;qDr izgykn fe.kk firk de: eh.kk ds iq:"kRo laca/kh esMhdy djkus ckcr izkIr gqbZ Fkh tks iz0ih0 17 gS ftl ij , ls ch esjs izkfIr ds gLrk{kj gS eSaus vfHk;qDr izgykn iq= de: eh.kk 23 o"kZ dk iq:"kRo ijh{k.k tkWap dh Fkh] tkWap gsrq fpeuyky ,0,l0vkbZ0 o fM0okbZ0,l0ih0 izrkix<+ ysdj vk;s Fks tks lk/kkj.k dn dkBh dk 160 lseh yEckbZ otu 45 fdyks Fkk] fyax [kruk fd;k gqvk ugha Fkk] dksbZ iwoZ o tUetkr chekjh ugha FkhA dksbZ pksV ds fu''kku fyax ij ugha FksA LdzqVy fjQysDl ikthVho FkkA dUV~ksy [kwu Fkwd ds uewus fy;s tkdj iqfyl dks lwiqnZ fd;s] esjh jk; esa ,slk dqN ugha dgk dgk tk ldrk fd vfHk;qDr laHkksx djus ds fy, v;ksX; gksA iq:"kRo laca/kh fjiksVZ iz0i0 18 gS ftl ij , ls ch esjs gLrk{kj gS ,Dl LFkku ij izgykn dh fu''kkuh vxLr gS lh ls Mh esjh jk; gSA ftl i= ls iqfyl dks vfHk;qDr ds [kwu Fkwd ds uewus lwiqnZ fd;s Fks] og izn''kZ ih0 19 gS ftl ij , ls ch esjs gLrk{kj gSA
ftjg }kjk cpko i{k%&
ih0,e0 fjiksVZ iz0ih0 15 vafdr pksV la[;k 1 ls 5 lk/kkj.k izd`fr dh Fkh vkSj fxjus ls vkuk laHko gSA ih0,e0 fjiksVZ iz0ih0 15 esa vafdr ck;sa rjQ tks vfLFk Hkax ilyh ua0 10&11 mpkWabZ ls iRFkjksa ij fxjus ls gks ldrk gSA ukd ij pksV gS og Hkh fxjus ls vk ldrh gS] gksaV dh pksV Hkh fxjus ls vk ldrh gSA yM+dh ds tuukax Hkh LoLFk gsYnh FksA yM+dh ds xqIrkax ij dksbZ pksV ds fu''kku ugha FksA yM+dh ds tuukax ds vklikl ckgjh rkSj ij dksbZ oh;Z dk L[kyu ugha FkkA e`rdk ds flj o tuukax ij dksbZ pksV ugha FkhA lk/kkj.kr;k ljyrk ls tc rd dksbZ lgefr ugha ns ns ;k mls dUV~ksy ugha dj ys rc rd laHkksx laHko ugha gSA ih0,0 fjiksVZ ds vuqlkj e`rdk dh mez 8 o"kZ FkhA ;g lgh gS fd NksVh cPph ds lkFk laHkksx tcju gksus ij mldh ;ksuh jsipj gksdj CyMhax gksus dh laHkkouk gksrh gSA ih0,e0 fjiksVZ iz0ih0 15 esa ,slk dksbZ vadu ugha gSA eSaus e`rdk dh fpfdRldh; fjiksVZ cukbZA e`rdk ds vkbZ gqbZ pksVksa ls jDr L=ko gqvk gS vkSj mlls e`R;q laHko gSA tc fd flj lgh FkkA iksLVekVZe esa rdjhcu ,d ?k.Vs dk le; yxk FkkA ''ko ijh{k.k ds le; ''ko ij diM+s Fks ;k ugha bl laca/k esa eSa vkt ugha dg ldrk gwWaA geus e`rdk dh ;ksuh dh tkWap dj Lokc ysdj LykbZM rS;kj dj ,Q0,l0,y0 tkWap gsrq fHktkbZ Fkh] ih0,e0 fjiksVZ iz0ih0 15 esa cykRdkj ds laca/k esa dksbZ vadu ugha gSA
iqu% ijh{k.k ''kwU;
"27. PW-11 Dr. Neelam Gupta reiterated the proceedings of post mortem and opinion. PW-12 Satyendra Sharma and PW-13 Bhanwar Lal, Head Master of the Government Primary School, Bhatoliya confirmed date of birth of the deceased as 15.7.2005. The investigating officer PW-14 Bhagwat Singh proved the entire investigation and said that on the basis of circumstantial evidence of last seen supported by the medical evidence, offence under Section 302 IPC and under Section 3/4 of the POCSO Act is made out.
28. Upon above discussion coupled with the finding of learned trial court, we are of the opinion that the prosecution has proved its case beyond reasonable doubt for commission of offence under Section 302 IPC and under Section 3/4 of the POCSO Ac. The evidence of last seen given by PW-2 Ms. Lalli alias Lalita and PW-4 Chameli have rightly been considered by the learned trial court so as to hold accused appellant guilty on the basis of circumstantial evidence because the body of the 8 years of deceased girl was found in the house of one Nagji in the agricultural field and as per FSL report there is evidence conforming sexual harassment with the deceased which is punishable under Section 3/4 of the POCSO Act. In view of the above, no error had been committed by the learned trial court so as to hold accused appellant guilty for offence of murder and sexual assault with a girl of 8 years of age.
29. For reducing sentence from death penalty to life imprisonment, we have considered the argument of learned counsel for the appellant in the light of the evidence on record and judgments of Hon''ble Apex Court.
30. In case of Bachan Singh v. State of Punjab reported in (1980) 2 SCC 684 the Hon''ble Apex Court gave verdict that normal rule is that the offence of murder shall be punished with the sentence of life imprisonment, but the court can depart from that rule and can impose sentence of death only if there are special reasons for doing so. The Hon''ble Apex Court observe that such reasons must be recorded in writing before imposing death sentence. It is also observed that if the court finds that offence is of an exceptional heinous in character on account of its design and the manner it is executed, the source of grave danger of the society at large, the court may impose the death sentence.
31. In the case of Rajendra Pralhadrao Wasnik v. State of Maharashtra reported in (2012) 4 SCC 37, the High Court confirmed the death sentence for committing rape over three years old minor child on the pretext of buying her biscuits and raped with her and the Hon''ble Supreme Court gave the following verdict, which reads as under:
"When the Court draws a balance sheet of the aggravating and mitigating circumstances, for the purposes of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evident from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused. Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of "trust-belief" and "confidence", in which capacity he took the child from the house of PW 2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness. The accused left the deceased in a badly injured condition in the open field without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self."
32. Recently in the case of in Vasant Sampat Dupara v. State of Maharashtra reported in (2015) 1 SCC 253, the Hon''ble Supreme Court confirmed the death sentence awarded to the accused appellant in which the accused appellant took the deceased after luring the young girl on the pretext of giving chocolate. The accused appellant took the deceased from the place of occurrence on a bicycle and eventually rapped her in brutal manner. The relevant portion of he said judgment reads as under:
"58. In the case at hand, as we find, not only the rape was committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of the society and such a crime is aggravated by the manner in which it had been committed. The nature of the crime and the manner in which it had been committed speaks about its uncommonness. The crime speaks of depravity, degradation and un-commonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances.
59. We are absolutely conscious that mitigating circumstances are to be taken into consideration. Learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid fifties and there is possibility of his reformation. Be it noted, the appellant was aged about forty-seven years at the time of commission of the crime. As is noticeable, there had been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not pre-meditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. Learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had number of cases are pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to the society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances.
60. As we perceive, this case deserves to fall in the category of rarest of the rare cases. It is inconceivable from the perspective of the society that a married man aged about two scores and seven make a four year minor innocent girl child the prey of his lust and deliberately cause her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It in variably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of rarest of the rare case and we unhesitatingly so hold."
33. In the identical circumstances in the case of State of Rajasthan v. Manoj Pratap Singh (D.B.Cr. Murder Reference No.3/2013), decided on 29.5.2015, the Coordinate Bench while considering various judgments of the Hon''ble Supreme Court upon the question of rarest of rare case held that if the rape is committed with 8 years old girl while offering chocolate and caused death then it should be treated as heinous offence. The following adjudication is made by the coordinate bench, which reads as under:
"32. In the case in hand, there are no aggravating circumstances or mitigating circumstances put forth to award a lesser punishment than what had been awarded by the Sessions Court. The accused after giving a chocolate to a young girl aged 8 years, who not only was having permanent disability of 70% but also having I.Q. of 50%, abducted her and took her away on a motor cycle. Thereafter, he committed a heinous crime of not only brutally raping her, but also hit her head against the silencer of the motorcycle as well as with her stone causing her death. It is evident from the statement made by the doctor who had conducted the postmortem that the young deceased tried to resist the rape but there was no compassion shown at all. The plea raised by the learned counsel appearing for the accused that leniency should be shown since the accused was a young man with a family, cannot be said to be a mitigating circumstance at all. The accused after brutally raping her, hit her head against the motorcycle and then used a stone to smash her head and tried to flee that very night itself. The heinous offence of brutal rape on a helpless young girl followed by a cold-blooded murder and calculated attempt to cover-up the said incident shocks and repulses the conscience of this Court and the community. Placing reliance upon the settled principles as enumerated by the Apex Court in several judgments, this Court has no hesitation in holding that this case falls within the category of rarest of rare cases and upholds the judgment passed by the Sessions Court. In our opinion, the judgment passed by the Sessions Court suffers from no error."
34. After thorough examination of the entire evidence in the light of aforesaid judgments and facts of the present case we cannot lose sight of the message given by Albert Einstein in which he conveyed that:
"The world is a dangerous place, not because of those who do evil, but because of those who look on and do nothing."
35. The judgments cited by the learned counsel for the accused are not applicable in the present case because number of injuries were found upon the body of 8 years old girl upon different parts of the body, but this Court cannot lose sight of the fact that semen was found in the FSL report upon the slide taken from the body of the deceased, who was 8 years of age and this fact is sufficient to accept the prosecution case that deceased was taken while offering chocolate to her by the accused so as to commit rape, therefore, the judgments cited by the learned counsel for the accused are not applicable upon the facts and evidence of this case.
36. The accused appellant offered chocolate to young girl of 8 years who was having trust upon the accused appellant while treating him as maternal-uncle and went along with him but the accused appellant not only committed heinous crime of outraging the majesty of the deceased but also caused injury upon the head by stone, which is evident from the opinion given by the medical board in the post mortem report. It is also evident that the deceased tried to resist but helpless girl was killed by the accused appellant, therefore, it is not only a case of murder and harassing sexually of young girl of 8 years but it is a case in which all the parameters of trust are crushed by the accused appellant. The accused appellant murdered helpless minor girl only to satisfy his physical desire.
37. Upon consideration of the entire evidence and the fact that accused has crushed all limits of trust and committed offence under Section 302 IPC and under the provisions of POCSO Act, therefore, while performing our legal duty, we deem it appropriate to treat this case as rarest of rare case in which lesser punishment than what had been awarded by the learned trial court, cannot be imposed and therefore, we confirm death sentence awarded by the learned trial court.
38. Consequently, the D.B. Cr. Murder (Death) Reference No.1/2015 referred by the learned trial court is allowed and the death penalty imposed by the learned trial court vide judgment dated 18.9.2015 in Sessions Case No.149/2013 is hereby confirmed. The D.B. Cr. Appeal No.970/2015 filed by the accused appellant Prahalad Meena and the D.B. Cr. Jail Appeal No.1011/2015 sent by the accused appellant from jail are hereby dismissed.
