DARGA RAM @ GUNGA Vs. STATE OF RAJASTHAN
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