Jharkhand High Court
State Of Jharkhand vs Ram Chandra Thakur Aged About 34 Years ... on 5 September, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Death Reference No.05 of 2019
With
Criminal Appeal (D.B.) No. 1047 of 2019
With
Criminal Appeal (D.B.) No. 80 of 2021
[Arising out of judgment of conviction dated 07.09.2019 and order of sentence
dated 21.09.2019 passed by learned Special Judge, POCSO Act, Giridih in
POCSO Case No. 14 of 2018]
Death Reference No.05 of 2019
State of Jharkhand .... .... .... Appellant
--Versus--
Ram Chandra Thakur aged about 34 years son of Madhu Thakur resident of
Village Parsan, P.O. and P.S. Dhanwar, District Giridih
.... .... .... Respondent
With
Criminal Appeal (D.B.) No. 1047 of 2019
Madhu Thakur aged 68 years, son of Late Barwari Thakur resident of Village
Parsan, P.O. and P.S. Dhanwar, District Giridih
.... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
With
Criminal Appeal (D.B.) No. 80 of 2021
Ram Chandra Thakur @ Ram Chandar Thakur aged about 34 years son of
Madhu Thakur resident of Village Parsan, P.O. and P.S. Dhanwar, District
Giridih .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellants : Mr. Mahesh Tewari, Advocate
Mr. Abhishek Kumar Dubey, Advocate
Mr. Shubham Pathak, Advocate
For the State : Mr. Saket Kumar, A.P.P.
For the Informant : Mr. Shree Niwas Roy, Advocate
-----
PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
-----
JUDGMENT
Reserved on: 27.08.2024 Pronounced On: 05.09.2024
Per Gautam Kumar Choudhary, J. Death Reference and these Criminal Appeals
arise out of the common judgment of conviction and sentence passed in POCSO
Case No.14 of 2018 by the Special Judge, POCSO Act, Giridih, whereby and
whereunder the appellants have been convicted under Sections 364, 302, 201/34
and 376 D of the IPC and Section 6 of the Protection of Children from Sexual
Offences Act,2012 (hereinafter in short referred 'POCSO Act') and appellant
Ram Chandra Thakur was sentenced to death under Section 302/34 of the IPC
and different terms of imprisonment under other sections, whereas the another
appellant has been sentenced to undergo life imprisonment and fine of Rs
10,000/- under Sections 302, 364 and 376D of the IPC and Section 6 of the
POCSO Act.
2. Deceased is a minor girl child aged about 4 years. As per the fardbeyan
of her father recorded on 26.03.2018, the deceased had gone along with her two
sisters, Shital Kumari aged eight years and Komal Kumari aged six years for
getting the sacrificial share of mutton offered on the eve of Ramnavmi festival.
In the evening at 7 O' Clock, Shital Kumari and Komal Kumari returned and
told the informant that on way, appellant- Ram Chandra Thakur had taken the
victim infant with him, and assured her sisters that he will himself bring her
back to the home. When after much search, she could not be traced out and Ram
Chandra Thakur was not found at his home, informant apprehended that
because of the past enmity with Madhu Thakur, she had been kidnapped and
killed by both Ram Chandra Thakur and his father Madhu Thakur.
3. On the basis of the fardbeyan, Dhanwar P.S. Case No.98 of 2018 was
registered under Section 364/34 of the IPC against both the appellants. During
the course of investigation, the dead body was recovered on the disclosure
statement of the appellant- Ram Chandra Thakur. Police on investigation
submitted charge sheet against both the accused persons. After cognizance and
commitment they have been put on trial for the offences under Section 364, 302,
201/34 and 376 D of the IPC and Section 6 of the POCSO Act.
4. Altogether 30 witnesses have been examined on behalf of the prosecution
and relevant documents have been adduced into evidence and marked as Exhibit
1 - 18. The documents include post mortem examination report, fardbeyan,
Statement under Section 164 of the Cr.P.C., confessional statement of Ram
Chandra Thakur made to police leading to recovery, FSL report and seizure list.
Prosecution has also produced the material exhibits which have been marked as
material Exhibit I -VI. Defence has also examined one witness.
5. It is argued by the learned counsel on behalf of the appellants that there
is no eye witness to the incidence and the chain of circumstance has not been
proved so as to prove the charge against the appellants. As far as Madhu Thakur
is concerned, there is no direct or circumstantial evidence against him and he
has been roped into the case, only because he happens to be the father of the
principal accused Ram Chandra Thakur. There is no evidence of last seen with
the deceased against him and there is no other material against him.
6. With regard to appellant- Ram Chandra Thakur, it is argued that there is
no evidence in support of the charge of sexual assault. Victim was infant child
aged four years. As per the post mortem examination report, no injury was
found on the private part of the deceased. It is also argued that the disclosure
statement made by Ram Chandra Thakur cannot be relied upon as there were
over writings in the time when the disclosure was made. The child witnesses
P.W. 3 and P.W. 4 are tutored and their testimony cannot be the sole basis for
conviction.
7. On the point of sentence, it is argued by the learned counsel on behalf of
the appellant- Ram Chandra Thakur that the present case does not come within
the meaning of rarest of rare cases for awarding death sentence. He is a poor
farmer and the learned trial court has failed to consider the mitigating
circumstance in his favour.
8. Learned counsel on behalf of State has defended the judgment of
conviction and sentence and submitted that the charge against Ram Chandra
Thakur has been proved on circumstantial evidence of last seen and recovery of
the dead body was made on the disclosure statement of the appellant. As per the
testimony of witnesses, when the deceased was returning with her sisters, it was
the appellant- Ram Chandra Thakur who had taken the deceased with him and
on the very next day he was arrested and on the basis of his disclosure statement
dead body of the infant was found. On the point of sentence, it is submitted that
it was rape and gruesome cold blooded murder of deceased, for which the
appellant- Ram Chandra Thakur deserves capital punishment. There is no
mitigating circumstance in the present case so as to commute death sentence to
imprisonment to life.
ANALYSIS
9. Homicidal death of the infant child is not in a shadow of doubt which is
proved by the objective findings of the Medical Board which conducted the
autopsy of the dead body of the child. The post mortem examination was done
by the Medical Board comprising of four Doctors, who have been examined as
P.W. 1, P.W. 2, P.W. 6 and P.W. 7 and have proved the post examination report.
As per the post mortem examination report, following ante mortem external and
internal injuries were found on the dead body: -
i. Lacerated wound on RT cheek and nose 1½" x 1" x muscle deep.
ii. Lacerated wound on left cheek 1" x 1"xmuscle deep.
iii. Abrasion on anterior chest wall 1/2" x 1/3".
iv. Bruise on right side neck- two in numbers 1" x 1/2" each.
v. Bruise on left side neck measuring 1"x 1/2".
On dissection - clotted blood was found in a soft tissue of neck. Beside
hyoid bone with fracture of both cornuae of hyoid bone. Third degree perineal
tear found.
Doctor opined that cause of death was Asphyxia due to throttling and
nature of weapon was hard and blunt object.
10. Perineal area lies between vagina and anus and such tear occurs at times
in grown up women during child birth. The tear in the present case shows the
monstrosity and intensity of the sexual assault resulting in perineal tear of the
infant child. It is in accord with the inquest report (Exhibit-14) wherein injury
has been noted on the private part. The post mortem examination report thus
establishes rape committed on the infant child, resulting in third degree perineal
tear and the gruesome murder by throttling. There is no substance in the
submission that there was no medical evidence of assault.
11. With regard to the author of crime, P.W. 3 and P.W. 4 are the child
witnesses aged seven and nine years respectively. Both of them have
consistently deposed that when they were returning after taking the sacrificial
meat along with their sister victim, appellant- Ram Chandra Thakur cajoled and
took the victim with him, and assured both of them that he will bring her back
to their home. Their testimony is fully corroborated under Section 157 of the
Evidence Act, by the statement recorded under Section 164 of the Cr.P.C. which
have been adduced into evidence and marked as Exhibits 8 and 9. Both these
witnesses have been cross-examined at length, but the defence has failed to
elicit any contradiction in their account. I do not see any reason to disbelieve
their account.
12. P.W.5 is the informant of the case. He has deposed that on 26.03.2018 his
two daughters (P.W. 3 and P.W. 4) had gone along with the deceased to fetch
sacrificial meat. At 6 O' clock, when he had gone to bring them back, then he
saw only his two daughters were returning. He asked about the deceased on
which they informed that she had been taken away by Ram Chandra Thakur
with a promise to return her. Thereafter, he made a frantic search of the deceased
and Ram Chandra Thakur, but they were not found and appellant Ram Chandra
Thakur was not found at his home and consequently, in the next morning, he
informed the police about the incidence of his missing child. Accused- Ram
Chandra Thakur was apprehended by police, who on interrogation disclosed
that he had committed rape with the infant child and then killed her and her dead
body was thrown in the wheat field. Nothing significant has come in the cross
examination to raise doubt on the veracity of his account. He has not been
confronted with his earlier statement given to police or the fardbeyan to extract
any contradiction.
13. Other independent witnesses who are the co-villagers namely P.W. 8,
P.W. 9, P.W.10, P.W. 11, P.W. 12, P.W. 13, P.W. 14, P.W. 15, P.W. 16, P.W. 17,
P.W. 18, P.W. 19, P.W. 21, P.W. 22, P.W. 23, P.W. 24, P.W. 25, P.W. 26, P.W. 27
and P.W. 28 are independent co-villagers who have supported the prosecution
case regarding recovery of the dead body on the disclosure statement of Ram
Chandra Thakur. They have admitted that they were not direct eye witness to
the incidence, but were witness to the recovery of the dead body. Their account
do not suffer from exaggeration and they have not attempted to project
themselves as direct eye witness to the incidence. I do not see any reason to
brush aside the testimony of these witnesses.
14. The Investigating Officer has been examined as P.W. 30. It has been
deposed by him that the first place of occurrence was located 1.5 Km East of
Rajkiya Uchha Madhya Vidyalaya, Village Parsan. The second place of
occurrence from where the dead body was recovered on the disclosure statement
of the appellant was in the agricultural filed with wheat crop of Bandhan Mahto.
At the second place of occurrence, where the incidence took place, white T-
Shirt and orange Paijama was seized which was marked as Exhibit 16/2. He has
also deposed that DNA sample was sent to FSL for chemical examination and
after receiving the report, it was submitted before the court.
15. On combined reading of testimony of witnesses, what is significant to
note is that none of the witnesses has stated anything against appellant- Madhu
Thakur, to remotely suggest that he was complicit in the offence. Informant
(P.W.5) has deposed that there had been past enmity with this appellant, but
beyond this there is no material whatsoever that he was in anyway involved in
the gruesome offence. In the absence of direct or circumstantial evidence
against him, judgment of conviction and sentence passed against him is
perverse and is accordingly, set aside.
16. The torn T-Shirt, Paijama and the vaginal swab of the victim girl (IA,
IA-1, IA-2 and IB), was sent in a wooden box for chemical analysis along with
another wooden box containing navy blue underwear with radish brown stain,
penile swab of accused and gauze piece of blood sample of accused- Ram
Chandra Thakur which were marked as IIA, IIB and IIC respectively. On
chemical analysis, semen was found on IIA, but not on any other exhibits.
17. DNA test report proved to be inconclusive as DNA profile could not be
generated from the source of marked - IIB (Source: semen negative cotton ball
cuttings) as amplifiable DNA could not be extracted. From the above, it is clear
that DNA report is inconclusive because the cotton gauze sample did not contain
the semen. From this report it appears that due to fault in sampling of IIB, DNA
profiling could not be made from the sample extracted from the accused.
Inconclusiveness of the DNA report in no way leads to the conclusion that there
was no matching of the DNA.
18. After prosecution evidence, the statement of the Appellant- Ram Chandra
Thakur has been recorded. The defence is of innocence but is bereft of any
explanation to the incriminating circumstances appearing against him. There is
no explanation as to how the infant kidnapped by him, met her ghastly death.
19. D.W. 1- Arun Das has deposed that there was a land dispute between the
parties, since 5-7 years and due to this appellants were falsely implicated in the
case.
20. On combined reading of testimony of witnesses, the following proved
circumstance clearly emerge beyond any shadow of doubt:-
I. Deceased infant girl child aged four years had gone along with her sisters
P.W. 3 and P.W. 4 on 26.03.2018 in the evening to get the sacrificial meat
on the eve of Ramnavmi festival.
II. While returning from there, deceased was wheedled by appellant- Ram
Chandra Thakur, who took her with him and assured her sisters that she
will be returned home.
III. When the girl did not return home, a frantic search was made by the
informant but Ram Chandra Thakur could not be found as he was
absconding.
IV. On his disclosure statement (Exhibit 15), the dead body was found.
No explanation has been offered by the appellant- Ram Chandra Thakur,
as to when did he part company with the deceased child after he had taken
her from the company of her sisters which was relevant under Section
106 of the Evidence Act. [Refer to Pappu Versus State of U.P., (2022) 10
SCC 321, Arvind Singh Versus State of Maharashtra, (2021) 11 SCC
1]
V. Further, there is no explanation as to how he could know the place from
where the dead body was found.
21. On these evidences, I am of the considered view that the appellant- Ram
Chandra Thakur was guilty of kidnapping, committing rape with the infant
child and throttling her to death in order to cause disappearance of the evidence,
her dead body was thrown in a wheat field. This fact is proved by the appellant
Ram Chandra Thakur having been last seen with the deceased, and shortly
thereafter the deceased as well as the accused went missing and on the next day
dead body was found. In the absence of any explanation to the incriminating
circumstance the charge against the appellant is proved without anything more.
In the present case, this is further corroborated by the disclosure statement of
the appellant leading to recovery of the dead body. I have gone through the
statement which has been marked as Exhibit-15, and I do not find any
interpolation to discard it on this count.
22. Appellant- Ram Chandra Thakur is accordingly held guilty for the
offence under Sections 364, 302, 376-AB and 201 of the IPC and Section 6 of
the POCSO Act.
23. Death sentence is sanctioned by the law of the land, the constitutionality
of which has been upheld by Hon'ble the Supreme Court and can be inflicted
in rarest of rare cases. Courts cannot shirk from their duty from awarding death
sentence in appropriate case for their personal views which is not in accord with
constitutional or statutory provision.
24. Guidelines for inflicting capital punishment has been laid down by long
line of judicial precedents. The guidelines that have been laid down in Bachan
Singh Versus The State of Punjab, (1980) 2 SCC 684 Machhi Singh Versus
State of Punjab, (1983) 3 SCC 470 and Sushil Murmu Versus State of
Jharkhand, 2004 (2) SCC 338 and subsequent authorities in order to determine
the question of rarest of rare cases can be summed up as under:
(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence.
(b) Are the circumstance of the crime such that there is no alternative but to
impose death sentence.
(c) Death sentence should not be inflicted except in gravest cases of extreme
culpability.
(d) The circumstance of the offenders also requires to be taken into
consideration along with the circumstances of the crime.
(e) Life imprisonment is the rule and death sentence is an exception.
(f) A balance sheet of aggravating and mitigating circumstances has to be
drawn up.
(g) If the murder has been committed after previous planning and involves
extreme brutality.
(h) Both the crime and criminal have to be considered by court and only
thereafter an appropriate order regarding sentence can be made.
(i) In the rarest of rare cases even collective conscience of the community is
shocked because of the enormous proportion of the crime. For instance, when
multiple murders, say of all or almost all the members of the family or the
victim of murder is an innocent child or a helpless woman.
(j) When the murder is committed for a motive which evinces total depravity
and meanness e.g. murder for money or reward or a cold blooded murder for
gains of a person vis-a-vis whom the murderer is in dominating position or any
position of trust.
Dhananjoy Chatterjee @ Dhanna Versus State of West Bengal,
1994 (2) SCC 220 :
" In our opinion, the measure of punishment in a given case must depend
upon the atrocity of the crime, the conduct of the criminal and the
defenseless and unprotected state of the victim. Imposition of the
appropriate punishment is the manner in which Courts responds to the
society's cry for justice against the criminal. Justice demands that Court
should impose befitting the crime so that courts reflect public abhorrence
of the crime. The Courts must not only keep in view the rights of the
criminal but also the rights of victim of crime and the society at large while
considering imposition of appropriate punishment''
In Amurthlal Someshwar Joshi Versus State of Maharastra, (1994) 6
SCC 186 which involved a case of circumstantial evidence in which domestic
servant committed murder of three members of his master's family with
intention to commit robbery, the death sentence was affirmed by the Hon'ble
the Apex Court.
Further, in State of M.P. Versus Udham and Ors 2019, SCC On Line
SC 1378 Sentencing for Crime has to be analyzed on the touch stone of
three tests viz.
1. Crime Test---Crime Test involves factors like extent of planning, choice
of weapon, modus of crime, disposal modus (if any), role of the accused,
antisocial or abhorrent character of the crime, state of victim. Seriousness
of the crime need to be ascertained.
2. Criminal Test--- It involves assessment of factors, such as age of the
criminal, gender of the criminal, economic conditions or social
background, motivation for crime, availability of defence, state of mind,
instigation by the deceased or any one from the deceased group, adequate
representation in the trial, disagreement by Judge in the appeal process,
repentance, possibility of reformation, prior criminal record (not to take
pending cases) and any other relevant factor.
3. Comparative proportionality Test.
In State of Rajasthan Versus Mohan Lal and Another, 2018 SCC
Online 773, it was held that imposing inadequate sentences will do more harm
to the justice system. Sentence should be appropriate, adequate, just,
proportionate and commensurate with nature and gravity of crime and the
manner in which crime is committed. Gravity of crime, motive for crime, nature
of crime and all other attending circumstances have to be borne in mind while
imposing the sentence. Court cannot afford to be casual while imposing
sentence, in as much as both crime and criminal are equally important in the
sentencing process. Courts must see that public does not loose confidence in the
judicial system.
In the case of Laxman Naik Versus State of Orissa, AIR 1995 SC 1387
and State of U.P. Versus Satish, (2005) 3 SCC 114, the Hon'ble Apex Court
has held that rape and murder of minor girl of 7 and 6 years come within the
category of rarest of rare cases for inflicting death sentence.
25. Words fall short to delve deep in the aggravating circumstances which is
writ large in the present case. An infant four years of age is raped by an adult
aged 34 years, her face is smothered over hard ground and is throttled to death.
The criminal act is not an outcome of a burst of passion, but is coldly planned
and ruthlessly executed to wreak vengeance for past enmity. After committing
the offence the dead body is thrown in a wheat field to cause the disappearance
of evidence. In the disclosure statement, there is also reference to criminal
antecedent, but that has not been proved and brought on record.
26. To these aggravating circumstances, I am at loss to find any mitigating
circumstance in favour of the perpetrator of the unspeakable offence.
27. This is a case which meets the sentencing guidelines discussed above to
inflict capital punishment.
For the reasons discussed above, appellant- Ram Chandra Thakur is
sentenced to Death under Sections 302 of the IPC and under Section 6 of
the POCSO Act, 2012; for imprisonment for life under Section 364 of the
IPC and for seven years under Section 201 of the IPC. Death reference No.5
of 2019 is answered in the affirmative and Criminal Appeal (D.B.) No. 80
of 2021 is dismissed. In view of the sentence having been awarded under
Section 6 of the POCSO Act, no separate sentence is passed under Section
376AB of the IPC.
Appellant- Madhu Thakur is acquitted of the offence charged with.
His appeal is allowed and he is on bail and the sureties are discharged from
the liabilities of their bail bond. Criminal Appeal (D.B.) No. 1047 of 2019 is
allowed.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Per Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 5th September, 2024
AFR/Anit
