Madhya Pradesh High Court
In Reference vs Rajaram @ Rajkumar on 19 June, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
1 CRRFC No.05/2023 and Cr.A.No.6308/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
CRIMINAL REFERENCE CAPITAL No. 5 of 2023
IN REFERENCE
Versus
RAJARAM @ RAJKUMAR
Appearance:
Shri Yash Soni - Deputy Advocate General for the reference-
petitioner.
Shri Sanjay Kumar Agrawal - Senior Advocate with Shri Mihir
Agrawal, advocate for the Amicus Curiae.
WITH
CRIMINAL APPEAL No. 6308 of 2023
RAJARAM @ RAJKUMAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Samar Singh Rajpoot - Advocate for the appellant.
ShriYash Soni - Deputy Advocate General for the respondent/State.
Reserved on : 07.05.2025
Pronounced on : 19 .06.2025
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
19:11:47
NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
2 CRRFC No.05/2023 and Cr.A.No.6308/2023
JUDGMENT
Per: Justice Devnarayan Mishra
The criminal appeal and the criminal reference have been filed
being aggrieved of the judgment of conviction dated 20.04.2023 and
sentence dated 21.04.2023 passed by learned Special Judge (POCSO
Act), District Khandwa in S.C. No.125 of 2022, convicting the accused
Rajkumar @ Rajaram with Death penalty for the offence punishable
under Section 6 of the Protection of Children from Sexual Offences Act.
He is also convicted under Section 307 of IPC and sentenced to undergo
R.I. for Life with fine amount of Rs.2,000/- with default stipulation of
one month, Section 363 of IPC and sentenced to undergo R.I. for 7 years
with fine amount of Rs.2,000/- with default stipulation of one month,
Section 450 of IPC and sentenced to undergo R.I. for 7 years with fine
amount of Rs.2,000/- with default stipulation of one month and Section
201 of IPC and sentenced to undergo R.I. for 7 years with fine amount
of Rs.2000/- with default stipulation of R.I. for one month.
2. In nutshell, the prosecution case before the trial Court was
that on 25.10.2022, a four years minor girl daughter of PW-2 came from
his village in the house of PW-1 along with PW-5. In the intervening
night of 30-31.10.2022, the complainant (PW-1) along with his wife
PW-6 was sleeping outside his hut whereas his son PW-7 and the victim
were sleeping in the cot inside hut. PW-6 closed the door and put latch
on the gate. In the morning at 05:00 AM, PW-6 went inside the house,
she saw that PW-7 was sleeping alone in the cot and the victim was not
in the cot. She inquired from PW-7. On that, he replied that he thought
that the victim was sleeping with parents. After that, search was made in
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
19:11:47
NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
3 CRRFC No.05/2023 and Cr.A.No.6308/2023
nearby places and relations. Intimation was sent to her parents. On
30.10.2022, the appellant came into the hut of the PW-1 and demanded
a cot to sleep. PW-1 had given him a cot and at some distance from the
hut, the appellant was sleeping in the cot. In the morning, when they
saw the appellant was also not found in his cot, hence on the doubt, the
appellant was arrested. On his disclosure, the victim was recovered from
the Mango Garden of Kripal Singh in injured and unconscious
condition. The victim was immediately rushed to hospital where she
was given first aid and after that from Khandwa, she was rushed to
Bombay Hospital, Indore. From the spot, incriminating articles were
recovered. After usual investigation, charge-sheet was submitted before
the Special Judge (POCSO Act) for the offence punishable under
Sections 363, 376(a), 376 (a b), 450, 307 and 201 of IPC and under
Section 3/4, 5(m)/6, 5(i)/6, 5(r)/6 of the POCSO Act.
3. The trial Court framed the charges under above mentioned
sections and on that appellant abjured the guilt and prayed for trial.
4. During trial, the trial Court examined the prosecution
witnesses and examined the appellant under Section 313 of Cr.P.C. In
that also, the appellant denied the charges and stated that he has been
falsely implicated in the case but has not examined any defense witness.
The trial Court after hearing the parties, passed the judgment. The trial
Court has awarded the death sentence, hence sent a reference, on the
side of the appellant, appeal has been preferred.
5. Amicus Curiae, Shri Sanjay K. Agrawal, learned Senior
counsel submits that prosecution before the trial Court has failed to
prove the guilt of the appellant. There is no eye-witness and the
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
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4 CRRFC No.05/2023 and Cr.A.No.6308/2023
appellant visited hut of the complainant (PW-1) is not mentioned in the
FIR (Exhibit-P/1) and the story was developed after lodging of the FIR.
Except DNA report, no incriminating circumstances have been found
against the appellant and DNA report is not conclusive evidence. The
trial Court has convicted the appellant only on that basis. Hence, the
conviction cannot be sustained.
6. Learned counsel has further submitted that the prosecutrix
was never examined before the Court nor before the police authority and
even after a month, the statement of the prosecutrix were not recorded.
In this case, the identification of the accused will come into question
altogether that whether the appellant has committed sexual intercourse
and alleged commission of attempt to murder and submitted that only on
the basis of suspicion, the appellant has been prosecuted. The appellant
has been solely convicted on the basis of the statement recorded under
Section 27 of the Evidence Act that is inadmissible before the Court of
law.
7. The depositions of parents, brother and other relatives of
prosecutrix are merely based on suspicion as there is no eye-witness.
The identification has not been made by the victim. The seized articles
were seized from the open place whereby the seizure of articles and the
spot of crime can be held doubtful as no one is able to plant those
articles on the spot and as per the deposition of independent witness
PW-19, Exhibit-P/26 and Exhibit-27, the articles were seized from
shrubs, which itself is an open area and the clothes of the accused and
the victim have also been seized from the open place and the victim was
also recovered from the open place. No positive conclusive male
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
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NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
5 CRRFC No.05/2023 and Cr.A.No.6308/2023
autosomal STR DNA of accused Rajkumar alias Rajaram was recovered
from the body of the prosecutrix. Only the DNA profile of accused on
the undergarment and Frock of the prosecutrix was found and the same
DNA from the shirt and pants of the accused was found and submitted
that act of the appellant does not fall in the category of rarest of the rare
case and the appellant has been convicted on the concocted and
fabricated evidence.
8. Learned counsel has submitted that the trial Court has failed
to appreciate the prosecution evidence in proper perspective resulting
into grave miscarriage of justice, in which the appellant/accused has
been convicted and sentenced to capital punishment. Hence, the appeal
be allowed.
9. Shri Agrawal, Amicus Curiae has further submitted that the
appellant at the time of incident was 20 years of age and in that
circumstances, if the sentence is maintained looking to the judgment of
Bhaggi @ Bhagirath @ Naranvs. State of M.P., (2024) 5 SCC 782,it
is submitted that the Court has to look into the fact whether the rape was
barbaric and brutal or barbaric but not brutal and if the act is not found
brutal, then the death sentence could not be awarded.
10. Shri Kamal Singh Rajput, learned counsel for appellant (in
Cr.A.No.6308/2023) has submitted that all the witnesses are interested
witnesses. There is no mention of the name of the appellant in the FIR.
In the intervening night, he came and demanded a cot. The victim and
the incriminating articles were recovered from the open place and the
possibility of other persons throwing the victim on that place and
recovery of articles from the open place, no inference can be draw
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
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NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
6 CRRFC No.05/2023 and Cr.A.No.6308/2023
against the appellant. The prosecution has failed to prove that by the act
of the appellant, the victim has become disabled or suffered any
permanent injury or disability. Whole evidence was concocted after
arrest of the appellant. There is no eye-witness. Hence, in the case of
circumstantial evidence and looking to the age of the appellant and
having no criminal record, the capital punishment could not be imposed.
Learned counsel for the appellant has further submitted that the
appellant at the time of incident was 20 years old. He is also a person of
humble background and belongs to S.T. community, illiterate and from
the marginal class of the society. Looking to these aspects, appeal be
allowed and if appellant‟s conviction is upheld, capital sentence be
converted into appropriate imprisonment.
11. Shri Yash Soni, learned Deputy Advocate General for the
State has submitted that from the oral as well as scientific evidence
particularly DNA profile, it is proved that only the appellant has
committed the offence and prosecution has proved its case beyond the
reasonable doubt and the trial Court by elaborate judgment and
discussing the evidence has convicted the appellant. Hence, no
interference is called for citing the judgments of Manoharan v. State
by Inspector of Police, (2019) 7 SCC 716, Rajendra Prasad v. State
of Madhya Pradesh, (2020) 12 SCC 505, Dhananjoy Chatterjee v.
State of West Bengal, (1994) 2 SCC 2020 and State of Maharashtra
v. Goraksha Ambaji Adsul, (2011) 7 SCC 437. Shri Soni has
submitted that the appellant has kidnapped four years minor child and
committed rape upon her and after throttling her left the victim in the
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
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7 CRRFC No.05/2023 and Cr.A.No.6308/2023
open place assuming that she had died. Thus, no leniency is required in
favour of the appellant and appeal be dismissed.
12. Heard the parties and perused the record.
13. PW-1, PW-5 and PW-6have clearly stated that their
daughter and PW-5 went on Dussehra leave to victim house as they
were relatives and when she was returning on 25.10.2022, the victim
also came with PW-5 and PW-5 left the victim in her house and went to
Khandwa for her study. This fact has been supported by PW-2, PW-
3,PW-4 and PW-7 and there is no any contradiction on this point that
originally the victim belongs to other place and she came in relation
along with her relative sister PW-5 to the house of PW-1 and was
residing with their family at the time of incident.
14. As to the age of the victim, all the prosecution witnesses
have clearly stated that the victim was four years old particularly father
of the victim (PW-2), mother of the victim (PW-3) have stated that their
daughter was four years old.
15. Witness Maya Sanwle (PW-9) has stated that she is posted
as ANM in Primary Health Center, Diwal, District Khandwa. The
victim‟s mother aged about 23 years old, came on 20.07.2018 and at
7:10 PM was admitted and she delivered a baby child at 7:35 PM whose
weight was 2.8 Kg. Asha worker Radha brought her for delivery in that
Primary Health Center. She has brought the Birth Register from 2018 to
the date of deposition, in which at Sr. No.28, there is mention of birth of
the victim and relevant page of register is Exhibit-P/12 and copy of
which is Exhibit-P/12-C and on that basis the Birth Certificate (Exhibit-
P/7) was issued, in which the date of birth of the victim has been
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
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NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
8 CRRFC No.05/2023 and Cr.A.No.6308/2023
mentioned as 20.07.2018. Thus, from the Exhibit-P/7 and Exhibit-P/12
and the statements of the witnesses, it is clear that the victim at the time
of offence was 4 years, 3 months and 11 days. Defence has not
questioned the statements of this witness.
16. Regarding the incident, the witness PW-1 has stated that on
30.10.2022, he along with his wife (PW-6) was sleeping outside their
hut and the victim along with PW-7 was sleeping in the hut. At 02:00 O‟
Clock, in the night PW-6 went into the hut to drink water, she saw that
victim was sleeping and when at 05:00 AM again PW-6 went into hut,
the victim was not found on her cot. She asked PW-7 but he had stated
that victim was not sleeping with him. After that they made the search
nearby. This fact has been further supported by PW-7. The victim in the
night was sleeping in hut and PW-7 was also sleeping along with her
and in the morning she was not found on the cot and this intimation was
sent to PW-2, PW-3,PW-4, PW-5 and the family members searched the
victim in the nearby field, well and after that she was not found. Hence,
PW-1 lodged a missing person report (Exhibit-P/1) in the Police Station.
17. This fact has been supported by the parents of the victim
PW-2 and PW-3. First Information Report (Exhibit-P/1) was lodged on
31.10.2022 at 13:57 PM by A.S.I., Jitendra Tiwari (PW-31) and this
witness has clearly corroborated the fact that on 31.10.2022, he was
posted at Police Station, City Kotwali, Khandwa as ASI and on the
information by PW-1 that a girl is missing between 2:00 to 5:00 hours in
the night of 31.10.2022 and on that basis, he registered FIR (Exhibit-
P/1).
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
19:11:47
NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
9 CRRFC No.05/2023 and Cr.A.No.6308/2023
18. On the point of role of the appellant, PW-1 has stated that
the appellant was working in the Rajput Dhaba for last 1-1.5 years and
on 11:00 PM, he came into their hut and demanded a cot to sleep. He
provided a cot. On that, the appellant slept on the cot near electric pole.
In the morning, when the victim was not found in the house and the
appellant was also not found in the cot. He inquired regarding the
appellant from the owner of the Rajput Dhaba, who informed him that
the appellant was on leave. This fact has also been supported by PW-6
wife of PW-1.
19. Raju Chouhan (PW-13) owner of Rajput Dhaba has stated
that the appellant was working in his Dhaba. One year prior to that, he
also worked in Dhaba. The appellant was residing in the staff quarter
situated behind the Dhaba. On the date of incident, the appellant worked
in the Dhaba till evening and after taking half day salary Rs.130/- left
the Dhaba at 07:00 PM. He was in Dhaba till 11:00 PM but appellant
did not return and after closing the Dhaba, he went his home and on the
next day at 09:00 AM, when he reached at Dhaba, the appellant was not
found there. PW-1 came to his Dhaba and inquired about the victim and
the appellant and informed that in the night, the appellant went into his
hut and demanded a cot to sleep. On that, he told him that till the
evening he was working in his Dhaba and after that he left the Dhaba.
20. This witness Raju Chouhan (PW-13) has further stated that
in the evening, police brought the appellant and he was carried to the
place where the victim was laying.
21. Devendra (PW-14) has stated that he was acquainted to the
appellant as he was visiting Dhaba where the appellant was working. On
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
19:11:47
NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
10 CRRFC No.05/2023 and Cr.A.No.6308/2023
31.10.2022, Police caught the appellant from Ram Nagar Kalali. At that
time, the appellant was wearing a blue-gray colored T-shirt and blue
colour Jeans. Police prepared Panchnama (Exhibit-P/21) and the
appellant was brought to Police Chowki, Ram Nagar and was
interrogated. Police carried the appellant to the spot that was a mango
orchard where the victim was found. At that time, the victim was found
unconscious and wearing a frock and lower part of her body was
nacked. There was injury in the neck of the victim and blood was oozing
from her private part. Panchanama (Exhibit-P.23) was prepared. After
that appellant has also told that he has put the Heram (under garment of
the victim) and his purse and slippers in the orchard. Police recovered
and seized the jeans pant and shirt of the appellant. Appellant has also
told to the police that he has put his pant, shirt and heram near the
Titiyajoshi Petrol Pump in bushes, he will help to make recovery of all
these things. Memorandum (Exhibit-P/22) was prepared. The appellant
was arrested. Police recovered a pair of slippers, Aadhaar Card, purse
containing Rs.130/- and also recovered the dry mango leafs. Blood and
soil were found in the dry leafs. Police seized the articles and prepared
Seizure Memo (Exhibit-P/26). Police went to sugarcane field and
recovered the blood stained leafs that were having white colour sticky
material on that and simple soil was also recovered. Police prepared
seizure memo (Exhibit-P/28). Police also recovered mark-sheet and
ration card of the appellant and prepared seizure memo (Exhibit-P/29).
22. Bharat (PW-19) has supported the statements of witness
Devendra (PW-14) and this witness has also stated that the appellant
was arrested from Ram Nagar Kalali and when he was interrogated, he
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
19:11:47
NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
11 CRRFC No.05/2023 and Cr.A.No.6308/2023
disclosed the place where he put the victim and in mango orchard,
victim was found. At that time, the victim was only wearing frock. She
was not having under garments. There was an injury in her throat and
blood was oozing from private part of the victim. Panchnama (Exhibit-
P/23) was prepared. From the spot, where the victim was found near to
that place a pair of slippers, an Aadhaar Card and a purse containing
Rs.130/- were recovered and from that place, dry leafs of mango tree
and on those leafs, soil and blood was also found. After that Police
along with the appellant went near the Titiyajoshi Petrol Pump and from
the bushes, appellant‟s pant and shirt and victim‟s heram (under
garment) were recovered and from the sugarcane field, the leafs were
recovered and in the leafs there was blood and soil. From the appellant‟s
mother, mark-sheet of Class-3 and family details certificate were seized
and seizure memo (Exhibit-P/29) was prepared. Recovery of mark-sheet
and Samagra I.D. have been also supported by his mother Sangita Bai
(PW-18).
23. Subhash Navde, Investigating Officer (PW-36) has state
that on 31.10.2022 at 6:10 PM, he apprehended the appellant from Ram
Nagar Kalali in presence of Devendra (PW-14) and Bharat (PW-19) and
after taking him in custody, he prepared the Custody Memo (Exhibit-
P/21) and the appellant was brought to Ram Nagar Police Chowki and
was interrogated and in interrogation, he disclosed that he can show the
place where the victim was laying. On that, he prepared memorandum
(Exhibit-P/22) and along with the appellant, Devendra and Bharat he
reached in the mango orchard of Kripal Singh @ Satpal and on the place
shown by the appellant, a search was made, the victim was found
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
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NEUTRAL CITATION NO. 2025:MPHC-JBP:26514
12 CRRFC No.05/2023 and Cr.A.No.6308/2023
unconscious. At that time, there only frock in the body of the victim and
her lower part was necked and blood was found in the lower part of her
body and an injury mark was found in the throat of the victim. He
prepared Memorandum (Exhibit-P/23) and recovered the victim. On the
same day, the appellant was arrested and Arrest Memo (Exhibit-24) was
prepared. On the same day, on 31.10.2022, he inspected the spot and
from that place one pair of mehroon colour slippers in which PU-Harhs
Made-In-India was written and was of 9 number was found and a
mehroon color purse in which two currency note of Rs.50, one currency
note of Rs.20 and one currency note of Rs.10 were found and Aadhaar
Card of the appellant was kept recovered. He further stated that from the
spot where the victim was found, six dry leafs were recovered. There
was blood stain in the leafs and simple soil and blood stained soil from
the place were recovered. He prepared Seizure Memo (Exhibit-P/26)
and sent the victim for treatment to District Hospital, Khandwa. He also
submitted Identification Form for preservation of DNA from the body of
the victim and also sought the opinion of the Medical Officer whether
the victim is in position to give the statements or not. On 01.11.2022 at
02:10 AM, he reached at District Hospital, Ram Nagar and Head
Constable received seven sealed packets, in which victim‟s anal slide,
vulval slide, vaginal slide, nails sample, buckle, swab, frock, blood
sample and the sample and the sample seal were received and Seizure
Memo was prepared on 01.11.2022 at 10.10 AM. He along with the
appellant reached near Titiyajoshi Petrol Pump and on the instance of
the appellant from bushes recovered a full shirt that was having blood
stains, a blue and brown colour jeans pant having metallic buttons and
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
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was having blood stain near the zip, a pink colour heram, in which there
was sticky material was found were recovered and Seizure Memo
(Exhibit-P/27) was prepared. On the same day on 01.11.2022 at 11:30
AM, on the instance of the appellant went to the sugarcane field of Pintu
Pachore and prepared the Spot Map (Exhibit-P/30) and from that place
at 11:50 recovered the leafs of sugarcane and other plants. In the
sugarcane leafs, blood stain was found and some sticky gum like
material were also found. From that spot simple soil, simple leafs and
dry leafs were recovered and prepared the Seizure Memo (Exhibit-P/28)
and make photograph of the spot and also recovered from her mother
mark-sheet and Samagra I.D. of the family.
24. This witness further stated that appellant was sent for the
medical examination. He requested the Medical Officer during the MLC
of the appellant by providing the Identification Form affixing the
photograph of appellant, which is Exhibit-P/32. On 01.11.2022 at 23:50
received four sealed packets from Constable Vijay that were sealed by
the seal of District Hospital, Khandwa in which appellant‟s seman slide,
nails clipping, pubic hair, blood sample and two samples of the seal
were seized and Panchnama (Exhibit-P/57) was prepared and all these
articles were sent to Joint Director, Regional, Forensic Science
Laboratory, Jhoomar Ghat Rau through Exhibit-P/62 and receipt of the
FSL is Exhibit-P/23 and the report receipt from the FSL is Exhibit-P/76.
25. Witness Dr. Sunil Makwane (PW-16) who is the Scientific
Officer of Scene of Crime, Mobile Unit, Khargone has stated that on
01.11.2022, on getting information from Superintendent of Police,
Khandwa, he along with Investigating Officer and police team reached
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
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on the spot and visited the hut of the complainant. The hut was made of
wooden plank. Except the door, there was no other exit or entry point.
80 meter distance from that hut, there was a sugarcane field. In the
sugarcane field in 3×5 feet area, the grass was pressed and crop of
sugarcane was leaning. Dry leafs of sugarcane, grass and in soil of 4×3
Inch area, blood stains were found and one of the sugarcane leaf, a
sticky liquid was found and some spots of sticky material were also
found on the soil. Other fields were without any crops. He also visited
the spot where the victim was recovered that was 520 meter in the north-
west side of the sugarcane field in the orchard of mango. From the spot,
where the victim was recovered, grass and bushes were pressed and at
this place, light scratch marks were found on the soil of about 3 x 3
inches area, which is said to have been formed by the seizure of grass,
leaves and soil containing blood like substance. There were some
scratch marks nearby and the scratching has been said to have been done
to seize the grass leaves. There was an empty field on the north east and
south side of the mango orchard. No other evidence was found during
the inspection of this spot. He has also stated that he reached at the spot
at 09:00 AM.
26. Thus, from the disclosure of the appellant, the victim in
injured condition was recovered from mango orchard and the spot where
the offence was committed was also identified and from that spot,
Aadhaar Card, a pair of slippers and purse containing Rs.130/- of the
appellant were recovered. Whereas whole family members and nearby
persons have searched the victim and have not found the victim till the
appellant was not arrested.
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 19-06-2025
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27. Dr. Raj Choudhary (PW-21) has stated that on 31.10.2022,
he was in the panel of doctors, in which Dr. Nisha Pawar (PW-17) was
also the member. Then, they examined the victim aged about 4 years
and on examination, Dr. Raj Choudhary and Dr. Nisha Pawar have
stated that there was an injury mark on both sides of neck measuring
1×0.5 cm, an abrasion in the left side of eyebrow and small injuries in
the knee of left leg of the victim. On internal examination, there was a
torn injury measuring 1x1x5 cm from vagina to anus. The victim was
referred to pediatric surgeon for treatment. The victim at that time was
semi conscious. Her pulse was 108, B.P. was 90/60 and oxygen
saturation was 96. She also collected the nail clippings, vaginal slide,
vulval slide, frock, anal swab, a buckle and blood sample for DNA
examination and handed over to Subhash Navde (Investigating Officer).
In their opinion, the victim suffered sexual assault. She has proved MLC
report (Exhibit-P/37). In the cross-examination, this witness has clearly
stated that the injury suffered by the victim may be caused by falling the
victim on bushes. This fact has been further supported by Dr. Raj
Choudhary (PW-21).
28. Witness Dr. Soniya Daga (PW-24) who was posted as
Radiologist in Bombay Hospital, Indore, examined the victim on
18.11.2022 and stated that there was swelling in the sacrum bone on the
right side of her spine as per Exhibit-P/44 and in Sonography as per
Exhibit-P/45, there was infection in her urinary bladder. Dr. Devendra
Patil (PW-25), who was the Gynecologist in Bombay Hospital, Indore
has also examined the victim 01.11.2022 and opined that there was an
injury in the vaginal area. It was a vertical tear, which was present in
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
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16 CRRFC No.05/2023 and Cr.A.No.6308/2023
lower end of vaginal. There was an abrasion mark with pressure in her
neck measuring 1×0.5 cm and this doctor has exhibited MLC report
(Exhibit-P/47).
29. Witness Dr. Rakesh Shukla (PW-27), on 13.11.2022, he
examined the victim and found injury in the private part. The victim was
afraid. There was a swelling in the brain due to deficiency of oxygen
supply. He also found swelling in the bone of hip and injury may cause
permanent disability or temporary disability.
30. Witness Dr. Ashok Jat (PW-26) has conducted medical
examination of appellant on 01.11.2022 on the instance of the
Investigating Officer, Police Station- Kotwali, Khandwa. On
examination, no external injury was found. In the opinion of doctor, the
appellant was competent for intercourse. His seman slide, nail clippings
and pubic hair were taken and seized and also taken blood sample of the
appellant for DNA examination and handed over it to Police Constable
who brought the appellant for medical examination. OPD form is
Exhibit-P/49 and MLC report is Exhibit-P/50. He prepared
Identification Form of the appellant (Exhibit-P/32) and he signed it in D
to D part and verified the photographs by putting his signature on the
photograph in E to E part. He has also taken the thumb impression of
the both the thumbs and certified both thumb impressions.
31. Material recovered from the victim and the appellant were
sent to FSL. As per the FSL report, the soil, leafs, simple soil, simple
leafs that were recovered from the spot have been marked as articles
A/4066 to A/4071 and the blood stained soil that was recovered from
the place where the victim was laying, dry leafs, simple soil, simple dry
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leafs have been marked as A/4072 to A/4075. Article G to article J and
in Vaginal Slide, Nail Sample, Anal Slide and Buccal Slid have been
marked as Article L (A/4077), Nail sample Article M (A/4078), Anal
Slide Article N (A/4079), Buccal Slide Article O (A/4080), Vaginal
Slide Article P (A/4081), Victim‟s frock Article Q (A/4082), appellant‟s
shirt Article R (A/4083), Jeans Pant Article S (A/4084), Seman Slide
Article T (A/4085), Pubic Hair Article U (A/4086), Nail clipping Article
V (A/4087), Blood sample of the victim Article W (A/4088), Heram
Article K (A/4076) and Blood sample of the appellant Article X
(A/4089). As per the FSL report (Exhibit-P/76), in the Vaginal swab,
Anal swab, Buccal, Article L (A/4077), Anal slide Article N (A/4079).
Buccal slide Article O (A/4080) and Vaginal slide Article P (A/4081)
samples Low male (Y) Chromosomal STR DNA profile was found.
From the spot seized leaf Article C (A/4068), male (Y) Chromosomal
STR DNA profile was found and genetic marker matched with the (Y)
Chromosomal STR found in the blood of the appellant Article X
(A/4089) and from the Heram Article A (A/4076) (Y) Chromosomal
STR matched with the DNA obtained from the blood sample of the
appellant. In the frock that the victim was wearing at the time when she
was recovered Article Q (A/4082) (Y) Chromosomal STR matched with
the appellant Raj Kumar @ Rajaram and from the soil recovered from
the spot where the offence was committed Article A (A/4066), the leafs
Article B (A/4067), blood stained soil Article G (A/4072) and dry leafs
Article H (A/4073) Woman Autosomal STR DNA was found that
matched with the blood sample of the victim. From the leafs recovered
from Article C (A/4068) and the Heram recovered from the appellant
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Article K (A/4076) same DNA profile of the male was found that
matched with the DNA profile of the blood obtained from the appellant.
32. In conclusion it has been found that leafs, Heram, blood
sample of the victim and seman of the appellant were found and the
Article A, B, G and H, soil, leafs, blood stained soil and dry leafs that
were respectively received from the spot and where the victim was
laying. In the shirt and Jeans pant of the appellant, human blood was
found and in the frock of the victim, DNA profile of the appellant was
found and in the clothes of the appellant female Autosomal STR DNA
profile of the victim was found.
33. In nutshell, from the spot where the offence was committed,
the blood stain of the victim was found and in the leaf, the seman of the
appellant was found. In the same way, from the place where the victim
was recovered, blood stains were found. In the clothes of the victim,
DNA profile of the appellant was found. In the same way, in the clothes
of the appellant also DNA profile of the victim was found.
34. Thus, from this report (Exhibit-P/76), it is clear that the spot
that was told by the appellant, blood stains and seman slide of the
appellant were found and from the place where victim was recovered in
unconscious condition, human blood of the victim and DNA profile of
the appellant was found and in the clothes of the victim, DNA profile of
the appellant was found and in the clothes of the appellant that were
recovered at the instance of the appellant, the DNA of the victim was
present. Thus, this establishes the identity of the appellant that the
appellant had committed the offence as he disclosed the place where the
offence of sexual assault was committed and after sexual assault, victim
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was thrown. Furthermore, it is also clear that the person who committed
the rape upon the victim proved by the DNA profile and from the
medical examination of the victim, it is clear that the offence was
committed as there was injury in the private part of the victim.
35. Furthermore, in this case, in the Identification Parade that
was conducted by Mala Rai (PW-11), Raju Chouhan (PW-13) owner of
the Dhaba where the appellant was working has identified the slippers of
appellant recovered from the place of incident; this also establishes
identity of the appellant.
36. Thus, from the above discussion, it is clear that appellant
went to the hut of the complainant and demanded a cot to sleep at night
and in the night, he after opening the gate of the hut carried the victim
from her relative‟s house and committed rape upon the victim and
thrown her in unconscious state treating her dead in the mango orchard.
At the time offence, age of the victim was 4 years and three months and
the appellant was 20 years old i.e. major person. Hence, the conviction
of appellant under Sections 450, 363, 376 (a), 376AB, 307 and Section
201 of the Indian Penal Code and Sections 5/6 of the Protection of
Children from Sexual Offences Act is sustained.
37. On the point of confirmation/maintaining the death
sentence, the trial Court has held that due to offence, the victim become
disable for the whole life but there is no medical evidence regarding that
the victim has got the disability or she had suffered such an injury that
she cannot live a normal life. Only on the basis of the statement of Dr.
Rakesh Shukla (PW-27), which is based upon the M.R.I. report, but the
doctor has not clearly opined that which part of the body was damaged
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or sustained such an injury, by which the victim may be disabled for a
life. Hence, this finding of the trial Court could not be sustained.
38. In this case, there are aggravating circumstances that the
victim was four year old and the rape was committed upon such a kid
and offence was committed in such a way that the private part of the
victim was torn and after committing the offence, the victim was thrown
in the solitary place treating her that she had died.
39. The mitigating circumstances in the case are that the
appellant is youth of tribal community aged about 20 years. There is no
adverse comment regarding his conduct. There is no report that he has
previously committed any such type of offence and as per the statement
of his mother, he left the parental house at the very early age and was
working in the Dhaba and earning his bread. He is not properly
educated.
40. In the case of Bhaggi alias Bhagirath alias Naran vs.
State of Madhya Pradesh reported in (2024) 5 SCC 782, Hon‟ble the
Apex Court has considered in the case of kidnapping and rape of a
minor that whether the rape is “barbaric and brutal” or whether
“barbaric” but not “brutal”. In that night, the act of the appellant could
not be said to be “brutal” though “barbaric”
41. In the case of State of Maharashtra vs. Goraksha Ambaji
Adsul reported in (2011) 7 SCC 437 in para No.31 to 41, Hon‟ble the
Apex Court has considered the aspect of aggravating circumstances and
mitigating circumstances and held as under:-
31. The legislative intent behind enacting Section
354(3) CrPC clearly demonstrates the concern of the
legislature for taking away a human life and imposingSignature Not Verified
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death penalty upon the accused. Concern for the
dignity of the human life postulates resistance to taking
a life through law’s instrumentalities and that ought not
to be done, save in the rarest of rare cases, unless the
alternative option is unquestionably foreclosed. In
exercise of its discretion, the court would also take into
consideration the mitigating circumstances and their
resultant effects.
32. The language of Section 354(3) demonstrates
the legislative concern and the conditions which need
to be satisfied prior to imposition of death penalty. The
words, “in the case of sentence of death, the special
reasons for such sentence” unambiguously
demonstrate the command of the legislature that such
reasons have to be recorded for imposing the
punishment of death sentence. This is how the concept
of the rarest of rare cases has emerged in law. Viewed
from that angle, both the legislative provisions and
judicial pronouncements are at ad idem in law. The
death penalty should be imposed in the rarest of rare
cases and that too for special reasons to be recorded.
To put it simply, a death sentence is not a rule but an
exception. Even the exception must satisfy the
prerequisites contemplated under Section 354(3) CrPC
in light of the dictum of the Court in Bachan
Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] .
33. The Constitution Bench judgment of this Court
in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri)
580] has been summarised in para 38 in Machhi
Singh v. State of Punjab [(1983) 3 SCC 470 : 1983
SCC (Cri) 681] and the following guidelines have been
stated while considering the possibility of awarding
sentence of death : (Machhi Singh case [(1983) 3 SCC
470 : 1983 SCC (Cri) 681] , SCC p. 489)
“(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
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(ii) Before opting for the death penalty the
circumstances of the „offender‟ also requires to be
taken into consideration along with the
circumstances of the „crime‟.
(iii) 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.
(iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating
circumstances before the option is exercised.”
(emphasis supplied)
34. The judgment in Bachan Singh [(1980) 2 SCC
684 : 1980 SCC (Cri) 580] , did not only state the
above guidelines in some elaboration, but also
specified the mitigating circumstances which could be
considered by the Court while determining such
serious issues and they are as follows : (SCC p. 750,
para 206)
“206. … „Mitigating circumstances.–In the
exercise of its discretion in the above cases, the court
shall take into account the following circumstances:
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the accused is
young or old, he shall not be sentenced to death.
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(3) The probability that the accused would not
commit criminal acts of violence as would constitute
a continuing threat to society.
(4) The probability that the accused can be
reformed and rehabilitated.
The State shall by evidence prove that the accused
does not satisfy Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case
the accused believed that he was morally justified in
committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that
he was mentally defective and that the said defect
impaired his capacity to appreciate the criminality of
his conduct.‟”
35. Now, we may examine certain illustrations
arising from the judicial pronouncements of this Court.
36. In D.K. Basu v. State of W.B. [(1997) 1 SCC
416 : 1997 SCC (Cri) 92] this Court took the view that
custodial torture and consequential death in custody
was an offence which fell in the category of the rarest
of rare cases. While specifying the reasons in support
of such decision, the Court awarded death penalty in
that case.
37. In Santosh Kumar Satishbhushan
Bariyar v. State of Maharashtra [(2009) 6 SCC 498 :
(2009) 2 SCC (Cri) 1150] this Court also spelt out in
paras 56 to 58 that nature, motive, impact of a crime,
culpability, quality of evidence, socio-economic
circumstances, impossibility of rehabilitation are the
factors which the court may take into consideration
while dealing with such cases. In that case the friends
of the victim had called him to see a movie and after
seeing the movie, a ransom call was made, but with theSignature Not Verified
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fear of being caught, they murdered the victim. The
Court felt that there was no evidence to show that the
criminals were incapable of reforming themselves, that
it was not a rarest of the rare case, and therefore,
declined to award death sentence to the accused.
38. Interpersonal circumstances prevailing between
the deceased and the accused was also held to be a
relevant consideration in Vashram Narshibhai
Rajpara v. State of Gujarat [(2002) 9 SCC 168 : 2003
SCC (Cri) 1112 : AIR 2002 SC 2211] where constant
nagging by family was treated as the mitigating factor,
if the accused is mentally unbalanced and as a result
murders the family members. Similarly, the intensity of
bitterness which prevailed and the escalation of
simmering thoughts into a thirst for revenge and
retaliation were also considered to be a relevant factor
by this Court in different cases.
39. This Court in Satishbhushan Bariyar [(2009) 6
SCC 498 : (2009) 2 SCC (Cri) 1150] also considered
various doctrines, principles and factors which would
be considered by the Courts while dealing with such
cases. The Court discussed in some elaboration the
applicability of the doctrine of rehabilitation and the
doctrine of prudence. While considering the
application of the doctrine of rehabilitation and the
extent of weightage to be given to the mitigating
circumstances, it noticed the nature of the evidence and
the background of the accused. The conviction in that
case was entirely based upon the statement of the
approver and was a case purely of circumstantial
evidence. Thus, applying the doctrine of prudence, it
noticed the fact that the accused were unemployed,
young men in search of job and they were not
criminals. In execution of a plan proposed by the
appellant and accepted by others, they kidnapped a
friend of theirs. The kidnapping was done with the
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motive of procuring ransom from his family but later
they murdered him because of the fear of getting
caught, and later cut the body into pieces and disposed
it off at different places. One of the accused had turned
approver and as already noticed, the conviction was
primarily based upon the statement of the approver.
40. Basing its reasoning on the application of
doctrine of prudence and the version put forward by
the accused, the Court, while declining to award death
penalty and only awarding life imprisonment, held as
under : (Satishbhushan Bariyar case [(2009) 6 SCC
498 : (2009) 2 SCC (Cri) 1150] , SCC pp. 551 & 559-
60, paras 135, 168-69 & 171-73)
“135. Right to life, in its barest of connotation
would imply right to mere survival. In this form,
right to life is the most fundamental of all rights.
Consequently, a punishment which aims at taking
away life is the gravest punishment. Capital
punishment imposes a limitation on the essential
content of the fundamental right to life, eliminating
it irretrievably. We realise the absolute nature of this
right, in the sense that it is a source of all other
rights. Other rights may be limited, and may even be
withdrawn and then granted again, but their ultimate
limit is to be found in the preservation of the right to
life. Right to life is the essential content of all rights
under the Constitution. If life is taken away, all other
rights cease to exist.
***
168. We must, however, add that in a case of this
nature where the entire prosecution case revolves
round the statement of an approver or is dependant
upon the circumstantial evidence, the prudence
doctrine should be invoked. For the aforementioned
purpose, at the stage of sentencing evaluation of
evidence would not be permissible, the courts not
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only have to solely depend upon the findings arrived
at for the purpose of recording a judgment of
conviction, but also consider the matter keeping in
view the evidences which have been brought on
record on behalf of the parties and in particular the
accused for imposition of a lesser punishment. A
statement of approver in regard to the manner in
which crime has been committed vis-à-vis the role
played by the accused, on the one hand, and that of
the approver, on the other, must be tested on the
touchstone of the prudence doctrine.
169. The accused persons were not criminals.
They were friends. The deceased was said to have
been selected because his father was rich. The
motive, if any, was to collect some money. They
were not professional killers. They have no criminal
history. All were unemployed and were searching
for jobs. Further, if age of the accused was a relevant
factor for the High Court for not imposing death
penalty on Accused 2 and 3, the same standard
should have been applied to the case of the appellant
also who was only two years older and still a young
man in age. Accused 2 and 3 were as much a part of
the crime as the appellant. Though it is true, that it
was he who allegedly proposed the idea of
kidnapping, but at the same time it must not be
forgotten that the said plan was only executed when
all the persons involved gave their consent thereto.
***
171. Section 354(3) of the Code of Criminal
Procedure requires that when the conviction is for an
offence punishable with death or in the alternative
with imprisonment for life or imprisonment for a
term of years, the judgment shall state the reasons
for the sentence awarded, and in the case of sentence
of death, the special reasons thereof. We do not
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think that the reasons assigned by the courts below
disclose any special reason to uphold the death
penalty. The discretion granted to the courts must be
exercised very cautiously especially because of the
irrevocable character of death penalty. Requirements
of law to assign special reasons should not be
construed to be an empty formality.
172. We have previously noted that the judicial
principles for imposition of death penalty are far
from being uniform. Without going into the merits
and demerits of such discretion and subjectivity, we
must nevertheless reiterate the basic principle, stated
repeatedly by this Court, that life imprisonment is
the rule and death penalty an exception. Each case
must therefore be analysed and the appropriateness
of punishment determined on a case-by-case basis
with death sentence not to be awarded save in the
„rarest of the rare‟ case where reform is not
possible. Keeping in mind at least this principle we
do not think that any of the factors in the present
case discussed above warrants the award of the death
penalty. There are no special reasons to record the
death penalty and the mitigating factors in the
present case, discussed previously, are, in our
opinion, sufficient to place it out of the „rarest of
rare‟ category.
173. For the reasons aforementioned, we are of
the opinion that this is not a case where death
penalty should be imposed. The appellant, therefore,
instead of being awarded death penalty, is sentenced
to undergo rigorous imprisonment for life. Subject to
the modification in the sentence of the appellant (A-
1) mentioned hereinbefore, both the appeals of the
appellant as also that of the State are dismissed.”
(emphasis in original)
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41. The above principle, as supported by case
illustrations, clearly depicts the various precepts which
would govern the exercise of judicial discretion by the
courts within the parameters spelt out under Section
354(3) CrPC. Awarding of death sentence amounts to
taking away the life of an individual, which is the most
valuable right available, whether viewed from the
constitutional point of view or from the human rights
point of view. The condition of providing special
reasons for awarding death penalty is not to be
construed linguistically but it is to satisfy the basic
features of a reasoning supporting and making award
of death penalty unquestionable. The circumstances
and the manner of committing the crime should be
such that it pricks the judicial conscience of the court
to the extent that the only and inevitable conclusion
should be awarding of death penalty.
42. In the case of Manoharan v. State, reported in (2019) 7
SCC 716 Hon‟ble the Apex Court in para No.71 has discussed as
under:-
71. Confession of crime has been treated as a
mitigating circumstance by this Court in Gurdeep
Singh v. State (NCT of Delhi) [Gurdeep Singh v. State
(NCT of Delhi), (2000) 1 SCC 498 : 2000 SCC (Cri)
449] , a case under the Terrorist and Disruptive
Activities (Prevention) Act, 1987 to observe : (SCC p.
512, para 25)
“25. Before concluding we would like to record
our conscientious feeling for the consideration by
the legislature, if it deems fit and proper. Punishment
to an accused in criminal jurisprudence is not merely
to punish the wrongdoer but also to strike a warning
to those who are in the same sphere of crime or to
those intending to join in such crime. This
punishment is also to reform such wrongdoers not to
commit such offence in future. The long procedure
and the arduous journey of the prosecution to findSignature Not Verified
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the whole truth is achieved sometimes by turning on
the accused as approvers. This is by giving incentive
to an accused to speak the truth without fear of
conviction. Now turning to the confessional
statement, since it comes from the core of the heart
through repentance, where such accused is even
ready to undertake the consequential punishment
under the law, it is this area which needs some
encouragement to such an accused through some
respite may be by reducing the period of
punishment, such incentive would transform more
such incoming accused to confess and speak the
truth. This may help to transform an accused, to
reach the truth and bring to an end successfully the
prosecution of the case.”
43. The judgments of Manoharan v. State by Inspector of
Police, (2019) 7 SCC 716, Dhananjoy Chatterjee v. State of West
Bengal, (1994) 2 SCC 2020 and other judgments relied by the
prosecution, these cases belong to rape, sexual assault by the gang and
murder that treated aggravated circumstance. The principle laid down in
these cases, are not applicable in the present case being the factual
aspect different from the cited case laws.
44. Looking to the above observations and discussions, in this
case, no doubt that appellant‟s act was brutal as he has committed rape
upon the victim of four years and three months of age and after
committing rape also throttled her treating her dead and thrown the
victim in such a place where she could not be searched and left the spot
but it is also clear that he has not committed brutality. The background
of the appellant is that he is uneducated youth of 20 years of age and
belongs to the tribal community and his parents never tried to give him
education and not properly take care of him, therefore he has left his
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house and was self bread earner and living and working in a Dhaba
(Restaurant). Atmosphere in the Dhaba is not such, by which it can be
inferred that he was given the proper atmosphere to grow up. Hence,
sentence imposed upon the appellant for the offence punishable under
Sections 363, 450, 307, 201 of the Indian Penal Code is affirmed but his
sentence for the offence punishable under Sections 6 of the POCSO Act
is converted from Capital Punishment to the rigorous imprisonment of
25 years with the fine amount of Rs.10,000/- and in default of fine
amount (actual incarceration without remission/commission under
Section 432 and 433 of Code of Criminal Procedure), the appellant shall
further suffer rigorous imprisonment of one year.
45. With the above modification, the reference is answered and
appeal is partially allowed.
46. The case property be disposed of as per the order of the trial
Court.
47. Supersession warrant of the appellant be prepared and sent
to the concerned jail authority.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
VB*
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