M.Y. Iqbal, J.
1. The appellants, two in number, were arrayed as A1 and A2. Appellant No. 1 namely, Suresh Prasad Mehta @ Mahto and appellant No. 2 namely, Mukesh Kumar Mehta @ Mahto, both aged about 20 years, were charged under Section 364-A, 323, 376, 302 and 201/34 of Indian Penal Code The allegation against the appellants is that while PW 12 Bishun Mahato was returning with his daughter, Malti Kumari, from Gaddi after selling potatoes, they were waylaid at 6.00 p.m. on 10.12.2001 and that thereafter injuries were inflicted on PW 12 Bishun Mahato, as he could not pay any amount as demanded by the appellants and further PW 12 was asked to go and bring a sum of rupees twenty thousand to get his daughter Malti Kumari released from their custody and further she was raped and murdered. The trial Court: finding the appellants guilty as charged sentenced each of them to death under Section 364A, 302/34of Indian Penal Code; each of them was directed also to pay a fine of Rs. 10,000/- under each count without stipulating the default sentence. On being found guilty under Section 323/34, IPC for causing simple injuries to PW 12, each of them was sentenced to one year rigorous imprisonment and for the offence punishable under Section 376 read with Section 34 of Indian Penal Code, each of them sentenced to life imprisonment and also to pay fine of rupees ten thousand with default sentence of six months. On being found guilty under Section 201/34, IPC, each of them was sentenced to seven years rigorous imprisonment and also to pay fine of rupees five thousand with default sentence of one year. The present appeal is against the said conviction and sentence and the Death Reference No. 1 of 2005 is by the Sessions Judge seeking confirmation of the death sentence by this Court.
2. The facts which led to the prosecution of the appellants and their ultimate conviction, as stated above, can be briefly summarized as follows :
3. Malti Kumari, aged abut 10 years, is the daughter of PW 12 Bishun Mahato who was an agriculturist by profession. On 10.12.2001, Bishun Mahato, accompanied by his daughter Malti Kumari, left his village for Gaddi along with potato crops. After selling potato, PW 12 and his daughter Malti Kumari were returning to the village in a bullock cart. While they were at some distance from the boundary of Ichak Block, the appellants and one another person, appeared before their bullock cart and after stopping it, pushed PW 12. The 1st appellants Suresh Pd. Mehta then directed the third person to tie the buffalo. The appellants and the third person took PW 12 to Karbala, which is a ground nearby where PW 12 was asked to part with rupees twenty thousand saying that if the amount is not paid, they will not release them. PW 12 did not have any money with him and told the appellants and the other person that he received only a credit slip towards sale of potato and he had no money. On being informed by PW 12 that he had no money, the appellants and the other person became angry and asked PW 12 to go and bring rupees twenty thousand from the village, so that his daughter could be released. PW 12 was also beaten by the 1st appellants on his cheek with a knife. PW 12 was advised to meet them at Sal Pahar to get the release of his daughter. He was also threatened not to raise any alarm and that if he raised alarm as regards the detention of Malati Kumari, she will be done to death. PW 12 therefore had to leave for his village. On reaching home, he informed his wife PW 11, Bandhani Devi and his mother about the incident. He requested his wife and his mother not to become panicky and also asked them not to raise alarm inasmuch as if they raised alarms, villagers will come to know about the occurrence and there was every likelihood that their daughter Malti Kumari would be murdered. Inspite of the request made by her husband, PW 11 could not contained herself and raised hue and cry. Thereafter, the villagers gathered and PW 12 was taken to Police Station by the Chaukidar of the village. PW 12 gave fardbeyan (Ext. 4) at 10 a.m. on 11.12.2001 to PW 15 Sub-Inspector. The crime was registered and investigation taken up.
4. PW 15, Investigating Officer of Ichak P.S. (Hazaribagh) proceeded to the place where PW 12 and his daughter were accosted by the appellants but at that place they did not find any one. On the next day, Investigating Officer, the Police Officer and the villagers searched for the deceased at various places, including Ranchi Patna Road. At 1.30 p.m. on that day, while witnesses, including PW 12 and the Police Officer were searching for the appellants and the deceased, they found the appellants sitting on a culvert near the road. On seeing them, PW 12 informed PW 15 that the appellants were two of the persons who had accosted him and his daughter. PW 15 and others immediately went towards the appellants who, on seeing the police party, attempted to flee from that place, but they were chased and apprehended by the Police. They were questioned in the presence of the witnesses, i.e. PW 10 Umar Mahato and another. The appellants gave statements to the Police. Thereafter, they took the Police party to Lakabagha Jungle and pointed to a place from where the dead-body of the deceased Malti Kumari was recovered. Inquest was conducted over the dead-body by PW 15 and later the dead-body was dispatched to the Hospital for the purpose of autopsy.
5. On receipt of requisition and the dead-body, PW 1 Dr. Mahendra Choudhary, conducted autopsy on the dead-body of the deceased Malti Kumari and found the following injuries :
(i) Incised would 1' x 1' x bone deep on right chin.
(ii) Incised would 1' x 1' x abdominal cavity deep on right upper part of the abdomen, the colour of wound is dark, red and blood stained.
(iii) Incised wound 1' x 1' abdominal cavity on right upper part of the abdomen, the colour of wound is dark, red and blood stained and part of omentum is out from abdominal cavity.
(iv) Incised wound 1' x 1' x abdominal cavity on right middle part of abdomen, the colour of wound is dark, red blood- stained with part of small intestine out from the abdominal cavity.
(v) Incised wound 4' x 3' x abdominal cavity deep on right lateral part of the abdomen, the colour of the wound is dark, red and blood stained the part of small intestine and part of large intestine out from abdominal cavity through this wound.
The doctor issued Ext. 1, the postmortem certificate. In his opinion, the death could have occurred within 48 hours and it could only be due to shock and haemorrhage resulting from injuries on the dead-body and that the said injuries could have been caused by sharp cutting weapon.
6. It is also to be mentioned at this stage that before the dead-body was subjected to post-mortem, it was also examined by PW 7 Dr. R.S. Vendana, and on the report given by PW 7, PW 1 Dr. Mahendra Choudhary who conducted autopsy could not give a definite opinion as regards rape before the commission of her murder. PW 12 who suffered injuries was also examined by PW 13 Dr. Ram Pukar Prasad who found the following injuries on his person.
(i) Scratch 1/4' x 1/6' with swelling 2' x 1' on left mandible;
(ii) Swelling 3' x 2' on right side of scapular region caused by hard and blunt substance.
7. The doctor, PW 13 gave injury certificate. In his opinion, the injuries were simple in nature.
8. After the completion of investigation final report was filed against the appellants.
9. When the appellants were questioned under Section 313, Cr PC they denied all the incriminating circumstances. They did not examine any witness on their side.
10. Learned Counsel for the appellants submits that since the prosecution had to rely upon the circumstantial evidence and the prosecution not having established all the links in the chain of circumstances, the appellants are entitled for acquittal.
11. We have heard the learned Counsel appearing for the State. We have also perused the evidence recorded by the trial Court.
12. There is no doubt that Malti Kumari died on account of homicidal violence. The doctor PW 1 who conducted autopsy and issued the post-mortem Exhibit-1 deposed that the death of Malti Kumari was on account of shock and haemorrhage due to the injuries suffered by her. We, therefore, hold that Malti Kumari died on account of homicidal violence.
13. The prosecution before the trial Court in order to establish the allegation that the appellants (and another who was found absconding during the course of the investigation and trial) accosted PW 12 and his daughter Malti Kumari and that later after demanding a ransom of rupees twenty thousand for release of Malti Kumari, raped and murdered her relied mainly on the evidence of PW 12 and the subsequent arrest of the appellants and recovery of the dead-body of Malti Kumari on being pointed by the appellants.
14. According to PW 12 father of the deceased, he was returning to the village along with his daughter Malti Kumari in a bullock cart after selling potatoes at Gaddi. According to him, while they were near the scene of the occurrence, the two appellants (and another accused) accosted him as well as his daughter and later the girl was caught by the appellants and that he was asked to pay money. According to him, when he expressed his inability to pay the money as he had none, he was chased away to the village with a direction to bring 20,000/- to get his daughter, Malti Kumari released and that according to him, he went to the village, informed his wife PW 11 Bandhani and his mother. It is his further evidence that he requested his wife and mother not to raise alarm, as he was apprehensive that if there is hue and cry in the village, the persons who are holding the girl, for ransom are likely to murder her. Inspite of the request of PW 12, his wife PW 11, being mother of Malti, raised alarm and villagers gathered. His evidence further shows that thereafter Chaukidar came and later he took PW 12 to the Police Station where a complaint was lodged with the Police Officer PW 15. The evidence further discloses that after the complaint was given, PW 15 along with PW 12 went to the place where the deceased Malti was waylaid, but they did not find either the appellants or the deceased. According to PW 12, search was mounted and during the search, the two appellants were seen sitting on a culvert, at Patna Ranchi Road. On seeing them, PW 12 informed PW 15 that they were the two persons who were present along with another when they were accosted. Thereafter, the appellants were chased and caught by the Police and questioned in presence of the PW 10 Umar Mahato and another.
15. On going through the evidence of PW 12 and PW 15 on the above aspect, we find no infirmity in their evidence. The evidence of PW 12 is fully corroborated by the evidence of other witnesses, especially by the evidence of PW 11, wife of PW 12. The evidence of PWs 11 and 12 shows that PW 12 had left for Shandy along with his daughter and returned home without his daughter and had informed his wife PW 11 that his daughter had been taken by the appellants for ransom. It also shows that complaint was immediately given with the village Chaukidar and thereafter, the villagers and the Police searched for Malti Kumari and during the course of search, they found the appellants 1 and 2 who were chased and caught, None of the witnesses,. PW 10 who was present when the accused were questioned by the Police Officer, PW 12 who gave complaint and suffered injuries at the hands of the appellants, and PW 15 who apprehended the appellants, had any motive to give false evidence against the appellants. On the contrary, PW 12's evidence is not only supported and corroborated by the oral evidence of PW 11, wife of PW 12 but also by the evidence of the doctor PW 13 who examined PW 12 and found the injuries on his person. It is, therefore clear that PW 12 and his daughter were accosted, as claimed by PW 12, and that the daughter of PW 12 was taken as hostage for the purpose of collecting ransom from PW 12. The evidence also shows that the appellants were arrested on 12.12.2001, on the third' day of the incident. The evidence of PW 12 and PW 10 Umar and PW 15 the Investigating Officer also shows that the appellants were questioned and that they took the Police to a jungle and showed the bush from which the dead-body of Malti was recovered. It is therefore clear that but for the appellants being apprehended on 12.12.2001, the dead-body of the deceased could not have been recovered from the bush in the jungle. In the State of Maharashtra v. Suresh reported in 2000 (1) SCC 471, the Supreme Court held that when the dead-body is recovered on the statement of an accused then three possibilities are there : (i) that the accused would have seen someone else concealing the dead-body at that place; (ii) he would have been told by some one else that the dead-body was concealed there, and (iii) he himself concealed the dead-body.
16. The Supreme Court further held that if the accused does not tell the Court about the happening of any of the two possibilities, then the Court can presume that the accused had himself concealed the dead-body. This is because according to the prosecution, the accused is the only person who could offer an explanation as to how he came to know of such concealment and if he chooses to refrain from telling the Court as to how he came to know about it, the presumption is a well-justified course to be adopted by the Criminal Court that the concealment was made by the accused and such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.
17. At this stage, an useful reference- can also be made to the judgment of the Supreme Court in the case of Joseph v. State of Kerala, reported in 2000 (2) SCC (Cri) 926. The Supreme Court held that if the accused flatly denies all the incriminating circumstances, then such a flat denial is an additional link in the chain of the circumstances. In the case of Deonandan Mishra v. State of Bihar AIR 1955 SC 801, it was held by the Supreme Court that where various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation, or false explanation would itself be an additional link which completes the chain.
18. We have already found that the appellants were arrested by PW 15 when they were seen by PW 12 after they were chased and caught when they were seen sitting on the culvert. Later, when they were questioned and taken by the Police, they pointed the place wherefrom the dead-body of Malti was recovered. In the above situation, it is for the appellants to give an explanation as to how they came to know that the dead-body of Malti Kumari is kept concealed underneath the bush in the jungle. They have not offered any explanation. The absence of explanation and their flat and outright denial on being questioned under Section 313, Cr PC are additional links in the chain of circumstances, which support the prosecution version that the appellants waylaid PW 12 and held Malti Kumari as hostage for collecting ransom of Rs. 20,000/- from PW 12 and later murdered the deceased Malti Kumari. We therefore hold that the deceased Malti was murdered by the appellants, though we find that there is no definite evidence as regards rape allegedly committed by the appellants on the deceased Malti Kumari, since the doctor, PW 7, who examined the dead-body of the deceased to find out symptoms of rape and the evidence of the doctor PW 1, who conducted the autopsy, stated in their evidence that they could not give any definite opinion about rape of the deceased girl.
19. We, therefore, while confirm the conviction of the appellants under Section 323, Indian Penal Code for causing injuries to PW 12, under Section 364-A, for kidnapping the girl for ransom and under Section 302 of the Indian Penal Code for murdering the deceased Malti Kumari and under Section 201 of the Indian Penal Code for concealing the dead-body of the deceased in order to screen the offence, acquit them of the offence under Section 376 read with Section 34 of the Indian Penal Code.
20. The only question now to be decided by us is the nature of the sentence to be imposed upon the appellants. The trial Judge sentenced each of them to death by holding that the appellants committed rape on the deceased Malti Kumari in order to satisfy their unwarranted and inhuman sexual lust in a most diabolic manner. So the trial Court was prompted to give death sentence only on account of being swayed away by the fact that the deceased Malti Kumari was subjected to rape and murder. We have already found that the prosecution did not satisfy by definite evidence for holding that the deceased girl was subjected to rape before murder. At this juncture, an useful reference can be made to the Constitution Bench judgment of the Supreme Court in the case of Bachan Singh v. State of Punjab, : 1980CriLJ636 . The Supreme Court while laying down the guidelines as to the circumstances under which death sentence should be awarded, observed as follows :
There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. (We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society). Nonetheless, it cannot be over emphasized that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high road of legislative policy outlined in Section 354(3), viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
21. On the facts and circumstances of the case, we find that it is not the rarest of rare cases where the appellants are to be punished with extreme penalty of law. Therefore, while we confirm the conviction of the appellants under Section 364-A, 323, 303, 201 read with Section 34 of Indian Penal Code, set aside the sentence of death and reduce it to one under life imprisonment. Sentence of imprisonment imposed upon the appellants under Section 323/34 of Indian Penal Code are confirmed with the direction that the substantive sentence of imprisonment will run concurrently. The fine imposed upon the appellants are also confirmed with further direction that in the event of non-payment of the fine under Section 364-A, and 302 read with Section 34 of the Indian Penal Code, they are directed to suffer imprisonment for a period of five years under each count. The conviction and sentence of the appellants under Section 376/34, IPC are set aside. The fine, if paid, under the said charge will be refunded to them.
22. With the above modifications, the appeal is dismissed. The death reference is answered in the negative.