CC 1/2005 CAV Judgment v. THAKORE BALVANTJI SOMAJI

Who helped complainant to find out the deceased girl and confirmed the presence of PW 5 Chamanbhai. Dr Hareshbhai Kantilal Patel who performed the post-mortem on the deceased stated in the post-mortem report (Exh. 47) that the deceased had died on account of shock due to vasovagal attack. The prosecution also examined four police officers who were concerned with either receiving the FIR or the investigation. The panchas were also examined to prove the arrest panchnama at Exh. 19, the inquest panchnama Exh. 20, scene of panchnama Exh. 23 and panchnama Exh. 25 regarding recovery of T-shirt and bangles of the deceased and panchnama Exh. 29 for recovery of pyjama of the deceased at the instance of the accused. The birth certificate (Exh. 55) dated 1.5.2003 issued by the Talati-cum-Mantri of Malekpur Gram Panchayat, Taluka CC 1/2005 CAV Judgment Page # 6 Vadnagar, District Mehsana mentioned that deceased Niyati was born on 29.6.2001 i.e. on the date of the incident, the deceased was aged one year and seven months old. The birth certificate (Exh. 56) dated 1.5.2003 issued by the primary school at Malekpur, Taluka Vadnagar, District Mehsana stated that the accused was born on 17.2.1985 i.e. the accused was aged 18 years and 2 months on the date of the incident.

After considering the oral and documentary evidence on record, the learned Sessions Judge found the accused guilty of the offences punishable under Section 376 and 302 IPC on the basis of the following circumstantial evidence :- (i) The accused had taken away the deceased aged 1½ years at 6.00 PM on 29.4.2003 from PW 10 Kailasben, mother of the deceased, but did not bring the deceased back. (ii) The deceased was last seen with the accused as per the deposition of PW 9 Binalben. CC 1/2005 CAV Judgment Page # 7 (iii) Semen stains were found on the pant of the accused. (iv) Semen stains were found on the lehangi (pyjama) of the deceased. (v) The medical witness PW 11 Dr Hareshbhai Kantilal Patel at Exh. 45 who had done the post mortem (report Exh. 46) indicated that the deceased was raped and that the cause of death is “vasovagal attack due to assault”. According to the said Doctor, the age of the deceased was 1½ years to 2 years. The post-mortem was performed between 2.30 PM and 3.20 PM on 30.4.2004. The learned trial Judge acquitted the accused of the offences punishable under Sections 363 and 366 IPC on the ground that the accused had taken the deceased with him with the consent of the mother of the deceased. The learned trial Judge convicted the accused of the offences punishable under Sections 376 and 302 IPC and imposed the sentence of life imprisonment for the offence punishable under Section 376 IPC and the death penalty, subject to the CC 1/2005 CAV Judgment Page # 8 confirmation by this Court, for the offence punishable under Section 302 IPC. It is from the aforesaid judgment and order that the present Confirmation Case as well as the Criminal Appeal arise.

At the hearing of the appeal, Mr BS Supehia, learned advocate for the appellant-accused has made the following submissions :- (i) The evidence of the accused and the deceased having been last seen together is based on the deposition of PW 9 Binalben Dineshchandra Vyas. However, in her cross-examination, the said witness stated that the police had recorded the statement when she was sick and it was her father who had given the statement for her. On the other hand, PW 15 Investigation Officer – TK Patel (Exh. 58 – para 3) stated that Binalben herself had given the statement. The evidence of this witness also suffers from other contradictions and, therefore, the theory of last CC 1/2005 CAV Judgment Page # 9 seen together cannot be believed. (ii) Semen stains on the pyjama of the accused can exist for variety of reasons and would not necessarily connect the accused with the offence of rape. Reliance is placed on the decisions in AIR 1973 SC 343 and JT 2001 (8) SC 505 (para 25).

On the other hand, Mr AJ Desai, learned APP has opposed the appeal and submitted that all the links in the chain of circumstantial evidence have been clearly established by the prosecution beyond reasonable doubt. The accused had taken deceased Niyati aged 1 year and 7 months from the custody of her mother at 6.00 PM on

29.4.2003. Since the accused was aged 18 years on the date of the incident, and her daughter was only about 1½ years old, naturally the mother did not have any reason to suspect the design which the accused was having. It is not the case of the accused that the accused had not taken Niyati from out of the physical custody of her mother nor is it the case of the accused that after taking her out at

6.00 PM he had returned Niyati to her mother. Hence, failure on the part of the accused to explain his not returning Niyati was sufficient to fasten conviction on the accused. Even otherwise, the prosecution had led adequate evidence to show that after taking the deceased girl from the physical custody of the mother, the accused had purchased Parle-G biscuits from the shop of PW 13 Revabhai CC 1/2005 CAV Judgment Page # 14 Prajapati and that PW 9 Binalben Dineshchandra Vyas, daughter of the pujari of the Brahmani Mata Temple had also seen the deceased with the accused. Thus, apart from the accused not having explained where the deceased had gone after the accused took her out, there is positive evidence to show that the accused had taken the deceased near the Brahmani Mata Temple. It is further submitted that in view of the medical evidence that the deceased aged about 1½ years was raped, and her dead body was recovered at the instance of the accused at 2.00 AM on the night between 29th and 30th April, 2003, i.e. within eight hours after the accused had taken her from the physical custody of her mother and within a few hours from the time when the accused was last seen together with the deceased – all this material is only consisted with the guilt of the accused for the offences punishable under Section 376 as well as Section 302 IPC. The learned APP has also submitted reply to various contentions urged on behalf of the appellant accused. CC 1/2005 CAV Judgment Page # 15

Having heard the learned counsel for the parties, we are clearly of the view that it has remained uncontroverted that it was the accused who had taken deceased Niyati aged about 1 year and 7 months from the physical custody of her mother Kailasben at 6.00 PM on

29.4.2003. It has clearly come out during cross- examination of Kailasben that even before the date of the incident, the accused used to take Niyati out for playing with her. The suggestion made on behalf of the accused in the cross-examination of Kailasben that after the accused had taken Niyati out, the accused had dropped Niyati at the cabin of her mother-in-law i.e. at the cabin of the mother of Jagdishbhai Raval was negatived by Kailasben. In other words, there is no challenge to the prosecution case that the accused had taken Niyati out. In this view of the matter, it was for the accused to lead some evidence to show that the accused had dropped Niyati at the cabin of mother in law of PW 10 Kailasben. Once it is held that it was the accused who had taken deceased Niyati from the physical custody of her mother Kailasben at 6.00 PM on

29.4.2003 and the accused did not return the said minor girl, and once it is shown that the deceased was only 1 year and 7 months old as per the birth certificate at Exh. CC 1/2005 CAV Judgment Page # 16 55 issued by the Malekpur Gram Panchayat and the deceased was not able to speak beyond the word “mummy”, any possibility of such 1½ year old girl returning on her own or going to any other place on her own is absolutely ruled out.

However, it is not necessary to rest the prosecution case on the absence of any explanation from the accused at the trial. The evidence of PW 13 Revabhai Prajapati at Exh. 54 from whose provision store the accused purchased biscuits and the evidence of PW 9 Binalben Dineshchandra Vyas at Exh. 42 strengthen the prosecution case that the deceased was with accused in the evening. Mr Supehia for the accused submitted that the statement purported to be given by Binalben before the police was not given by Binalben herself, but by her father. However, from the evidence of the Investigating Officer who recorded the statement and the evidence of Binalben, it is clear that the statement was given by her, but obviously because Binalben was aged about 14 years, the statement was given in the presence of her father and what Binalben had stated CC 1/2005 CAV Judgment Page # 17 before the police was conveyed by her father as she had become nervous on account of presence of the police.

We also find from the evidence of PW 11 Dr Hareshbhai Kantilal Patel who had performed the post-mortem on the deceased that he found blood stains on either side of the vagina of the deceased and that it was swollen and red and the muscles of the vagina were broken and ruptured. The case of death was shock on account of the vasovagal attack due to assault injury. The post-mortem note at Exh. 46 contained the following description of the injury against column No. 15 (injuries to the external genital) and column No. 17 (external injuries) :-

C/o Hed blood present around the vagina, Valva-Red. Both lakies – braised. On per Speculum Examin – hymen was ruptured Posteriorly. Full tear of ant. Vag – wall present Ex. Partial tear of post vaginal Wall CC 1/2005 CAV Judgment Page # 19 cotted blood present in vaginal sign of purging + ut.

Abrasion marked present on - 1) rt. Axillanyregion - 2) rt. Supraclaviadar region - 3) behind the rt. ear lobe.

A perusal of the above evidence leaves no room for doubt that the deceased girl aged 1 year and 7 months was sexually assaulted and that assault itself resulted into the death of the minor girl. Since the deceased girl was last seen together with the accused and it was at the instance of the accused that the father of the deceased girl and other village people could recover the body of the deceased, without anything more, the prosecution can be said to have proved the involvement of the accused in the offence. Finding of semen stains on the pyjama of the accused and also on the lehangi of the deceased go to fortify the aforesaid conclusion. Hence, the contention of the accused that semen stains could have been there on the pyjama of the accused for any other reason cannot be accepted as such stains cannot be seen in isolation and the presence of semen stains on the pyjama of the accused and also on the lehangi of the deceased girl aged 1½ years fit in with the prosecution case that it was the accused and CC 1/2005 CAV Judgment Page # 20 the accused alone who had committed the offence of rape. Once that conclusion is reached, since the very act of committing rape on the 1½ year old girl resulted in the death of the victim, the accused must be held liable for both the offences punishable under Sections 376 and 302 IPC.

Much has been contended on the basis that absence of medical examination of the accused is fatal to the prosecution case. Reliance is placed on the decisions in Rahim Beg vs. State of UP, AIR 1973 SC 343 and State of Gujarat vs. Mahmad @ Munno Usmanbhai Chauhan, 1996 (2) GLR

The decision in Rahim Beg (Supra) was rendered in the context of a case where the rape was alleged to have been committed by a fully developed man on the girl of 10 or 12 years who was virgin and whose hymen was intact and the Court held that the absence of injuries on the male organ of accused would point to his innocence. Apart from the fact that the decision of the Court in that case was based solely upon that factor as there were several other considerations which appeared to the Court as being inconsistent with the guilt of the accused, in that case, the Court specifically noted that no cogent explanation was offered as to why the two accused were not soon got CC 1/2005 CAV Judgment Page # 21 medically examined by the police. Similarly, in State of Gujarat vs. Mahmad @ Munno Usmanbhai Chauhan (Supra), the victim was a girl aged about 11 years and the accused was about 25 years old and this Court followed the decision of the Apex Court in Rahim Beg (Supra). In the facts of the instant case, however, such an explanation was not sought for from the Investigating Officer – PW 15 TK Patel (Exh. 58) as to why the accused was not sent for medical examination. In absence of any such question having been put to the Investigation Officer in his cross-examination, the defence cannot be permitted at this stage to find fault with the prosecution for not medically examining the accused after his arrest.

However, in the instant case, once it is held that the deceased girl aged 1½ years was last seen with the accused aged 18 years and none other than the accused is shown in the company of the deceased girl aged 1½ years from 6.00 PM to 2.00 AM and it is at the instance of the accused that the dead body of the deceased is recovered at CC 1/2005 CAV Judgment Page # 22

2.00 AM and the deceased is found to have been sexually assaulted and raped, none else than the accused could have committed the brutal sexual assault and rape on the deceased and, therefore, absence of medical examination of the accused after his arrest pales into insignificance.

15. As regards the contention that no inquiries were made at the house of the accused, the contention is misconceived. It is the case of the prosecution witnesses that since minor girl Niyati, aged 1 year and 7 months was taken by the accused at 6.00 PM and the accused did not return, the mother of the deceased informed her husband (father of the deceased) at about 8.00 PM and all the people in the neighbourhood and in the village went around searching for the deceased. They searched all over the village, agricultural fields and wells. Hence, absence of any specific statement that the village people searched for the accused at his residence cannot be fatal to the prosecution case. In fact, the accused himself was also not found anywhere and, therefore, nothing would turn upon the contention urged on behalf of the appellant.

In view of the aforesaid scenario, it is CC 1/2005 CAV Judgment Page # 23 immaterial that the prosecution has not pinpointed any place where the offence had taken place. Of course, the prosecution case appears to be that the offence was committed in the wada of Divaben where buffaloes are kept. A wrapper of Parle-G Glucose biscuit and three blank wrappers of Palak Company sweet supari were found. At the time of drawing panchnama, the accused admitted that he had consumed the biscuits and the sweet supari which were contained in those wrappers. Those articles were discovered on 1.5.2003.

17. It is also contended that the lehangi of the deceased was traced after two days and that when the search of the wada was made, its owner Divaben was not allowed to remain present. Much has also been stated about the evidenciary value of the semen stains on the lehangi which was recovered from the wada of Divaben. This Court is of the view that in light of the preceding discussion and the inescapable conclusion that it was the accused and the accused alone who could have committed the crime on the deceased aged 1½ years, the argument advanced with reference to the discovery of lehangi will not make any difference to the finding of guilt against the accused. CC 1/2005 CAV Judgment Page # 24

The contention that the failure on the part of the village people to find out the deceased till 2.00 AM makes the accused being traced out at a distance of only two minute walk from the house of the deceased, will weaken the prosecution case cannot be accepted, particularly when the dead body of the deceased was recovered at 2.00 AM at the instance of the accused and the accused alone. We are fully satisfied that the prosecution proved the case against the accused beyond reasonable doubt by establishing all the links in the chain of circumstances.

In view of the above discussion, Criminal Appeal No. 2292 of 2004 filed by the accused against the judgment and order of conviction deserves to be dismissed. In view of the brutal sexual assault by the accused on a minor girl aged 1 year and 7 months, the maximum penalty of life imprisonment for the offence punishable under Section 376 is fully justified.

Coming to the Confirmation Case and the death penalty proposed by the learned Sessions Judge, it is first necessary to refer to the leading case of Bachan Singh vs. CC 1/2005 CAV Judgment Page # 25 State of Punjab, (1980) 2 SCC 684 wherein the Apex Court laid down the following principles as culled out by the Apex Court in the case of Machhi Singh vs. State of Punjab, (1983) 3 SCC 470 :- (i) (ii) (iii) (iv) The extreme penalty of death need not be inflicted except in the gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

Applying the aforesaid tests to the facts of the present case, there can be no doubt that the gravity of the offence committed by the accused aged 18 years on the minor girl aged 1 year and 7 months was certainly revolting and obnoxious so as to arouse intense and extreme indignation of the community calling for the death penalty. However, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the CC 1/2005 CAV Judgment Page # 28 crime. The defence had made suggestions in the cross- examination of PW 8 Jayantibhai Patel (Exh. 41) and PW 6 Babubhai Umedbhai Prajapati (Exh. 36) that the accused was not a mentally balanced person and he used to roam around in the village, that he used to get fits of epilepsy and he used to fall down anywhere (pages 90 and 100). Although the prosecution witnesses had denied that suggestion, it does not appear that the accused is a person with normal understanding.

We may refer to the two recent decisions of the Apex Court dealing with the question of death penalty where the accused is convicted of the offences punishable under Sections 302 and 376(2) IPC by committing the rape and murder of a minor girl. In State of UP vs. Satish, (2005) 3 SCC 114, a minor girl aged less than six years was raped and murdered and the Court held it to be one of the rarest of rare cases. The Court held that rape is one of the most depraved acts which becomes abominable when the victim is a child. The diabolic act reaches the lowest level of CC 1/2005 CAV Judgment Page # 30 humanity when the rape is followed by brutal murder.

On the other hand, in Surendra Pal Shivabalakpal vs. State of Gujarat,2005) 3 SCC 127, in a similar case, where the appellant aged 36 years had committed rape and murder of a minor girl after abducting her in the middle of the night, the Court considered the fact that the appellant was aged 36 years at the time of the occurrence and there was no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future.

In Bachan Singh case, the Apex Court has held that the burden is on the State to show the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society and that there was no probability that the accused can be reformed and rehabilitated. In the facts of the instant case, the prosecution has not led any evidence to show that the accused has been CC 1/2005 CAV Judgment Page # 31 involved in any other criminal case previously. The accused appears to be a person with below average understanding and living in impecunious circumstances.

In most of such cases involving offences under Sections 376 and 302 IPC, the Apex Court has commuted death penalty to life imprisonment.

25.1 In Mohd. Chaman vs. State (NCT of Delhi), 2001 (2) SCC 26, the accused aged 30 years in the process of committing rape on a girl about 1½ years old inflicted injuries on liver and other parts of the body which resulted into the death of the child. The Apex Court held that it did not fall within the rarest of rare category.

25.2 In Raju vs. State of Haryana, 2001 (9) SCC 50, the victim was a 11 year old girl and the conviction was based on circumstantial evidence. The accused had enticed the deceased by offering toffee and both were last seen together going out in the evening and the accused had made extra-judicial confession that he had committed rape and killed the girl. The Court held that the accused had no intention to cause death of the deceased and the accused CC 1/2005 CAV Judgment Page # 32 having no criminal record nor can be considered to be a grave danger to the society at large, the Court awarded only life imprisonment.

25.3 In Bantu @ Naresh Giri vs. State of MP, 2001 (9) SCC 615, where the accused was found guilty of having committed rape and murder of a six year old girl, the Apex Court commuted the death sentence to life imprisonment.

25.4 So also in State of Maharashtra vs. Mansingh, 2005 (3) SCC 131, where the conviction was based on the circumstantial evidence, the Court commuted the death sentence to life imprisonment.

In view the above discussion, we are of the view that this is not one of the rarest of rare cases which would warrant death penalty on the accused who was aged 18 years on the date of incident and presently aged just about 21 years. Since the accused is so young and appears to have committed the offence on account of his below average level of understanding, the reformative theory may yield results. CC 1/2005 CAV Judgment Page # 33

In view of the above discussion, the death penalty proposed by the trial Court on accused Thakore Balvantji Somaji for the offence punishable under Section 302 IPC is not confirmed and the appellant-accused is sentenced to the sentence of rigorous imprisonment for life for the said offence.

O R D E R

In the result, Criminal Appeal No. 2292 of 2004 in so far as the same challenges the conviction of the appellant for the offences punishable under Section 376 and 302 IPC is hereby dismissed. The sentence of rigorous imprisonment for life for the offence punishable under Section 376 IPC is confirmed. However, in Confirmation Case No. 1 of 2005, we decline to confirm the death penalty proposed by the learned Sessions Judge and sentence the appellant – accused to suffer rigorous imprisonment for life for the offence punishable under Section 302 IPC. Both the sentences of rigorous imprisonment for life shall run concurrently. CC 1/2005 CAV Judgment Page # 34 The Confirmation Case and the Criminal Appeal accordingly stand disposed of. [M.S. SHAH, J.] [BANKIM N. MEHTA, J.] sundar/-