Maithli Sharan, J.@mdashThe instant capital sentence reference and both the appeals, one filed from jail and the Ors. filed through counsel, arise
out of the judgment of conviction and sentence dated 31.1.1998 passed by Sri A.K. Saksena IInd Special Additional Sessions Judge. Hardoi in
S.T. No. 803 of 1995, Under Sections 376 and 302 of the Indian Penal Code, convicting the Appellant Suresh for the offences under the said
provisions of law and sentencing him to undergo life imprisonment u/s 376. I.P.C. and to death u/s 302 of the Indian Penal Code.
2. The prosecution case, in brief, is that the informant Kishan Pal (P.W. 1) was the resident of village Jajoopur district Hardoi, and he was uncle of
the prosecutor, minor girl Bitula, who, at the time of the incident, was aged about 10 years. On the fateful date, i.e. the 17th September, 1995 Km.
Bitula had gone to Jungle for grazing cattle; her brother Ashok (P.W. 3) and one of his friend Mithai Lal had also gone along with her. Accused-
Appellant Suresh had also gone to graze cattle in the Jungle; he met Ashok (P.W. 3) and Ors. in the Jungle. At about 2.00 p.m. Appellant Suresh
asked Ashok (P.W. 3) and Mithai Lal to go to their house for taking food, and on his saying so the latter went away, but when they came back
after taking meal they did not find Km. Bitula present over there, so they asked Appellant Suresh regarding her whereabouts. Appellant Suresh
told them that she might have gone somewhere. According to the prosecution, in the evening when the minor girl Bitula did not return home her,
Uncle Kishan Pal (P.W. 1) went in search of her along with some of the villagers but could not trace her in the night. Since Ashok (P.W. 3) had
gone out, hence he could not contact his uncle Kishan Pal (P.W. 1). Next day again Kishan Pal (P.W. 1) along with some of the villagers went in
search of the girl Km. Bitula, and at about 11.00 a.m. her dead body was found lying in the ''Jwar'' field of one Munni Lal Mishra, Kishan Pal
(P.W. 1), thereafter, went to police station Atrauli and lodged the written report (Exh. Ka-1) which was registered and reduced to writing in the G.
D. as report No. 20 by Head Moharrir Prem Bahadur Singh whose signatures have been identified by Head Constable Ram Kripal Bajpai (P.W.
6) it is Exh. Ka4.
3. The Sub-Inspector Sri J. L. Nirmal (P.W. 8) reached the village Jajoopur and prepared the ''Panchnama'' of the dead body Exh. Ka-10 in the
presence of the ''Panchas'' and sent the dead body of Km. Bitula to the hospital for postmortem examination. From the spot one frock, one
underwear and one Angauchha were seized and sealed by the Sub-Inspector Sri J. L. Nirmal (P.W. 8) in the presence of ''Panchas''. During
investigation, the spot map was also prepared. On 19.9.1995, Dr. B. P. Singh (P.W. 4) conducted the autopsy on the dead body of Km. Bitula.
His report is Ext. Ka-2. On receiving the post-mortem report, it came to light that the offences Under Sections 376 and 302, I.P.C. had been
committed, and hence on 21.9.1995 it was registered as Crime No. 207/95 Under Sections 376 and 302, I.P.C, and thereafter the Station House
Officer Raghav Ram Mishra (P.W. 7) started investigation of the case. He reached the village and recorded the statements of the witnesses Kishan
Pal Singh (P.W. 1), Ram Swaroop (P.W. 2) and one Lalta Bux Singh. On the basis of the said statements, it was revealed that accused-Appellant
Suresh had confessed his guilt before Lalta Bux Singh and Ram Swaroop (P.W. 2). On the next day, i.e., 22.9.1995 accused-Appellant Suresh
was arrested and sent for his medical examination which was done on 23.9.1995 by Dr. R.C. Verma (P.W. 5); his report is Ext. Ka-3. After
completing the investigation, in the case, the police filed charge-sheet in the Court of the concerned Magistrate wherefrom the case was committed
to the Court of Session.
4. The learned Sessions Judge framed charges for the offences Under Sections 376 and 302 of the Indian Penal Code against accused-Appellant
Suresh charges were read over and explained to him. He pleaded not guilty and claimed to be tried. In his statement u/s 313, code of Criminal
procedure accused-Appellant Suresh stated that he had been falsely implicated due to enmity.
5. In this case. the prosecution examined nine witnesses, out of whom three witnesses, namely, Kishan Pal (P.W. 1), Ram Swaroop Singh (P.W.
2) and Ashok (P.W. 3) are witnesses of fact, Dr. B.P. Singh (P.W. 4) and Dr. R.C. Verma (P.W. 5) had respectively conducted the autopsy on
the dead body of Km. Bitula and medically examined accused-Appellant Suresh, and P.W. 6 to P.W. 9 and the Court witness Prem Bahadur are
Police witnesses who took part during the investigation of the case.
6. The factual matrix of the instant case is circumscribed in a very narrow compass. It is a case where an offence of rape coupled with murder is
said to have been committed, and, naturally, as is usual, there is no direct evidence in the case. The whole case hinges on the circumstantial
evidence consisting of ''last seen'' of the prosecutor Km. Bitula and accused-Appellant Suresh by the farmer�s brother Ashok (P.W. 3), medical
evidence consisting of the autopsy done on the dead body of Km. Bitula and the injuries found on the genital organ of accused-Appellant Suresh,
and lastly the extra-judicial confession made by the accused-Appellant Suresh to Ram Swaroop (P.W. 2) and to one Lalta Bux Singh. It is well-
settled legal position that in a case of circumstantial evidence, complicity of the accused with the crime in question can be pinpointed only -if all the
links available on record are so connected that they go to point finger towards the accused only indicating that it is he and he alone who has
committed the crime. In the instant case, as we would discuss henceforth, it is proved beyond doubt that it was the accused-Appellant Suresh only
who had committed rape on Km. Bitula and killed her.
7. At the outset, we are of the opinion that extra-judicial confession though considered being a weak piece of evidence, yet there is neither any rule
of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence of the person to whom the extra-judicial confession
has been made by the accused is trustworthy and unbiased, and the confession has been made by the accused voluntarily to the said witness who
is uninominal to him, and the witness is important and credible one, then certainly in such a situation, conviction can be based on the said extra-
judicial confession even without corroboration for in such a situation to go in search of corroboration itself tends to cast a shadow of doubt over
the evidence. Our view is fortified by the view taken by Hon''ble the Apex Court in State of U.P. v. M. K. Anthony 1985 SCC 105 and Baldev
Raj v. State of Haryana. 1991 SCC 659. In view of the above legal position. If It is found that the extra-judicial confession in the instant case
made by accused-Appellant Suresh to prosecution witness Ram Swaroop (P.W. 2) inspires complete confidence, then certainly even without
corroboration, conviction can be based on that evidence alone. But, as observed earlier, besides the said extra-judicial confession of the accused-
Appellant Suresh, there is Ors. circumstantial links also available on record which go to connect the Appellant with the crime in question. Thus, we
propose to discuss the Ors. Circumstantial links first.
8. Ashok (P.W. 3) brings to light the evidence of ''last seen'' of prosecutor Km. Bitula and accused-Appellant Suresh by him. He deposed that he
and one Mithai Lal had gone with her on the fateful day in the morning to graze cattle in the Jungle, and that the Appellant Suresh was also there
who had asked him (P.W. 3) and Mithai Lal at about 2.00 p.m. to go to house for taking meal, and he then went to his house. He has deposed
that when he and Mithai Lal came back after taking meal, he did not find Km. Bitula there and then he asked accused-Appellant Suresh about her
where about; the latter told that she might have gone somewhere. He further deposed that when he returned home in the evening, he had not met
his uncle Kishan Pal Singh (P.W. 1) as he had gone out of the village, and when he came back the next day, he learnt that the dead body of Bitula
was found in a field, and then he had narrated to his uncle Kishan Pal Singh (P.W. 1) as to what had happened there in the Jungle. The evidence of
Ashok (P.W. 3) finds corroboration from the statement of Kishan Pal Singh (P.W. 1) who also deposed that his nephew Ashok (P.W. 3) had told
him that in the Jungle accused-Appellant Suresh had asked him (P.W. 3) and one Mithai Lal at about 2.00 p.m. to go to take meal and at that time
Km. Bitula had remained there in the Jungle, and further that when he (P.W. 3) went back to Jungle, he had not found Bitula there and then he had
asked Suresh her whereabouts then'' the latter had told him (P.W.3) that she might have gone somewhere.
9. The above corroborated evidence of ''last seen'' besides being the ''last seen'' evidence simpliciter, further goes to indicate the conduct of the
accused-Appellant Suresh to the effect that he wanted to send Ashok (P.W. 3) and Mithai Lal out of the Jungle so that he could easily be
successful in his errand to commit the offence of rape on Km. Bitula. This conduct of the accused-Appellant is also lurking in his extra-judicial
confession made to Ram Swaroop Singh (P.W. 2), three days later, wherein he had told him that at about 2.00 p.m. on that day, a sinister desire
to derive sensual pleasure with Km. Bitula came to his mind, hence he asked P.W. 3 Ashok and Mithai Lal to go to take their meals. We would
discuss this aspect of the matter later on at the appropriate place when we venture to deal with the details of the alleged extra-judicial confession.
10. The medical evidence consisting of autopsy on the dead body of prosecutor Km. Bitula done by Dr. B. P. Singh (P.W. 4) and the medical
examination of the accused-Appellant Suresh done by Dr. R.C. Verma (P.W. 5) form Anr. link in the circumstantial chain. Dr. B.P. Singh (P.W.
4] has deposed that on 19.9.1995 he had conducted the autopsy on the dead body of Km. Bitula aged about 10 years and had found 11 injuries
on her body, out of these 11 injuries most of them were contusions and abrasions, and further the injury No. 1 measuring 15 cm. x 12 cm. was the
important one because the mouth and nostrils appeared to have been forcibly pressed, and that it was sufficient in the ordinary course of nature to
cause death. He opined that villa of vagina and vagina on posterior aspect was lacerated and the finger could pass up to pelvis. He further deposed
that hymen was ruptured and rectum was prolapsed. There is nothing in his cross-examination to discredit his testimony. Thus, on the basis of his
evidence, it is clear that rape was committed on Km. Bitula, and she had died because of the forcible pressing of her mouth and nostrils which
developed asphyxia. According to Dr. B.P. Singh (P.W. 4), cause of her death was asphyxia as a result of blockage of mouth and both nostrils
during sexual offence.
11. As observed above, on the basis of extra-judicial confession made by accused Suresh to Ram Swaroop Singh (P.W. 2) and one Lalta Bux
Singh he was arrested and afterwards got medically examined. Dr. R.C. Verma (P.W. 5) examined him. He has deposed that smegma was absent
on the penis of the accused; prepuce was normal and that frenulum (LING KE NEECHE AAGE HISSE MEN JAHAN KHAL JUDI HOTI HAI
VAH TOOT1 HUI THEE) was broken and healed. He has opined that the said injury on frenulum was caused during the sexual intercourse which
might have been committed about a week back. He (P.W. 5) examined accused-Appellant Suresh on 23.9.1995 indicating thereby that the latter
might have committed alleged rape with Km. Bitula. Dr. R.C. Verma (P.W. 5) has further deposed that the accused might have possibly received
injuries on his genital organ on 17.9.1995 between 1.00 p.m. to 3.00 p.m. during the course of committing rape. He further clarified that the said
injury could be received if the rape was committed on a minor girl aged about 10 years. Besides, as we would see later on, this aspect of the
evidence regarding presence of aforesaid injury on the genital organ of the accused Suresh also gets corroboration in the extrajudicial confession
made by the latter to Ram Swaroop Singh (P.W. 2), wherein he himself had told him that during the commission of the rape, he had received said
injury. Thus, the medical evidence available on record is an important link in the chain of the circumstances connecting the accused-Appellant with
the offence in question.
12. The last but not the least, rather a very important edifice of the circumstantial links available on record, is the extra-judicial confession made by
the accused-Appellant Suresh to Ram Swaroop Singh (P.W. 2) and one Lalta Bux Singh three days after the incident in question. It is true that
said Lalta Bux Singh was not examined by the prosecution, and this aspect has been attacked by the learned Counsel for the accused-Appellant as
a weakness of the prosecution case, but we are afraid, it cannot go to belittle the evidence already available in this regard. Ram Swaroop Singh
(P.W. 2) has deposed that after three days from the day of the incident in question, accused-Appellant Suresh alone had come to his house and
told him that he, Km. Bitula. her brother Ashok (P.W. 3) and one Mithai Lai had gone to Jungle to graze cattle. and then at about 2.00 p.m. a
sinister desire to drive sensual pleasure with Km. Bitula came to his mind and hence, to get his vulgar and sensual desire satisfied, he asked Ashok
(P.W. 3) and Mithai Lai to go to their house to take meal. His own words are ; ""MERI KUMARI BITULA PAR NIYAT KHARAB HO GAI
TAB MEN ASHOK AUR MITAH1 LAL KO KHANA KHANE GHAR BHEJ DIYA"". Accused-Appellant had further told him (P.W. 2) that
when Ashok and Mithai Lal had gone from there he forcibly took Km. Bitula in the field of Munni Lal, fell her on the ground and committed rape
on her, and when she tried to raise alarm, he forcibly shut her mouth and nostrils which consequently resulted in her death. Ram Swaroop (P.W. 2)
further deposed that accused-Appellant Suresh had also asked him to pardon him and requested for help as he had good links with the Police.
Ram Swaroop has also deposed that the Appellant had further told him that during the commission of rape, he had received injuries on his genital
organ. He (P.W. 2) deposed that he had told that accused-Appellant that he would not help him and then the latter told that he was going to Lalta
Bux Singh for help. Ram Swaroop (P.W. 2) has deposed that he was Senior Block Pramukh of Block Bharawan and that his brothers were
Advocates and that is why the Appellant had come to him for help.
13. As already observed above, the conduct of the Appellant in sending Ashok (P.W. 3) and Mithai Lal to their house for taking meal was
relevant in the matter, and further, receiving of injury on his genital organ was also very relevant as it occurs in his extra-judicial confession which
goes to connect him with the crime in question. Thirdly, at this very juncture, it is also pertinent to note that this extra-judicial confession made by
the accused-Appellant Suresh to Ram Swaroop (P.W. 2) gets more strengthened by the fact that he had come to request P.W. 2 because the
latter had important links with the Police and he could have been helpful and favourable to him. In the cross-examination of this witness Ram
Swaroop (P.W. 2), nothing could be brought out to show his animosity with the accused-Appellant Suresh, or in any manner to doubt his veracity.
Simply pleading that Ram Swaroop was inimical with the accused-Appellant would not help unless some substantial material was brought either in
the cross-examination of the witness in question or by way of adducing oral or documentary evidence. In the instant case nothing of this sort is
available on record. Thus, the aforesaid extra-judicial confession made by the accused -Appellant Suresh to Ram Swaroop (P.W. 2) cannot be
doubted and brushed aside, and it inspires full confidence. Ram Swaroop Singh (P.W. 2) not only stated about the aforesaid extra-judicial
confession for the first time in the Court but he had also told all about it to Kishan Pal Singh (P.W. 1) and the latter also deposed on oath in this
regard. It was on the basis of this extra-judicial confession only that the investigation in this regard was done and the accused-Appellant Suresh
was later arrested. Thus, this piece of circumstantial link pin pointedly goes to connect the Appellant with the crime in question.
14. We have already observed in detail that even without corroboration, the extra-judicial confession can be acted upon and the accused can be
connected with the crime in question as there is neither any rule of law nor any rule of prudence that it cannot be acted upon unless corroborated.
However, while discussing the various circumstantial links of the instant case, we have seen that besides the evidence of extra-judicial confession,
Ors. important relevant factors are also available and they altogether make a complete chain to connect the accused with the crime in question. We
hold so. Consequently, the order of conviction passed by the learned Sessions Judge against the accused-Appellant Suresh for the offences Under
Sections 376 and 302. I.P.C. is upheld.
15. So far as the sentence of life imprisonment passed by the Learned Sessions Judge agarinst the Appellant in regard to the offence u/s 376,
I.P.C. is concerned, we have nothing to add, obviously because in a case of rape coupled with murder, the maximum punishment of imprisonment
for life is but desirable. We held so.
16. As regards the sentence of death passed by the learned Sessions Judge against the Appellant for the offence u/s 302, I.P.C, we find'' ourselves
unable to agree with him. The legal position is well-settled and precipitated that the death penalty should be awarded in the ''rarest of the rare
case''. Hon''ble the Supreme Court has given the guidelines in this respect in the cases of Bachan Singh Vs. State of Punjab, and Machhi Singh and
Others Vs. State of Punjab, . The learned Sessions Judge has nowhere discussed as to how the instant case is the ''rarest of the rare one'' calling
for the death penalty. Life imprisonment is the rule and the death sentence is an exception. In awarding death penalty, which is exceptionally
awarded, the Judge has to be very cautious, and the aggravating and mitigating circumstances of the case available on record have to be cautiously
weighed and the balance has to be struck in this regard. We are of the view that since the death penalty is awarded in the ''rarest of rare cases''
hence mitigating circumstances available in the case have to be accorded full weightage.
17. With the aforesaid legal backdrop, we find that the instant, case does not call for the extreme penalty provided for the offence of murder. In
the earlier part of this judgment, we have discussed the evidence of Dr. B.P. Singh (P.W. 4) who had conducted the autopsy on the dead body of
the prosecutor Km. Bitula. Dr. B. P. Singh (P.W. 4) has deposed that injury No. 1 on the mouth and nostrils of the deceased Km. Bitula was
sufficient in the ordinary course of nature to cause death. Thus, it is clear that the accused Suresh did commit murder of Km. Bitula. He had
developed sensual desire to commit rape on her and to achieve that end him although tried to create a favorable situation for him, and he did
succeed and committed rape on Km. Bitula. In the extrajudicial confession also, it is clear that the accused-Appellant had shut the mouth and the
nostrils of Km. Bitula when the latter tried to raise alarm. So, to achieve his errand accused Suresh had forcibly pressed the mouth and nostrils of
Km. Bitula which resulted in asphyxia and her consequential death.
18. In these circumstances, we are of the opinion that no doubt Km. Bitula died of asphyxia during the commission of rape on her by accused-
Appellant Suresh, but it could not be said that it was a murder of brutal, grotesque, diabolical, revolting or dastardly nature, and consequently it
does not call for the extreme penalty of death. Therefore, the sentence of death awarded by the learned Sessions Judge for the offence u/s 302,
I.P.C. proved to have been committed by the accused-Appellant Suresh is hereby set aside, and it is altered to imprisonment for life.
19. Consequently, the capital reference No. 2 of 1998 is hereby rejected, and both the Criminal Appeal Nos. 84 of 1998 and 102 of 1998 are
partly allowed in the manner indicated above.
