Bantu vs State Of U.P

The broad features of the case as culled out from the FIR and evidence brought on record is as follows:

On the case being registered, the investigation was taken up by SHO Dalip Kumar Mittal (PW 7). Major part of the investigation was conducted by him but the charge sheet came to be submitted by subsequent Investigating officer R.K. Dwivedi (PW 8).

1) conducted post-mortem over the dead body of the deceased on 5.10.2003 at 3 P.M. The deceased was aged about five 4 years and about one day had passed since she died. The following ante mortem injuries were found on her person:

Internal examination revealed that small and large intestine were perforated at places due to insertion of the stick. The stomach contained semi digested food of about 200ml. Free and clotted blood was present in the cavity. The mesenteric vessels in the abdomen were torn due to insertion of wooden stick. Uterus was small in size and was ruptured due to insertion of wooden stick into the vagina. The walls of cervix were lacerated. Slides of vaginal swab were prepared for examination. The wooden stick inserted inside vagina was sealed. No spot of semen was found on the part of the body. Due to precarious condition of vagina, it was not possible to say whether rape was committed or not.

In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of ante mortem injuries due to insertion of the wooden stick into the vagina of the deceased.

, A 6 The jeans pant of the accused was sent for chemical analysis to ascertain marks of blood and semen. As per the Doctor examining the accused, injuries could be caused by blunt object and were fresh in nature. The accused was fully capable of performing the act of rape. The injury report Ex. Ka-5 was prepared. According to the Doctor since no smegma was found present on the glans penis of the accused and it was clean, it was inferred that he had committed sexual intercourse. Smegma gets removed from the glans penis during sexual intercourse. The abrasions on the genitals of the accused supported his view. The Doctor denied the suggestion that the injuries could be sustained at 7-8 P.M. that night. Rather, he testified that the injuries could be sustained between 10-11 P.M. that night. The defence was of denial and false implication due to enmity of witnesses arising out of land dispute. The accused, however, admitted that he was the neighbour of the informant and that there was a Devi Jagran at the house of Chandrasen alias Taplu (PW 3) in the eventful night. Other facts were denied by him in his statement under Section 313 Cr.P.C. 7

3. In order to establish the guilt of the accused appellant the prosecution in all examined 8 witnesses. Out of them, Naresh Kumar (PW 2) (informant and uncle of the deceased), Chandrasen alias Taplu (PW 3) and Nand Kishore (PW 6) were material witnesses of fact who supported the prosecution case in its entirety.

4. The trial court observed that the witnesses of fact were not supposed to manufacture false evidence play on the imagination. They truthfully narrated what they saw with their own eyes and their testimonial assertions went a long way to prove the factum of rape having been committed by the accused on the unfortunate child. The trial court found the accused guilty and sentenced him as under:

6. In support of the appeal before the High Court it was submitted that the circumstances do not make out the alleged offence. The High Court did not accept it. Placing reliance on the evidence on Naresh Kumar (PW2), Chandrasen (PW3) and three others who had taken the accused to the police station the conviction was accorded. It was noted that the accused was found in a naked condition at the spot and was caught by PW 2,3 and others. He was not wearing any underwear. The pant which he was made to wear before he was taken to the police station was seized by the police and was sent for 9 chemical examination to ascertain marks of blood, semen etc. The chemical examiner in its report found blood stains, sperms and semen on the pant of the deceased.

7. The High Court also noticed that in order to camouflage the serious kind of rape in a planned manner and after committing rape he mercilessly inserted wooden stick deep inside the fragile vagina of the girl to the extent of 33cms to cause her death, with a view to masquerade the crime as an accident. The High Court did not find any merit in the appeal and it was with a view that the death sentence was the appropriate sentence.

36. What is culled out from the decisions noted above is that while deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up.

38. The case at hand falls in the rarest of rare category. The depraved acts of the accused call for only one sentence that is death sentence.

39. Looked at from any angle the judgment of the High Court, confirming the conviction and sentence imposed by the trial court, do not warrant any interference.

40. We record our appreciation for the able assistance rendered by Mr. Shankar Divate, learned amicus curiae in the true spirit of friend and officer of the Court.

41. The appeal fails and is dismissed.

34 .............................................J. (Dr. ARIJIT PASAYAT) .............................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, July 23, 2008 35