BHAGWANI v. THE STATE OF MADHYA PRADESH

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. 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. The judgment was dictated on 03.11.2017. On the same day, the Trial Court passed an order, sentencing the Appellant and ‘S’ to death penalty. [Paras 13 and 14][14-E-G; 15- C]

A perusal of the judgments of the Trial Court and the High Court would disclose that the gravity of the crime was taken 4 A B C D E F G H BHAGWANI v. THE STATE OF MADHYA PRADESH into consideration while imposing death sentence. The mitigating circumstances and the probability of reformation and rehabilitation of the accused have not been considered. 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.

These Appeals are preferred against the judgment of the High Court of Madhya Pradesh by which the conviction and sentence of the appellant by the Trial Court under Sections 363, 366A, 364, 346, 376D, 376A, 302, 201 of Indian Penal Code, 1860 (“IPC”) and Section 5(g)(m) read with Section 6 of The Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”) were upheld.

2. 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 C D E F G H BHAGWANI v. THE STATE OF MADHYA PRADESH [L. NAGESWARA RAO, J.] 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.

Post-mortem was conducted at 4.00 p.m. on 15.04.2017 by PW-6 Dr. Sajjan Kumar Uikey who found the following injuries: - “ Rigor mortis present in both lower limb and partially passed in both upper limb. Eye-closed, mouth-closed, fiest-half open, cornea congested, pupil dilated, face- cyanosed, lip-cyanosed, finger and· hand- cyanosed. Blood mixed froth present over the both nostril. Blood mixed saliva both angle on mouth up to lower margin of mandible. Four contusion mark over left side of neck, medial aspect of neck. Three contusion mark on left side of neck middle third size of contusion between 1 ½ cmx 1 cm. 1 cm x 1 cm. contusion over both cheek, 1 cm x 1 ‘ cm. infraorbital left side. 11/2 cm contusion on the left side of xiphisternum. One intrascapular contusion 1 Y, cm two 1/2 cm x v, cm contusion over the left buttock. Clotted blood found over the pink colour aspect dry clotted blood present over the perinea! area lower middle third of both thigh all around anal area.

Blood present in the vaginal opening three 3 cm. anterior to posterior and full thickness of muscle and skin. Dry clotted blood present over the anal opening and inner aspect of anus. Opening is dilated 2 fingers easily admitted. All injuries are antemortem in nature.” 7 A B C D E F G H 8 A B C D E F G SUPREME COURT REPORTS [2022] 8 S.C.R. 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.

3. 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 this Court. During the pendency of the Appeals, Satish died and therefore, his Appeal has abated.

As there is no direct evidence regarding the kidnapping, rape and murder of a girl aged 11 years, the case hinges on circumstantial evidence. Keeping in mind the well settled principles settled by this Court in Sharad Birdhichand Sarda v. State of Maharashtra1, the Trial Court scrutinized the evidence on record. Reference was made to the testimony of PW-1 who stated that the Appellant and Satish were present at the Chowk Barhon function at Anil Maravi’s house and made themselves scarce after the recovery of the dead body. Reference was also made to the oral testimony of PW-4, Chain Singh who runs a small hotel in the village. He deposed that the victim girl had come to his shop at 9.00 pm on 14.04.2017 to purchase Kurkure and she had a blanket and shawl with her. Fifteen minutes thereafter, the Appellant also visited the shop for purchasing namkeen. The Trial Court considered the disclosure statements made by the accused and the recoveries of shawl and blanket of the victim girl and the clothes of Satish and the Appellant.

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. According to him, the packet of Kurkure which was purchased was not identified in Court by PW-4 from whose shop it was purchased. The black button seized from the spot of offence is from the shirt of Satish with which the Appellant had no connection. Commenting on the seizure of the shirt, red sando baniyan and jeans pant, Mr.

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. According to her, the prosecution proved that there was a function of Chowk Barhon at the house of Anil Maravi, the victim was seen at the shop of Chain Singh (PW-4) and after a short while, the Appellant visited the shop and PW-5 witnessed the deceased going to the house of Satish which was corroborated by Satish in his statement under Section 313 CrPC in which he admitted that the deceased BHAGWANI v. THE STATE OF MADHYA PRADESH [L. NAGESWARA RAO, J.] came to his house to keep her black shawl. The deceased disappeared thereafter, and her body was found the next day morning. The medical evidence disclosed brutal rape and murder of the deceased. Scientific evidence clearly showed that Satish committed the offence of rape.

This Court in Dalbir Kaur v. State of Punjab2 summarized the principles governing interference in a criminal appeal by special leave as follows: -

(1) that this Court would not interfere with the concurrent finding of fact based on pure appreciation of evidence even if it were to take a different view on the evidence; 2 (1976) 4 SCC 158 11 A B C D E F G H 12 A B C D E F G H SUPREME COURT REPORTS [2022] 8 S.C.R. (2) that the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on; (3) that the Court would not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court; (4) that the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of law or procedure resulting in serious prejudice or injustice to the accused; (5) this Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence.

This Court exhorted the counsel for the parties to confine their arguments within the four corners of the above principles to save time, energy and expertise.

The undisputed facts are that PW-2 along with his family members attended the Chowk Barhon ceremony at the house of Anil Maravi on the evening of 14.04.2017. His 11 years old daughter went missing and was found dead on the next day morning. The Appellant and Satish were arrested on the next day and on the basis of the statements made by them, recoveries of their clothes were made. The medical evidence shows that she was raped and killed. A green shirt of check pattern whose two front black buttons were broken, which is torn near the shoulder and has blood spot was seized from the flowerpot on the roof of the cowshed of the Appellant. A red colour sando baniyan with black stripe which is torn near shoulder with dark blood spot was also seized along with one jeans pant of sky blue colour with lining of 28 no. and HARW was mentioned on the right side back. There was a dark blood spot in front of the sky-blue jeans pant. The report of the State Forensic Science Laboratory, Civil Lines, Sagar showed that all the alleles observed in the male DNA profile of Satish were found to be the same BHAGWANI v. THE STATE OF MADHYA PRADESH [L. NAGESWARA RAO, J.] as the DNA profile observed from the prosecutrix’s vaginal and rectal slides. Same female autosomal STR DNA profile was detected on the source of the deceased prosecutrix, dhoti and underwear of Satish. Insofar as Article D which is a full pant of the Appellant is concerned, according to DNA report multiple peaks were observed.

The Appellant and Satish were present in the function at the house of Anil Maravi as deposed by PWs-1, 3 and 5. PW-4 deposed that he runs a small hotel in the village and the deceased visited his shop to purchase Kurkure at 9.00 p.m. 15 minutes thereafter, the Appellant visited the shop to purchase namkeen. Jaipal (PW-9) stated that the Appellant and Satish visited his house on 15.04.2017. Their eyes were red, hair was scattered and they were scared. They informed him that they have committed a big scandal. At that time, Munni Bai- the mother of the Appellant came, and Satish and the Appellant went away. Half an hour later, there was an uproar in the village when the body of the deceased was found.

During the course of examination of Satish under Section 313 CrPC, he admitted that he was present at the house of Anil Maravi on 14.04.2017 and that he visited PW-9 on the morning of 15.04.2017. The Appellant also admitted his presence at Anil Maravi’s house on 14.04.2017 and at the house of PW-9 on 15.04.2017 in the morning. He further stated in his examination under Section 313 CrPC that his eyes were red, hair was scattered and he and Satish demanded liquor from PW-9. It is relevant to note that the Appellant also stated that he had gone to Sudgaon along with Satish for work at 9.00 a.m. on 14.04.2017. While returning, he had liquor along with Satish. He visited Anil Maravi’s house along with Satish at 7.00 p.m. They were asked to leave as they were in a drunken condition. The Appellant, thereafter, went to the shop of Chain Singh from where his mother took him home. He slept in the house of his neighbour, Deepa.

The Appellant was examined by Dr. Vijay Pegwar (PW-11) on 17.04.2017 and the following injuries were found on his body: i) ii) iii) Scratch mark of 1 inch on the upper side of the shoulder,

0.5 inch scratch mark on the lower left shoulder,

0.5 inch scratch mark on the lower portion on the back of the body, 13 A B C D E F G H 14 A B C D E F G H SUPREME COURT REPORTS [2022] 8 S.C.R. iv) v) vi) 2 inches scratch marks on the right arm, Abrasion mark of 1 cm on cheek, and 4 inches sized abrasion injury on the right lower lateral rib. Scratch marks that were found on the body of Satish were also examined by Dr. Vijay Pegwar.

Clothes worn by the Appellant were seized from a flowerpot on the roof of the cowshed belonging to him pursuant to the disclosure statement. FSL report pertaining to Article B which is a full pant of Appellant on which there was a blood stain near the zip showed multiple peaks. The Appellant and Satish had alcohol and were together at the house of Anil Maravi. As they were creating nuisance, they were chased away. The next day morning, they went to PW-9 and told him that a big blunder took place. DNA profiling of the articles Q, R and S which are the vaginal slide, rectal slide and dried blood on the hair of the deceased showed Y (male) STR. Blood sample of Satish matched with the articles found on Q, R and S. 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 accused3. Adequate opportunity to produce relevant material on the question of death sentence shall be provided to the accused by the Trial Court4.