SUBHASH CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused-appellant has been held guilty of offences punishable under section 302 and section 376 (2) (f) of Indian penal Code. The trial court sentenced the appellant to death under section 302 indian Penal Code and to undergo rigorous imprisonment for life and pay a fine of Rs. 10,000. 00, in default of payment to undergo further R. I. for 3 years, under section 376 (2) (f) Indian Penal Code. While the learned additional sessions judge made a reference to the High Court for confirmation of death sentence under section 366 criminal Procedure Code. , the appellant preferred an appeal putting in issue his conviction and sentence. The criminal reference and the criminal appeal were heard by a division bench of Rajasthan High Court. The two learned Judges, constituting the division bench, differed in their opinion. In the opinion of one learned judge, the circumstantial evidence, on which rests the prosecution case, was not sufficient to record a finding of guilty against the appellant on any of the charges framed against him. In the opinion of the other learned judge, the prosecution evidence was sufficient to sustain the conviction, as recorded by the trial court, though, the case was not one of those 'rarest of rare cases' as would warrant death sentence being awarded to the appellant. In view of the difference of opinion, the learned acting Chief Justice assigned the case for hearing by a third judge under section 392 of Criminal Procedure Code. The third learned judge has, on an independent appreciation of evidence, recorded his own findings upholding the conviction of the accused on both the charges framed against him and thus agreeing with one of the two learned judges constituting the division bench in conclusion. In the result, the High Court has declined the confirmation of death sentence but upheld the conviction on both the charges found proved and dismissed the appeal laying challenge to the conviction subject to modification in the sentence by substituting sentence of life imprisonment for death sentence under section 302 Indian Penal Code. The accused-appellant has filed this appeal by special leave.

(2.) Kumari S, a young child aged about 5 years, was last seen at about 4 p. m. on 18/03/1991 and thereafter she did not return home. At about 7 a. m. on 19/03/1991, Kishori Lal, Public Witness4 informed bd (Public Witness2) , the unfortunate father of S, that dead body of a girl was lying near mohalla Basera on the outskirts of village kotputli. BD rushed to the place only to find that the dead body was of none else than his own daughter S. Blood was oozing out from her mouth and private parts. A noose was also found around her neck. At 7.25 a. m. on 19.3.1991 first information report was lodged by BD at police station Kotputli. Offence was registered under sections 302 and 376 Indian Penal Code. The investigation commenced. The dead body was sent for postmortem examination which was performed at 9.30 a. m. , on the same day, by a medical board of three doctors. It was found that the victim was brutally ravished and thereafter killed. According to the medical opinion the probable cause of death of S was shock produced due to vaginal trauma and rupture of post-fornix along with asphyxia due to ligature around the neck. All injuries found on the person of the victim could be around 6 to 24 hours old prior to the time of postmortem examination. The vaginal injuries, clotted blood and injuries to post-fornix were indicative of rape having been committed on the victim. The clothes were removed from the dead body and seized. Slides of vaginal swap were prepared for cyto-chemical analysis for blood and seminal stains. The forensic science laboratory confirmed presence of group-B blood on the clothes of deceased.

(3.) The accused was arrested on 3.4.1991 on suspicion. On 4.4.1991, he was medically examined. There was no injury on his private parts or on any other part of body. The clothes on his person did not have any blood or seminal stains. He was a grown up male of 21 years and capable of performing sexual intercourse. On 5.4.1991, at about 12.30 p. m. , he gave an information exhibit. P/23 and in confirmation of the information led the police to a dry well wherefrom an underwear and baniyan wrapped in a newspaper dated 18.3.1991 were recovered. The clothes so recovered were sent to forensic science laboratory. According to report exhibit P/27 human semen was detected on underwear. According to report exhibit P/30 of forensic science laboratory human blood of group 'b' was detected on the underwear.