(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
The accused faced trial for the offences punishable
other offences. The II Additional District and Sessions
sentence. The accused has also preferred an appeal
challenging his conviction and sentence imposed on him.
2. The incident that led to prosecuting the accused
place, and when she screamed, he gagged her mouth. The
accused then attempted to commit rape on her. As she
gave repeated blows on her with a stone. Thereafter he
came to that place. Seeing him the accused fled that
place. By that time Preeti had gone to her house and
the house of Rakshita and gave information to her father.
3. The investigation revealed the motive that the
scolded by Rakshita's father (PW1). Enraged, he decided
4. The trial court has held that the evidence of PW1,
involvement of the accused in the crime.
5. Sri Nagaraja Reddy, learned advocate for the
(ii) There is no evidence indicative of involvement of
accused in the crime, in other words the investigating
officer does not disclose as to how he came to know about
involvement of accused.
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(iii) The trial court has committed a grave error by
imposing death sentence. The age of the accused at the
time of incident was 25 years. The trial court has failed to
consider mitigating circumstances. There is no
circumstance to hold that the rarest of rare case is made
out.
6. Sri Vijaykumar Majage, learned SPP-II, argued
that speedy disposal of the case did not result in
miscarriage of justice; the counsel for accused cross-
examined the witnesses in full length, and therefore it
cannot be said that accused did not get an opportunity to
cross-examine the witnesses. Having found that
prosecution witnesses have not been discredited, the trial
court found the accused guilty of offences charged against
him. The accused might be aged 25 years at that time,
but his criminal intention is forthcoming from the brutal
manner of killing a girl of 15 years. He is always a threat
to society, and considering this death penalty was
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imposed. There is no infirmity in the sentence passed by
the trial court.
7. The material witnesses are PW1, PW2, PW3 and
PW8. Re-appreciation of evidence of these witnesses
gives this picture. PW1 is the father of Rakshita, but he
was not an eyewitness. His deposition discloses that on
1.8.2018 at 4.45 p.m when he was in his house, PW2
Preeti and PW8-Babu, the father of PW2, came to his
house, and PW2 told him what happened to Rakshita when
both of them were returning home from school.
Immediately all of them went to that place and saw
Rakshita having fallen on a mound. Her undergarments
appeared like pulled down. He saw injuries on her head
and left eye. He thought that she was not breathing, yet
he took the help of people who had gathered there and
shifted his daughter to hospital. The doctor declared the
death of his daughter. Then he went to police station and
gave report as per Ex.P1. He has also spoken about
drawing of Ex.P2-the spot mahazar and certain seizures
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there under. He identified the accused in the court and
stated that he had warned him when his daughter brought
to his notice that she was eve teased by the accused. In
the cross-examination, except extracting an answer from
him that he did not disclose to the police about having
warned the accused, otherwise he is not discredited.
8. PW2 is an eyewitness to a part of the incident.
She gave full account of what the accused did while
Rakshita and she were going home around 4.00 p.m on
1.8.2018. Her evidence discloses that when both of them
crossed the railway track, a man standing under a tree
came and closed the mouth of Rakshita, and he
threatened her (PW2) not to shout. Immediately she ran
towards her house and informed her father. Then her
father and she went to the house of Rakshita and informed
her father i.e., PW1. All of them went to that place, saw
Rakshita having fallen down sustaining injuries and also
saw the clothes worn by Rakshita being pell-mell. She has
spoken about having identified the accused in the test
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identification parade. She was cross-examined in vain.
PW8 has fully buttressed the testimony of PW2 and not
been discredited in the cross examination.
9. The testimony of PW3 shows that on 1.8.2018
around 4.30 p.m when he was carrying green leaves to a
shop, he saw the accused standing beside a girl who had
fallen down. PW3 stopped his vehicle and when he was
about to get down from the vehicle, the accused ran away
from that place. He went near the girl and saw injuries on
her body and scattered clothes below the knee. He then
brought 7-8 persons, and by that time father of the girl
and 5-6 persons including PW2 came to that place. He
has also spoken about identifying the accused in the jail
when test identification parade was held there. His cross-
examination has not been successful.
10. The evidence of PW6 is incidentally relevant. He
has stated that accused was working as a construction
labour when he was constructing a house at Indiranagar,
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Malur and he has stated very specifically that accused was
habituated to drinking liquor and was teasing the girls.
11. There is no need to refer to evidence relating to
various mahazars in regard to certain seizures, as they
cannot be disputed. PW22 is the doctor who conducted
autopsy, and before dissection of the dead body, he
noticed presence of seven external ante mortem injuries,
prominent among the injuries were injuries on the head
and contusion over left eye. There was extravasation of
blood over left and right parietotemperal region. He
collected vaginal smears and swabs to be sent to FSL. He
identified the clothes of the girl that were found on the
dead body. Ex.P56 is the post mortem report. No effort
was made to discredit him in the cross-examination.
12. PW30 is the FSL expert who subjected 16 items
for examination. He also collected blood samples of PW1
and his wife to match their DNA profile with DNA profile of
Rakshita and his report shows there was matching of DNA
profiles. PW30 also detected presence of semen stains in
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item No.16, i.e., the underwear said to be belonging to the
accused. In his cross-examination he answered that since
blood sample of accused had not been sent to him, he did
not conduct any test. Ex.P61 is the DNA report. DNA
profiling report is of no consequence because the
prosecution case is that the accused did not actually
commit rape, he fled that place without accomplishing his
desire as PW3 came to that place. There was no need to
obtain DNA profiling report by collecting the blood samples
of Rakshita's parents as her identity was not at all
disputed by anybody.
13. PW21 was the Tahsildar who conducted test
identification parade on the requisition of the investigating
officer. His evidence clearly shows PW2 and PW3 correctly
identifying the accused in each round amid eight persons.
Exs.P27 to P29 are test identification reports. The cross-
examination consists of only suggestions which are of no
use. PW33 is the investigating officer, and has given
detailed evidence of investigation.
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14. Therefore on collation of entire evidence, it
becomes amply clear that the evidence of PW2 and PW3
point to the involvement of accused in commission of
crime. There is no reason to discard their evidence.
15. In regard to argument of Sri Nagaraja Reddy
about completion of trial within twenty one days, it may be
stated he just highlighted that factor but failed to
substantiate as to how the interest of the accused was
affected. No opportunity was denied to accused at any
stage. This argument therefore fails.
16. Now the irresistible conclusion is that the
prosecution was able to prove its case beyond reasonable
doubt. The guilt of the accused is clearly established. All
the offences charged against the accused are proved.
There cannot be interference with the judgment of the trial
court in recording conviction.
17. The trial court has noted the aggravating and
mitigating circumstances. In our opinion, the assessment
is not sufficient. Sri Nagaraja Reddy has relied on the
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judgment of the Supreme Court in Chhannu Lal Verma
vs State of Chhattisgarh [(2019) 12 SCC 438] where,
by referring to earlier decisions in Bachan Singh and
Macchi Singh, it has been held as below :
"13. In our opinion, the High Court has
erroneously confirmed death penalty without
correctly applying the law laid down in Bachan
Singh, Machhi Singh, Santosh Bariyar (supra)
and Shankar Kisanrao Khade. The decision to
impose the highest punishment of death
sentence in this case does not fulfill the test of
"rarest of rare case where the alternative option
is unquestionably foreclosed". The questions
laid down in paragraph 39 of Machhi Singh have
not been answered in the particular case. No
evidence as to the uncommon nature of the
offence or the improbability of reformation or
rehabilitation of the appellant has been
adduced. Bachan Singh unambiguously sets
out that death penalty shall be awarded only in
the rarest of rare cases where life imprisonment
shall be wholly inadequate or futile owing to the
nature of the crime and the circumstances
relating to the criminal. Whether the person is
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capable of reformation and rehabilitation should
also be taken into consideration while imposing
death penalty. As laid down in Shankar
Kisanrao Khade, whether the person would be a
threat to society or whether not granting death
penalty would send a wrong message to society
are additional factors to be looked at. No such
analysis was undertaken by the High Court. The
High Court has also failed to look at the
aggravating and mitigating circumstances
regarding the criminal as warranted by Bachan
Singh. The fact that the appellant had no
previous criminal record apart from the
acquittal in Section 376 IPC, which was a false
implication and the alleged motive did not
weigh with the High Court as an important
mitigating circumstance with respect to the
criminal."
Apart from above, the trial court did not give bifurcated
hearing on sentence. Judgment of conviction was
pronounced on 15.9.2018, and on the same day it
proceeded to pass sentence. It appears that trial court
was predetermined to impose capital punishment. Overall
circumstances do not bring this case within the purview of
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the rarest of rare case even though a young girl became
victim of incident. Therefore the trial court should not
have imposed death sentence.
18. So far as sentence on Section 8 and Sections
376 read with Section 511 of IPC is concerned, the trial
court has imposed separate sentences de hors the
mandate in Section 42 of the POCSO Act. Conviction may
be recorded for two offences, but while imposing sentence,
greater punishment prescribed in correlated penal sections
must be chosen in accordance with Section 42.
19. Here the accused attempted to commit rape on
a girl aged 15 years, and because of resistance shown by
her, he assaulted with a stone on her head which resulted
in internal fracture in the skull as is evident from post
mortem report. If the accused had raped and caused the
death of the girl, he should have been punished under
Section 376A of IPC according to which minimum sentence
is rigorous imprisonment for not less than twenty years,
and life sentence may also be imposed depending on facts
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and circumstances. Since accused is charged for Section
376 read with Section 511 of IPC, and there was no
charge for Section 376A read with Section 511 of IPC,
sentence must be in accordance with Section 511 read
with Section 376 of IPC. Section 511 of IPC states that
the sentence of one half of the longest term of
imprisonment provided for the offence is to be imposed.
Longest term imprisonment prescribed is 10 years.
Therefore one half of it is 5 years. For Section 8 of POCSO
Act, minimum punishment is three years extendable up to
5 years. In view of Section 42 of POCSO Act accused
needs to be punished in accordance with Section 511 read
with Section 376 which comes to five years rigorous
imprisonment.
20. The sentence for the offence punishable under
Section 341 of IPC is to be sustained because the accused
wrongfully restrained Rakshitha when she was returning
from the school. Therefore from the above discussion the
following order is passed.
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ORDER
(i) Crl.R.C.No.9/2018 filed under Section 366 of
Cr.P.C. is rejected.
(ii) Crl.A.No.630/2020 is partly allowed.
(iii) Retaining the conviction recorded by the trial
court for the offences charged against the
accused, the sentence is modified as below:
a) For the offence punishable under Section 302
of IPC, the accused is directed to undergo
rigorous imprisonment for life and pay fine of
Rs.25,000/- failing which he shall undergo
simple imprisonment for a period of two
years.
b) For the offence punishable under Section 511
read with Section 376 of IPC, he is sentenced
to undergo rigorous imprisonment for a
period of five years and pay fine of
Rs.10,000/- failing which he shall undergo
simple imprisonment for a period of six
months.
c) The sentence imposed by the trial court for
the offence punishable under Section 341 of
IPC is retained.
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d) The sentence imposed by the trial court for
the offence punishable under Section 8 of the
POCSO Act is set-aside.
(iv) The sentence of imprisonment imposed for all
the offences is made to run concurrently.
(v) The period already spent by the accused in
the jail shall be counted only if the
Government decides to extend the benefit of
remission under Section 432 of Cr.P.C. or else
not.
(vi) Send back the trial court records forthwith
with a copy of this judgment.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
CKL
