Gujarat High Court
State Of Gujarat vs Raju @ Rajeshbhai Ishwarbhai ... on 23 March, 2021
Bench: A.J.Desai
R/CC/3/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL CONFIRMATION CASE NO. 3 of 2020
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
and
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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STATE OF GUJARAT
Versus
RAJU @ RAJESHBHAI ISHWARBHAI VAGHRI
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Appearance:
MS KRINA CALLA, APP(2) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
MR NIRAD D BUCH(4000) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 23/03/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
(1) Vide judgement and order dated 29.09.2020 passed
by Special Judge POCSO and Additional Sessions
Judge, Anand in Special (POCSO) Case No.20 of
2017, accused - Raju @ Rajeshbhai Ishwarbhai
Vaghri, has been convicted for the offences
punishable under sections 302, 376A, 377, 363,
364, 397 and 201 of the Indian Penal Code, 1860
(for short "the IPC") and under sections 4 and 6
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of the Protection of Children from Sexual
Offences Act, 2012 (for short "the POCSO"). He
has been sentenced for death and fine for the
offence punishable under section 302 of the IPC,
sentenced for life imprisonment and fine for the
offence punishable under section 376A of the
IPC, sentenced for 10 years imprisonment and
fine for the offence punishable under section
377 of the IPC, sentenced for 05 years
imprisonment and fine for the offence punishable
under section 363 of the IPC, sentenced for 10
years rigorous imprisonment for the offence
punishable under section 364 of the IPC,
sentenced for 07 years imprisonment for the
offence punishable under section 397 of the IPC
and sentenced for 05 years imprisonment for the
offence punishable under section 201 of the IPC.
Accordingly, the judgement and order convicting
and sentencing the accused has been referred to
this Court by Special Judge (POCSO) & Additional
Sessions Judge, Anand by a communication dated
26.10.2020 for confirmation of death sentence
under section 366 of the Code of Criminal
Procedure, 1973 (Cr.P.C.). The opponent -
accused has not preferred any appeal against his
conviction and sentence. However, the provisions
of section 368 of the Cr.P.C. empower the High
Court to confirm the sentence, or pass any other
sentences warranted by law.
R/CC/3/2020 JUDGMENT
By the order dated 25.01.2021 this Court had
appointed learned advocate Mr.Nirad D. Buch to
represent the respondent - convict.
(2) The case of the prosecution in nutshell is that
the complainant namely, Sarojben Dineshbhai
Chhotabhai Talpada, the mother of the victim,
who is examined as PW2 had lodged the complaint
on 15.02.2017 (Exh.24) at Khambat Rural Police
O'clock in the morning of 14.02.2017 at Village
Finav, Valmik Vas, Taluka Tarapur, Dist. Anand
her daughter was kidnapped by unknown person. As
per the charges framed at Exh.6, the accused had
committed rape and sodomy and thereafter,
murdered the four year old daughter of the
complainant. It was also established that he had
also sold the gold and silver ornaments, worn by
the victim.
(3) The investigation was initially undertaken by
Police SubInspector, V.B.Chaudhry for the
offence under section 363 of the IPC but
subsequently since the offence was found to be
serious in nature that of murder and rape, the
same was handed over to the Incharge Circle
Police Inspector, Priteshkumar Jayantibhai Patel
(PW24). The accused was arrested on 15.02.2017
at 04:30 p.m., which can be ascertained from the
panchnama at Exh.33.
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(4) An F.I.R. was registered as C.R.No.I5 of 2017
at Khambhat (Rural) Police Station, Anand for
the aforenoted offences. The charges were framed
at Exh.6 and it was registered as Special POCSO
Case No.20 of 2017 on 13.04.2017 before the
Sessions Court, Anand. The prosecution has
examined 24 witnesses and also adduced
documentary evidence in order to bring home the
charges against the accused. After hearing the
parties on the point of quantum of sentence, the
Sessions Court has found the accused guilty
under various offences and awarded the capital
punishment directing the accused - Raju @
Rajeshbhai Ishwarbhai Vaghri to be hanged till
death, subject to confirmation of the High Court
of Gujarat. As noted hereinabove, the accused
has not preferred any appeal against his
conviction.
(5) Learned Additional Public Prosecutor Ms.Krina
Calla, while referring to the various
depositions of the witnesses as well as the
medical evidence, more particularly
Deoxyribonucleic Acid (DNA) profile, has
submitted that the conviction and the sentence
recorded by the Trial Court may not be
disturbed. She has submitted that in fact, the
accused is responsible for the heinous and
barbaric act by subjecting the victim girl, who
is four years old to such pain and torture and
hence, the death penalty awarded to the accused
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may not be disturbed. While referring to the
cause of death of the victim, she has placed
reliance on the Medical Jurisprudence and
Toxicology, whereby she has referred to the
"Asphysia" and has submitted that the victim had
died because of the Asphysia as the accused has
throttled her neck. In support of her
submissions, she has placed reliance on the
judgment of the Coordinate Bench of this Court
in the case of Anil Surendrasingh Yadav vs.
State of Gujarat, 2020 (3) G.L.R. 1983, whereby
the Coordinate Bench has confirmed the sentence
for the offence punishable under sections 302
and 376AB of the IPC, which was committed on
three and a half years minor girl, who was raped
and murdered by throttling.
(6) In response, the learned advocate Mr.Buch
appearing for the accused has submitted that
there are various loopholes in the investigation
and the benefit may be given to the accused for
the same. It is submitted that the accused is
not named though one of the witness Kankuben had
allegedly told that she had seen the victim with
the accused. It is submitted that no independent
witnesses of anganwadi or villagers are
examined, hence the conviction deserves to be
set aside. With regard to the DNA profile, which
proves that the blood of the accused was found
on the clothes of the victim; he has submitted
that the same has to be ignored as the
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description of the clothes, narrated by the
mother of the victim (PW2), does not
corroborate with the panchnama. Thus, it is
submitted that the only convincing evidence, on
which the prosecution relies with regard to the
DNA profile and Forensic Science Laboratory
(FSL) report should be ignored for convicting
the accused for the offence. Alternatively, he
has submitted that it was an accidental death,
which might have been caused as a result of
suffocation due to overlaying as there is no
conclusive opinion of ligature marks around the
neck of the deceased. While placing reliance on
the judgemnet of the Apex Court in the case of
Bachan Singh vs State of Punjab, 1980 (2) S.C.C.
684, he has submitted that the present case will
not fall within the category of "rarest or rare
case", calling for death sentence. It is
submitted that there are no criminal antecedents
of the accused; hence he may not be sentenced to
death.
(7) We have scaled the entire evidence of the case
threadbare. The submissions as advanced by the
learned advocates appearing for the respective
parties are also thoughtfully considered.
(8) The case of the prosecution is premised on the
complaint filed by PW2, Sarojben Dineshbhai
Talpada, who is examined below Exh.23, wherein
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she has deposed that she has searched for her
four years old daughter on 14.02.2017. It is
stated by her that her daughter was wearing a
punjabi white dress having black dots and was
wearing silver anklets and gold studs in ears.
She has stated that on realizing that some
unknown person had abducted her daughter; she
has lodged the complaint at Khambhat (Rural)
Police Station, Anand. She has also produced the
bill of gold studs (Exh.25) of the shop. In her
testimony she has deposed that when Kankuben
(PW3) had informed her that she had seen the
accused - Raju @ Rajeshbhai Ishwarbhai Vaghri
taking her daughter; she had inquired about the
same from the accused, however, since he had
refused by swearing on his mother's name by
saying that "her daughter is my daughter" and
he denied taking her; she had believed him. She
has also identified the clothes and ornaments,
which were worn by her daughter. She has
identified the kurta (Top) as well as Pink
leggings (bottom). In her crossexamination, it
is elicited that Kankuba had not informed that
she had seen the accused taking her daughter. A
minor contradiction with regard to colour of
dots in kurta is also brought out in the cross
examination.
(9) PW3, Kankuben Dahyabhai Vaghri, is examined at
Exh.26. In her testimony, she has deposed that
the police had inquired about the daughter of
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the complainantSarojben by showing the photo of
her girl, at that time she had informed that she
has seen the victim with the accused at around 8
O'clock and accordingly she had also identified
the accused in the Court. In her cross
examination it is elicited that on 14.02.2017,
she had informed the family members of the
victim that she had seen the accused taking her
with him. It is further elicited that when the
accused was taking away the victim girl, she did
not know her identity however, when the police
had shown her the photo, she realized that she
was the same girl, who was taken by the accused
Raju. Thus, deposition of PW3 reveals the
complicity of the accused in the offence. No
major contradiction has surfaced in the
deposition.
(10) There is minor inconsistency between the
evidence of PW2 and PW3 with regard to
revealing the names of accused by PW3 to PW2.
However, from the evidence it is revealed that
PW3 had in fact informed the family members of
the PW2 about the accused when they were
searching for the accused. From the evidence of
PW3, it is proved that the victim was lastly
seen with the accused. Hence, the prosecution
has been successful in establishing the theory
of "last seen together".
R/CC/3/2020 JUDGMENT
(11) PW4, Arjunbahi Parshottambhai Talpada, who is
the brother of the complainant is examined at
Exh.28. His deposition reveals that relationship
of the accused and family of the complainant was
strained as there was some financial dispute
between them with regard to the construction of
a wall. He has narrated that his niece - victim
was wearing silver anklets as well as gold studs
in her ears and also white punjabi dress and
pink leggings as well as pink slippers. He has
further submitted that the dead body of his
niece was found at the boundary of Virsad
village near Khodiyar Temple in a tobacco field.
It is submitted that the accused had informed
the Police that he had placed the dead body of
the victim girl in the field.
(12) The inquest panchnamaExh.36 is prepared by
panchas PW7 and PW10. PW7, Ashokbhai
Jethabhai Patel, is examined at Exh.35. He has
supported the inquest panchnama and has proved
the same. He has submitted that he was called to
act as panch on 15.02.2017 by the police and
accordingly he had remained present at the field
at Virsad. The inquest panchnama reveals the
position and place from where the dead body of
the victim was found. It is stated in the
inquest panchnama that the dead body was found
from the tobacco field and it was partly covered
by soil and tobacco leaves. The dead body was
completely naked and the father of the victim
had identified her.
R/CC/3/2020 JUDGMENT
(13) The scene of offence panchnama (Exh.51) was
prepared on 16.02.2017 between 8:30 to 10.00
a.m. The same is proved by panch witness PW12,
Kantibhai Mangalbhai Thakore, who is examined at
Exh.50. It is deposed by him that he had
collected the samples of soil and tobacco leaves
in presence of the F.S.L Officer. The same is
supported by F.S.L. investigation report Exh.61.
(14) A panchanama Exh.40 was prepared with regard to
the discovery of body of the victim. However,
the panchas have turned hostile.
(15) Another panchnama at Exh.47, which pertains to
the recovery of the clothes at the instance of
accused, is also proved by the pancha (PW11),
Shanabhai Udesingh Gohel. He has explicitly
deposed that on the instructions of the accused,
the clothes of the victim were seized from the
field which were concealed by soil. The
panchnama refers to the description of the
clothes. It refers to one light pink leggings
and also white kurta having flowery design and
pink slippers. This panchnama is proved and
supports the case of the prosecution. The
panchnama reveals that it was prepared on
17.02.2017 at 13:1014:45 hours.
(16) The panchnama with regard to the discovery of
ornaments, which the victim were wearing, was
prepared at Exh.55. It is also proved by the PW
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13, Shaileshbhai Chandubhai Suthar. It is
established from the panchnama as well as
deposition of PW13 that the ornaments were
found from one V.K.Jewellers. It is further
established that the accused has sold the
ornaments in the said jewellery shop. The
panchnama reveals the name of one Vasantiben
Kishorchandra Soni (PW22), who was present in
the jewellery showroom at the time of preparing
panchnama and she has identified the accused,
who had sold the ornaments in the shop on
14.02.2017. On referring to the Register, which
was maintained in the shop, she has stated that
she has paid Rs.700/ for the ornaments to the
accused, she has also identified the accused.
(17) Vasantiben Kishorkumar Soni, to whom the accused
had sold the jewellery, is examined as PW22 at
Exh.79. She has identified the accused in the
Court and in her testimony she has stated that
she had bought the ornaments by paying Rs.700/
to the accused. She has also identified the
ornaments before the court. In the cross
examination however, it is elicited that the
police had shown the accused at the Police
Station and thereafter, he was also brought to
her shop. Thus, the identification of the
accused by her is defective and flawed. However,
it is established that the accused had sold the
ornaments of the victim.
R/CC/3/2020 JUDGMENT
(18) The Investigating Officer (PW24), who has
undertaken the substantial investigation, is
examined at Exh.84. It is stated that initially
the investigation was registered for the
offences punishable under sections 363 and 364A
of the IPC, which was undertaken by the Police
SubInspector V.B.Chaudhary however, looking to
the seriousness under the Protection of Children
from Sexual Offences Act, 2012, the
investigation was handed over to him. It is
submitted that during the investigation, it was
found that the accused has taken away the victim
girl. The accused was arrested and thereafter,
on his instructions, the dead body of the victim
was recovered from the scene of offence and
necessary panchnamas were also prepared.
(19) Primarily, the prosecution has placed reliance
on the FSL Report as well as DNA profile for
convicting the accused in the offence. The FSL
report is exhibited at Exh.20. The same is
produced by the Scientific Officer, Manishaben
Miteshbhai Patel, (PW23), who is examined at
Exh.80. She has proved the F.S.L and D.N.A
report. She has stated that the blood collected
vide samples B.21 and B.25(penile swab) have
the same D.N.A of the accused. It is stated by
her that the D.N.A of the samples matches with
the blood sample found at Exhbit C1 (TopKurta)
and Exhibit C2 (leggings).
R/CC/3/2020 JUDGMENT
(20) The description of the samples of FSL report
dated 25.04.2017 and the DNA specify that the
Exhibit C1 is Top (kurta) of the deceased. The
description reveals that it is a creamish
coloured having green, yellow coloured floral
print having whitish stains. Exhibit C2 is given
to leggings, which describe the same as Pink
coloured having several scattered brownish and
white stains. The final observation of the DNA
profile report suggests that the blood of the
accused B.21 is found on the leggings and top
of the deceased.
(21) It manifests from the FSL and DNA report that
the victim was wearing a kurta (Top) having
floral design and pink leggings. The same
corroborate the testimony of the complainant and
the panchnamas with regard to the descriptions
of the clothes worn by the victim. Though,
there is some minor description in the colour of
floral or spots of the top (kurta), as narrated
by the complainant, the same cannot be
detrimental to the case of the prosecution. The
DNA profile is a clear pointer about the
involvement of the accused in the offence. The
panchamas also prove as the same are supported
by the panchas.
(22) PW1, Dr.Swapnil Sudhir Kumar, who has prepared
the postmortem report at Exh.14 is examined
below Exh.10. The evidence of the said witness
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as well as the postmortem report reveal various
injuries inflicted on the victim. Following
injuries are found on the body of the victim.
"15. Injuries to Skin around external
external genital genital perinea and anus
organs, evidence of stained with blood.
purging
Vulva & Vagina (1) openly
enlarged with 2nd degree
perineal tear [laceration
in fourchelte perineal
skin vaginal mucosa and
perineal muscles &
freskin) present over
posterior aspect with
surrounding contusion (2)
anterior vaginal well
contused on (L) side.
ANAL OPENING: Appears
widened superficial tear
present on illegible
aspect (L) side with
inner wall contusion.
Whitish discharge present
in anal canal.
"EXTERNAL INJURIES
(1) Red abrasion present over
(a) front of neck (L) side to
midline,multiple overlapping each other in 5 x
4 area, 5 cm below (L) side jaw varying 0.5 -
1.3 cm in length, 0.10.3 cm in width.
(b) (L) side shoulder region above outer
half of (L) clanicle 0.2 x 0.1 cm & 0.5 x 0.2
cm size.
R/CC/3/2020 JUDGMENT
(c) Outer aspect upper
half (L) arm two in
numbers both 0.2 x 0.1 No palpable fracture
cm size.18. Fracture
or dislocation of
Bone or joint AS one injuries are
perceived by external antemortem in
Examination or nature; Fresh genital
palpation: and Anal injuries are
possible by force the
penetration of an
Can you definitely object including male
state that organ. Rest body
Injuries mentioned in injuries are possible
column 17 and 18 are by friction with hard
antemortem in nature: blunt substance
including finger
nails.
No evidence of
injury)fracture or
20.Thorax: extravasation of blood)
Walls, ribs & Intact;(L) cavity
cartilage contains 50ml of dark
fluid blood
Congested; No fracture
Pleura of hyoid bone or
thyroid cartilage
present. Neck muscle
corrospnding to
Pharynx, larynx & external injury
trachea No.1(a)show contusion
in 7x4 cm area. Both
lungs congested and
softened
R/CC/3/2020 JUDGMENT
(23) The final cause of death, as per the postmortem
report and the deposition of the PW1 reveals as
"fatal pressure over neck and chest." As far as
the external injuries, which are found on the
frontal neck, side shoulder and left arm, it is
stated by the said witness that the same are
prior to death. The witness has also asserted
that the injuries, which are found on the
genital as well as anal are possible due to
forceful insertion of male sexual organ. He has
further stated that on the examination of the
dead body, as per his opinion, the death has
occurred due to compression on neck and chest.
The overall deposition of the doctor and the
postmortem report reveal that the injuries,
which are found on the private part of the
victim as well as in anal had occurred due to
sexual intercourse. The postmortem report and
his deposition also divulge that there was no
fracture found on the parts of neck of the
victim.
(24) The DNA profile establishes the blood of the
accused on the clothes of the victim. The
defence has tried to bring the minor
contradiction with regard to the description of
the top worn by the victim, however, the same is
inadequate to shake the credibility of the
evidence ascertained by the prosecution. It is
established that the victim was wearing a light
coloured Top (kurta) and pink leggings as well
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as pink slippers on the unfaithful day when she
was taken away by the accused for committing
heinous and atrocious offence on her. The scene
of panchnama reveals the condition of the victim
when she was found. The victim was lying in the
naked condition and blood was oozing out from
her private parts. The medical evidence
unequivocally establishes the complicity of the
accused in the offence of rape, sodomy and
murder. The prosecution has been successful in
establishing that the deceased was last seen
together with the accused. The aggravating
circumstances undoubtedly prove the acts of the
accused in taking the deceased and committing
the barbaric act on her. The postmortem report
and the evidence of PW1 clearly emphasize that
the victim, who was only four years old, was
subjected to such heinous cruelty by the accused
in order to satisfy his lust. The accused has
caused death while destroying her dignity by
committing rape and sodomy. The plight and the
pain, which she must have undergone are
difficult to fathom. The crime is committed in
an inhumane manner with an animal instinct. It
is also established that after committing the
appalling act, he had sold her ornaments.
Indubitably, the evidence implies the
involvement of the accused in the offence for
which he was charged. We do not find any
infirmity, illegality or perversity in the
findings of the trial court in convicting the
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accused for the aforesaid offence. The
prosecution vide its impeachable, credible and
trustworthy evidence has proved the culpability
of the accused beyond reasonable doubt.
However, whether in the given facts and
circumstances and the evidence which has
surfaced, can the accused be awarded capital
punishment of death is the question which is
posed before us.
(25) At this stage we may with profit refer to the
recent decision of the Apex Court rendered in
the case of Shatrughna Baban Meshram vs. State
of Maharasthra, 2021 (1) S.C.C. 596. The Apex
Court, after threadbare analysis of the catena
of judgements delivered on the issue of awarding
death penalty for the offence of rape and murder
where in the victims were below 16 years of age,
has finally observed thus:
"31.6. Recently, a threeJudge Bench of this Court
in Dattatraya vs. State of Maharashtra
[Dattatraya v. State of Maharashtra, (2020) 14 SCC
290] had an occasion to consider where a girl of 5
years was subjected to sexual assault. She died as
a result of Injuries 1 to 5 suffered during the
course of sexual assault on her. The conviction of
the accused inter alia under Sections 302, 376(2)
(f) IPC and under the provisions of the POCSO Act was
affirmed by this Court and it was observed : (SCC
p. 324, para 117)
R/CC/3/2020 JUDGMENT
"117. As a mature man, over fifty years of age,
the appellantaccused should have known that
the rape of a fiveyearold child by an adult
was dangerous and could lead to such injuries,
as was in all probability likely to cause
death."
32. The guiding principles were summed up in State
of M.P. v. Ram Prasad [State of M.P. v. Ram Prasad,
(1968) 2 SCR 522 : AIR 1968 SC 881 : 1968 Cri LJ
1025] to the effect that even if there be no
intention to cause death, (at AIR p. 883, para 8)
"[if] there is such callousness towards the result
and the risk taken is such that it may be stated
that the person knows that the act is likely to
cause death or such bodily injury as is likely to
cause death" clause Fourthly of Section 300 IPC
will get attracted and that the offender must be
taken to have known that he was running the risk of
causing the death or such bodily injury as was
likely to cause the death of the victim. Same
principle is discernible from the decision of this
Court in Dattatraya v. State of Maharashtra
[Dattatraya v.State of Maharashtra, (2020) 14 SCC
290].
33. Considering the age of the victim in the
present case, the accused must have known the
consequence that his sexual assault on a child of
2½ years would cause death or such bodily injury as
was likely to cause her death. The instant matter
thus comes within the parameters of clause Fourthly
to Section 300 IPC and the question posed at the
beginning of the discussion on this issue must be
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answered against the appellant. The appellant is
therefore guilty of having committed the offence of
culpable homicide amounting to murder.
x x x x x
80. Going by the circumstances proved on record
and, more particularly the facets detailed in para
23 hereinabove as well as the law laid down by this
Court in a series of decisions, the circumstances
on record rule out any hypothesis of innocence of
the appellant. The circumstances are clear,
consistent and conclusive in nature and are of
unimpeachable character in establishing the guilt
of the appellant. The evidence on record also
depicts an exceptional case where twoandahalf
years' old girl was subjected to sexual assault.
The assault was accompanied by bites on the body of
the victim. The rape was of such intensity that
there was merging of vaginal and anal orifices of
the victim. The age of the victim, the fact that
the appellant was a maternal uncle of the victim
and the intensity of the assault make the present
case an exceptional one.
81. However, if the case is considered against the
second head, we do not find that the option of a
sentence lesser than death penalty is completely
foreclosed. It is true that the sexual assault was
very severe and the conduct of the appellant could
be termed as perverse and barbaric. However, a
definite pointer in favour of the appellant is the
fact that he did not consciously cause any injury
with the intent to extinguish the life of the
victim. Though all the injuries are attributable to
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him and it was Injury 17 which was the cause of
death, his conviction under Section 302 IPC is not
under any of the first three clauses of Section 300
IPC. In matters where the conviction is recorded
with the aid of clause Fourthly under Section 300
IPC, it is very rare that the death sentence is
awarded. In cases at Serial Nos. 10, 11, 16, 24,
40, 45 and 64 of the chart tabulated in para 35
hereinabove, where the victims were below 16 years
of age and had died during the course of sexual
assault on them, the maximum sentence awarded was
life sentence. This aspect is of crucial importance
while considering whether the option of a sentence
lesser than death penalty is foreclosed or not.
82. We therefore, find that though the appellant is
guilty of the offence punishable under Section 302
IPC, since there was no requisite intent as would
bring the case under any of the first three clauses
of Section 300 IPC, the offence in the present case
does not deserve death penalty."
(26) In the present case, the death sentence has been
imposed under section 302 of the IPC, whereas
the accused has been convicted for life for the
offence punishable under sections 376A and 377
of the IPC. The victim was of four years of age,
whereas in the case before the Apex Court the
victim was of two and a half years of age and
looking to the injuries and the manner, in which
the offence was committed, the Apex Court has
altered the death sentence of the accused to
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that of rigorous life imprisonment for 25 years.
The observations made by the Apex Court in
Paragraph Nos.33, 80 and 81 facilitate us to
determine the appropriate sentence. A careful
reading of the observations signify that the key
feature in determining the death sentence would
be whether the injuries, which were inflicted by
the accused were deliberate and were caused with
an intention to murder. Thus, the injuries which
are inflicted upon the victim by the accused
would be a guiding factor to determine the
sentence.
(27) In the instant case, the final cause of death of
the victim is attributed to "fatal pressure on
the neck and chest". The manner in which the
death is caused is required to be examined in
light of the four parameters prescribed under
section 300 of the IPC, which defines murder.
The same reads as under:
"300. Murder.--Except in the cases hereinafter
excepted, culpable homicide is murder, if the
act by which the death is caused is done with
the intention of causing death, or--
(Secondly) --If it is done with the intention of
causing such bodily injury as the offender
knows to be likely to cause the death of the
person to whom the harm is caused, or--
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(Thirdly) --If it is done with the intention of
causing bodily injury to any person and the
bodily injury intended to be inflicted is suf
ficient in the ordinary course of nature to
cause death, or--
(Fourthly) --If the person committing the act
knows that it is so imminently dangerous that
it must, in all probability, cause death or
such bodily injury as is likely to cause death,
and commits such act without any excuse for in
curring the risk of causing death or such in
jury as aforesaid."
The clause "Fourthly" of section 300 of the IPC
stipulates that if a person committing the act
knows that it is so imminently dangerous that it
must, in all probability cause death or such
bodily injury which is likely to cause death and
he commits such act, without any excuse for
incurring the risk of cause of death or such
injury can be said to have committed culpable
homicide amounting to murder. In the instance
case, looking to the age of the victim and the
sexual assault by the accused, it can be fairly
presumed that he must have known the
consequences of sexual assault on a child of
four years old. The evidence recommends that the
instant act would fall within the parameters of
clause "fourthly" of section 300 of the IPC. If
the case of the accused comes within the
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aforesaid parameters then, as per the
observations made by the Apex Court, the
conviction which is recorded with the aid of
clause "fourthly" of section 300 of the IPC,
would rarely attract the death sentence.
Reliance placed by the prosecution on the
decision of the coordinate bench in the case of
Anil Surendrasingh Yadav, (supra) will not come
to its rescue, in wake of the given facts which
narrate the manner in which the murder and rape
of the minor girl was committed.
(28) Thus, from the medical evidence, it can be
securely acknowledged that the victim has
succumbed to injuries caused on account of the
accused superimposing himself on the victim
while doing the act of rape and sodomy. The
manner of committing the offence, the injuries
caused to the victim coupled with the cause of
death and in light of the parameters suggested
in clause 'fourthly' of section 300 of the IPC;
in our considered opinion the instant case would
not fall under the category of "rarest of rare
cases", hence the capital punishment of death is
unwarranted.
(29) Accordingly, while confirming the opinion of the
Trial Court in recording the conviction of the
accused for the offences for which he was
charged, we alter the sentence of death to that
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of life imprisonment for the offence punishable
under section 302 of the IPC. The rest of
directions and order issued with regard to the
sentences and fine by the Trial Court remain
unaltered.
Sd/
(A.J.DESAI, J)
Sd/
(A.S.SUPEHIA, J)
Bhavesh[PPS]*
