Amit vs State Of U.P

Amit ...... Appellant

Versus

State of Uttar Pradesh ...... Respondent

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under

Article 136 of the Constitution of India against the

judgment dated 29.07.2009 of the Allahabad High Court

in Criminal Appeal No.7361 of 2007 and in Reference

No.26 of 2007 confirming the conviction of the appellant

under Sections 364, 376, 377, 302 and 201 of the Indian

Penal Code (for short `IPC') as well as the sentences of

imprisonments and death awarded by the learned

Additional Sessions Judge.

2 2. The facts very briefly are that on 19.03.2005, one

Radhey Shyam lodged a First Information Report (for

short `FIR') at the Daurala Police Station in District

Meerut at 21:15 hours alleging that while his mother

Manno and wife Shakuntala were present at house,

his neighbour Amit, the appellant herein, took away

his daughter Monika, aged 3 years, from his house

on the pretext that he would give biscuits to her but

neither his daughter nor the appellant returned and

when at about 5.00 p.m. the appellant came back to

his house, he inquired about the whereabouts of

Monika, but the appellant did not reply and ran

away. Crime No.90 of 2005 for the offence under

Section 364, IPC, was registered. The appellant was

apprehended on 20.03.2005 near the Pawli Khas

Railway Station, Modipuram, P. S. Daurala in District

Meerut and his shirt, which bore blood-stains on its

right arm, was taken off from his person. On the

statement of the appellant, the dead body of Monika

kept in a plastic bag was recovered from the wheat

field in the out skirts of village Palhara in the

3

presence of Radhey Shyam and Iqbal Singh. A pair of

green colour chappals, which were blood-stained,

were also recovered from the corner of a room of the

house of the appellant on the statement of the

appellant in presence of Radhey Shayam and Iqbal

Singh. The shirt of the appellant and the chappals,

frock, underwear of Monika and a back thread were

sent to the Forensic Science Laboratory Uttar

Pradesh, Agra, which confirmed presence of human

blood and human sperms on some of these materials.

After investigation, chargesheet was filed against the

appellant under Sections 364, 376, 377, 302 and

201, IPC, and charges were accordingly framed by

the learned Additional Sessions Judge, Court No.12,

Meerut, and Sessions Trial No.449 of 2005 was

conducted.

3. At the trial, Radhey Shyam was examined as PW-1.

His wife and mother were examined as PWs-2 and 3.

Iqbal Singh, the witness to the seizures made

pursuant to the statements of the appellant, was

examined as PW-4. Dr. Vikrama Singh, Senior

4

Pathologist, who carried out the post-mortem on the

body of Monika, was examined as PW-5 and the

Investigating Officer was examined as PW-6. In his

statement under Section 313, Criminal Procedure

Code (for short `Cr.P.C.'), the appellant denied having

committed the offences but no evidence was adduced

by him in his defence. The trial court considered the

evidence, heard the arguments and found the

appellant guilty of the charges under Sections 364,

376, 377, 302 and 201, IPC. After hearing the

appellant on the question of sentence, the trial court

imposed the punishment of life imprisonment and a

fine of Rs.5,000/- for the offence under Section 364,

IPC, and a further sentence of six months if the

appellant failed to pay the fine. For the offence under

Section 376, IPC, the trial court also imposed the

punishment of life imprisonment and a fine of

Rs.5,000/- and on failure to pay the fine, a further

sentence of six months. For the offence under

Section 377, IPC, the trial court also imposed the

punishment of life imprisonment and a fine of

5

Rs.5,000/- and on failure to pay the fine, an

additional sentence of six months' imprisonment.

For the offence under Section 201, IPC, the trial

court imposed a sentence of five years imprisonment

and a fine of Rs.2,000/- and on failure to pay the

fine, an additional sentence of two months'

imprisonment. The trial court took the view that this

is one of those rarest of rare cases in which the

appellant was not eligible for any sympathy of the

Court and imposed the sentence of death and a fine

of Rs.5,000/- on the appellant for the offence under

Section 302, IPC. The High Court, as we have

already noted, has not only confirmed the convictions

under Sections 364, 376, 377, 302 and 201, IPC, but

also the sentences awarded by the trial court.

4. At the hearing of the appeal, learned counsel for the

appellant submitted that PW-3 was the only person

who was witness to the appellant taking away

Monika from the house of PW-1, but PW-3 was an

aged woman and she has admitted in her cross-

examination that she cannot see with her right eye.

6 He submitted that PW-3 was an interested witness

inasmuch as she was the grandmother of Monika

and her evidence should not be relied on. He argued

that no Test Identification Parade was conducted

during investigation for the witness to identify the

appellant. He further submitted that no independent

witnesses were taken by the Police for recovery of the

articles and instead the father of Monika (PW-1) was

made a witness to the recovery of various articles and

there is evidence to show previous enmity between

PW-1 and the appellant and PW-1 has planted this

case against the appellant. He also argued that the

weapon by which Monika was killed has not been

recovered and hence there is no proof that the

appellant has committed the offence under Section

302 IPC.

5. Learned counsel for the State, on the other hand,

took us through the evidence of PWs-1, 2, 3 and 4 as

well as the three memoranda of recovery made on

20.03.2005 pursuant to the confessional statements

of the appellant admissible under Section 27 of the

7 Evidence Act as well as the report of the Forensic

Science Laboratory to show that the trial court rightly

convicted the appellant and the High Court rightly

confirmed the conviction under Sections 364, 376,

377, 302 and 201, IPC.

6. We may first consider the contention of the learned

counsel for the appellant that the evidence of PW-3

who saw the appellant taking away Monika from her

lap should not be relied on. PW-3 is no doubt the

grandmother of Monika but she is not an interested

witness. As has been held by this Court in State of

Rajasthan v. Smt. Kalki and another [(1981) 2 SCC

752], Myladimmal Surendran and others v. State of

Kerala [(2010) 11 SCC 129] and Takdir Samsuddin

Sheikh vs. State of Gujarat and another [(2011) 10

SCC 158], an interested witness must have some

direct interest in having the accused somehow

convicted for some extraneous reason and a near

relative of the victim is not necessarily an interested

witness. There is no evidence to show that PW-3 was

somehow interested in having the appellant

8

convicted. PW-3, however, is an aged woman and

she has admitted in her cross-examination that she

cannot see with her right eye but she has also stated

in her cross-examination that she can see with her

left eye and the sight of her left eye has not

diminished on account of old age and she can fully

see everything and can also pass a thread through

the eye of the needle and that she does not use

spectacles and can see without spectacles. Hence,

the evidence of PW-3 that the appellant came to her

house and took away Monika from her lap on the

pretext of giving biscuits to her cannot be disbelieved.

7. We may now deal with the contention of the learned

counsel for the appellant that no Test Identification

Parade was conducted during investigation for the

witness to identify the appellant as the person who

had taken away the child from her lap. Test

Identification Parade would have been necessary if

the appellant was unknown to PW-3 but as the

appellant was the neighbour of PW-3 and known to

her no Test Identification Parade was necessary for

9

PW-3 to identify the appellant. In fact when PW-1

returned home, he was told by PW-3 that the

appellant had taken away Monika on the pretext of

giving her biscuits because PW-3 knew the appellant.

Moreover, on such information received from PW-3,

PW-1 lodged the FIR naming the appellant as the

person who had taken away Monika on the pretext of

giving her biscuits. Hence, the argument of learned

counsel for the appellant that no Test Identification

Parade was conducted for PW-3 to identify the

appellant is misconceived in the facts of this case.

8. Regarding the contention of learned counsel for the

appellant that no independent witnesses were taken

by the police for recovery of the articles and PW-1,

who was the father of Monika and who was inimical

to the appellant was made a witness to the recovery

of the articles, we find from the memo Ex.Ka-10

recording the recovery of blood- stained shirt of the

appellant that the recovery was made in presence of

two Constables, namely, Harender Singh and Jasbir

Singh, and PW-1 was not a witness to this recovery.

10 Thereafter, the appellant made a confession that he

had concealed the dead body of Monika in the wheat

field and pursuant to this confession the dead body

of Monika kept in a plastic bag was recovered in

presence of not only PW-1 but also PW-4 (Iqbal

Singh). The recovery memo (Ext.Ka-2) with regard to

the dead body of Monika and the recovery memo

Ext.Ka-3 with regard to plastic bag bear the

signatures of the two witnesses PW-1 and PW-4.

Pursuant to the statement made by the appellant, the

chappals which Monika was wearing at the time of

murder were also recovered from the house of the

appellant in presence of PW-1 and PW-4 and the

recovery memo with regard to the chappals (Ext.Ka-5)

also bears the signatures of PW-1 and PW-4. Thus, it

is not correct, as has been submitted by learned

counsel for the appellant, that only PW-1 was a

witness to the recovery of various articles and that

this was a case which PW-1 had planted on the

appellant on account of previous enmity. PW-4 was

also a witness to the recovery of the articles which

11

implicate the appellant in the offence and it is not the

case of the appellant that PW-4 was in any way

inimical to the appellant.

9. Coming to the argument of the counsel for the

appellant that the weapon with which Monika was

killed has not been recovered, it appears from the

evidence of the senior pathologist Dr. Vikrama Singh,

PW-5, who carried out the post mortem report on the

body of Monika that there were swelling marks on

her head and left side of the face which established

that she has been hit on her head and her left side of

the face. PW-5 has also stated in his evidence that

there was a ligature mark all around her neck which

indicates that she was also strangulated. PW-5 has

further deposed that there was a lacerated wound on

the anterior part of arms anus and her vagina was

inflamed and congested which prove that unnatural

offence and rape was committed on her. PW-5 has

opined that all the injuries together are the cause of

the death of Monika. The report of the Forensic

Science Laboratory (Ex.A-23) confirms human blood

12

and human sperms on the underwear of Monika.

Thus, even if the object with which Monika was hit

has not been identified and recovered, the evidence of

PW-3, the recovery of various articles made pursuant

to the confession of the appellant, the evidence of

PW-5 and the report of the Forensic Science

Laboratory Ex.A-23 prove beyond all reasonable

doubt that it is the appellant alone who after having

kidnapped Monika committed unnatural offence as

well as rape on her and killed her and thereafter

caused disappearance of the evidence of the offences.

The High Court has, therefore, rightly confirmed the

conviction of the appellant under Sections 364, 376,

377, 302 and 201 IPC.

10. We may now consider the contentions of the learned

counsel for the parties on the sentence for the offence

under Section 302, IPC. Learned counsel for the appellant

submitted that the appellant was a young person aged

about 28 years when he committed the offences and may

reform in future. He cited the judgments of this Court in

Sebastian Alias Chevithiyan v. State of Kerala [(2010) 1

13

SCC 58] and Rameshbhai Chandubhai Rathod (2) v. State

of Gujarat [(2011) 2 SCC 764] in which this Court in

similar cases of murder of a child after rape by a young

person has held that imprisonment for life and not death

sentence is the appropriate punishment. He submitted

that the appellant, therefore, should not be awarded death

sentence.

11. Learned counsel for the State, on the other hand,

submitted that the trial court has held that kidnapping

and raping a three years old daughter of a neighbour by

another neighbour on the pretext of offering biscuit is a

heinous and inhuman act and comes under the category

of rarest of rare cases as has been held by this Court in

several decisions. He submitted that the view taken by the

trial court is consistent with the decisions of this Court in

State of U.P. v. Satish [(2005) 3 SCC 114] and Bantu v.

State of Uttar Pradesh [(2008) 11 SCC 113]. According to

him, death sentence is the appropriate punishment for

rape of a child followed by murder.

14 12. We find that the trial court has relied on the

decision of a two Judge Bench of this Court in State of U.P.

v. Satish (supra) in which the offence of rape of a child

followed by brutal murder of a child has been held to fall

in the rarest of rare category for which death sentence is

appropriate. In Bantu v. State of Uttar Pradesh (supra), a

two-Judge Bench has similarly awarded death sentence to

the accused for having committed murder after rape of a

young girl of 5 years. In the subsequent decision in the

case of Sebastian Alias Chevithiyan v. State of Kerala

(supra), however, a two-Judge Bench of this Court in a

similar case of a rape followed by murder of a young child

by a young man of 24 years has taken a different view and

has modified the sentence of death to one imprisonment

for the rest of his life. In Rameshbhai Chandubhai Rathod

(2) v. State of Gujarat (supra), which was also a case of a

rape followed by murder of a girl child by a young man,

while Dr. Arijit Pasayat, J. took the view that death

sentence is the appropriate punishment, A.K. Ganguly, J.

was of the view that as the accused was young in age and

may be rehabilitated in future, death sentence is not the

15

appropriate punishment. The difference between the two

Judges was referred to a three-Judge Bench of this Court

and the three-Judge Bench held that in such cases of rape

followed by murder by a young man, instead of death

sentence a life imprisonment should be awarded with a

direction that life sentence imposed will extend to the full

life of the appellant but subject to any remission or

commutation at the instance of the Government for good

and sufficient reasons. In the present case also, we find

that when the appellant committed the offence he was a

young person aged about 28 years only. There is no

evidence to show that he had committed the offences of

kidnapping, rape or murder on any earlier occasion. There

is nothing on evidence to suggest that he is likely to repeat

similar crimes in future. On the other hand, given a

chance he may reform over a period of years. Hence,

following the judgment of the three-Judge Bench in

Rameshbhai Chandubhai Rathod (2) v. State of Gujarat

(supra), we convert the death sentence awarded to the

appellant to imprisonment for life and direct that the life

sentence of the appellant will extend to his full life subject

16

to any remission or commutation at the instance of the

Government for good and sufficient reasons.

13. While therefore sustaining the conviction of the

appellant for the different offences as well as the sentences

of imprisonment awarded by the trial court for the

offences, we allow the appeal in part and convert the

sentence of death to life imprisonment for the offence

under Section 302 IPC and further direct that the life

imprisonment shall extend to the full life of the appellant

but subject to any remission or commutation at the

instance of the Government for good and sufficient

reasons. The appeal stands disposed of.

.............................J.

(A. K. Patnaik)

.............................J.

(Swatanter

Kumar)

New Delhi,

February 23, 2012.