IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REFERENCE NO. 2 of 2009 State ….....Applicant. Versus Mohit Dubey ….…Respondent. (In Jail) Along with CRIMINAL APPEAL NO. 154 OF 2009 Mohit Dubey ………..Appellant. (In Jail) Versus State of Uttarakhand …..Respondent. Present:- Sri Rajendra Kotiyal, Advocate and Smt. Pushpa Joshi, Advocate (Amicus Curiae) for the appellant/convict. Sri P.S. Bora with Sri B.S. Parihar, Advocates are present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral) 1. This reference is made by Sessions Judge, Bageshwar under Section 366 of Code of Criminal Procedure, 1973 (For short Cr.P.C.) seeking confirmation of sentence of death awarded by said Court to Mohit Dubey (convict/appellant) under Section 302 of Indian Penal Code (for short IPC). The trial court has further convicted the accused under Section 376 and 201 IPC. The convict has been sentenced to imprisonment for life and directed to pay fine of ` 20,000 (twenty thousand) under Section 376 IPC. He has been further sentenced to undergo rigorous imprisonment for a period of seven years and also directed to pay fine of ` 10,000 (Ten Thousand) under Section 201 IPC. The convict Mohit Dubey has preferred the criminal appeal against the judgment and order dated 23.09.2009 passed by Sessions Judge, Bageshwar in Sessions Trial No. 10 of 2009, whereby the appellant Mohit Dubey has 2 been convicted, as mentioned above, under Sections 302, 376 and 201 IPC, and sentenced as mentioned above. Both reference made by the Court, and appeal preferred by the convict/appellant, are being heard and disposed of together. 2. Heard learned counsel for the appellant and learned Amicus Curiae for the appellant/convict, and learned counsel for the State. 3. It is a case of commission of murder of a minor girl aged 4 years, after committing rape on her. Prosecution story in brief is that on 2.1.2009, Megha (deceased) along with another kid Reena and PW3 Pankaj Dubey (aged 9 years) went to the house of accused Mohit Dubey and asked him to give marbles (KANCHE). The other children came back from the house of Mohit Dubey but Megha remained there. She was not seen thereafter and a search was made for her by her father. It is pertinent to mention here that accused Mohit Dubey is cousin of the deceased. Next day, on 3.1.2009, PW1 Hem Chandra Dubey (father of the deceased) gave a report (Exhibit A-1) at Police Station – Baijnath (district Bageshwar) stating that his daughter Megha was missing from 1:00 p.m. (on 2.1.2009). It is further mentioned in his report that on 3.1.2009, that one Kewalanand Pandey, who saw dead body of the girl near a culvert, told him about said fact. The complainant/Hem Chandra Dubey suspected that his daughter has been murdered and her body has been set on fire. On 3.1.2009 thereafter, another report was made by PW2 Uma Kant (grand father of the deceased) at the aforesaid Police Station that one Kewalanand Pandey (PW10), who had gone to ease out himself has reported that he has seen a dead body of a girl in a burned condition, which appears to have been thrown to conceal the body. On the basis of the report of PW1 Hem Chandra Dubey, Crime No. 3 of 2009 was registered relating to offence punishable under Sections 302 & 3 201 IPC against unknown persons at the Police Station. A check report (Exhibit A-5) was prepared at the Police Station. Investigation was taken up by PW14 Inspector Rami Ram. Soon after the crime was registered, the police went to the spot , took dead body of the deceased girl in their possession and prepared inquest report (Exhibit A-9) and sealed the same. Also, photo of the dead body (Exhibit A-10), Police Form No. 13 (Exhibit A- 11), Sample Seal (Exhibit A-12), letter to Chief Medical Officer (Exhibit A-13) requesting for post mortem examination were also prepared by the Police. Dead body was sent for post mortem examination on 3.1.2009. On the very day, at about 7 p.m. Post mortem examination was conducted by a team of three doctors, namely, Dr. D.S. Nabiyal, Dr. S. Ram and Dr. D.P. Singh (PW6). In the autopsy report, the team of Doctors found III degree and VI degree burn ante mortem injuries on the body of the deceased. In the opinion of the Medical Officers, cause of death was shock due to extreme burn injuries. The Investigating Officer interrogated the witnesses and inspected the spot and prepared a site plan (Exhibit A-14). During investigation, it was revealed that deceased was last seen in the house of accused on 2.1.2009. Prosecution case is that on 5.1.2009, accused Mohit Dubey made extra judicial confession to Uma Kant Dubey (PW2) and prayed him that he be pardoned. After the arrest of accused, he was medically examined by PW8 Dr. Mukesh Joshi, who found redness and swelling over the mucocuntaneous junction of his penis. The team of Medical Officers, who had conducted autopsy on the dead body of the deceased, had taken external organ vulva whole burn with internal part of generic and kept it preserved for analysis. After completion of investigation, Investigating Officer submitted charge sheet (Exhibit A-27) against accused Mohit Dubey for his 4 trial in respect of offence punishable under Sections 376, 302 and 201 IPC. 3. The Chief Judicial Magistrate, Bageshwar on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the accused to the Court of Sessions for trial. Learned Sessions Judge, on 20.4.2009 after hearing the parties, framed charge of offences punishable under Section 302, 201 and 376 IPC against accused Mohit Dubey, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Hem Chandra Dubey (complainant/father of the deceased), PW2 Uma Kant (grand- father of the deceased) before whom extra judicial confession is said to have been made, PW3 Pankaj Dubey (aged 9 years) a neighbour, who stated that the deceased was last seen with the accused on 2.1.2009, PW4 Kundan Singh Rawat, who stated that accused was seen taking a sack, PW5 Nandan Singh Dosad, who saw accused setting the sack on fire near the place where garbage is thrown, PW6 Dr. D.P. Singh one of the Medical Officers, who conducted post mortem examination, PW7 Daan Singh, in whose presence ash was taken by the Investigating Officer from the place where the dead body was found, PW8 Dr. Mukesh Joshi, who examined private parts of accused, PW9 Head Constable Pooran Singh, who prepared check report and made necessary entry in the General Diary, PW10 Kewalanand Pandey, who first of all saw the dead body lying in burned condition, PW11 Head Constable Ravindra Singh who made entry in the General Diary of the report given by Uma Kan Dubey, PW12 Gokula Nand, witness of inquest report, PW13 Sub Inspector Pani Ram, who prepared inquest report and PW14 Inspector Rami Ram, who investigated the crime. The oral and documentary evidence were put to the accused under Section 313 Cr.P.C. in reply to which, he alleged ignorance relating to 5 the evidence adduced by the prosecution on the witnesses. He pleaded that a false case has been initiated against him due to enmity. However, no evidence in defence was adduced. The trial court after hearing the parties found accused Mohit Dubey guilty of charge of offence punishable under Sections 302, 376 and 201 IPC. After hearing on sentence, the trial court awarded sentence of death under Section 302 IPC, against the convict Mohit Dubey. He was further sentenced to imprisonment for life and fine of ` 20,000 (Twenty Thousand) under Section 376 IPC, and rigorous imprisonment for a period of seven years and a fine of ` 10,000/- (Ten Thousand) under Section 201 IPC. For confirmation of the sentence of death, record of the case was submitted to this court under Section 366 Cr.P.C. Convict has also preferred an appeal against the judgment and order dated 23.09.2009 passed by the Sessions Judge, Bageshwar in Sessions Trial No. 10 of 2009, whereby the appellant was convicted and sentenced, as mentioned above. 4. Before further discussion, we think it just and proper to mention here ante-mortem injuries recorded by the team of doctors, who conducted post-mortem examination on dead body of Megha (deceased minor girl). The ante-mortem injuries as mentioned in the autopsy report (Exhibit A-3) are reproduced below:- “(I) Whole body burn out III to VI degree, except some part of back region. Skin attached & inflamed. (II) Bone deep burn found Right Lower end of the femer. (III) Abdomen Burst out.” 5. On internal examination, the team of doctors found membranes congested, brain congested, base congested, pleura congested, peritoneum, gallbladder, pancreas, spleen and 6 kidneys swollen. The Medical Officers opined that deceased has died of shock due to extreme burn injuries. The above mentioned ante-mortem injuries read with the evidence adduced by PW6 Dr. D.P. Singh, who was a member of the team of doctors, which conducted post-mortem examination, clearly establishes on the record that deceased had died homicidal death. Now, we have to examine whether accused Mohit Dubey has committed rape on the minor girl Megha, to conceal the crime, threw her in unconscious condition near garbage in a sack and set the body on fire and thereby committed her murder. 6. It is a case of circumstantial evidence. Following are the circumstances brought on record by the prosecution:- “(1) Megha (deceased)-a girl aged 4 years (5th running) was reported to be missing from 2.1.2009 by as reported by PW1 Hem Chandra Dubey (father of the deceased), in his report (Exhibit A-1) on 3.1.2009. (2) An extra judicial confession is said to have been made by accused Mohit Dubey on 5.1.2009 to PW2 Uma Kant (grand-father of the deceased), who was also related to the accused Mohit Dubey and pleaded him to be pardoned. (3) PW3 Pankaj Dubey (a 9 years’ old child) has stated that on 2.1.2009, he along with the deceased and other kids had gone to the house of accused Mohit Dubey for taking marbles (KANCHE), whereafter deceased remained with accused Mohit Dubey. As such, there is an evidence of last seen of the deceased with the accused. 7 (4) PW4 Kundan Singh Rawat had seen accused Mohit Dubey taking sack towards the place, where the body of the girl was later found. (5) PW5 Kundan Singh Dosad has stated that on 2.1.2009 at about 2 p.m., when he had gone to ease out himself, he saw accused Mohit Dubey setting the sack on fire, but since it was a place of garbage, he could not suspect that the accused was getting burnt the deceased. (6) PW8 Dr. Mukesh Joshi has stated that when accused Mohit Dubey was medically examined on 7.1.2009, in his private parts, redness and swelling was seen over mucocutaneous junction of his penis as mentioned in his report (Exhibit A-4). (7) The autopsy report (Exhibit A-3) prepared by the team of three Medical Officers read with statement of PW6 Dr. D.P. Singh proves on the record that Megha (deceased) died homicidal death due to shock as a result of extreme burn injuries. PW6 Dr. D.P. Singh has stated that deceased could have died at about 2 p.m. on 2.1.2009. He has further disclosed that the private parts of the deceased girl had suffered burn injuries. (8) PW10 Kewalanand Pandey is the person, who has first of all noticed dead body of the deceased on 3.1.2009 in the morning, when he had gone to ease out himself, and 8 reported the matter immediately to Lalit Farswan and Chandra Shekhar (father of the accused) of his village, whereafter Lalit Farswan informed the Police on phone (as stated by PW13 Sub Inspector Pani Ram), and thereafter the complainant and others also reached at the spot. 7. We have already discussed above that deceased had died homicidal death. Now we have to examine the role of accused in commission of crime as suggested by prosecution on the basis of circumstances mentioned above. First of all, we come to the extra judicial confession made by the accused Mohit Dubey to PW2 Uma Kant Dubey. This witness has stated that on 5.1.2009, accused Mohit along with his father Chandra Shekhar came to his house and pleaded that treating the accused as his grand-son and Chandra Shekhar as son, he should pardon Mohit Dubey. PW2 Uma Kant has further stated that the accused Mohit Dubey admitted to him that he had committed rape on Megha, whereafter she has been thrown near a bush and set on fire by pouring the kerosene oil. On behalf of defence, it is argued that there was no reason on the part of the accused to make extra judicial confession to PW2 Uma Kant. Having gone through the evidence on record and after going through the impugned judgment, we find that the trial court has rightly believed that the extra judicial confession made to Uma Kant Dubey as Uma Kant Dubey was senior member of the family, and accused and deceased were cousins. In the circumstances after the name of Mohit Dubey figured in the crime, it is natural that PW2 Uma Kant being grand-father of deceased could influence the complainant Hem Chandra Dubey (father of the deceased) to seek pardon for accused. There is nothing unnatural to make extra judicial confession to the witness. It is pertinent to 9 mention here that the bush, culvert and place of garbage are not different places. 8. Shri Rajendra Kotiyal, learned counsel for the appellant and Smt. Pushpa Joshi, Amicus Curiae on behalf of the convict/appellant argued that there is no evidence of rape committed on Megha. It is further contended that once it is found that the story of rape is not proved, there remains no motive for commission of crime on the part of the accused. In appreciating the evidence on record, we have to keep in mind the nature of offence and the nature in which the offence is committed. The offence of rape is not committed in the presence of the witnesses. There cannot be any direct evidence except that of the victim. In the present case, victim has died. In the circumstances to see that whether accused has committed crime or not, we have to give weight to the circumstantial evidence on record. PW 8 Dr. Mukesh Joshi has stated that the redness and swelling found on the penis of the accused might have been caused due to the commission of rape on a minor girl aged 4-5 years. On behalf of the appellant, it is pointed out that as per the evidence received from the Forensic Science Laboratory, nothing adverse has come out against the accused relating to commission of offence. We have seen report of the Forensic Science Laboratory which is Exhibit A-24 on the record. It simply says that no opinion as to presence of semen could be given. In our opinion, negative report as to the presence of semen does not help the accused in the present case. Ejaculation is must for presence of semen. But the same is not necessary for constituting the offence of rape. Even the partial penetration without ejaculation amounts committing rape. We have to keep in mind the age of the girl. 9. Now, we come to the evidence of “last seen” of deceased with the accused. PW 3 Pankaj Dubey (a boy aged 9 years) has 10 stated that on 2.1.2009, he along with Megha, Reena had gone to the house of Mohit (accused) to take marbles (KANCHE). He further told that after he along with others left the place, Megha remained in the house of the accused. Though the witness is a child but after going through his statement in cross- examination, we find that his testimony is natural and there is nothing which creates doubts in his testimony. 10. The evidence adduced by PW 4 Kundan Singh Rawat cannot be brushed aside lightly. The trial court has rightly observed about him that he is not related to either of the parties and is an independent witness. He has stated that he saw accused taking a sack towards the place later body is found. 11. Having reassessed the entire evidence on record, we concur with the view taken by the trial court that prosecution has successfully proved the charge of offences punishable under Section 302, 376 and 201 IPC. Relating to offence punishable under Section 201 IPC. In our opinion, chain of circumstances is complete as against the accused Mohit Dubey, who is rightly held guilty by the trial court under Sections 302, 376, & 201 IPC. 12. Lastly, it is vehemently argued on behalf of the convict/appellant that it is not one of the rarest of the rare case which requires sentence of death. No doubt the offence is gruesome and heinous, yet it requires something more to award sentence of death. It is not a dare devil crime of high magnitude. Considering the age of the accused, who had completed just 18 years on the date of commission of crime but had not completed 19 years, in our opinion, the sentence of imprisonment of life would have met the ends of justice. 13. For the reasons, as discussed above, the reference is answered as under :- 11 (i) The conviction of Mohit Dubey, convict/appellant under Section 302, 376 and 201 IPC is affirmed. (ii) However, the sentence of death awarded by the trial court under Section 302 IPC is not confirmed. Instead, the convict Mohit Dubey is sentenced imprisonment for life under Section 302 IPC. With the above modification of sentence under Section 302 IPC, the appeal filed by the convict also stands partly allowed to the extent of sentence reduced as above. In respect of conviction recorded by the trial court on all the three counts, and sentence awarded in respect of offences punishable under Section 376 and 201 IPC, the appeal stands dismissed. 14. Lower Court Record is sent back to the trial court. A copy of this judgment is also sent to the Superintendent of Jail where the accused is lodged. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 08.11.2010 Rathour