The State of Bihar v. Sanjay Rishi

Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 there is blood over her private part. In the fardbeyan, the informant also claimed that his daughter has been raped, throttled to death by the appellant. After the fardbeyan was read, read over to the informant, he put his signature over the same. In the light of the aforesaid fardbeyan of the informant, Officer Incharge returned to the police station and registered Barari P.S. Case No.15 of 2013 dated

24.1.2013 under Sections 376/302 of the Penal Code and directed P.W. 15, Sri B.K. Rai, S.I. to investigate the case.

3. During investigation, Investigating Officer, Sri B.K. Rai, came to the place of occurrence village, examined the dead body, prepared the inquest report by carbon process (Ext.10), seized the undergarment of the deceased found near the dead body itself vide seizure list (Ext.11) and thereafter sent the dead body for post- mortem. After conducting the preliminary investigation, Investigating Officer inspected the place of occurrence, which is ridge of the maize field of Subhash Chandra Pathak in village Chhoti Bhains Diara, P.S. Barari, where dead body was found lying flat. The place of occurrence is surrounded in the east and west by the maize field of M/s. Suresh Mishra and Saryug Prasad Yadav, in the north and west by the maize field of Subhash Chandra Pathak. Investigating Officer also noticed at the place of occurrence, marks of floundering, few drops of human blood on the ground. Having Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 inspected the place of occurrence, Investigating Officer recorded the further statement of the informant and the statements of his wife, Chano Devi (P.W.2), Badamiya Devi (P.W.13), Robin Rishi (P.W.12), Janki Rishi (P.W.11), Singheshwar Rishi (P.W.14), Sushil Rishi (P.W.3), Bhikhari Rishi (P.W.4), Pamori Rishi (P.W.6), Mantlal Rishi (P.W.5) and the witnesses supported the occurrence. Later, Investigating Officer received the post-mortem report, after competing the investigation submitted chargesheet finding the case true against the appellant. In the light of the chargesheet, cognizance was taken and after supply of the police paper under Section 207 of the Code of Criminal Procedure, the case was committed to the court of sessions for trial.

4. During trial, prosecution examined the informant, Tetar Rishi (P.W.1), father of the deceased, Chano Devi (P.W.2), wife of the informant and the mother of the deceased, Sushil Rishi (P.W.3), co-villager of the informant, Bhikhari Rishi (P.W.4), also co-villager of the informant, who is also attesting witness of fardbeyan (Ext.9), inquest report (Ext.10) and seizure list (Ext.11), Mantlal Rishi (P.W.5), also co-villager of the informant, Pamori Rishi (P.W.6), another co-villager of the informant, Dr. Ram Rekha Suman (P.W.7), the Medical Officer-cum-Pathologist, who conducted test of swab found on the person of the deceased, Dr. Md. Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 Tanveer Haider (P.W.8), Dr. Sant Prasad Saha (P.W.9), Dr. Jyoti Saha (P.W.10), conducted post-mortem of the deceased as members of the Board, Janak Rishi (P.W.11), another co-villager of the informant, Robin Rishi (P.W.12), also co-villager of the informant, Badamia Devi (P.W.13), resident of village-Raunia, P.S. Barari, District-Katihar, just contiguous to the place of occurrence village, Singheshwar Rishi (P.W.14), also co-villager of the informant, Bhushan Kant Rai (P.W.15), the Investigating Officer of the case.

5. Now, we proceed to consider the evidence of the prosecution witnesses.

6. P.W.1, Tetar Rishi, is the informant of the case. He has stated in his evidence that fardbeyan was recorded at the entrance door of his house over which he put his signature (Ext.1). He has further stated in paragraph-2 that the deceased Sangeeta Kumari, was his daughter and the occurrence took place on 23.1.2013. At the time of occurrence, her age was 3 and 1/2 years. She was playing at the entrance door of his house but did not return in the evening. In course of search, villagers informed him (the informant) that they had seen her going alongwith the appellant. The informant also learnt from the villagers that his daughter was raped by the appellant, killed and then her dead body was thrown. He has further stated that there was bleeding from her private part. The informant claimed that he Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 has gone to the field of Subhash Pathak, where he found his daughter lying flat. There was black mark on her throat. There was bleeding from her mouth also. In cross examination, paragraph-4, this witness has stated that the appellant is his village cousin and his house situate in the neighbourhood. Informant further stated that he came to learn about the occurrence and the killing of his daughter from Sushil Rishi (P.W.3) and, thereafter, saw her dead body at the place of occurrence. Informant also claimed in paragraph-5 that the place of occurrence is secluded place. In paragraph-6, he denied the suggestion that he falsely implicated the appellant as there is land dispute with him.

7. P.W.2, Chano Devi, is the wife of the informant and the mother of the deceased. She has also given similar evidence as that of her husband.

8. Having considered the evidence of the informant and his wife, now, we proceed to consider the evidence of the other witnesses. P.Ws.3, 4, 6, 12 and 14, are the co-villagers of the informant. They had seen the deceased, Sangeeta Kumari, and appellant, Sanjay Rishi, going together towards the outer area of the village on 23.1.2013. While the appellant and Sangeeta Kumari were going together, appellant was seen offering biscuit to Sangeeta Kumari. They have also stated that in the evening when search was being made for, Sangeeta Kumari, enquires were made from the Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 appellant but he did not respond. These witnesses further stated that in the morning villagers went to the outer area of the village and found the dead body of Sangeeta Kumari in the maize field of Subhash Pathak, where the deceased was lying flat and there was bleeding from her private part and mouth. There was also black mark on her throat. These witnesses learnt that it was the appellant, who committed rape and then killed Sangeeta Kumari. All these witnesses have denied the suggestion that they have given false evidence. P.W.4, Bhikhari Rishi, has further stated in his evidence that he is also the witness of inquest report of the deceased and proved his signature over the same, which is marked Ext.2. He also confirmed that undergarment, frock of the deceased was also seized in his presence vide seizure list, which was also signed by the witness and signature was proved by the witness as Ext.3. P.W.12, Robin Rishi, also stated in his evidence that he put his signature on the fardbeyan, seizure list, which was proved by him as Exts.6 and 7.

9. P.W.5, Mantlal Rishi, is also co-villager of the informant and has stated that on 23.1.2013 between 4-5 P.M., he saw appellant going alongwith the deceased, Sangeeta Kumari, and the appellant was also offering her biscuit. This witness has further claimed that on 24.1.2013, appellant was subjected to extensive interrogation by the Officer Incharge of Barari P.S, then he disclosed Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 about the location of the dead body and on the basis of his disclosure the dead body of victim was recovered from the ridge of the maize field of Subhash Pathak. The appellant in the disclosure statement also admitted that he committed rape on the deceased, killed her and left the dead body on the ridge of the field. In cross examination, this witness has further clarified that in the evening of 23.1.2013, appellant was asked to indicate the whereabout of the girl, then he disclosed that the girl is alive. The witness and others thereafter telephoned the police station. After arrival of the police, appellant was interrogated and made disclosure statement, on the basis of which dead body was recovered. The witness also denied the suggestion that there was connection and dispute between the appellant and the parents of the deceased.

10. P.W.11, Janak Rishi, is also a co-villager who not only supported the version given by P.W.5 but further stated that in the evening of 23.01.2013 enquiry about the whereabout of the victim girl was made from the appellant but he did not respond to the query made to him and was apprehended by the villagers at 8 P.M. In the morning, when the Officer Incharge came to the village, appellant made disclosure statement, on the basis of which dead body of Sangeeta Kumari was recovered.

11. P.W.13, Badamia Devi, is resident of village Raunia Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 within Barari P.S., which is just adjacent to place of occurrence village and the witness had seen the victim girl going alongwith the appellant in the evening of 23.1.2013 and the appellant offering biscuit to her. She further confirmed that on the day following the date of occurrence dead body of the victim girl was recovered from the maize field and there was bleeding from her mouth, private part. In cross examination, she has further confirmed that her village is at a distance of 10 Rassi from the place of occurrence village. She has also stated in the cross examination that while appellant was taking the deceased, Sangeeta Kumari along with himself, the witness asked the appellant as to why he is taking the girl with himself, then appellant informed the witness that she being like her niece, is going alongwith him but appellant never returned with the victim girl.

12. Having considered the evidence of the eye witnesses, now, we proposed to consider the evidence of the four doctors. P.W.7, Dr. Ram Rekha Suman, is Medical Officer-cum- Pathologist, who conducted test on the swab found on the dead body of the deceased and reported presence of dead spermatozoa found in the swab. This witness also proved his report as Ext.4. P.W.8, Dr. Md. Tanveer Haider, is a member of the Medical Board, which conducted the post-mortem on the dead body of the deceased, Sangeeta Kumari, on 24.1.2013 at about 3.40 P.M. in Sadar Hospital, Katihar, Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 alongwith P.W.9, Dr. Sant Prasad Saha, and P.W.10, Dr. Jyoti Saha, and submitted the report (Ext.5), perusal whereof indicates that the victim girl was raped, killed by throttling. The other two members of the Medical Board, i.e., P.Ws.9 and 10, have also proved their signature over Ext.5.

13. P.W.15, Bhushan Kant Rai, is the Investigating Officer, who investigated the case and has proved the signature and endorsement made by the Officer Incharge of Barari P.S. over the fardbeyan (Ext.9). He has also confirmed that he having taken charge of the Investigation, visited the place of occurrence, prepared the inquest report (Ext.10), made seizure of the undergarment and clothes of the victim found at the place of occurrence vide seizure list (Ext.11). The seized articles were also produced in court and marked as Material Ext.I, in the light of the evidence of the Investigating Officer. Investigating Officer also claimed in paragraphs-4 and 11 that he interrogated the appellant, who made disclosure statement (Ext.12), on the basis of which the dead body of the victim was recovered. Having recovered the dead body, he recorded the statement of the witnesses and after completion of the investigation, chargesheet was submitted against the appellant.

14. Learned counsel for the appellant with reference to the prosecution evidence submitted that neither the informant nor his Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 wife nor any other prosecution witness has actually seen the appellant committing rape and killing the deceased, Sangeeta Kumari, in the maize field of Subhash Chandra Pathak. There being no eye witness of the crime, it would be unsafe to rely on the prosecution evidence to convict the appellant for the offence of rape and murder. He further submitted that the appellant was seen going alongwith the victim girl in the evening of 23.1.2013 between 4-5 P.M. Aforesaid circumstance alone cannot be the basis for raising the presumption against the appellant that he has committed the crime because the dead body of the victim was recovered on the basis of disclosure statement made by the appellant on 24.1.2013 at about 10.25 A.M. There being no other evidence on record to suggest that during the interregnum between 23.01.2013, 4-5 P.M. until recovery of the dead body on 24.1.2013 at about 11 A.M. it was the appellant, seen with the deceased, he cannot be saddled with the responsibility to explain his presence, conduct during the said interregnum until the recovery of the dead body on 24.1.2013 at about 11 as there is clear cut evidence of P.W.5, Mantlal Rishi, that villagers were making enquiries from the appellant right from 8 P.M. on 23.1.2013 about the victim girl. In this background, learned counsel for the appellant submitted that appellant may have been seen with the victim girl between 4-5 P.M. on 23.1.2013 but it cannot be the basis for holding Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 that it is the appellant, who has committed the crime. In the alternative, learned counsel further submitted that even if it is held that he is responsible for committing rape and murder of the victim girl, his case is not in the category of rare of the rarest case, considering the age and clean antecedent of the appellant, his death sentence should not only be converted into life sentence but the sentence of fine should also be set aside. In support of the aforesaid plea, learned counsel for the appellant placed reliance on the Judgment of the Supreme Court in the case of Purna Chandra Kusal Vs. State of Bihar, 2011 AIR SCW 6473.

15. Counsel for the State has opposed the submission with reference to the evidence led on behalf of the prosecution and submitted that from the evidence of the informant and his wife, P.Ws.1 and 2, it is quite evident that their daughter was playing in front of their house on 23.1.2013 between 4-5 P.M. but she did not return and search was made to trace her. During search, informant learnt that she was seen between 4-5 P.M. going alongwith his neighbour (appellant) towards the outer area of the village. Later, the informant learnt through Sushil Rishi (P.W.3) that her daughter has been killed. The informant saw the dead body of his daughter.

16. From the evidence of P.Ws.3, 4, 6, 12 and 14, it is evident that they had seen the appellant on 23.1.2013 between 4-5 Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 P.M. going alongwith the deceased, Sangeeta Kumari, towards the outer area of the village. The appellant was offering biscuit to the victim girl. From the evidence of P.W.13, who is also the resident of adjoining village at a distance of 10 Rassi, it is quite evident that she has seen the victim going alongwith the appellant between 4-5 P.M. on 23.1.2013 and that the witnesses also protested as to why appellant is taking her towards the outer area of the village. P.Ws.5 and 11 have not only supported the factum of the appellant going alongwith the deceased between 4-5 P.M on 23.1.2013 towards the outer area of the village but have further stated that during search for the victim girl, enquiries were made from the appellant, who not only stated that the victim girl is alive but did not indicate about her whereabout. It is further stated by P.Ws.5 and 11 that as appellant was not giving information about the whereabout of the deceased, Sangeeta Kumari, information about the disappearance of the victim girl at the instance of the appellant was given to the police and the appellant was detained by the villagers. In the morning, Officer Incharge of Barari P.S. came to the place of occurrence village and intensively interrogated the appellant. During interrogation, appellant made disclosure, which was recorded as his disclosure statement. In the light of the disclosure statement, dead body of the victim girl was recovered from the ridge in the maize field of co- Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 villager Subhash Chandra Pathak situate in the outer area of the village. The report of P.W.7, Dr. Ram Rekha Suman, confirmed that victim girl was raped before she was killed by throttling. Post- mortem report (Ext.5) also confirms that she was done to death by means of throttling, her death was caused within 24 hours of

24.1.2013, 3.40 P.M. when the post-mortem of the deceased was conducted. In the light of the finding of the doctor in the post- mortem report Ext.5, there is no difficulty in concluding that the death of Sangeeta Kumari was caused sometime in between 4-5 P.M. on 23.1.2013. Appellant, having been seen by the prosecution witnesses, 3, 4, 5, 6, 11, 12, 13 and 14, going with the deceased towards the outer area of the village on 23.1.2013 between 4-5 P.M. and the girl having not been seen thereafter until the dead body was recovered at 11 A.M. on 24.1.2013 at the instance of the disclosure statement made by the appellant at 10.25 A.M., there cannot be any doubt in concluding that it is the appellant, who took the victim girl towards the outer area of the village between 4-5 P.M. on 23.1.2013 and committed rape on her and then throttled her to death as also left her body at the place of occurrence, i.e., ridge in the maize field of co-villager Subhash Chandra Pathak.

17. Once we have concluded that it is the appellant, who is the perpetrator of the crime, his conviction recorded by the trial Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 court under the impugned Judgment has to be upheld.

18. Having upheld the conviction of the appellant, now, we proceed to consider the death sentence imposed upon him for committing rape and murder of the victim girl, Sangeeta Kumari.

19. It appears from perusal of sub Section (3) of Section 354 of the Code of Criminal Procedure 1973 that in case of conviction for the offence for which death sentence is one of the sentences provided, it is enjoined upon the court to record special reasons for awarding death sentence. In the present case, no doubt the appellant has committed heinous crime but only because the crime committed by the offender is heinous, death sentence, in our opinion, is not to be awarded. In this connection, we refer to the Judgment of the Constitution Bench of the Supreme Court in the case of Bachan Singh versus State of Punjab, AIR 1980 SC 898 and observe that the present case is also like any other ordinary case of rape, murder may be of a child which is revolting but does not admit of awarding death sentence to the appellant as he is young man of 35 years and his antecedent is clean.

20. Accordingly, we modify the death sentence imposed on the appellant together with the sentence for payment of fine under both the counts into rigorous imprisonment for life and with the aforesaid modification in sentence, the reference is answered in Patna High Court D. REF. No.3 of 2013 dt.23-08-2013 negative and the appeal is dismissed.

21. Learned Amicus Curiea, who has appeared for the appellant should be paid fee by the Patna High Court Legal Services Committee as admissible under the Rules. (V.N. Sinha, J) (Rajendra Kumar Mishra, J) Bhardwaj/-P.S./- N.A.F.R.