Md.Mannan @ Abdul Mannan vs State Of Bihar

MD. MANNAN @ ABDUL MANNAN .... APPELLANT

VERSUS

STATE OF BIHAR ..... RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Appellant was put on trial for offence under Sections 366,

376, 302 and 201 of the Indian Penal Code, 1860 (hereinafter

referred to as the `Penal Code'). The Trial Court by its

judgment and order dated 29th of May, 2007 passed in

Sessions Trial No.220 of 2004 arising out of the Manigachi

P.S. Case No.13 of 2004 held the appellant guilty of all the

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charges and sentenced him to undergo rigorous imprisonment

for 10 years for offence under Section 366 of the Penal Code,

life imprisonment under Section 376 of the Penal Code,

rigorous imprisonment for 7 years for offence under Section

201 of the Penal Code and death penalty for offence under

Section 302 of the Penal Code. The trial court made Reference

to the High Court for confirmation of the death sentence which

led to registration of Death Reference No. 6 of 2007. Appellant

aggrieved by his conviction and sentence also preferred appeal

which was registered as Criminal Appeal (DB) No. 963 of 2007.

Both, the reference and appeal were heard together and by a

common judgment dated 19th of August, 2008, the Division

Bench of the Patna High Court accepted the reference and

dismissed the appeal.

2. This is how the appellant is before us with the leave of

the Court.

3. According to the prosecution, the appellant Md. Mannan

was working as mason and engaged for the plaster work at

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the residence of informant's uncle PW-8 Devikant Jha. On

28th of September, 2004, the appellant gave Rs.2/- to the niece

of the informant, namely, Kalyani Kumari aged about 8 years

to bring betel from a shop at Hanuman Chowk. After some

time, appellant left the work, went to the Hanuman Chowk

and got seated Kalyani Kumari on the carrier of his bicycle.

PW-5 Maya Devi and other women heard the conversation

which the appellant was having with Kalyani Kumari.

Appellant, according to women folk, asked Kalyani Kumari as

to where her father lives to which she replied that he stays at

Bombay. A search was made when Kalyani Kumari did not

return home for sometime and in the course thereof, it

surfaced that she was seen going on a bicycle with a man.

The informant Sharwan Kumar Jha (PW-10) and his family

members set out in search of the girl and while they were

returning from Bahera saw the appellant going towards

Bahera. Appellant tried to escape but was apprehended and

on enquiry he showed ignorance about the girl. Appellant was

brought to the residence of the informant where PW-5 Maya

Devi disclosed that she had seen the appellant who had taken

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away Kalyani Kumari on his bicycle. Thereafter, the appellant

was brought to the Police Station and handed over to the

officer-in-charge with a written report, for taking suitable

action, alleging that the appellant had kidnapped Kalyani

Kumari. On the basis of the aforesaid information, a case was

registered and PW-11 Hari Ram, the officer-in-charge took up

the investigation.

4. During the course of investigation, the appellant gave a

confessional statement in the presence of the witnessess Amar

Kishore Jha (PW-2) and Devi Kant Jha (PW-8) and other

villagers. The appellant confessed his guilt and disclosed the

place where he had raped and killed Kalyani Kumari. The

statement given by the appellant led to the recovery of the

dead body of Kalyani Kumari from a field. She was identified

by the informant and other villagers. The dead body of

Kalyani Kumari had injury on the private parts, her nails were

munched and there were marks of bruises all over the body.

The Inquest Report was prepared and the dead body was sent

for post-mortem examination which was conducted by PW-4

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Dr. Prafulla Kumar Das, a Tutor in the department of Forensic

Medicine and Toxicology at Darbhanga Medical College and

Hospital. Police, after usual investigation, submitted charge-

sheet against the appellant for kidnapping, raping and killing

a minor girl and causing disappearance of evidence of offence.

Appellant was ultimately committed to the Court of Sessions

to face the trial, where charges under Sections 366, 376, 302

and 201 of the IPC were framed against him. Appellant denied

to have committed any offence and claimed to be tried.

5. The prosecution in order to bring home the charge has

examined altogether 11 witnesses besides a large number of

documentary evidence, including the First Information Report,

the Post-mortem Report and the Inquest Report, were

exhibited. The plea of the appellant in the statement under

Section 313 of the Code of Criminal Procedure is denial

simplicitor and false implication. However, no defence witness

has been examined.

6 6. There is no eye-witness to the occurrence and the

prosecution sought to bring home the charge on the basis of

the circumstantial evidence.

Those are:

(i) Appellant was working as Mason in the House of

Devi Kant Jha (PW-8);

(ii) Appellant sent the deceased to the betel-shop to get

betel;

(iii) Appellant proceeded towards the betel-shop few

minutes after the deceased left;

(iv) Appellant was last seen with the deceased going

together on a bicycle and

(v) Appellant's confession leading to the recovery of

dead body from a field.

7. All these circumstances led the trial Court to hold that

the chain is complete which points towards the guilt of the

appellant and accordingly convicted him as above. In the

opinion of the trial court, the case fell in category of the rarest

of the rare cases and accordingly it inflicted the death penalty.

The High Court concurred with the finding of the trial court

and affirmed the conviction and while doing so, it observed as

follows:

7 ".....as per disclosure made by the

appellant and on his disclosure the dead body was

recovered from a lonely place surrounded and

concealed by standing crops of wheat and rahar.

Hence the part of the confession made by appellant

which is disclosure regarding the place where the

dead body could be found, is clearly admissible as

evidence under Section 27 of the Indian Evidence

Act. Since the rape and murder on the victim girl has

been proved by medical evidence and since such

offences were committed against the victim soon

after her kidnapping by the appellant, a presumption

arises against the appellant that he committed rape

and murder of the victim and tried to conceal the

evidence of such offence by hiding the body at a

lonely place concealed by standing crops. No doubt

such presumption can be rebutted if reasonable

explanation could be given by the appellant. But in

this case no such explanation has been brought on

record. There is neither any defence witness nor any

reasonable suggestion to the witnesses nor any

explanation by the appellant under Section 313 of

the Code of Criminal Procedure. Hence, the

presumption remains un-rebutted. The evidence on

record and the entire facts and circumstances

coupled with disclosure made by the appellant which

is admissible under Section 27 of the Indian

Evidence Act prove beyond any doubt that after

kidnapping the victim, the appellant committed the

offence of rape followed by murder upon the

deceased and also committed offence of destroying

evidence by concealing the dead body."

8. While accepting the reference and upholding the death

sentence, High Court observed as follows :

"I have considered the entire facts and the

aforesaid submissions for deciding whether the

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death penalty awarded to the appellant should be

confirmed or not. In this regard, it is noticed that

appellant is a matured man aged about 42-43 years.

He has committed the heinous and barbarous crime

of rape and murder of a girl aged about 7 years who

was thin built and of 4' height. Such a child was

incapable of arousing lust in normal situation. She

was kidnapped in a planned manner because she

was innocent and could not understand the design of

the appellant. She became helpless victim of a

diabolic middle aged man whom the child could trust

as an elder person. The medical evidence shows the

cruel manner of causing injuries on the face, nails

and body of the child at the time of committing rape

which was followed by murder. This was all pre-

planned as is apparent from the manner of

kidnapping and selection of a lonely place where

crime was committed and body concealed. Crime of

this nature against the child girl is definitely a crime

against the society. The facts of the case, the

offences taken together along with the age of the

victim and the age of the appellant clearly bring the

case in the category of "rarest of the rare cases" in

which interest of justice requires award of maximum

penalty."

9. The deceased had met homicidal death and was

subjected to rape have not been questioned before us.

However, learned Counsel for the appellant has contended

that the circumstances brought on record do not lead to one

and the only conclusion towards the guilt of the appellant and

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therefore the appellant deserves to be given the benefit of

doubt.

10. Mr. Gopal Singh, learned Counsel representing the State,

however, supports the judgment of conviction and sentence.

11. We have bestowed our consideration to the rival

submissions. In our opinion to bring home the guilt on the

basis of the circumstantial evidence the prosecution has to

establish that the circumstances proved lead to one and the

only conclusion towards the guilt of the accused. In a case

based on circumstantial evidence the circumstances from

which an inference of guilt is sought to be drawn are to be

cogently and firmly established. The circumstances so proved

must unerringly point towards the guilt of the accused. It

should form a chain so complete that there is no escape from

the conclusion that the crime was committed by the accused

and none else. It has to be considered within all human

probability and not in fanciful manner. In order to sustain

conviction circumstantial evidence must be complete and

must point towards the guilt of the accused. Such evidence

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should not only be consistent with the guilt of the accused but

inconsistent with his innocence. No hard and fast rule can be

laid to say that particular circumstances are conclusive to

establish guilt. It is basically a question of appreciation of

evidence which exercise is to be done in the facts and

circumstances of each case.

12. Bearing in mind the principles aforesaid, we now proceed

to consider the circumstantial evidence available on the

record. PW-1 Rajkumar Jha claimed to be Mukhia of the

Gram Panchayat having shop at Hanuman Chowk and has

stated in his evidence that appellant was doing work of a

mason in the house of Devi Kant Jha (PW-8) who was grand-

father of deceased Kalyani. He has claimed to have seen the

appellant coming to Hanuman chowk and getting seated

Kalyani on his bicycle and taking her towards village Igharata.

Thereafter Kalyani never returned nor the appellant came back

till evening when the search started. He has further stated

that appellant led the witnesses to the wheat field and showed

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the dead body of deceased Kalyani. There was only a panty on

the person of the dead body and no other clothes.

13. PW.2, Amar Kishore Jha, owned a shop at Hanuman

Chauk and has stated in his evidence that he had seen the

appellant getting Kalyani seated on his bicycle at the Chauk.

He has further stated that Kalyani did not return till evening

and then he along with PW.1, Raj Kumar Jha had gone to

search her. He is further a witness to the statement given by

the appellant which led to the recovery of the dead body of

Kalyani with marks of bruises at different places of her body.

According to this witness her nails were munched.

14. PW.3, Phul Jha, is the owner of the betel shop from

where Kalyani had bought the betel. According to his evidence

Kalyani purchased betel from his shop and when he was

returning 50 paise she asked for the toffee for the said

amount. According to his evidence when Kalyani got down

from the shop, appellant came on a bicycle, took betel from

her, got her seated on the carrier of the bicycle and took her

towards the southern direction. He is also a witness to the

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confession of the appellant leading to the recovery of the dead

body at the place pointed by the appellant. PW.5, Maya Devi,

is another witness who had seen the appellant along with the

deceased in his bicycle and even the conversation she had

with the appellant. She has deposed that the appellant asked

Kalyani as to where her father resides to which she replied

that her father lives in Bombay. PW.6, Radhey Shyam Jha, is

another witness who had seen the appellant and the deceased

together on a bicycle. He is further witness to the disclosure

statement made by the appellant leading to recovery of the

dead body of the Kalyani. PW.8, Debikant Jha, is the

grandfather of the deceased and is a witness to the recovery of

the dead body of the Kalyani on the basis of the confessional

statement of the appellant. PW.9, Tapeshwar Prasad, is

another witness who owned the shop at Hanuman Chauk and

supported the case of the prosecution. He has stated that

after Kalyani purchased the betel, the appellant reached there

on bicycle, got her seated on the carrier of the bicycle and

went towards the southern direction. He is also a witness to

the recovery of the dead body of Kalyani on the basis of the

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statement given by the appellant. PW.10, Sharwan Kumar

Jha, is the informant of the case and also supported the case

of the prosecution.

15. From the evidence of the aforesaid witness it is evident

that the appellant was working as a mason in the house of the

grandfather of the deceased, PW.8 Debi Kant Jha and the

deceased was sent by him to the betel shop to get betel.

Evidence of the prosecution witnesses further prove beyond all

reasonable doubt that appellant proceeded towards the betel

shop few minutes after the deceased left and it was the

appellant who was last seen with the deceased going together

on a bicycle. There is overwhelming evidence which proves

beyond any shadow of doubt that the statement given by the

appellant led to the recovery of the dead body of Kalyani from

the field. In our opinion, the circumstances so proved

unerringly point towards the guilt of the appellant and the

chain is so complete that there is no escape from the

conclusion that the crime was committed by the appellant and

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none else. Accordingly we uphold the conviction of the

appellant.

16. As observed earlier the trial court as also the High court

had found the case in hand to be one of the rarest of the rare

cases and accordingly inflicted the death sentence. It is

contended by the learned counsel for the appellant that the

case in hand does not fall within such category and as such

the extreme penalty of death is not called for.

17. It is trite that death sentence can be inflicted only in a

case which comes within the category of rarest of the rare

cases but there is no hard and fast rule and the parameter to

decide this vexed issue. This Court had the occasion to

consider the cases which can be termed as rarest of the rare

cases and although certain comprehensive guidelines have

been laid to adjudge this issue but no hard and fast formula of

universal application has been laid down in this regard.

Crimes are committed in so different and distinct

circumstances that it is impossible to lay down comprehensive

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guidelines to decide this issue. Nevertheless it is widely

accepted that in deciding this question the number of persons

killed is not decisive. Further crime being brutal and heinous

itself do not turn the scale towards the death sentence. When

the crime is committed in an extremely brutal, grotesque,

diabolical, revolting or dastardly manner so as to arouse

intense and extreme indignation of the community and when

collective conscience of the community is petrified, one has to

lean towards the death sentence. But this is not the end. If

these factors are present the court has to see as to whether

the accused is a menace to the society and continue to be so,

threatening its peaceful and harmonious co-existence. The

court has to further enquire and believe that the accused

condemned cannot be reformed or rehabilitated and shall

continue with the criminal acts. In this way a balance-sheet is

to be prepared while considering the imposition of penalty of

death of aggravating and mitigating circumstances and just

balance is to be struck. So long the death sentence is

provided in the statute and when collective conscience of the

community is petrified, it is expected that the holders of

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judicial power do not stammer, de hors their personal opinion

and inflict death penalty. These are the broad guidelines with

this Court has laid down for imposition of the death penalty.

18. When we test the present case bearing in mind what has

been observed, we are of the opinion that the case in hand

falls in the category of the rarest of the rare cases. Appellant

is a matured man aged about 43 years. He held a position of

trust and misused the same in calculated and preplanned

manner. He sent the girl aged about 7 years to buy betel and

few minutes thereafter in order to execute his diabolical and

grotesque desire proceeded towards the shop where she was

sent. The girl was aged about 7 years of thin built and 4 feet of

height and such a child was incapable of arousing lust in

normal situation. Appellant had won the trust of the child and

she did not understand the desire of the appellant which

would be evident from the fact that while she was being taken

away by the appellant no protest was made and innocent child

was made prey of the appellant's lust. The postmortem report

shows various injuries on the face, nails and body of the child.

17 These injuries show the gruesome manner in which she was

subjected to rape. The victim of crime is an innocent child

who did not provide even an excuse, much less a provocation

for murder. Such cruelty towards a young child is appalling.

The appellant had stooped so low as to unleash his monstrous

self on the innocent, helpless and defenceless child. This act

no doubt had invited extreme indignation of the community

and shocked the collective conscience of the society. Their

expectation from the authority conferred with the power to

adjudicate, is to inflict the death sentence which is natural

and logical. We are of the opinion that appellant is a menace

to the society and shall continue to be so and he can not be

reformed. We have no manner of doubt that the case in hand

falls in the category of the rarest of the rare cases and the trial

court had correctly inflicted the death sentence which had

rightly been confirmed by the High Court.

18 19. In the result, we do not find any merit in this appeal and

same is dismissed accordingly.

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

( HARJIT SINGH BEDI )

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

( CHANDRAMAULI KR. PRASAD )

NEW DELHI,

APRIL 20, 2011.

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