Case: NAND KISHORE Vs. THE STATE OF MADHYA PRADESH

3. Necessary facts, in brief, giving rise to this appeal are that the deceased, a minor girl aged about 8 years, had gone to attend the Mela along with her younger brother namely Chhunu (PW-4) on 03.02.2013. It is the case of the prosecution that the appellant who is aged about 50 years then, took away the deceased from the Mela and committed rape and murdered her. Narendra (PW-2) informed the police stating that his daughter, who had gone to attend the Mela, has not returned home. Upon such complaint, case was registered and investigation commenced. In the course of investigation one Amit Mourya (PW-1) informed the Investigating Officer that when he was coming to his shop from residence, he saw a dog running away with a leg of a child in its mouth and on being chased, the dog dropped the leg and ran away. Further, it was the case of the prosecution that in the process of investigation, Investigating Officer found a headless body of the deceased in the bushes near the Dushera Maidan, Bhopal. It is alleged that the left leg of the deceased was found at a distance of 100 ft. and both legs were fractured. Further, it is noticed that there were severe injuries on the privateparts of the deceased inflicted by the appellant due to which the intestine had come out. During the process of investigation the statement of the appellant was recorded under Ex.P8 and the blood stained cloths and articles he used for the offence were recovered from his house. After completing the investigation, the appellant was chargesheeted for the offence punishable under Sections 363, 366, 376(2)(i) and 302 of the IPC and Sections 5 and 6 of Protection of Children from Sexual Offences Act, 2012.4. The trial court, after appreciation of the evidence on record, which is mainly circumstantial, came to the conclusion that the appellant has committed rape on the minor girl and murdered her and further, by recording a finding that the crime committed by the appellant is heinous and barbaric, falls within the category of rarest of rare cases, imposed the death sentence. The appellant is also convicted and sentenced for the offence punishable under Sections 363, 366, 376(2)(i) of the IPC. In view of the award of death sentence, the trial court has made a reference to the High Court for confirmation, as contemplated under Section 366 of the Code of CriminalProcedure (Cr.PC). Questioning the conviction recorded and sentence imposed, the accused has filed appeal in Criminal Appeal No.798 of 2013 and the High Court has disposed of, by common judgment, Criminal Reference No.05/2013 and Criminal Appeal No.798/2013. The High Court, by judgment dated 25.06.2013, while dismissing the appeal of the appellant, has affirmed the reference confirming the death sentence awarded to the appellant.

Reasoning: 10. So far as the conviction is concerned, we are satisfied with the findings recorded by the trial court which are based on the appreciation of oral and documentary evidence on record.By applying the last seen theory to the facts of the case and further considering the forensic and medical evidence on record, trial court has rightly recorded guilt of the accused for the offences alleged. Even the High Court, referring to the relevant evidence on record, has rightly confirmed the conviction of the appellant for the charges levelled against him.13. A useful reference can be made to the judgment in this regard in the case of Swamy Shradhananda(2) v. State of Karnataka. In the aforesaid judgment, while confirming the(1980) 2 SCC 684 (2008) 13 SCC 767 conviction for offence under Section 302 of IPC, this Court, having regard to the facts and circumstances of the case and considering the evidence on record, has substituted the death sentence by imposing imprisonment for life with a specific direction that he shall not be released from the prison till the rest of his life.With reference to above said arguments of learned counsel for the State, it is to be noticed that the case of Mukesh (supra)(2017) 6 SCC 1 is distinguishable on the facts from the case on hand. It is to be noticed that Mukesh (supra) is a case of gang-rape and murder of the victim and an attempt to murder of the male victim. It was the specific case of the prosecution that the crimes were carried out pursuant to a conspiracy and the accused were convicted under Section 120-B of the IPC apart from other offences. Further, as a fact, it was found in the aforesaid case that the accused-Mukesh had been involved in other criminal activity on the same night. Further, it is also to be noticed that in the aforesaid case, there was a dying declaration, eye witness to the incident etc. So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section354(3) of the Cr.PC to impose death penalty on the accused.