AMIT @ AMMUversusSTATE OF MAHARASHTRA

                            AMIT@AMMU                                       A
                                    v.
                     STATE OF MAHARASHTRA

                           AUGUST 6, 2003

           [Y.K. SABHARWAL AND BRIJESH KUMAR, JJ.]                          B


      Indian Penal Code, 1860:

      Ss. 376 and 302-Rape and murder of a minor girl-Victim last seen
with the accused on the fateful day-Body of the victim located next day- , C
Prosecution case supported by medical evidence, statement of witnesses who
had seen the girl with the accused previous day and saw her dead body next
day, as also by recovery of articles-Conviction and sentence of death for
offence u/s 302 and JO years R.l. for offence u/s 376 awarded by Court of
Session-Confirmed by High Court-Held, death as suggested by medical D
evidence took place just about the time the deceased and the accused were
last seen together-No explanation has been offered by appellant in his
statement recorded u/s 313 Cr.P.C.-His defence is of complete denial-
Convictionfor offences u/ss. 302 and 376 has been rightly recorded by Court
of Session and affirmed by High Court-As regard sentence, considering the
age of accused at the time of incident, there being no record of any previous E
heinous crime nor any evidence to show that he would be a danger to the
society, the sentence is commuted to life imprisonment for offence u/s 302-
 The case does not fall in the category of rarest of rare cases-Circumstantial
evidence-Sentencing.

      Mohibur Rahman and Anr. v. State ofAssam, [2002) 6 SCC 715, relied     F
on.

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 376
of 2003.

     From the Judgment and Order dated 4.2.2003 of the Bombay High          G
Court in Crl. A: No. 625 of 2002 in Confirmation Case No. I of 2002.

      M.R. Daga, C.R. Thakur and R.S. Lambat for the Appellant.

      Ravindra Keshavaro Adsure for the Respondent
                                   285                                      H
    286                     SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A         The following Order of the Court was delivered

           The dead body of deceased, a young child aged about 11-12 years and
    student of VI standard, was first sighted by PW! on 29th March, 2001 at
    about 3.45 p.m. Immediately, he reported the matter to the concerned police
    station. His oral report was recorded into writing i.e FIR Ex. No. 28.
B
          On Ex. 28, it has been recorded that on 29th March, 200 I, PWI
    accompanied by Ajay PWII, had gone to the rear portion of a place known
    as Gaimukh for grazing she-buffaloes. One of the buffaloes went· in a
    dilapidated building close-by. In order to drive out that animal on going
    inside, he noticed the dead body of a school girl in school uniform lying in
C   supine condition. He informed the police. The two police officials came to
    the site along with him. The said unidentified girl was seen by him the
    previous day as well in the forest in the area where he usually goes for          I
    grazing of the animals. At that time she was in the company of a boy aged         1--
    20 years. She was carrying school bag. At that time too, PWII was with PWI..
D   The description of the boy has also been given. The said boy was having with
    him bicycle like that of Ranger type. The boy on being asked gave his name
    as 'Gandhi' and stated that the name of the accompanying girl is Vidya who
    was his sister and as her family members were going to come to Devi Temple,
    he had brought her directly from her school. Both were brought up to the
    road and went away by sitting on the bicycle. The girl seen by PWII was the
E   same whose body had been found. The investigation led to the arrest of the
    appellant at 11.00 p.m. on 29th March, 200 I.

          The father of the deceased and the appellant work in same office.
    Deceased and the appellant knew each other. The appellant was charged and
F   found guilty of offence under Section 302, IPC for the murder of the deceased
    as also for her rape under Section 376, IPC. The Sessions Court, for offence
    under Section 302 awarded death penalty and for offence under Section 376,
    rigorous imprisonment for I 0 years. Compensation of Rs. 25,000 in terms of
    the judgment of the Sessions Court was awarded under Section 357, Cr. PC
    for being paid to the parents of the victim for "ruental torture, agony and the
G   loss sustained of their only female child.

            The High Court by impugned judgment has confirmed the award of
      death penalty to the appellant as also other sentences and compensation
      awarded. The appellant aggrieved therefrom has approached this Court on
    . grant of leave.
H
               AMIT @AMMU v. ST ATE OF MAHARASHTRA                         287

        The facts which are fully established and have also not been disputed      A
by the learned counsel for the appellant in brief may first be noticed. The
appellant knew the deceased. His father and that of deceased were colleagues.
The appellant at about 11.30 AM had gone to the house of the deceased on
28th March, 2001 and had enquired about the deceased as deposed to by
PW6, the elder brother of the deceased. PW6 told the appellant that the
deceased had not come back from the school. In his statement under Section         B
3 I 3, CrPC the appellant admitted to have so gone to the house of the deceased.
The father of the deceased PW5 used to drop her daughter at the school and
as usual on 28th March, 2001 at about 7.30 A.M. he dropped her at the
school. She used to return home from school around 12.00 noon. Since on
that date, she did not return, mother of the deceased informed her husband         C
on telephone. He rushed back home from the office and they searched for
their daughter and ultimately not finding her, a missing report was lodged by
PW5.

      On consideration of the oral and documentary evidence adduced by the
prosecution, the Sessions Court held the appellant guilty. The High Court on       D
detailed and critical examination of evidence has upheld the conviction and
sentence awarded by the Sessions Court. Reliance has been placed, inter alia,
on Post-mortem report-Ex.57 and recovery articles such as match box used
for burning the school bag, bycycle etc. Out of the deposition of the witnesses,
the prosecution case was primarily based on the testimony of PWI and PWII          E
and on the circumstance of last seen as deposed by these two witnesses.

       As already noticed body of deceased was recovered on 29th March,
2001. It stands established that the same was recovered from a dilapidated
building in the remote area of the forest as deposed to by PWI and PWII. As
per the post-mortem report the case of death is strangulation. It also shows       p
the commission of the sexual assault on the deceased prior to her death. It
may be noted that the defence admitted.the post-mortem report. An argument
was sought to be urged that the post-mortem report could not be relied upon
in view of contradictions therein. The contradiction pointed out by learned
counsel is that on one hand, the report states that the body had early signs
of decomposition and on the other, all the injuries have been stated to be         G
fresh. There was no requirement to note whether the injuries were fresh or
not. Further, the post-mortem report having been admitted it is not open to
                                                                                       /
the appellant to criticize the recitals therein without giving an opportunity to
the doctor to explain it.
    288                      SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A          The main submission of learned counsel for the appellant is that unless
    time of death is established it is not pennissible to rely upon circumstance of
    last seen so as to convict the appellant. The main circumstance against the
    appellant is of last seen with the deceased as deposed by PWI and PWII. We
    have carefully examined the testimony of PWI and PWII. Their evidence is
B   trustworthy and reliable. It has ring of truth. It stands fully established that
    they had seen the deceased and the appellant on 28th March as noticed
    hereinbefore. Apparently, both left as deposed by PWI but as the circumstances
    show that, in fact, they did not leave. When the next day PWI again came
    to the same area for grazing or buffaloes, he found the body of the deceased
    whereupon the matter was reported the police and FIR recorded and
C   investigation conducted as noticed earlier. It has also come in evidence that
    usually PWI used to go to the same area for grazing of the animals which was
    a secluded area and also had a dilapidated building. It is apparent from the
    site plan as well. Regarding the contention that the time of the incident had
    not been established and therefore the circumstance of last seen is not sufficient
    to convict the appellant, the High Court on examination of the evidence has
D   reached the following conclusion:-

                "In the instant case, the region being temperate, rigor mortis lasts
            for about two to three days. If we :ipply this analogy, then at the time
            of post-mortem examination, which was conducted on 30.3.200 I and
            begun at l l .40 a.m., the doctor did not find rigor mortis. That means
E           the time of death must have been on 28.3.2001 between 3.00 p.m.
            and 4.00p.m., since the rigor mortis in a temperate region lasts for
            two days. This is not the case, therefore, where time of death cannot
            be ascertained on the basis of these recognised guidelines, merely
            because tpe same is not given in the post-mortem report. In our
F           considered view, this is not the circumstance which affects the material
            particulars of the prosecution case in the crime in question."

    We are in complete agreement with the conclusion of the High Court on the
    aspect of time of the death.

G          Learned counsel for the appellant has placed reliance on the decision
    of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a
    member in Mohibur Rahman & Anr. v. State of Assam, [2002] 6 SCC 715
    for the proposition that the circumstance of last seen does not by itself
    necessarily lead to the inference that it was the accused who committed the
    crime. It depends upon the facts of each case. In the decision relied upon it
H   has been observed that there may be cases where, on account of close proximity
               AMIT @AMMU v. ST ATE OF MAHARASHTRA                        289
of place and time between the event of the accused having been last seen         A
with the deceased and the factum of death, a rational mind may be persuaded
to reach an irresistible conclusion that either the accused should explain how
and in what circumstances the victim suffered the death or should own the
liability for the homicide. The present is a case to which observation as
aforesaid and principle laid squarely applies and the circumstances of the       B
case cast a heavy responsibility on the appellant to explain and in absence
thereof suffer the conviction. Those circumstances have already been noticed.
In which case such an irresistible conclusion can be reached will depend on
the facts of each case. Here it has been established that the death took place
on 28th March between 3 and 4 p.m. It is just about that much time that the
appellant and deceased were last. seen by PWI and PWII. No explanation has       C
been offered in statement by the appellant recorded under Section 313, Cr.PC.
His defence is of complete denial. In our view, the conviction for offence
under Sections 302 and 376 has been rightly recorded by Court of Sessions
and affirmed by the High Court.

      The next question is of the sentence. Considering that the appellant is    D
a young man, at the time of incident his age was about 20 years; he was a
student; there is no record of any previous heinous crime and also there is no
evidence that he will be a danger to the society, if the death penalty is not
awarded. Though the offence committed by the appellant deserves serve
condemnation and is a most heinous crime, but on cumulative facts and            E
circumstances of the case, we do not think that the case falls in the category
of rarest of the rare case. We hope that the appellant will learn a lesson and
have opportunity to ponder over what he did during the period he undergoes
the life sentence. Having regard to the totality of the circumstances, we
modify the impugned judgment and instead of death penalty, award life
imprisonment to the appellant for offence under Section 302, IPC. In all
other respect, the impugned judgment is maintained. The appeal is allowed
to this limited extent.

R.P.                                                        Appeal allowed.