Tags Murder Rape

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 513 of 2008, Judgment Date: Jan 08, 2015

                                                   REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 513 OF 2008



Darga Ram @ Gunga                                              ...Appellant

                                   Versus

State of Rajasthan                                            ...Respondent







                               J U D G M E N T

T.S. THAKUR, J.

1.    The appellant was tried and convicted for  offences  punishable  under
Sections 376 and 302 IPC. For the offence of rape punishable  under  Section
376, he was sentenced to undergo imprisonment  for  a  period  of  10  years
besides a fine of Rs.1000/- and default sentence of one month with  rigorous
imprisonment.   Similarly,  for  the  offence  of  murder  punishable  under
Section 302 IPC, he was sentenced to undergo  life  imprisonment  besides  a
fine  of  Rs.3,000/-  and  default  sentence  of  three   months'   rigorous
imprisonment.   Both  the  sentences  were  directed  to  run  concurrently.
Criminal Appeal No.604 of 2004 filed by him was heard  and  dismissed  by  a
Division Bench of the High Court of Judicature  for  Rajasthan  at  Jodhpur.
The present appeal assails the impugned judgment and order.

2.    A first Information Report was registered at Police  Station  Rani  in
the State of Rajasthan on 11th April, 1998, inter  alia,  stating  that  the
complainant on 9th April,  1998   had  organised  a  "Jaagran"  (night  long
prayer meet) near a well belonging  to one Magga Ram.  The  complainant  and
other relatives, in all around 50 persons assembled for the  "Jaagran"  that
continued till late night. This included his seven year old  daughter-Kamala
who went to sleep along with other children close to  the  place  where  the
"Jaagran" was held.  When he returned to his house he  noticed  that  Kamala
was missing.  Assuming  that  she  may  have  gone  away  with  one  of  the
relatives,  a  search  was  made  at  their  houses  but   Kamala   remained
untraceable. The search was then extended to neighbouring  areas  where  the
dead body of Kamala was discovered by Magga Ram  (PW-5)  and  Pura  Ram.  On
receipt of this information he and Naina Ram (PW-2) went to  the  place  and
found that baby Kamala had been raped and killed by crushing her  head  with
a stone. The dead body of Kamala was, according to the report, lying on  the
spot.

3.    A case under Sections 302 and 376 of the IPC  was  registered  on  the
basis of the above information and investigation started which  led  to  the
arrest of the appellant and eventually a charge  sheet  against  him  before
the jurisdictional magistrate who committed the case to Additional  Sessions
Judge, (Fast Track), Bali.

4.    Before the Sessions  Court,  the  appellant  pleaded  not  guilty  and
claimed a trial. At the trial the prosecution produced  19  witnesses  apart
from placing reliance upon several documents. No evidence  in  defence  was,
however, led by  the  appellant.  By  its  judgment  and  order  dated  27th
January, 2004 the trial Court  eventually  held  the  appellant  guilty  and
accordingly convicted and sentenced him as  indicated  above.  Aggrieved  by
the judgment and order passed by the trial Court,  the  appellant  preferred
Criminal Appeal No.604 of 2004 which was, upon reappraisal of  the  evidence
adduced before the trial Court, dismissed by the High  Court  affirming  the
conviction recorded against the appellant and the sentence  awarded  to  him
for both the offences.

5.    We have heard learned counsel for the parties at considerable  length.
Prosecution case is based entirely on circumstantial evidence as  no  ocular
account of the incident has been presented to the  Court.  Both  the  Courts
below have, however,  found  the  circumstantial  evidence  adduced  by  the
prosecution to be sufficient to  record  a  finding  of  guilt  against  the
appellant for the offences with which he was charged. We may  briefly  refer
to the circumstance as also the evidence supporting the same.

6.    The first and foremost is the  deposition  of  Ota  Ram  (PW-4)  which
clearly establishes that the  appellant  was  also  one  of  those  who  had
participated in the "Jaagran"  along  with  other  villagers.  To  the  same
effect is the statement of Maga Ram (PW-5) who too had  testified  that  the
appellant was present in the "Jaagran". He had seen Kamala at  around  10.00
in the night. The deposition of both these witnesses proves that apart  from
the appellant and several others, baby Kamala the deceased was also  present
at the "Jaagran" with other children and had gone off to sleep after  taking
dinner. That version is supported even by Naina (PW-1), who states that  the
appellant was also present in the "Jaagran" around mid night  when  the  tea
was served to  those  present  including  the  appellant.  The  witness  has
further deposed that his son and daughter Kamala were  sleeping  around  the
place but Kamala was  found  missing  in  the  morning.  There  is,  in  our
opinion, no reason to disbelieve the version of these  witnesses  when  they
say that the "Jaagran" was held by  the  complainant  in  which  Kamala  his
daughter was present and gone off to  sleep  nor  is  there  any  reason  to
disbelieve the story that even the appellant was present  at  the  "Jaagran"
and had tea with other witnesses around mid night.

7.    That Kamala died a homicidal death was not seriously  disputed  either
before the Courts below or before us and rightly so  because  the  statement
of doctor Omprakash Kuldeep  (PW-18)  who  conducted   the  post-mortem  and
authored the report marked as Ex. P-34 has clearly opined that  Kamala  died
a homicidal death on account of injury on her head. In the  deposition,  the
doctor certified injuries even on her private parts. The post-mortem  report
certifies the following injuries on the person of the deceased:

"1.   Face crushed.

2.    Upper lip wad cut.  Bleeding was from right ear, dried seminal stains
on right and left thigh.

3.    Nose bone was depressed and fractured.

4.    Fracture was on left orbital margin.

5.    Fracture was in left temporal bone.

6.    Fracture was in maxilla bone of left side.

7.    Fracture in parietal bone and occipital bone of right side which was
upto the base of skull.

8.    Incise teeth of lower and upper (jaw) were broken.

9.    Achaimoisis was present in Genital organs labia.

10.   Crushing wound was on forechet and perineum.

11.   Hymn was congested."



8.    Rajendra Singh (PW-9), who investigated the case and who is a  witness
to the scene of occurrence, seized blood stained  clothes  of  the  deceased
including two hair recovered from the private parts of the deceased.  He  is
also witness to the seizure of blood stained clothes  of  the  appellant  on
the basis of a disclosure statement made by him. Equally  important  is  the
circumstance that the FSL report found the trouser  and  the  shirt  of  the
appellant to be stained with  human  blood  belonging  to  group  'A'  which
happened to be the blood group of the deceased  also.  The  stone  used  for
crushing the head of the deceased was also found to be  smeared  with  human
blood of group 'A'.

9.    What supports the prosecution case in a  great  measure  is  also  the
fact that the appellant  had  suffered  multiple  injuries  on  his  private
parts. The medical examination report dated 13th April, 1998 marked  as  Ex.
P-38 has noticed the following injuries on the person of the appellant:

"(i)  Abrasion         1x0.5 cm. Size        Dorsal Aspect of (Rt)
                                             Elbow joint.

(ii)  Abrasion         3x2 cm. Size          Medical Aspect of (Lt)
                                             Elbow joint.

(iii) Multiple Abrasion      Varying in Size       Dorsal Aspect of (Lt)
                                             Elbow joint.

(iv)  Abrasion         7.5x1 cm. Size        Ant. aspect of (Rt.) leg
                                             Just below (Rt.) knee joint
(v)   Abrasion         1.5x1 cm.             Ant. aspect of (Lt.)
                                             knee joint

(vi)  Abrasion         1x0.5 cm.             Medial side of Ant. Aspect
                                             (Lt.) knee joint

(vii) Abrasion         1x1 cm.               Lt. side of Ant. Aspect of
                                             (Lt.) knee joint

(viii)      Abrasion         1x0.5 cm.             Dorsal Aspect of
Retracted
                                             Prepuce.

(ix)  Abrasion         2x0.25 cm.            Lat. Aspect of (Rt.) side of
                                             Retracted prepuce.

(x)   Abrasion         0.25x0.25 cm.         Dorsal Aspect of glans penis

(xi)  Abrasion         2x0.25 cm.            Lat. Aspect of (Rt.0 Thigh

(xii) Abrasion         2x0.25 cm.            (Rt.) gluteal Region

(xiii)      Abrasion         2x1 cm.               (Lt.) Palm

Duration of all injuries i.e. S.No. i to xiii is 3-5 days. "



10.   No  explanation  was,  however,  offered  by  the  appellant  for  the
injuries sustained by him one of which was  found  even  at  his  penis.  To
summarise, the prosecution has clearly established:

(1)   That a "Jaagran" was arranged by the complainant  on  the  offside  of
village near the well in  which  nearly  50  people  participated  including
Kamala the deceased child.

(2)   The deceased-Kamala had gone out to  sleep  after  dinner  around  mid
night.

(3)   The appellant was also participating in the  "Jaagran"  and  was  seen
sitting along with some of the prosecution witnesses.

(4)   Kamala-deceased was found missing in the morning but upon  search  her
dead body was noticed at some distance in the village in a  naked  condition
with injuries on her private parts and her head smashed with a  stone  lying
nearby.

(5)   The appellant made a disclosure statement leading to the  recovery  of
his blood stained clothes.

(6)   The blood was found to be of human origin and belonging to  group  'A"
which also was the blood group of the deceased-Kamala.

(7)   The appellant  on  medical  examination  was  found  to  have  several
injuries on his body including injury on his penis.

(8)   The injuries found on the person of the appellant were said  to  be  3
to 5 days old.

(9)   The appellant did not offer any explanation for the  injuries  on  his
body.

11.   The above circumstances, in our opinion, form  a  complete  chain  and
lead to an irresistible conclusion that the appellant  was  responsible  for
the offence of rape and murder of the hapless  baby-Kamala  who  appears  to
have been picked up from  the  place  where  she  was  sleeping  with  other
children and taken at a distance only to be  raped  and  eventually  killed.
The trial Court, in  the  light  of  the  evidence  on  record  and  careful
analysis undertaken by  it,  correctly  came  to  the  conclusion  that  the
appellant was  guilty  of  murder  of  the  deceased.  There  is  no  reason
whatsoever for us to interfere with that finding.

12.   What remains to be addressed  now  is  an  application  filed  by  the
appellant in this Court seeking to raise a plea that  the  appellant  was  a
juvenile on the date of the commission of  offence  hence  entitled  to  the
benefit of Juvenile Justice (Care and Protection  of  Children)  Act,  2000.
Since the appellant did not have any documentary evidence like a  school  or
other certificate referred to under the Act mentioned above, this Court  had
directed the Principal, Government Medical College, Jodhpur,  to  constitute
a  Board  of  Doctors  for  medical   examination   including   radiological
examination of the appellant to determine the age of  the  appellant  as  in
April, 1998 when the offence in question was committed.  The  Superintendant
of the Central Jail was directed to ensure production of the  appellant  for
the purpose of determination  of  his  age  before  the  Medical  Board  for
carrying out  the  tests  and  examination.  In  compliance  with  the  said
direction, the Principal constituted a Medical  Board  for  determining  the
age of the appellant and submitted a report dated 4th  February,  2014.  The
report records the following findings and conclusions:

"Age estimation of Darga ram @ Gunga s/o Heera on the basis of  findings  of
X Ray of Elbow, Wrist, Pelvis, Sternum, Medial end of  Clavicle,  Skull  and
left shoulder joint (film no.10252  dated  04-02-2014,  Eight  Film  and  CT
Scan of Skull and Mandible (film 56013, four films) dated   04-02-2014,   is
as below:-

1.    All Epiphysis around elbow joint, lower end of Radius  &  Ulna,  Ilias
Crest & Ischial tuberosity & for medial end  of  Clavicle  have  appeared  7
fused, it suggests that his age is above 22 years.

2.    All the body pieces of sternum have fused  with  each  other  but  not
fused with Xiphoid process & manubrium  sternum,  it  suggests  his  age  is
above 25 years but below 40 years.

3.    Posterior 1/3 of sagital suture have fused, it  suggests  his  age  is
above 30 years & below 40 years.

4.    Ventral 7 Dorsal margins of pubic symphysis are completely  defined  7
there are no granular appearance on it, it suggests  his  age  is  below  36
years.

Opinion:-

Concluding  all  the  above  radiological  findings,   dental   &   Clinical
appearance, the age of Darga Ram @ Gunga S/o Heera is in  between  30  years
to 36 years and the average age of Darga Ram @ Gunga S/o Heera is  about  33
years on the date of examination.

Enclosure:- X Ray (8 plates) & CT Scan 4 Plates) as above.

Sd/-                   Sd/-                  Sd/-

(Dr. L.  Raichandani)          (Dr.  A.L.Chauhan)                 (Dr.  P.C.
Vyas)

Professor, Anatomy           PHOD, Radiodiagnosis       PHOD, forensic
Medicine

Dr. S.N. Medical College     Dr. S.N. Medical College     Dr.  S.N.  Medical
College

    Jodhpur                  Jodhpur                   Jodhpur"



13.   It is evident  from  the  opinion  tendered  by  the  Board  that  the
appellant's age has been placed in the range of 30 to 36 years.   The  Board
appears to have taken the average of two extremitees and concluded that  the
appellant's age on the date of the examination was about 33  years.  It  was
on the  basis  of  this  estimate  that  Mr.  Panjwani  contended  that  the
appellant should have been around 14 years, 2 months and 7 days old  if  his
age was 30 years on the date of medical examination. He should have been  17
years, 2 months and 7 days old on the date of the occurrence if his  age  is
taken as 33 years and 20 years, 2 months and 7 days if his age is  taken  as
36 years on the date of the medical examination.  It was  argued  that  even
if one were to accept the average of the two estimates in the range  of  30-
36 years, mentioned by the Medical Board, he was a juvenile on the  date  of
the occurrence being only 17 years, 2 months hence entitled to  the  benefit
of the provisions of the Juvenile Justice (Care and Protection of  Children)
Act, 2000.

14.   The appellant is reported to  be  a  deaf  and  dumb.   He  was  never
admitted to any school.   There  is,  therefore,  no  officially  maintained
record regarding his date of birth.  Determination of his age  on  the  date
of the commission of the offence is, therefore, possible only  by  reference
to the medical opinion obtained from the duly constituted Medical  Board  in
terms of Rule 12(3) (b) of the Juvenile  Justice  (Care  and  Protection  of
Children) Rules, 2007.  Rule 12(3)(b) reads as under:

"12. Procedure to be followed in determination of Age.-

(1) xxxxxxxxxxxxxxx

(2) xxxxxxxxxxxxxxx

(3)

(b) and only in the absence of either (i),  (ii)  or  (iii)  of  clause  (a)
above, the medical opinion will be sought from a  duly  constituted  Medical
Board, which will declare the age of the juvenile or child.  In  case  exact
assessment of the age cannot be done, the Court or  the  Board  or,  as  the
case may be, the Committee, for the reasons to be recorded by them, may,  if
considered necessary, give benefit to the child or juvenile  by  considering
his/her age on lower side within the margin of one year.

and,  while  passing  orders  in  such  case  shall,   after   taking   into
consideration such evidence as may be available, or the medical opinion,  as
the case may be, record a finding in respect of his age and  either  of  the
evidence specified in any of the clauses  (a)(i),  (ii),  (iii)  or  in  the
absence whereof, clause (b) shall be the conclusive  proof  of  the  age  as
regards such child or the juvenile in conflict with law"



15.   The medical opinion given by the  duly  constituted  Board  comprising
Professors of Anatomy, Radiodiagnosis and Forensic Medicine  has  determined
his age to be "about" 33 years on the date of the  examination.   The  Board
has not been able to  give  the  exact  age  of  the  appellant  on  medical
examination no matter advances made in that field. That being  so  in  terms
of Rule 12 (3) (b) the appellant may even be entitled to benefit  of  fixing
his age on the lower side within a margin of one  year  in  case  the  Court
considers it necessary to do so in the facts and circumstances of the  case.
The need for any such statutory concession may  not  however  arise  because
even if the estimated age as determined by the Medical  Board  is  taken  as
the correct/true age of the appellant he was  just  about  17  years  and  2
months old on the date of the occurrence and  thus  a  juvenile  within  the
meaning of that expression as used in the Act  aforementioned.  Having  said
that we cannot help observing that we have not felt  very  comfortable  with
the Medical Board estimating the age of the appellant in a range  of  30  to
36 years as on the date of the medical examination.  The general rule  about
age determination is that the age as determined  can  vary  plus  minus  two
years but the Board has in the case at hand spread  over  a  period  of  six
years and taken a mean to fix the age of the appellant at 33 years.  We  are
not sure whether that is the correct  way  of  estimating  the  age  of  the
appellant. What reassures us about the estimate of age is the fact that  the
same is determined by a Medical  Board  comprising  Professors  of  Anatomy,
Radiodiagnosis and Forensic Medicine whose opinion must get the  respect  it
deserves. That apart even if the age of the appellant was determined by  the
upper extremity limit i.e. 36 years the same  would  have  been  subject  to
variation of plus minus 2 years meaning thereby that he could as well be  34
years on the date of the examination.   Taking his age as 34  years  on  the
date of the examination he would have been 18 years, 2 months and 7 days  on
the date of the occurrence but such an estimate would be  only  an  estimate
and the appellant may be entitled to  additional  benefit  of  one  year  in
terms of lowering his age by one year in terms of  Rule  12  (3)(b)  (supra)
which would then bring him to be 17 years and 2  months  old,  therefore,  a
juvenile.

16.   In the totality of the circumstances, we have persuaded  ourselves  to
go by the age estimate given  by  the  Medical  Board  and  to  declare  the
appellant to be a juvenile as on the date of the occurrence  no  matter  the
offence committed by him is heinous and but for the protection available  to
him under the Act the appellant may have deserved  the  severest  punishment
permissible under law. The fact that the appellant  has  been  in  jail  for
nearly 14 years is the only cold comfort for us to let out of jail  one  who
has been found guilty of rape and murder of an innocent young child.

17.   In the result, this appeal succeeds  but  only  in  part  and  to  the
extent that while  the  conviction  of  the  appellant  for  offences  under
Section 302 and 376 of IPC is affirmed the sentence  awarded  to  him  shall
stand set aside with a direction that the appellant shall be set  free  from
prison unless required in connection with any other case.




                                  .........................................J
                                                               (T.S. THAKUR)





                                  .........................................J
New Delhi,                                                    (R. BANUMATHI)
January 8, 2015