Vijay Raikwar vs The State Of Madhya Pradesh

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1112 OF 2015

Vijay Raikwar …Appellant

Versus

State of Madhya Pradesh …Respondent

JUDGMENT

M.R.SHAH, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 02.07.2014 passed by the High Court

of Madhya Pradesh at Jabalpur passed in Criminal Appeal

No.198 of 2014 by which the High Court has dismissed the said

appeal and confirmed the judgment and order dated 23.12.2013 Signature Not Verified SUSHIL KUMAR RAKHEJA passed by the learned Additional Sessions Judge, Rehli, District Digitally signed by

Date: 2019.02.13 16:45:20 IST Reason:

Sagar, Madhya Pradesh in Sessions Trial No.49 of 2013 and has Criminal Appeal No. 1112 of 2015 2

confirmed the conviction of the original accused for the offences

punishable under Section 376 (2) (f) and Section 201 of the

Indian Penal Code (IPC) as well as Sections 5(i), 5(m) and 5(r)

read with Section 6 of the Protection of Children from Sexual

Offences Act, 2012 (POCSO Act) and has confirmed the death

penalty imposed, original accused has preferred the present

appeal.

2. That the appellant/original accused was tried by the Trial

Court for the offences punishable under Section 376 (2) (f) and

Section 201 of the IPC as well as Sections 5(i), 5(m) and 5(r) read

with Section 6 of the POCSO Act for having committed the

murder of the minor girl aged 71/2 years after raping her. On

considering the incriminating material against the accused and

on appreciation the evidences and having considered that the

accused was last seen together with the deceased and that the

frock of the victim was found lying on the cot along with blood

stains on bed mattress and bedsheet in the house of the accused,

which was not explained by the accused, and also considering

the medical evidence, the Trial Court convicted the accused for Criminal Appeal No. 1112 of 2015 3

the offences under Section 376 (2) (f) and Section 201 of the IPC

as well as Sections 5(i), 5(m) and 5(r) read with Section 6 of the

POCSO Act. The Trial Court sentenced the accused to life

imprisonment and other terms of the imprisonment with fine. All

the sentences were directed to run concurrently. Learned

Additional Sessions Judge also sentenced the accused to death

penalty. Having sentenced the accused with death penalty, the

learned Additional Sessions Judge made the reference to the High

Court. Being aggrieved with the conviction and the sentence, the

accused also preferred Criminal Appeal No.198 of 2014 before the

High Court. By the impugned common judgment and order, the

High Court has decided the reference against the accused and

has also dismissed the criminal appeal preferred by the accused,

whereby, the High Court has confirmed the conviction and

sentence imposed by the Trial Court. Feeling aggrieved and

dissatisfied with the impugned judgment and order passed by the

High Court, the conviction and sentence of death penalty, the

accused has preferred the present criminal appeal. Criminal Appeal No. 1112 of 2015 4

3. We have heard learned counsel appearing on behalf of the

accused at length.

4. Learned counsel appearing on behalf of the accused has

vehemently submitted that in the facts and circumstances of the

case, both the courts below have materially erred in holding the

accused guilty for the offences under Section 376 (2) (f) and

Section 201 of the IPC as well as Sections 5(i), 5(m) and 5(r) read

with Section 6 of the POCSO Act. He has vehemently submitted

that in the present case, there is no eye­witness of the incident

and the entire case is based on circumstantial evidence. It is

submitted that unless and until the chain of evidence proves the

guilt of the accused beyond reasonable doubt in committing the

crime, both the courts have materially erred in convicting the

accused.

5. Alternatively, the learned counsel appearing on behalf of the

accused has prayed to commute the death sentence to life

imprisonment. Learned counsel appearing on behalf of the

accused has heavily relied upon the decision of this Court in

Bachan Singh v. State of Punjab (1980) 2 SCC 684 as well as the Criminal Appeal No. 1112 of 2015 5

recent decision of this Court in Shyam Singh alias Bhima v. State

of Madhya Pradesh (2017) 11 SCC 265.

6. Heard the learned counsel appearing on behalf of the

respective parties at length. Considering the submissions made

by the learned counsel appearing on behalf of the respective

parties and the findings recorded by the Trial Court on

appreciation of evidence which were confirmed by the High court,

we are of the firm view that the conviction of the accused for the

offences under Section 376 (2) (f) and Section 201 of the IPC as

well as Sections 5(i), 5(m) and 5(r) read with Section 6 of the

POCSO Act does not call for any interference as the findings

recorded by the Sessions Court and confirmed by the High Court

are on appreciation of evidence.

6.1 In the present case, prosecution has been successful in

proving that the accused was last seen together with the victim;

that he gave one rupee coin to the victim; he told one of the

witness viz Bharati, who was with the victim to go away;

thereafter the dead body of the victim was found near the house

of the accused and that the frock of the victim was lying on the Criminal Appeal No. 1112 of 2015 6

cot and the bed mattress and bedsheet were blood stained and

the same was matched with the blood group of the victim and

that the accused failed to explain the incriminating

material/evidence found against him in the statement under

Section 313 of Cr.P.C, the Trial Court has rightly convicted the

accused which has rightly been confirmed by the High Court.

Learned counsel appearing on behalf of the accused has failed to

satisfy this Court how the findings recorded by the Trial Court,

confirmed by the High Court, holding the accused guilty for

having committed the murder after raping a minor girl are

perverse and/or contrary to the evidence on record. Under the

above circumstances, we confirm the judgment and order of the

conviction passed by the Trial Court, confirmed by the High

Court.

7. Now, so far as the request and the prayer made on behalf of

the accused to commute the death sentence to life imprisonment

is concerned, having heard the learned counsel appearing on

behalf of the accused on the question of death sentence imposed

by the learned Sessions Court, confirmed by the High Court and Criminal Appeal No. 1112 of 2015 7

considering the totality and circumstances of the case and the

decisions of this Court in the cases of Bachan Singh (supra) and

Shyam Singh (supra), we are of the opinion that the present case

does not fall within the category of ‘rarest of rare case’ warranting

death penalty. We have considered each of the circumstance and

the crime as well as the facts leading to the commission of the

crime by the accused. Though, we acknowledge the gravity of the

offence, we are unable to satisfy ourselves that this case would

fall in the category of ‘rarest of rare case’ warranting the death

sentence. The offence committed, undoubtedly, can be said to be

brutal, but does not warrant death sentence. It is required to be

noted that the accused was not a previous convict or a

professional killer. At the time of commission of offence, he was

19 years of age. His jail conduct also reported to be good.

Considering the aforesaid mitigating circumstances and

considering the aforesaid decisions of this Court, we think that it

will be in the interest of justice to commute the death sentence to

life imprisonment.

Criminal Appeal No. 1112 of 2015 8

8. In view of the above and for the reasons stated above,

present appeal challenging the conviction is hereby dismissed.

His conviction for the offences under Section 376 (2) (f) and

Section 201 of the IPC as well as Sections 5(i), 5(m) and 5(r) read

with Section 6 of the POCSO Act is hereby confirmed. However,

in the facts and circumstances of the case and for the reasons

stated above, we commute the death sentence to life

imprisonment.

9. Present appeal stands disposed of accordingly, in terms of

the above.

……………..............................J. (A. K. SIKRI)

……………….............................J. (S. ABDUL NAZEER )

……………….............................J. (M. R. SHAH )

New Delhi, February 05, 2019.