Chhattisgarh High Court: A Division Bench of Prashant Kumar and Gautam Chourdiya, JJ., while addressing the present criminal reference wherein the deceased/victim was a Five and a half Year deaf and dumb girl who was brutally raped and murdered by the accused, held that,
…considering the depraved and shameful manner in which the offence has been committed, the said mitigating factor would not outweigh the aggravating factors and as such, we are satisfied that present case falls within the ambit of “rarest of rare case”.
Informant –father of the deceased had informed that despite search at various places deceased was not traceable, therefore he expressed his suspicion on some unknown person who would have allured and abducted his daughter. FIR was registered against unknown person for offence under Section 363 Penal Code, 1860.
Kunti Sona (accused 3) informed the police that her younger son informed her that brother Ram Sona had murdered a girl and has kept the dead body in the house. Her son Ram Sona and his friend Keli reached the house and all three concealed the dead body in a muddy Nala besides the railway track and that she could point out the place.
Keli informed the IO that he had seen Ram Sona committing rape and thereafter murdering the deceased/victim, he also saw the deceased bleeding from her private parts.
Accused Ram Sona disclosed to the police that when the deceased was playing he brought her in his house by luring her, when he reached the house, his friend Keli was watching TV and when he was committing rape, his friend tried to restrain him and later on he thrashed her head on the ground due to which she became unconscious.
Further, he adds. That out of fear he gagged her, killed her and concealed the dead body. He also disclosed that the next day his brother Dipak informed that members of the locality were looking for him and he may be thrashed.
Based on the evidence on record, trial judge convicted the accused and sentenced accused Ram Sona to be hanged till death for the offence under Section 376(A) and 302 of IPC, with other sentences for remaining charges.
Appellants Counsel, argued that names of the accused persons were note mentioned in the FIR, therefore they were framed subsequently by the prosecution, as they were not finding the culprits. He further argued that abscondance of accused was neither a circumstance nor there was any evidence of such abscondance. Confession by Kunti Sona and Amrit Singh in their memorandum of statements cannot be admissible against Ram Sona as nothing pursuant to the same was recovered and stands inadmissible in evidence.
Fouzia Mirza, Additional AG – argued that under Section 30 of Evidence Act memorandum of statement of co-accused is admissible in evidence if it is self implicating.
Analysis and Decision of the Court
Bench drew the point of significance that the concentration should be on legality and evidentiary value of the memorandum statements of accused persons and to what extent they can be relied upon to establish one of the important circumstances against the appellant.
Court observed that all the three memorandum statements were proved by the prosecution. Accused Kunti and Amrit did not commit the main offence under Sections 376 and 302 of Penal Code but have only assisted the main accused Ram Sona in concealing the evidence of crime by disposing of the dead body, their disclosure statements were self inculpatory.
Bench referred to the decision of Supreme Court in Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152, wherein it was argued that the facts already discovered cannot be again discovered.
Balbir Singh v. State of Punjab, AIR 1957 SC 216, Supreme Court held that,
“…so far as the confessional statement of co-accused is concerned, it may be taken into consideration against the appellant if it fulfills the conditions laid down in Section 30 of the Evidence Act.”
Adding to its conclusion, Court also noted that confession of co-accused can be used when there are other corroborative evidence against the co-accused. Stage to consider the confessional statement arrives only after the other evidence is considered and found to be satisfactory.
Self inculpatory confession of accused can be used against the co-accused and there is no general proposition that it can never be used for any purpose.
Thus, the facts disclosed in the memorandum statement of Ram Sona find corroboration from the medical report, which found injuries over private parts of the deceased and over her head as well. It also corroborated the memorandum statement of Amrit Singh, who had stated that he had seen accused Ram Sona committing rape. It further corroborated from the memorandum statements fo accused Kunti Sona and Amrit Singh, who has stated that all the 3 concealed the dead body near muddy Nala besides the railway track.
Memorandum statements of Kunti Sona and Amrit Singh are therefore admissible in evidence against accused Ram Sona.
Bench with regard to absconcion of the accused Ram Sona stated that the same gained importance, as he was the person who was last seen together with the deceased.
“We are convinced that the chain of circumstantial evidence has been duly proved against all the accused including Ram Sona and it is he who brought the deceased to his house, committed rape and thereafter murdered deaf and dumb prosecutrix, aged about 5½ years.”
High Court considered,
“Whether the death sentence awarded to accused Ram Sona is to be confirmed or the same deserves to be commuted to life imprisonment.”
In Supreme Court’s decision of Bachan Singh v. State of Punjab, (1980) 2 SCC 684, it was held that,
“…normal rule is that offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose sentence of death only when there are special reasons for doing so.”
“If Court finds that the offence is of exceptionally deprave and heinous character and constitutes, on account of its design and manner of its execution, a source of grave danger to the society at large, the Court must impose the death sentence.”
Another case that was relied on by the bench was of Laxman Naik v. State of Orissa, (1994) 3 SCC 381, in this case also the victim was a 7-year-old girl who fell prey to the accused’s lust and the Court held that,
“…The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers.”
“…appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment.”
Hence, the High Court in view of the above-cited cases along with few others affirmed the conviction and death sentence imposed upon Ram Sona, Amrit Singh and Kunti Sona. [In ref. Of State of Chhattisgarh v. Ram Sona, CREF No. 2 of 2018, decided on 30-01-2020]