- (1.)These appeals have been preferred against the impugned judgment and order dated 27.6.2013 passed in Criminal Reference No. 01 of 2013 and Criminal Appeal No. 397 of 2013 passed by the High Court of Madhya Pradesh at Jabalpur affirming the conviction of the appellant under Sections 376 and 450 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') as well as confirming the death sentence awarded for the offence under Section 302 IPC by the trial court vide judgment and order dated 5.2.2013 passed in Sessions Trial No. 20 of 2013.
(2.)Facts and circumstances giving rise to these appeals as per the prosecution are that:
A. On 26.12.2012, the appellant, aged 32 years, came to the house of his neighbour Iknis Jojo (PW.1) and stayed with his four children as Iknis Jojo (PW.1) and his wife Albisiya had gone to irrigate agricultural fields in the night. The appellant was on visiting terms with the family and the children used to call him "Mama" i.e. maternal uncle. On the said night, he had taken liquor and meals in the complainant's house and when retiring for the night, the appellant asked the prosecutrix Gounjhi, aged 14 years not to sleep with her three siblings i.e. Sushma, Sanchit and Aric, rather to sleep at some distance from them. Around midnight, he raped prosecutrix Gounjhi. While committing rape, he caused some grievous injuries and consequently she died. The incident was witnessed by Sanchit (PW.2), brother of the prosecutrix, however, out of fear, he could not raise any hue and cry. After committing the crime, the appellant left the place of occurrence. In the morning, Iknis Jojo (PW.1) alongwith his wife Albisiya came from their fields and found the children sleeping. They woke them up and also tried to wake the prosecutrix when they realised that she was dead. Sanchit (PW.2) narrated the incident that had occurred in the night.

B. Iknis Jojo (PW.1) immediately went to the police station and lodged the complaint, on the basis of which Crime No. 294 of 2012 was registered for the offence under Sections 302 and 450 IPC. Shri K.S. Thakur, Inspector of Police, Police Station: Nainpur, District Mandla, Madhya Pradesh started the investigation. He came to the spot, recovered the dead body, prepared the Panchnama, also recovered the blackish brown colour purse and clothes lying near the place of occurrence. Some coins and a small packet of tobacoo were also recovered. Some hair were found lying near the dead body of the prosecutrix and one sky blue coloured shawl was also recovered from the place of occurrence which had blood stains and some other kind of stains at various places. The earth of that place having some fluid material thereon was also recovered. The investigating officer prepared the site plan in presence of the witnesses and dead body of the prosecutrix was sent for postmortem and the appellant was arrested.

C. Dr. Surendra Barkare (PW.6) alongwith lady Dr. (Smt.) Prahba Pipre (PW.7) conducted the postmortem of the prosecutrix and submitted the report. As per the postmortem report, rape had been committed upon the deceased and, thus, Sections 376 and 511 IPC were also added in the case.

D. After taking permission from the Judicial Magistrate, the specimen blood of the appellant was obtained to conduct his DNA finger printing which was sent for analysis to State Forensic Science Laboratory, Sagar. All the materials sent for chemical analysis were analysed and the report was submitted and on the basis of which the chargesheet was filed and the appellant was put to trial. Appellant denied his involvement in the offence, thus trial commenced.

E. Dr. Surendra Barkare (PW.6) deposed and proved the postmortem report and deposed that the prosecutrix died of asphyxia as a result of strangulation and her death was homicidal in nature.

F. Iknis Jojo (PW.1), father of the deceased, deposed while giving the version as mentioned in the FIR and admitted that the appellant used to come to his house occasionally and he was referred to by his children as "Mama" and sometimes he used to stay in the house though his house was only half a kilometer away from his house and he was already married having a child.

G. Sanchit (PW.2), a 10 years old boy, supported the case of the prosecution and deposed that his "Mama" had come to their house. He consumed liquor and was served rice and water by the deceased. Appellant asked the prosecutrix to sleep at some distance from her siblings. The appellant slept with other three children and it was about 11-12 in the night that he heard the shrieks of his sister and saw that the appellant had pressed her neck and he got so much scared that he could not even raise the voice. All this was disclosed by PW.2 to his parents in the morning on their returning from the fields.

H. Dr. (Smt.) Prabha Pipre (PW.7) deposed about the conduct of the postmortem of the body of the deceased alongwith Dr. Surendra Barkare (PW.6). They further deposed that hymen of the deceased was torn and blood was oozing out from her private parts. Some blood was present in the cavity of the private part and some blood was also present in the cavity of her uterus. Her vagina accommodated one finger and it accommodated two fingers with difficulty. On the basis of the above, she had opined that deceased had been subjected to rape before murder.

I. The deceased was 14 years of age and a student in sixth standard which was proved from the school register and the statement of her father Iknis Jojo (PW.1). Her age has also been mentioned in the FIR as 14 years. So far as medical evidence is concerned, it was mentioned that the deceased prosecutrix was about 16 years of age.

J. So far as the analysis report of the material sent and the DNA report is concerned, it revealed that semen of the appellant was found on the vaginal swab of the deceased. The clothes of the deceased were also found having appellant's semen spots. The hair which were found near the place of occurrence were found to be that of the appellant.

K. The trial court after considering the entire evidence on record, recorded the following findings of fact:

i) The evidence of Sanchit Jojo (PW.2), a child witness was worth placing reliance and it duly supported the case of the prosecution;

ii) His deposition corroborates medical evidence;

iii) The hymen of the deceased was found torn;

iv) Semen of the appellant was found on the slide prepared from the vaginal swab of the prosecutrix as proved by the DNA report;

v) The shawl of the deceased was also found having semen stains which were of the appellant;

vi) The hair found near the body of the prosecutrix were found to be of the appellant as per the DNA report;

vii) The appellant did not take any defence in his statement under Section 313 Cr.P.C. except that he had been falsely implicated by the family of the deceased at the instance of the police and that the appellant did not lead any evidence in his defence.

L. Considering all the aforementioned circumstances and evidence of the relationship with the family of the deceased, the trial court treated it to be a case of extreme culpability and a rarest of rare case awarding death sentence under Section 302 IPC with a fine of Rs. 3,000/-. Under Section 376 IPC, the appellant was awarded rigorous life imprisonment and a fine of Rs.3,000/-; in default of making payment on both counts, sentence of one year on each count was also awarded. For the offence punishable under Section 450 IPC, the appellant was awarded 10 years rigorous imprisonment with a fine of Rs.3,000/- and in default, a rigorous imprisonment for one year. However, it was directed that all the sentences would run concurrently.

M. The trial court made a reference to the High Court for affirming the death sentence. The appellant, being aggrieved, also preferred an appeal against his conviction and sentence before the High Court. The appeal and the reference were heard together. N. The High Court recorded the same findings after re- appreciation of evidence and came to the conclusion that prosecutrix was 14 years of age at the time of incident. The appellant was admittedly present in the house but he furnished no explanation whatsoever about the injuries received by the deceased. As the appellant has committed rape upon an innocent and helpless child and then killed her brutally, it has shocked not only the judicial conscience but even the conscience of society as well. The High Court also recorded the finding that the offence had been committed in pre-mediated manner.

The death sentence was affirmed and the appeal was dismissed. Hence, these appeals.

(3.)Ms. A. Sumathi, learned counsel appearing on behalf of the appellant, has submitted that the appellant had falsely been implicated by the family members of the deceased at the instance of the police. There is no eye-witness in the case. Sanchit Jojo (PW.2), brother of the prosecutrix, is a child witness and cannot be relied upon simply for the reason that after seeing the incident and knowing well that his sister had been killed, he did not raise any alarm even after the accused had left the spot. Even in the morning, he did not tell his parents when they came back from the agricultural fields as what had happened. Therefore, the courts below have committed a grave error while placing reliance upon the deposition of the child witness. It is a clear cut case of circumstantial evidence for which the prosecution could not furnish explanation on various counts and it cannot be held that appellant had committed rape upon prosecutrix and, subsequently, killed her. The facts and circumstances of the case did not warrant death sentence as awarded by the courts below, and hence, the appeals deserve to be allowed.