Madhya Pradesh High Court
Vidya Prajapati vs The State Of Madhya Pradesh on 22 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
1 CRA-4506-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
CRIMINAL REFERENCE CAPITAL No. 4 of 2021
IN REFERENCE
Versus
ANUTAB @ ANUTABH @ BETA PRAJAPATI
Appearance:
Shri Sanjay Agrawal - learned Senior counsel assisted by Ms. Ankita Singh
Parihar, learned counsel as amicus curiae.
Shri Manas Mani Verma and Shri Nitin Gupta, learned Public Prosecutor for the
State.
WITH
CRIMINAL APPEAL No. 5621 of 2021
ANUTAB @ ANUTABH @ BETA PRAJAPATI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vijay Nayak and Shri Anand Nayak, learned counsel for the appellant.
Shri Manas Mani Verma and Shri Nitin Gupta, learned Public Prosecutors for the
respondent-State.
CRIMINAL APPEAL No. 4506 of 2022
VIDYA PRAJAPATI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Jayant Prakash Patel, learned counsel for the appellant.
Shri Manas Mani Verma and Shri Nitin Gupta, learned Public Prosecutors for the
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 22-05-2025
18:31:04
2 CRA-4506-2022
respondent-State.
Reserved on - 05.05.2025
Pronounced on - 22.05.2025
JUDGMENT
Per: Justice Vivek Agarwal
This criminal reference is made to the High Court on account of
judgment dated 14/09/2021 passed by learned 3rd Additional Sessions Judge,
Nagod, Distt. Satna in Sessions Trial No.161/2019 whereby learned trial
Court has convicted appellant-Anutab @ Anutabh @ Beta Prajapati under
Section 364A/120-B of IPC and sentenced to undergo life imprisonment
along with fine of Rs.10,000/-, under Section 302 of IPC and sentenced to
death along with fine of Rs.10,000/-, under Section 201 of IPC and
sentenced to three years RI along with fine of Rs.2,000/- with default
stipulations. Learned trial Court has also convicted appellant-Vidya
Prajapati W/o Shyamcharan Prajapati under Section 364A/120-B of IPC and
has sentenced to undergo life imprisonment along with fine of Rs.10,000/-
with default stipulation of six months RI.
2. Learned Amicus Curiae appearing for the reference-appellant -
Anutab @ Anutabh @ Beta Prajapati, submits that it is not a fit case for
recording death penalty, it will not fall in the category of rarest of rare cases
calling for death penalty. It is submitted that it is a case where life
imprisonment for a fixed duration will meet the ends of justice inasmuch as
mitigating circumstances like age of the appellant being only 21 years at the
time of incident, there being no past criminal history and appellant not taking
3 CRA-4506-2022
any undue advantage, mitigating circumstances will far out weigh the
aggravating circumstances to convert the sentence from death penalty to that
of life imprisonment.
3. Shri Sanjay Agrawal, learned senior counsel assisted by Ms. Ankita
Singh Parihar, learned counsel, submits that FIR clearly reveals that
complainant-Indrajeet Prajapati informed the Police on 12/03/2019 at about
22.00 hours that his nephew Shivkant @ Lalli Prajapati, S/o Rajesh Prajapati
aged about six years was playing outside his home when his sister-in-law
Rajkumari, mother and other family members were busy in their household
works, then at 5.12 p.m. he had received a call on his mobile number-
6260021283 from mobile No.9584469886 asking him for ransom of Rs.Two
lakh to release his nephew, Shivkant @ Lalli Prajapati, when he had
informed his sister-in-law, mother and other persons of the family so also
the local residents and had arranged for an announcement for recovery of his
nephew. Thus, it is submitted that initially case was filed under Section
364A of IPC.
4. It is submitted that it is evident from Dehati Marg Intimation
(Ex.P/63) that murder was not grewsome, therefore, placing reliance on the
judgment of Hon'ble Supreme Court in the case of Bachan Singh Vs. State of
Punjab, (1980) 2 SCC 684 has affirmed the judgment of Jagmohan Singh Vs.
State of Uttar Pradesh, (1973) 1 SCC 20 wherein it is held that though
Article 19 of the Constitution of India does not directly deal with the
freedom to live. It is not included in the seven freedoms mentioned in that
Article. As far as India is concerned, they observed that in our Constitution,
4 CRA-4506-2022
there is no provision like the English amendment nor is the Supreme Court at
liberty to apply the test of reasonableness with the freedom with which, the
Judges of the Supreme Court of America are accustomed to apply "the due
process" clause. They observed that capital punishment cannot be described
as unusual because that kind of punishment has been with us from ancient
times right upto the present day though the number of offences was for
which it can be imposed has continuously dwelled.
5. Thereafter it is held in the case of Bachan Singh (supra) that
aggravating and mitigating circumstances are required to be weighed, a
balance sheet is required to be prepared and on the touchstone of that balance
sheet of mitigating circumstances, which are mentioned in paragraph-206 of
the judgment of Bachan Singh (supra), and the aggravating circumstances
mentioned in paragraph-202 of the said judgment when balanced, then a
holistic view is required to be taken.
6. Reliance is also placed on the judgment of Hon'ble Supreme Court
in the case of Mukesh and another Vs. State (NCT of Delhi) and others,
(2017) 6 SCC 1 wherein Hon'ble Supreme Court again reiterated that
principles of balancing of aggravating and mitigating circumstances, is
required to be considered. It is held that Courts should consider cumulative
effect of both factors i.e. aggravating and mitigating circumstances and has
to strike a balance between two to see towards which side scale/balance of
justice tilts.
7. Reliance is also placed on the judgment of Hon'ble Supreme Court
in the case of Swapan Kumar Jha alias Sapan Kumar Vs. State of Jharkhand
5 CRA-4506-2022
and another, (2019) 13 SCC 579 wherein Hon'ble Supreme Court in a case
under Sections 302, 364-A and 201/34 of IPC upon recording a finding of
kidnapping of cousin for ransom, murder and disappearance of evidence after
finding the unbroken chain of circumstances pointing unequivocally towards
guilt of all appellants, confirmed conviction, but modified the sentence on
the touchstone of balancing aggravating and mitigating circumstances. It
recorded that death sentence awarded to one convict commuted to life
imprisonment with minimum mandatory sentence of 25 years to be served
without remission.
8. Reliance is also placed on the judgment of Hon'ble Supreme Court
in the case of Gagan Kanojia and another Vs. State of Punjab, (2006) 13
SCC 516. In the case of Gurnam Singh and another Vs. State of Punjab,
(1998) 7 SCC 722 wherein Hon'ble Supreme Court has held that in absence
of the manner and circumstances in which they caused death, death sentence
could not be imposed and commuted death sentence to that of life
imprisonment.
9. Reliance is also placed on the judgment of Hon'ble Supreme Court
in the case of Manoj and others Vs. State of M.P., (2023) 2 SCC 353 wherein
it is held that discretion of Court in imposition of death sentence is to be
exercised for which principles were refined and it is held that individualised
principled sentencing based on both the crime and criminal, with
consideration of whether reform or rehabilitation is achievable, and
consequently whether the option of life imprisonment is, unquestionably
foreclosed, held, should be the only factor of "commonality" that must be
6 CRA-4506-2022
discernible from decisions relating to capital offences. This is particularly
true as there is the via media option of imposition of proportionate non-
remittable sentence of imprisonment.
10. Reliance is also placed on the judgment of Hon'ble Supreme Court
in the case of Raojibhai Vs. The State of Madhya Pradesh, 1952 SCR
1091 so also in the case of Sharad Birdhichand Sarda Vs. State of
Maharashtra, (1984) 4 SCC 116 to submit that in case of circumstantial
evidence, Courts are required to be more cautious while handing down the
sentence.
11. Reliance is also placed on the judgment of Hon'ble Supreme Court
in the case of Arvind Singh Vs. State of Maharashtra, (2021) 11 SCC 1 to
submit that the extent of participation required of co-conspirator to be held
liable for acts/offences committed in pursuance of the said conspiracy have
been summarised as principles and it is held that it is not necessary that all
conspirators should participate from the inception to the end of the
conspiracy. Some may join conspiracy after the time when such intention
was first entertained by any one of them and some other may quit from the
conspiracy. All of them would be treated as conspirators. It is further held
that if common intention is proved but no overt act is attributed to the
individual accused, Section 34 of IPC will be attracted. Thus, presence of
particular co-accused at crime scene is not a necessary requirement to attract
Section 34 of IPC.
12. Reliance is also placed on the judgment of Hon'ble Supreme Court
in the case of Dnyaneshwar Suresh Borkar Vs. State of Maharashtra, (2019)
7 CRA-4506-2022
15 SCC 546, pointing out death sentence was commuted to life
imprisonment on account of mitigating circumstances.
13. Reliance is also placed on the judgment of Hon'ble Supreme Court
in the case of Mulla and another Vs. State of Uttar Pradesh, (2010) 3 SCC
508 wherein again principles for award of death sentence have been restated
in regard to drawing a balance sheet of aggravating and mitigating
circumstances while imposing death penalty.
14. Reliance is also placed on the judgment of Hon'ble Supreme
Court in the case of Machhi Singh and others Vs. State of Punjab, (1983) 3
SCC 470, which also talks of a balance sheet of aggravating and mitigating
circumstances to be drawn up and while doing so, the mitigating
circumstances has to be accorded full weightage and the just balance has to
be struck between the aggravating and mitigating circumstances before the
option is exercised.
15. Reliance is also placed on the judgment of Hon'ble Supreme Court
in the case of Swamy Shraddanand (2) alias Murali Manohar Mishra Vs.
State of Karnataka, (2008)13 SCC 767, to point out that substitution of death
sentence to sentence for life imprisonment is permissible.
16. Shri Vijay Nayak, learned counsel for the appellant-Anutab @
Anutabh @ Beta Prajapati, submits that there is no evidence of last seen. He
places reliance on the evidence of Rajkumari Prajapati (PW-2) and Sangita
Prajapati (PW-3). He further submits that no memo of recovery has been
proved. He submits that Ajay Singh Pawar (PW-23) deposed that Anutabh
had taken the SIM from Vidya saying that he will be paid Rs.10,000/- in lieu
8 CRA-4506-2022
of that. It is pointed out that the memorandum of Anutab as contained in
Ex.P/53 is not admissible. Even the Panchnama which was prepared at the
instance of Anutab to the effect that dead body was thrown at a particular
place is not admissible, therefore, conviction of Anutab on half-baked facts,
is not permissible. It is also submitted that plea of juvenility still exists and
can be raised at any point of time. It is vehemently urged that appellant-
Anutabh was a juvenile at the time of the incidence, thus, advantages flowing
therefrom should be extended in his favour.
17. In support of his contention, reliance is placed on the judgment of
Hon'ble Supreme Court in the case of Abuzar Hossain alias Gulam Hossain
Vs. State of West Bengal, (2012) 10 SCC 489 . It is submitted that since it is
the convict's right to raise a plea of juvenility at any time, therefore, he
would like to persist with his plea that appellant-Anutab @ Anutabh @ Beta
Prajapati was juvenile at the time of the incident, therefore, his conviction on
a trial where he has been tried as an adult is not maintainable in the eyes of
law.
18. Shri Nayak, learned counsel, places reliance on the judgment of
Hon'ble Supreme Court in the case of Narayan Chetanram Chaudhary Vs.
The State of Maharashtra (Criminal Appeal No.157334 of 2018 in Review
Petition (Criminal) Nos.1139-1140 of 2000 and submits that in para-27
onwards of the said judgment Hon'ble Supreme Court has noted that
inquiring judge conducted the enquiry typically as a fact-finding enquiry
and has not followed the procedure of summons trial. It is submitted that
Section 9(2) of the Juvenile Justice (Care and Protection of Children) Act,
9 CRA-4506-2022
2015 provides for the procedure to be followed by a Magistrate who has not
been empowered under this Act It is further submitted that in the case
of Ashwani Kumar Saxena Vs. State of Madhya Pradesh, (2012 9 SCC 750 ,
Hon'ble Supreme Court has dealt with the provisions of the Juvenile Justice
Act, 2000 and the rules framed thereunder, as to the enquiry conducted under
the provisions of Juvenile Justice Act and the Rules so framed and not an
enquiry under 1973 Code. Thus, it is submitted that the whole enquiry as to
the juvenility of the appellant-Anutab @ Anutabh @ Beta Prajapati being
vitiated, he should have been treated as a juvenile and, accordingly, action
should have followed.
19. Shri Jayant Prakash Patel, learned counsel for appellant-Vidya
Prajapati, submits that appellant- Vidya Prajapati has been convicted with
the aid of Section 34 of IPC in a most arbitrary and illegal manner. It is
submitted that there is no evidence that the SIM which was procured by
appellant-Anutab @ Anutabh @ Beta Prajapati from Vidya Prajapati was
ever used by Vidya Prajapati. Prosecution has failed to prove the elements
of Section 34 of the Indian Penal Code, therefore, conviction of appellant-
Vidya Prajapati under Section 364-A/34 and 120-B of IPC cannot be
maintained.
20. Reliance is placed on the judgment of Hon'ble Supreme Court int he
case of Rajesh and another Vs. The State of Madhya Pradesh, decided in
Criminal Appeal No(s).793-794 of 2022 and submits that Hon'ble Supreme
Court has noted the factual background in para-7 of the judgment which
reads as under :
"7. On 28.03.2013 at about 3:30 pm, basing on the ransom calls
10 CRA-4506-2022
received, PW-2 filed a report with the Gorakhpur Police Station.
On that basis, FIR No. 273/13 (Ex. P35) was registered at 18:20
hours against unknown persons under Sections 364A and 365 IPC.
Call details and IMEI data were obtained by the Investigating
Officer (PW-16) from the Cyber Cell for mobile number
8305620342 from which the ransom calls had been made. PW-16
was informed by the Cyber Cell that the mobile phone handset
with IMEI No. 358327028551270 was used to make the ransom
calls and the handset with this IMEI number was also used with
mobile number 9993135127, which was issued to Om Prakash
Yadav. On receiving this information, PW-16 went to the house of
Om Prakash Yadav in Narmada Nagar, Gwarighat, on 29.03.2013.
PW-16 took Rajesh Yadav to the police station and questioned
him at 13:45 hours, whereupon he confessed to having killed Ajit
Pal, along with Raja Yadav. PW-16 recorded a Memorandum (Ex.
P8) containing the confession of Rajesh Yadav, wherein he also
stated that he would help recover Ajit Pal's body and the murder
weapon. Rajesh Yadav and PW-16, along with witnesses, then
went to Narmada Nagar. Rajesh Yadav led them to a well near
Khandari Canal. Ajit Pal's body was found in the well. It was
stuffed in a white plastic sack. The body was identified as that of
Ajit Pal by the witnesses present. Ajit Pal's throat was cut and
there was hair entangled in his right-hand fingers. The police
prepared a Panchayatnama (Ex. P2). It bears the signature of PW-
2. The Naksha Panchayatnama (Ex. P3) was also signed by PW-2.
Rajesh Yadav pointed out an empty liquor bottle lying at some
distance. The same was seized under a Property Seizure Memo
(Ex. P10). An iron knife was also seized at the behest of Rajesh
Yadav from the canal. There were blood-like stains on the knife.
The seizure was effected in the presence of witnesses under a
Property Seizure Memo (Ex. P11). Rajesh Yadav was then arrested
on 29.03.2013 at 18:30 hours under an Arrest Memo (Ex. P36)."
Thereafter observed in para-39 as under :
"39. It is indeed perplexing that, despite the innumerable weak
links and loopholes in the prosecution's case, the Trial Court as
well as the High Court were not only inclined to accept the same
at face value but went to the extent of imposing and sustaining
capital punishment on Rajesh Yadav and Raja Yadav. No valid
11 CRA-4506-2022
and acceptable reasons were put forth as to why this case qualified
as the 'rarest of rare cases', warranting such drastic punishment.
Per contra, we find that the yawning infirmities and gaps in the
chain of circumstantial evidence in this case warrant acquittal of
the appellants by giving them the benefit of doubt. The degree of
proof required to hold them guilty beyond reasonable doubt, on
the strength of circumstantial evidence, is clearly not established."
Thus, it is submitted that Three Judges Bench Judgment of Hon'ble
Supreme Court is applicable in full force to the facts and circumstances of
the case of appellant-Vidya Prajapati.
21. Reliance is also placed on the judgment of Hon'ble Supreme Court in
the case of Ram Sharan Chaturvedi Vs. The State of Madhya Pradesh in
Criminal Appeal No.1066/2019 decided on August 25, 2022 wherein in
paragraphs-22, 23, 24 and 25, it is observed as under :
"22. The principal ingredient of the offence of criminal
conspiracy under Section 120B of the IPC is an agreement to
commit an offence. Such an agreement must be proved through
direct or circumstantial evidence. Court has to necessarily
ascertain whether there was an agreement between the Appellant
and A-1 and A-2. In the decision of State of Kerala v. P. Sugathan
and Anr., this Court noted that an agreement forms the core of the
offence of conspiracy, and it must surface in evidence through
some physical manifestation:
"12. ...As in all other criminal offences, the
prosecution has to discharge its onus of proving the
case against the accused beyond reasonable doubt. ...A
few bits here and a few bits there on which the
prosecution relies cannot be held to be adequate for
connecting the accused with the commission of the
12 CRA-4506-2022
crime of criminal conspiracy...
13. ...The most important ingredient of the
offence being the agreement between two or more
persons to do an illegal act. In a case where criminal
conspiracy is alleged, the court must inquire whether
the two persons are independently pursuing the same
end or they have come together to pursue the unlawful
object. The former does not render them conspirators
but the latter does. For the offence of conspiracy some
kind of physical manifestation of agreement is required
to be established. The express agreement need not be
proved. The evidence as to the transmission of thoughts
sharing the unlawful act is not sufficient.. . "
(emphasis supplied).
23. The charge of conspiracy alleged by the prosecution against the
Appellant must evidence explicit acts or conduct on his part, manifesting
conscious and apparent concurrence of a common design with A-1 and A-
2. In State (NCT of Delhi) v. Navjot Sandhu, this Court held:
"101. One more principle which deserves notice is that the
cumulative effect of the proved circumstances should be taken into
account in determining the guilt of the accused rather than
adopting an isolated approach to each of the circumstances. Of
13 CRA-4506-2022
course, each one of the circumstances should be proved beyond
reasonable doubt. Lastly, in regard to the appreciation of evidence
relating to the conspiracy, the Court must take care to see that the
acts or conduct of the parties must be conscious and clear enough
to infer their concurrence as to the common design and its
execution."
(emphasis supplied)
24. In accepting the story of the prosecution, the Trial Court, as
well as the High Court, proceeded on the basis of mere suspicion
against the Appellant, which is precisely what this Court
in Tanviben Pankajkumar Divetia v. State of Gujarat4, had
cautioned against:
'"45. The principle for basing a conviction on the basis
of circumstantial evidences has been indicated in a
number of decisions of this Court and the law is well
settled that each and every incriminating circumstance
must be clearly established by reliable and clinching
evidence and the circumstances so proved must form a
chain of events from which the only irresistible
conclusion about the guilt of the accused can be safely
drawn and no other hypothesis against the guilt is
possible. This Court has clearly sounded a note of
caution that in a case depending largely upon
circumstantial evidence, there is always a danger that
conjecture or suspicion may take the place of legal
proof. The Court must satisfy itself that various
circumstances in the chain of events have been
established clearly and such completed chain of events
must be such as to rule out a reasonable likelihood of
the innocence of the accused. It has also been indicated
that when the important link goes, the chain of
circumstances gets snapped and the other circumstances
14 CRA-4506-2022
cannot, in any manner, establish the guilt of the accused
beyond all reasonable doubts. It has been held that the
Court has to be watchful and avoid the danger of
allowing the suspicion to take the place of legal proof
for sometimes, unconsciously it may happen to be a
short step between moral certainty and legal proof. It
has been indicated by this Court that there is a long
mental distance between "may be true" and "must be
true" and the same divides conjectures from sure
conclusions. (Jaharlal Das v. State of Orissa (1991) 3
SCC 27)"
(emphasis supplied)
25. It is not necessary that there must be a clear, categorical and
express agreement between the accused. However, an implied
agreement must manifest upon relying on principles established in
the cases of circumstantial evidence. Accordingly, in the majority
opinion of Ram Narayan Popli v. CBI, this Court had held:
"354. ... For the offence of conspiracy some kind of physical
manifestation of agreement is required to be established. The
express agreement need not be proved. The evidence as to the
transmission of thoughts sharing the unlawful act is not
sufficient..."
Thus, it is submitted that elements of conspiracy is not proved.
22. Reliance is also placed on the judgment of Hon'ble Supreme
Court in the case of Pulukuri Kottaya Vs. King -Emperor, AIR 1947 PC
67 to point out that wrongful admission and use in evidence of confessions
alleged to have been made whilst in Police custody have been dealt with and
15 CRA-4506-2022
in para-9 it is held as under :
"9. Section 27, which is not artistically worded, provides an
exception to the prohibition imposed by the preceding section, and
enables certain statements made by a person in police custody to
be proved. The condition necessary to bring the section into
operation is that the discovery of a fact in consequence of
information received from a person accused of any offence in the
custody of a Police officer must be deposed to, and thereupon so
much of the information as relates distinctly to the fact thereby
discovered may be proved. The section seems to be based on the
view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the
information was true, and accordingly can be safely allowed to be
given in evidence; but clearly the extent of the information
admissible must depend on the exact nature of the fact discovered
to which such information is required to relate. Normally the
section is brought into operation when a person in police custody
produces from some place of concealment some object, such as a
dead body, a weapon, or ornaments, said to be connected with the
crime of which the informant is accused. Mr. Megaw, for the
Crown, has argued that in such a case the "fact discovered" is the
physical object produced, and that any information which relates
distinctly to that object can be proved. Upon this view information
given by a person that the body produced is that of a person
murdered by him, that the weapon produced is the one used by
him in the commission of a murder, or that the ornaments
produced were stolen in a dacoity would all be admissible. If this
be the effect of Section 27, little substance would remain in the
ban imposed by the two preceding sections on confessions made
to the police, or by persons in police custody. That ban was
presumably inspired by the fear of the legislature that a person
under police influence might be induced to confess by the exercise
of undue pressure. But if all that is required to lift the ban be the
inclusion in the confession of information relating to an object
subsequently produced, it seems reasonable to suppose that the
persuasive powers of the police will prove equal to the occasion,
and that in practice the ban will lose its effect. On normal
principles of construction their Lordships think that the proviso
to Section 26, added by Section 27, should not be held to nullify
the substance of the section. In their Lordships' view it is
16 CRA-4506-2022
fallacious to treat the "fact discovered" within the section as
equivalent to the object produced; the fact discovered embraces
the place from which the object is produced and the knowledge of
the accused as to this, and the information given must relate
distinctly to this fact. Information as to past user, or the past
history, of the object produced is not related to its discovery in the
setting in which it is discovered. Information supplied by a person
in custody that "I will produce a knife concealed in the roof of my
house" does not lead to the discovery of a knife; knives were
discovered many years ago. It leads to the discovery of the fact
that a knife is concealed in the house of the informant to his
knowledge; and if the knife is proved to have been used in the
commission of the offence, the fact discovered is very relevant.
But if to the statement the words be added "with which I stabbed
A", these words are inadmissible since they do not relate to the
discovery of the knife in the house of the informant."
Thus, it is submitted that since elements of conspiracy and murder
are not proved, this will be a fit case for acquittal as far as appellant-Vidya
Prajapati is concerned.
23. Learned counsel for the State, in his turn, submits that the chain
of circumstances are complete. There is a phone call made by appellant-
Anutabh @ Anutabh @ Beta Prajapati on the phone number of uncle of the
deceased demanding ransom. All the ingredients of Sections 364A and 302
of IPC are proved, therefore, no indulgence is called for and the conviction
and sentences as made by learned trial Court may be maintained.
24. After hearing learned counsel for the parties and going through
the record, points to be dealt with are as under :
"1) Aspect of juvenility as raised by Shri Vijay Nayak,
learned counsel.
17 CRA-4506-2022
2) Role of appellant-Vidya Prajapati in Criminal
conspiracy and her role in abduction so to uphold or negate her
conviction under Section 364A/34 read with Section 120B of IPC.
3) Whether ingredients of offences under Section
364A/34 read with Section 302 of IPC are proved against
appellant-Anutab @ Anutabh @ Beta Prajapati.
4) A balance sheet of aggravating and mitigating
circumstances to decide as to whether death penalty is to be
maintained or appellant is entitled to covert his sentence from
death penalty to life imprisonment.
25. Before adverting to the submissions made by learned counsel for
the parties, it is necessary to have a brief overview in regard to the facts of
the case. Prosecution's case, in short, is that on 12/03/2019 complainant-
Indrajeet Prajapati made a report that his nephew Shivkant @ Lalli Prajapati,
at about 4.00 p.m., was playing outside the home and others were busy in the
household works, then at about 5.12 p.m. he received a call on his mobile
No.6260021283 from mobile No.9584469886 asking him to arrange for a
sum of Rs.two lakhs as ransom in lieu of release of his nephew Shivkant @
Lalli Prajapati.
26. On receiving such intimation, he had immediately contacted his
sister-in-law, mother and other members of the family so also residents of the
colony. When no whereabouts of Shivkant @ Lalli Prajapati could be
found, then report was lodged at Police Station, Nagod, registering case
18 CRA-4506-2022
Crime No.139/2019. It has come on record that SIM bearing
No.9584469886 was that of Vidya Devi and she stated that Anutab @
Anutabh @ Beta Prajapati had taken that SIM on an assurance that he shall
pay her Rs.10,000/-. It has also come on record that as amount of ransom
could not be paid, Shivkant @ Lalli Prajapati was strangulated, put in a
plastic gunny bag and was put in a water tank.
27. Prosecution has examined as many as 26 witnesses and thereafter
Court examined Sunil Kumar Verma, Headmaster, Gurukul Shishu Vidya
Mandir, Rahikwara (Satna) as C.W.-1 to prove the date of birth of appellant-
Anutab @ Anutabh @ Beta Prajapati. He has stated that his date of birth is
mentioned as 7th August, 2002 but it contains overwriting. Except for the
date of birth, whole form is filled in his handwriting. Since his school was
newly established, he had gone to the house of the student and filled the
form. Date of birth was filled by his subordinate Deepa Narayan Pandey as
per the narration of the guardians of the students. He exhibited the original
admission form as Ex.C/1 and scholar register as Ex.C/2. He admitted that
the TC which was issued to him is Ex.C/3. It is further mentioned that in
2012 Anutab alias Anutabh alias Beta Prajapati had again taken admission in
his school in Class-5th and the TC which was received made a mention of
date of birth as 20/06/2000. This TC was issued by Government Primary
School, Sujawalkala, Satna. Details of this are mentioned in the scholar
register at serial No.235. Copy of original scholar register is Ex.C/4 which
contains his signatures from 'A' to 'A' part and thereafter on 30/06/2016
Anutab Kumhar had taken transfer to another school after passing 8th class.
19 CRA-4506-2022
Transfer certificate is Ex.C/6 and on Ex.C/6 his signatures are available.
28. In TC issued by Government Primary School, Sujawalkala, Satna,
date of birth is mentioned as 20/06/2000. In the transfer certificate (Ex.C/6)
issued by Gurukul Shishu Vidya Mandir, Rahikwar, Distt. Satna issued on
30/06/2016, date of birth of appellant-Anutab alias Anutabh alias Beta
Prajapati is mentioned as 20/06/2000. In the application form (Ex.C/1),
there is overwriting in the last digit of the year where date of birth has been
corrected from 07/08/2000 to 07/08/2002. This correction is not
countersigned by any authority of the said Gurukul Shishu Vidya Mandir,
Rahikwara, Satna. However, as per the orders of this Court, Dr. S.K. Jain
who was posted as Medical Officer at District Hospital, Satna since 1984
examined as C.W.-4, who stated that he was promoted as Orthopedic
Specialist in the year 2012 and was working as Orthopedic Specialist at
District Hospital, Satna till February, 2020.
29. By the orders of learned 3rd Additional Sessions Judge, Nagod
vide letter No.Q/2019/Ni./Li./19 Satna dated 27/11/2019 in Sessions Case
No.161/2019, appellant-Anutab alias Anutabh alias Beta Prajapati, S/o Bulai
was sent for ossification test in pursuance of which request, a joint team was
constituted at District Medical Board, Satna. Dr. S.B.Singh was the
chairman of the said team. Besides Dr.S.B. Singh, Dr. Rekha Tripathi,
Dr.A.A. Siddiquee, Dr. S.K.Jain, himself and two other doctors were part of
the team. The joint team conducted x-rays for ossification test of appellant-
Anutab @ Anutabh @ Beta Prajapati and had taken x-rays of right wrist,
right elbow, right knee and pelvic region. The team found that epiphysis of
20 CRA-4506-2022
the right wrist was fused, therefore, his age was above 19 years. Similarly,
epiphysis of right elbow was fused, it means that his age was above 17
years. Epiphysis of right knee was fused, which meant that his age was
above 18 years. Epiphysis of pelvic was fused, therefore, his age was found
to be above 21 years, as a result of which, opinion was given by the medical
board as contained in Ex.C/14 that age of appellant-Anutab @ Anutabh @
Beta Prajapati is above 21 years. Dr. Jain proved his signatures on Ex.C/14
from 'A' to 'A' part and that of the Chairman Dr. S.B. Singh from 'B' to 'B'
part. He also proved signatures of Dr. Rekha Tripathi from 'C' to 'C' part and
of Dr. A.A. Siddiquee from 'D' to 'D' part.
30. Shri Vijay Nayak, learned counsel, had exhaustively cross-
examined Dr. S.K. Jain but could not bring out any substantial
contradictions. Dr. Jain admitted that slipover the x-ray report Ex.P/15
contains his signatures and there is slight difference in signatures between
Ex.C/14 and C/15 is not significant as both are his signatures made in two
different styles. Thereafter in para-11 of his cross-examination, Shri Vijay
Nayak, learned counsel, asked Dr. S.K. Jain as to whether he had brought
book or Medical Jurisprudence to which he said that he had brought Modi's
Medical Jurisprudence. But, unfortunately, Shri Nayak, learned counsel,
instead of confronting the doctor with the Modi's Medical Jurisprudence,
asked a very irrelevant question that the doctor had not produced the book of
Modi's Medical Jurisprudence.
31. In our opinion, Shri Vijay Nayak, learned counsel, was required to
confront the doctor from the standard textbook of Modi's Medical
21 CRA-4506-2022
Jurisprudence on various aspects of fusion of epiphysis of elbow, writ, knee
and pelvic to suggest that on the basis of each of the fusion, age mentioned
against them is not proper. This doctor admitted that on the basis of the
experience and facts mentioned in the Modi's Medical Jurisprudence, reports
Ex.C/14 and C/15 were prepared. Dr. Jain categorically denied the
suggestions given by Shri Nayak, learned counsel, that age of appellant-
Anutab @ Anutabh @ Beta Prajapati could have been 17 years. He also
denied a suggestion that eating habits effects external genital, pubic hair,
auxiliary hair and mustache. Dr. Jain again reiterated in para-11 of his
cross-examination that all the epiphysis were fused as is mentioned in
Ex.C/14.
32. Thus, the first issue in regard to Juvenility of appellant-Anutab
alias Anutabh alias Beta Prajapati stands rejected inasmuch as there is
medical evidence which could not be contradicted by learned counsel
for appellant-Anutab alias Anutabh alias Beta Prajapati and secondly, there
is admission of Sunil Kumar Verma (CW-1), Headmaster, Gurukul Shishu
Vidya Mandir, Rahikwara, Tahsil Nagod, Distt. Satna, admitting that there
was interpolation in the admission form of the appellant-Anutab alias
Anutabh alias Beta Prajapati and that interpolation in the date of birth of the
appellant has not been countersigned by any competent authority. It has
come on record that Dwrika Prasad Verma (CW-2), Headmaster at
Government Primary School, Sujawalkala, Tahsil Birsinghpur, Distt. Satna
deposed that date of birth of the student was mentioned as 7th August, 2002.
He was given admission on 30/07/2010 in Class-3rd and after passing Class-
22 CRA-4506-2022
3rd, he was given TC. He admitted that original copy of TC is Ex.C/8. He
further deposed that no admission form was obtained as at that time, there
was directions of the Education Department to give admission as per the age
without any application. Dwarika Prasad Verma (CW-2) also deposed that
age of appellant-Anutab alias Anutabh alias Beta Prajapati was recorded at
the instance of his brother-Jhagdu who is working as a teacher at
Government Primary School, Sujawalkala.
33. Manoj Kumar Singh (CW-3), Assistant Teacher, Government
Primary School, Sujawalkala, Tahsil Birsinghpur, Distt. Satna, admitted that
he was working as Assistant Teacher at Govt. Primary School, Sujawalkala
from 11/08/2003 to 2011. From July, 2011 till 4th July, 2013, Jhagdu
Kumhar was Incharge Headmaster in the school. He deposed that he had
produced all the details in regard to the concerned student i.e. original
scholar register, result register and the proof that he was not working as a
Headmaster from 2011 to 2013 vide seizure memo (Ex.C/10). He produced
original copy of the result of appellant-Anutab alias Anutabh alias Beta
Prajapati as Ex.C/12 containing signatures of the Headmaster-Jhagdu Kumar
in Ex.C/12, column of date of birth is blank.
34. Jhagdu Kumhar, S/o Bulai Kumhar (CW-4) though deposed in his
examination-in-chief that date of birth of his brother Anutab is 7th August,
2002. This witness admitted overwriting in the date of birth, both, in words
and numerals in Ex.C/1. This witness deposed that overwriting is on
account of disruption in flow of pen but admitted that his date of birth was
recorded on an estimation. This witness admitted that on Ex.P/13 Scholar
23 CRA-4506-2022
Register, entry of date of birth is made by him. This witness further
admitted that since TC was not available from Nai Basti, Sujawalkala,
therefore, he had recorded date of birth of Anutab by estimation to be
07/12/2002. This witness admitted that on Ex.C/1 he had recorded date of
birth of his brother as 20/06/2000. He further admitted that there was a
dispute with the Headmaster in regard to the charge and since Manoj Singh
had not given him the record and TC of his brother, therefore, he had
recorded his date of birth by estimation.
35. Jhagdu (CW-4) in para-3 of his examination-in-chief, deposed that
his date of birth is 10th June, 1982. He has a younger sister namely Rani
who is 3-4 years younger to him, it means Rani's date of birth will be
somewhere in 1985-86. Thereafter he deposed that younger to Rani is
Sushila who is 3-4 years younger to Rani, that means that Sushila was born
somewhere in 1988 to 1990. Then he deposed that after Sushila is his
younger brother-Rajkumar who is two- two and half year younger to Sushila,
that means year of date of birth of Rajkumar will be 1991-92. Thereafter
this witness deposed that after Rajkumar there is a younger sister- Neha who
is 3-4 years younger to Rajkumar, that means year of birth of Neha would
somewhere 1994-96. Thereafter there was a brother younger to Neha who
died. This deceased brother was one and half- two years younger to Neha
and thereafter Anutab is the sibling who is four years younger to Neha. This
means year of birth of Anutab is somewhere between 1998 to 2000. Thus,
when medical evidence and evidence of Jhagdu (CW-4), brother
of appellant-Anutab alias Anutabh alias Beta Prajapati is taken into
24 CRA-4506-2022
consideration as he had admitted that he got recorded date of birth
of appellant-Anutab alias Anutabh alias Beta Prajapati in school, it is evident
that appellant-Anutab alias Anutabh alias Beta Prajapati was born in 2000, a
fact which is corroborated by Dr. S.K. Jain. Thus, first issue raised by
learned counsel for appellant that appellant-Anutab alias Anutabh alias Beta
Prajapati is juvenile, is answered in negative that appellant-Anutab alias
Anutabh alias Beta Prajapati was not a juvenile at the time of the incident
which took place on 12/03/2019.
36. Thus, the judgment of Hon'ble Supreme Court in the case
of Abuzar Hossain alias Gulam Hossain (supra) in which it is held that claim
of juvenility may be raised at any stage irrespective of delay in raising the
same. It can be raised in appeal even if not pressed before the trial Court and
it can also be raised for the first time before Supreme Court even if not
pressed before trial Court and in appellate Court, is concerned, when
evidence which has come on record is examined, then it is true that appellant
has a right to raise plea of juvenility, but, it is also well settled as held in the
case of Arvind Singh (supra) that cross-examination of witness is important
in terms of the provisions contained in Sections 146 and 138 of the Evidence
Act, 1872 as a proof of fact. It is held that the liability is on the prosecution
to discharge its burden to establish its case. It is held that in terms of
Section 106 of the Evidence Act, 1872, Section 106 cannot be applied to
undermine the well established rule of law that, save in very exceptional
cases, burden is on prosecution to establish its case, facts "especially" within
knowledge of accused means that it would be impossible or extremely
25 CRA-4506-2022
difficult for prosecution to establish such facts, but which accused could
prove without difficulty or inconvenience. It is held that prosecution having
established its case, then burden is on accused under Section 106 to provide
reasonable explanation.
37. In the present case, prosecution has discharged its burden by
examining Dr. S.K. Jain and school teachers including elder brother
of appellant-Anutab @ Anutabh @ Beta Prajapati namely Jhagdu, therefore,
there is no iota of doubt that prosecution having discharged its burden and
have proved overwriting on admission form (Ex.C/1), mention of date of
birth of 2000 in the TC issued by the Government school where appellant-
Anutab @ Anutabh @ Beta Prajapati's own brother was Incharge
Headmaster and then admission of Jhagdu (CW-4) in regard to the fact
that appellant-Anutab @ Anutabh @ Beta Prajapati is four years younger to
Neha, admittedly, there is corroboration of oral and documentary testimony
with the expert medical opinion contained in Ex.C/14 and C/15, therefore,
there is no iota of doubt left that appellant-Anutab @ Anutabh @ Beta
Prajapati has failed to prove the plea of juvenility and having failed to do so,
it is to be held as has been held by the learned trial Court that appellant-
Anutab @ Anutabh @ Beta Prajapati was not a juvenile.
38. Now second issue which emerges is in regard to role of appellant-
Vidya Prajapati in criminal conspiracy. Prosecution has though examined as
many as 26 witnesses and then five Court Witnesses have been examined,
but, Omprakash Gupta (PW-1) only deposed that he has a shop at Village
Rahikwara in the name of Om General Store. On 18/12/2018 Vidya
26 CRA-4506-2022
Prajapati had purchased a SIM of Vodafone company from his shop. This
witness deposed that he does not remember the sim number and further
deposed that it may be in the file kept in his home. Thereafter this witness
deposed that ten days prior to the incident, Anutab had visited his shop and
had said that his SIM is not showing tower when this witness i.e. Omprakash
Gupta (PW-1) had put that sim in Nokia 1600 mobile and had made network
setting on which SIM was activated. Thereafter SIM was returned to
Anutab. In cross-examination this witness admitted that after selling the
SIM, he had not prepared any bill nor any register is maintained in regard to
sale of SIM. In para-11, this witness deposed that he cannot give the
number of the SIM which was used in the incident. Thus, the star witness
examined by the prosecution namely Omprakash Gupta (PW-1) has not
stated anything in regard to SIM number which was given to Vidya
Prajapati.
39. Jitendra Tiwari (PW-4), Field Executive Delhivery Private
Limited, Satna, deposed that on 02/02/2019 Jhagdu Prajapati had made a
booking for mobile of I-Kall company which was delivered to Jhagdu
Prajapati on 08/02/2019. He had received a sale consideration of Rs.3950/-.
He is giving said statement on the basis of the computer details contained in
Ex.P/3. This witness has also not deposed anything about Vidya Prajapati.
Similar statement has been given by Krishna Kumar Pandey (PW-5). Atul
Singh (PW-7) denied knowing Vidya Bai. Gendrao Salame, Constable
No.446 (PW-12) deposed that on 17/03/2019 Investigating Officer had
seized a black colour Vivo 606 model mobile from Indrajeet Prajapati used
27 CRA-4506-2022
by Anutab for seeking ransom of Rs.two lakh vide seizure memo Ex.P/8.
I.O. had prepared a seizure memo (Ex.P/4) of delivery package from
Krishna Gopal Pandey. This officer has also not said anything about vidya
Bai.
40. Sudama Prajapati (PW-17) deposed that Anutab Prajapati was
interrogated by Police in front of him and in interrogation, Anutab said that
he had taken the SIM from mobile and had kept it in a match box. Thereafter
he had hidden it inside his Bada and his memorandum statement is Ex.P/16.
Sandeep Singh Baghel (PW-21) deposed that he was posted as Examiner at
Cyber Forensic Lab, Cyber Headquarter, Bhopal on 23/5/2019. He had
received five articles for forensic examination which constituted one tablet of
I-Kall company i.e. Article 'A', SIM of Vodafone company i.e. Article 'B',
another SIM of Vodafone company i.e. Article 'C', a SIM of Airtel company
as Article 'D) and a mobile of Vivo company as Article 'E'. He had
examined these articles with the help of forensic tools and found outgoing
and income calls. Amandeep Gupta (PW-22) deposed that mobile
No.6260021283 is in the name of Indrajeet Prajapati. He also proved that
on the said mobile on 12/03/2019 at 17 hours 12 minutes and 30 second a
call was received from from mobile No.9584469886 for 58 seconds.
41. Manish Kukreti (PW-24), Additional Nodal Officer, Vodafone
Idea Limited, Electronic Complex, Indore, in para-4 of his testimony,
deposed that as per the documents of the company, mobile No.9584469886
is registered in the name of Smt. Vidya Devi, W/o Shyamacharan, R/o near
Veternery hospital, Devendra Nagar, Panna. This witness deposed that
28 CRA-4506-2022
customer form is Ex.P/104 and it contains the signature of the then Nodal
Officer-Vibhor Rastogi. This SIM was issued by their retainer Lavkesh
Kumar, shop name Lavkesh Mobile, R/o Satna (M.P.) which was activated
on 18/12/2018.
42. Ex.P/104 does not contain signatures of appellant-Vidya Prajapati.
Even Aadhar Card bearing No.497543980610 does not contain endorsement
of it being true copy self-attested by Vidya Bai. In the Aadhar Card name is
mentioned as Vidya Devi. Ex.P/105 is digital prepaid customer application
form of Anutab Prajapati. There is no application form signed by Vidya
Devi so to connect her directly that she had taken a SIM and handed over to
Anutab Prajapati as alleged by him in his memorandum under Section 27 of
the Evidence Act, therefore, there being no material to connect Vidya Devi
inasmuch as there is no recovery of SIM from Vidya Devi and SIM was
obtained by Vidya Devi is also doubtful inasmuch as Omprakash Gupta
(PW-1) deposed that he had issued SIM from Om General Stores whereas
Manish Kukreti (PW-24) deposed that it was issued from retailor Lavkesh
Kumar, shop name-Lavkesh Mobile, Satna, contradicts evidence of
Omprakash Gupta (PW-1) who deposed that he had sold said SIM on
18/12/2018 at Rahikwara, therefore, there being no material on record that
Vidya Prajapati had herself exchanged the SIM and was properly identified
as a purchaser.
43. We are of the opinion that Hon'ble Supreme Court in the case
o f Ram Sharan Chaturvedi (supra) in para-22, it is held that principal
ingredients of the offence of criminal conspiracy under Section 120B of the
29 CRA-4506-2022
IPC is an agreement to commit an offence. Such an agreement must be
proved through direct or circumstantial evidence. Court has to necessarily
ascertain whether there was an agreement between the appellant and A-1 and
A-2. Hon'ble Supreme Court in State of Kerala Vs. P. Sugathan and
another, (2000) 8 SCC 203, has held that the most important ingredient of
the offence being the agreement between two of more persons to do an
illegal act. In a case where criminal conspiracy is alleged, the Court must
inquire whether the two persons are independently pursuing the same end or
they have come together to pursue the unlawful object. The former does not
render them conspirators but the latter does. For the offence of conspiracy
some kind of physical manifestation of agreement is required to be
established. The express agreement need not be proved. The evidence as to
the transmission of thoughts sharing the unlawful act is not sufficient.
44. Similarly, the principle laid down in Pulukuri Kottaya (supra), in
our view, information as to past user, or the past history of object produced is
not related to its discovery in the setting in which it is discovered, then such
discovery is inadmissible. Similarly in the case of Rajesh and another
(supra), Hon'ble Supreme Court has noted in para-27 that confession made
prior to be taken in police custody will be directly hit by Section 26 of the
Evidence Act and there is no possibility of applying the exception under
Section 27 to any information given by him in the course of such confession,
even if it may have led to the discovery of any fact, is when examined and in
light of the judgment of the Hon'ble Supreme Court in the case of Arvind
Singh (supra), no constructive liability for having shared common intention
30 CRA-4506-2022
to commit illegal act or offence is made out, then we are of the opinion that
prosecution has failed to prove the aspect of criminal conspiracy involving
Vidya Prajapati, therefore, her conviction with the aid of Section 120B of the
IPC cannot be upheld and is required to be set aside and is, accordingly, set
aside.
45. Another thing which is required to be examined and seen is that,
whether conviction of the appellant is based on cogent material and evidence
or not. The material through which the appellant has been connected with the
crime is in the following shape, namely; there was a phone call made by the
appellant through mobile No. 9584489686 to the prosecution witnesses
Indrajeet Prajapati (PW-15) on his mobile No. 6260021283 demanding a
ransom of Rs.2,00,000/- for release of his nephew Shivkant @ Lalli.
Evidence of mother of the victim namely Rajkumari Prajapati (PW-2) that
victim was playing in front of the house of the appellant, then memorandum
(Ex.P-53) of the appellant that he lured the deceased with pop-corn and had
taken him inside his house. Since the victim was making noises, therefore, he
had tightened the nose around his neck with a rope as a result of which
victim died. He had put the victim in a yellow colour bag tied it with a rope,
kept it in a 'tokra' and left his home from his rear door and had put the body
in the water pond (dabra) behind the house of Ramanuj Sharma. This
memorandum (Ex.P-53) is proved by PW-15 IndrajeetPrajapati by claiming
that his signatures are available on the memorandum from "B" to "B" part.
46. It has also come on record that appellant had taken the police to the said
water body where he had taken out yellow colour bag from the water body
31 CRA-4506-2022
and upon opening of that bag, the dead body of Shivkant @ Lalli was
discovered. There was nylon rope tied to his throat.
47. This witness PW-15 Indrajeet Prajapati also proved Panchnama (Ex.P-
49) which was prepared at the instance of the appellant Anutab @ Anutabh
@ Beta Prajapati, in which his signatures are available from "B" to "B" part,
then extraction of dead body panchnama (Ex.P-50) which again contain his
signatures from "B" to "B" part, then identification panchanama (Ex.P-51) as
this witness had identified the dead body of his nephew. Identification
Panchnama (Ex.P-51) also contains his signature from "B" to "B" part. This
witness also admitted that lash panchnama Ex.P-6 was prepared in his
presence, DehatiMarg Intimation (Ex.P-63) was recorded in his presence and
summons (Ex.P-5) was issued to witness of Last Panchnama. Thereafter,
police had seized water in a bottle from the place where dead body was
found, sample clay and clay from the place of the incident and had also
seized the bag from which dead body was recovered alongwitht he rope vide
Ex.P-57. Police had also seized 'tokra', rope and shoes of the appellant vide
Ex.P-50(A). It has come on record that police had also seized a mobile phone
and SIM Card videEx.P-46. Police had also sized a mobile phone of VIVO
Company of this witness PW-15 vide Ex.P-8. Seizure Colour of Blue Colour
Shoes is Ex.P-56. In the FSL report, it has come on record that the clay of the
place which was the scene of discarding the body of the deceased matched
with the clay which was found on the shoes of the appellant Anuta.
48. Thus, it is evident that the phone call made by the appellant to the PW-
15. Call details have been proved by PW-24 who has proved that, on
32 CRA-4506-2022
12.03.2019 a call was made from Mobile No. 9584469886 to Mobile No.
6260021283 at 17:12:30 hrs. and the duration of call was 58 seconds.
49. PW-23, Investigating Officer of this case has proved the memorandum,
seizure, Lash Panchayatnama, seizure of dead body at the instance of the
appellant from the water body and in the same bag as was narrated by him to
be of yellow colour alongwith a rope tied to the neck of the deceased causing
strangulation decides clay on the shoes of the appellant to be of the same
origine as was found on the spot at the time of making of seizure of the dead
body and therefore, these circumstances have been used to connect the
appellant with the murder of Shivkant @ Lalli.
50. Another aspect to connect the appellant with the commission of crime
is the report of Sandeep Singh Baghel, Forensic Examiner, Cyber Forensic
Lab, Cyber Headquarters, Bhopal who had found that from Article "A"
mobile No. 9584469886 an outgoing call was made on Whatsapp Mobile
Number 6260021283 i.e. from I-Call Tablet to Vivo Mobile Phone. Thus, the
circumstances as detailed above prove beyond doubt that ingredients of
offences under Section 364A/34 read with Section 302 of IPC are proved
against appellant-Anutab alias Anutabh alias Beta Prajapati.
51. Now coming to the next issue of drawing a balance sheet between
aggravating and mitigating circumstances.
52. In the case of Arvind Singh (supra) , facts are that two accused killed
a young school going boy aged about only 8 years to become rich by ransom
amount and to take vengeance against his father. Hon'ble Supreme Court
noted that considering the motive behind the crime, the case held not falling
33 CRA-4506-2022
in the category of the "rarest of rare cases" and held that the death sentence is
not justified and converted to life imprisonment. It observed that "life"
means till the end of the life and there shall not be any remission till the
accused completes 25 years of imprisonment. In the same case of Arvind
Singh (supra), Hon'ble Supreme Court also held that surrender at the first
available opportunity, young age and absence of criminal antecedents are not
to be treated as mitigating circumstances, but what is required to be
examined is whether there is a possibility of rehabilitation. Thus, it is
evident that law has evolved over a period of time.
53. In the case of Jagmohan Singh Vs. The State of U.P., (1973) 1 SCC
20 started with that Article 19 of the Constitution does not directly deal with
the freedom to live. It is not included in the seven freedoms mentioned in
that article and then discussing the evaluation that after the amendment of the
Act 26 of 1955 to the Criminal Procedure Code, it was left to the judicial
discretion of the Court whether the death sentence of the lesser sentence
should be imposed. Then it negated the concept of discretion in the Judges
to impose capital punishment or imprisonment for life to be hit by Article
14. It is held that the Criminal Procedure Code lays down a detailed
procedure for determining whether the sentence of death or something less is
appropriate in the case. Then it referred to several studies which were made
by Western Scholars to show the in effectiveness of capital punishment
either as a deterrent or as appropriate retribution. It noted that there is large
volume of evidence complied in the West by kindly social reformers and
research workers and then noted the defects in the said studies. It is noted
34 CRA-4506-2022
that large number of murders are undoubtedly of the common type, but some
are diabolical in conception and cruel in execution. Such murder cannot be
simply wished away by finding alibis in the social maladjustment of the
murderer. Prevalence of such crime speaks, in the opinion of many, for the
inevitability of death penalty not only by way of deterrence but as a token of
emphatic disapproval by the society. Thereafter it discussed the policy of
law in giving a very wide discretion in the matter of punishment, to the
Judge, having its origin in the impossibility of laying down standards.
54. In 1980, Constitution Bench of Hon'ble Supreme Court delivered
judgment in the case of Bachan Singh (supra) and held that any of the right
mentioned in Article 19(1) of the Constitution of India does not confer the
freedom to commit murder or, for the matter of that, the freedom to commit
any offence whatsoever. Then in the case of Bachan Singh (supra) dealt
with the question whether or not death penalty serves any penological
purpose treating it to be a difficult, complex and intractable issue. It noted
that the provisions of Section 302 of Penal Code does not violate the letter
nor the ethos of Article 19 of the Constitution. Then dealing with the issue
of laying down standards and norms restricting the area of imposition of
death penalty, it noted that such standardisation is well-nigh impossible.
Firstly, degree of culpability cannot be measured in each case; secondly,
criminal cases cannot be categorised, there being infinite, unpredictable and
unforseeable variations; thirdly, on such categorization, the sentencing
process will cease to be judicial; and fourthly, such standardisation or
sentencing discretion is a policy-matter belonging to the legislature beyond
35 CRA-4506-2022
the Court's function.
55. In the majority judgment, however, it is noted that aggravating and
mitigating circumstances mentioned in para-202 and 206 can be taken as a
standard to draw a balance sheet between aggravating and mitigating
circumstances.
56. When this aspect is taken into consideration, then though it is true that
taking away of life of a child going to bloom into a citizen and being an
asset both to the family and the society, raises concern to the judicial
conscious, but, at the same time, emotions alone cannot be a guiding factor.
Thus when four of the aggravating circumstances as mentioned in para-202
are taken into consideration and balanced with the mitigating circumstances,
then keeping main focus on fourth mitigating circumstances that is
probability that the accused can be reformed and rehabilitated, is to be taken
into consideration.
57. To satisfy ourselves, we asked learned Government counsel as to
whether there are any reports of proven misbehaviour or heretic behaviour in
the prison, then response is in negative. Thus, when these facts are taken
into consideration, then instead of tracing the history of the legal issue,
reliance can be directly placed on the recent judgment of Supreme Court in
the case of Ramesh A. Naika Vs. Registrar General, High Court of
Karanataka etc., 2025 SCC Online SC 575. In Arvind Singh (supra) , it is
noted that accused was young aged about 19 years having no criminal
antecedents. But it rejected this argument of being young or having no
criminal antecedents to treat them as mitigating circumstances and held that
36 CRA-4506-2022
what is required to be examined is whether there is possibility of
rehabilitation and whether it is the rarest of rare case where the collective
conscience of the community is so shocked that it will expect the holders of
judicial power to inflict a death penalty irrespective of their personal opinion
as regard desirability or otherwise of retaining death penalty. It is held that
the manner of commission of murder when committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly manner are aggravating
factors. The motive of accused to take life was to become rich by not doing
hard work but by demanding ransom after kidnapping a young innocent boy.
Thus, the Hon'ble Supreme Court noted that the present case falls short of the
"rarest of rare" cases where a death sentence alone deserves to be awarded to
the appellants. Facts of the present case are similar.
58. Similar ratio is laid down by Hon'ble the Supreme Court in the case
of Ramesh A. Naika (supra) where Hon'ble Supreme Court has summarized
the list of judgment where sentence without remission for the remainder of
the convict's life was granted starting from Swsamy Shraddananda Vs. State
of Karnataka, (2008) 13 SCC 767, Sebastian Vs. State of Kerala, (2010) 1
SCC 58 to Deen Dayal Tiwari Vs. State of U.P., 2025 SCC Online SC
237 and noted cases wherein life sentence has been imposed till the end of
the convict's natural life subject to remission starting from Mulla Vs. State of
U.P., (2010) 3 SCC 508 to Arvind Singh Vs. State of Maharashtra, (2021) 11
SCC 1. Hon'ble Supreme Court directed to take off the hangman's noose
from the appellant's neck and instead directed that he remains in prison till
the end of his days given by God Almighty.
37 CRA-4506-2022
59. However, looking to the fact that facts of the case of Arvind Singh
(supra) are similar to that of the present case, we allow the present appeal in
part and while maintaining the conviction, substitute the death sentence
imposed by learned trial Court to appellant-Anutab @s Anutabh @ Beta
Prajapati into the life imprisonment. It is directed that the life means till the
end of life with further observations and directions that there shall not be any
remission till the appellant completes 25 years of imprisonment.
60. In above terms, Criminal Appeal No.4506/2022 filed by appellant-
Vidya Prajapati is allowed and her conviction is set aside. Appellant -Vidya
Prajapati be released forthwith, if not required in any other case.
61. Criminal Appeal No.5621/2021 filed by appellant-Anutab @ Anutabh
@ Beta Prajapati is allowed in part to the extent indicated herein above and
the criminal reference is answered accordingly.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
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