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CASE LAWSIPCLEGAL AFFAIRS

SEC 302 IPC

Bhagwani vs State of Madhya Pradesh, SC 2021

FACTS – At 9.00 p.m. on 14.04.2017, Brijlal Yadav (PW-2) along with his wife Kalawati (PW-1), two sons and his daughter went to the house of Anil Maravi to attend a function of Chowk Barhon (naming ceremony). While they were returning back at around 11.00 p.m., they realized that their daughter was missing. They started searching and at about 5:00 AM on the next day, PW-1 found her daughter lying near a hand-pump. Her daughter was in an unconscious condition. PW-1 started howling at which PW-2 and others reached the place and called the police. The District Scientific Officer, Scene of Crime Unit, Dindori, Madhya Pradesh conducted inspection of the place of incident. According to the inspection report, the body of the deceased was lying in a supine position and on the back side of the head of the deceased, there were multiple small pieces of dry grass and Gokhru (Caltrop) in the hair. There was a dry bark of drumstick tree also in the hair. Both eyes were closed. Froth from the nose was observed, small internal injuries were visible and on the left side and right side of the chin, there were small marks of injury. Small injury marks were found in front and left side to the neck. Blood was present in the genitalia. On the sole of the right leg, there was blood. Blood was also present above the ankle of the right leg. There were scratch marks on the left side of the chest and another scratch type of mark below the chest. Blood spots were found on both thighs up to genitalia. Blood was found on the back of the thigh and near anus. Small injury marks were present on the entire back and waist.Directions were given to the investigating officer to send the body for post-mortem and to collect, preserve and pack the visible objects found at the place of occurrence. Further direction was given to seize the clothes worn by the prosecutrix and get them examined.

As per postmortem, the cause of the death was given as asphyxia, neurogenic shock due to neck pressing, severe injuries and bleeding in vagina and anal opening by committing rape forcefully. On suspicion, the Appellant and Satish s/o Jehar Singh Dhoomketi were arrested on 16.04.2017. The statement of Satish was recorded pursuant to which the blanket and shawl of the deceased and clothes worn by him were seized. Similarly, the clothes worn by the Appellant which were concealed in his cowshed were seized pursuant to the statement made by him. On completion of investigation, the final report was filed on 27.06.2017.

Charges were framed against Satish and the Appellant under Sections 363, 366-A, 364, 346, 376D, 376A or in the alternative under Sections 302, 201 IPC and Section 5(g)(m) read with Section 6 of the POCSO Act. 12 witnesses were examined by the prosecution. The Sessions Judge, Dindori convicted the Appellant and Satish for the offences charged and sentenced them to death.

The High Court answered the reference against the Appellant and Satish by upholding the conviction and sentence imposed by the Trial Court. Aggrieved thereby, the Appellant and Satish approached the Supreme Court. During the pendency of the Appeals, Satish died and therefore, his Appeal has abated.

CAUSE – The mitigating circumstances and the probability of reformation and rehabilitation of the accused have not been considered by the Trial Court and the High Court.

ARGUMENTS – Mr. Shri Singh, learned counsel appearing for the Appellant submitted that none of the discoveries and the recoveries implicate the Appellant. He argued that the disclosure statement of Satish was recorded at 1340 hrs. on 16.04.2017 and the disclosure statement of the Appellant was recorded one and half hours later. Both the statements were recorded by PW-10. He submitted that the Courts below have committed an error in relying upon the disclosure statement of the Appellant. He further stated that none of the articles that have been recovered from the alleged place of offence have any connection with the Appellant.

Mr. Shri Singh submitted that serological testing was not done to prove that the blood found on the clothes was human blood. He argued that the injuries of the Appellant cannot be taken as a circumstance as he is a labourer doing physical work. The learned counsel for the Appellant submitted that the evidence of the accused last seen together with the victim has not been properly appreciated by the Courts below.The learned counsel for the Appellant pointed out that the admissions made by him in the statement under Section 313 CrPC cannot be treated as substantive evidence. According to learned counsel for the Appellant, the chain of circumstances is incomplete and is not consistent with only one hypothesis, proving the guilt of the Appellant. On the sentence of death, the learned counsel for the Appellant submitted that there is violation of the right to fair trial which is guaranteed under Article 21 of the Constitution of India as effective legal assistance was not afforded in the instant case. Sufficient time was not given to the amicus curiae appointed by the Court to cross-examine witnesses and no opportunity was given to the Appellant to submit relevant material before sentencing. Mitigating circumstances have not been taken into consideration. The probability of reformation of the Appellant and the sentence of life imprisonment being unquestionably foreclosed were not taken into account by the Courts below. The learned counsel for the Appellant further argued that the Appellant could not have been convicted under Section 376A IPC. After the amendment in 2013, gang rape was taken out of the ambit of Section 376 (1) and (2) IPC. The prosecution did not produce any evidence to establish any common intention between the Appellant and Satish to commit an offence under Section 376D IPC. Sentence for commission of gang rape is imprisonment for life. Therefore, the imposition of death sentence is unsustainable.

Ms. Ankita Chaudhary, learned Deputy Advocate General for the State of Madhya Pradesh defended the judgments of the Trial Court and the High Court by submitting that there is no break in the chain of events/ circumstances. The medical evidence disclosed brutal rape and murder of the deceased. Scientific evidence clearly showed that Satish committed the offence of rape. Satish and the Appellant were seen together on the evening of 14.04.2017 and they had also visited PW-9 on the next day morning. Satish went missing thereafter and was apprehended in the afternoon. Pursuant to the disclosure statement, the clothes of the Appellant were seized from the cowshed in the house of the Appellant. The learned counsel for the State referred to the injuries on the body of the Appellant which were not explained by him. She also relied upon the DNA report prepared by Forensic Science Laboratory. Referring to the answers given to questions posed to the Appellant during his examination under Section 313 CrPC, the learned counsel for the State relied upon the law laid down by this Court and submitted that mere denial would provide additional link if the circumstances are proved. It was argued by the learned counsel for the State that though the statement under Section 313 CrPC cannot be made the basis for conviction, it can be used as evidence against the accused to the extent it supports the case of the prosecution.

ISSUE – Whether a bifurcated hearing for convicting and sentencing is necessary to provide an effective opportunity to the accused?

DECISION – The Appellant miserably failed to prove an alibi. Importantly, there is lack of any explanation for the scratch injuries found on the body of the Appellant. We are in agreement with the concurrent findings that the Appellant is guilty of committing the offences as charged and we find no fault with the conviction of the appellant. It is travesty of justice as the Appellant was not given a fair opportunity to defend himself. This is a classic case indicating the disturbing tendency of Trial Courts adjudicating criminal cases involving rape and murder in haste. It is trite law that an accused is entitled for a fair trial which is guaranteed under Article 21 of the Constitution of India. In respect of the order of conviction and sentence being passed on the same day, the object and purpose of Section 235 (2) CrPC is that the accused must be given an opportunity to make a representation against the sentence to be imposed on him. A bifurcated hearing for convicting and sentencing is necessary to provide an effective opportunity to the accused adequate opportunity to produce relevant material on the question of death sentence shall be provided to the accused by the Trial Court.

A perusal of the judgments of the Trial Court and the High Court would disclose that the gravity of the crime was taken into consideration while imposing death sentence. The mitigating circumstances and the probability of reformation and rehabilitation of the accused have not been considered. It is relevant to refer to the following observations of this Court in Rajendra Pralhadrao Wasnik v. State of Maharashtra:

Consideration of the reformation, rehabilitation and reintegration of the convict into society cannot be overemphasised. Until Bachan Singh v. State of Punjab, (1980) SC the emphasis given by the Courts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Santosh Kumar Satish bhushan Bariyar v. State of Maharashtra, (2009) and in Sangeet v. State of Haryana, (2013) where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner.

As observed in Sangeet v. State of Haryana, (2013) โ€œIn the sentencing process, both the crime and the criminal are equally important.โ€ Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the Courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social reintegration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.”

The Appellant was aged 25 years on the date of commission of the offence and belongs to a Scheduled Tribes community, eking his livelihood by doing manual labour. No evidence has been placed by the prosecution on record to show that there is no probability of rehabilitation and reformation of the Appellant and the question of an alternative option to death sentence is foreclosed. The Appellant had no criminal antecedents before the commission of crime for which he has been convicted. There is nothing adverse that has been reported against his conduct in jail. Therefore, the death sentence requires to be commuted to life imprisonment. However, taking into account the barbaric and savage manner in which the offences of rape and murder were committed by the Appellant on a hapless 11 year old girl, the Appellant is sentenced to life imprisonment for a period of 30 years during which he shall not be granted remission. The Appeals are partly allowed. The conviction of the Appellant under Sections 363, 366A, 364, 346, 376D, 376A, 302, 201 of Indian Penal Code, 1860 (โ€œIPCโ€) and Section 5(g) (m) read with Section 6 of The Protection of Children from Sexual Offences Act, 2012 is upheld and the sentence is converted from death to that of imprisonment for life for a period of 30 years without remission.

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