Molai Ram, Santosh Yadav vs state of MP – Judgment Copy 1996

CASE NO.:
Appeal (crl.)  678 of 1999

PETITIONER:
MOLAI AND ANR.

RESPONDENT:
STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 26/10/1999

BENCH:
S.P. KURDUKAR & K.T, THOMAS & N. SANTOSH HEGDE

JUDGMENT:
JUDGMENT

1999 Supp(4) SCR 104

The Judgment of the Court was delivered by

S.P. KURDUKAR, J. This criminal appeal is filed by the two appellants
challenging the legality and correctness of the judgment and order of
conviction and sentence passed by the High Court on 9.12.98 in Criminal
References Nos. 3/97, 4/97 and Criminal Appeal No. 525/9? upholding
convictions and sentence passed by the Additional Sessions Judge, Reeva,
for offences punishable under Sections 376(2Xg), 302/34 and 201 of the
Indian Penal Code. Trial Court awarded Capital Punishment to both the
appellants subject to confirmation by the High Court. The High Court of
Madhya Pradesh vide its judgment and order dated 9.12.98 upheld the
conviction and confirmed death sentence of both the appellants.

The first appellant Molai (A-2) at the relevant time was working as a guard
in Central Jail, Reeva. the second appellant, Santosh (A-1) was a prisoner
undergoing a sentence for an offence under Section 376 I.P.C. and was kept
in Central Jail, Reeva.

The prosecution case unfolded at the trial is as under:

R.S. Somvanshi (PW 6) was posted as an Assistant Jailor at Central Jail,
Reeva. He was having his quarter in the Jail compound and was staying
alongwith his wife, two daughters, namely, Naveen aged about 16 years
(since deceased), Pratibha (PW 3) aged about 12 years and a son. Some more
jail officers were also staying in the same jail compound. The adjoining
quarter no. 3, was occupied by Mr.    R.K. Mishra, Assistant Jailor and was
residing with his wife Shobha Mishra (PW 2) and a daughter Ruchi Mishra (PW
1). Another neighbouring quarter was occupied by Assistant Jailor Shyamji
Singh (PW 7). Krishna Kumar Pathak, who also happened to be the Assistant
Jailor attached to the Central Jail, Reeva was residing in the tame campus.

The incident in question took place on February 20,1996 between 10 and 11
a.m. Mr. R.S. Somvanshi (PW 6) had left his house on that day at about 9
a.m. for his official duty whereas pratibha (PW 3) had left for her school
at about 7.30 am Naveen was studying in 10th standard and as she had
finished her practical examination, she was staying at home and preparing
for annual examination. The wife of Mr. Somvanshi (PW 6) had gone to her
parents house along with her son. Resultantly Naveen at the relevant time
was alone in the quarter. On the day of incident, Molai (A 2) was sent by
Somvanshi (PW 6) to look after his quarter and also to do the house job.
Santosh (A 1) who was undergoing a sentence, was also sent to the quarter
of Somvanshi (PW 6) to do the work in garden attached to the said quarter.
This is how both the appellants Al and A2 were working at the quarter of
Somvanshi (PW 6) between 9 a.m. and 1 p.m. on February 20, 1996.

At about 10 a.m. a shriek was heard by Ruchi Mishra (PW 1) and Shobha
Mishra (PW 2) coming from the quarter of Somvanshi (PW 6). Both of them
came out of their quarter to find out the reason thereof. But nothing
suspicious was found from outside. The door was however found closed. At
about 11 a.m. Ruchi Mishra (PW 1) went to return a cassette to Naveen and
when she gave a call to Naveen there was no reply. She then noticed that
both the accused were standing outside the quarter and they told Ruchi
Mishra (PW 1) that Naveen was not in the house and that she had gone along
with her friend. At about the same time Shailendra (PW 4) and his friends
were playing cricket near the quarters of the jail officers and it so
happened that cricket ball went towards the quarters of Somvanshi (PW 6).
When he was searching the ball he noticed both the accused standing in
front of the quarter. After some time Ruchi Mishra (PW 1) came out of her
quarter and noticed that Santosh (A 1) was taking away the cycle of Naveen
towards the back side of the quarter.

At about 12 noon Pratibha (PW 3) returned home from the school and found
that her sister was not there. She, therefore, enquired with the accused
who told her that she had gone on cycle along with her friend. At about
12.30 p.m. Molai (A 2) told Pratibha (PW 3) that some snacks were kept for
her and she may eat the same. At about 1 p.m. Molai (A 2) left the house.
Somvanshi (PW 6) returned to his house from his duty at 1.30 p.m. and found
that Naveen was not there. He enquired from Pratibha (PW 3), who told him
that the accused persons had told her mat Naveen had gone with her friend
on a cycle. Somvanshi (PW 6) at about 3 p.m. went to his office and
returned at 6 p.m. Somvanshi (PW 6) again enquired as to whether Naveen had
come back but Pratibha (PW 3) told him that she had not returned so far. At
that time both the accused had come back to do the work and they also told
Mr. Somvanshi (PW 6) that Naveen had gone on a cycle along with her friend.
This caused a great anxiety to Somvanshi (PW 6), who then started searching
Naveen. He also enquired with Naveen’s friends but they told that she had
not come to their house. In the evening both the accused returned to their
respective barracks.                                      .

On 21.2.96 when Somvanshi went to the cattle shed, which is outside the
quarter and near the septic tank, he noticed that the cover of the said
tank was displaced and a blue colour frock of Naveen was floating in the
said tank. He, therefore, went to the police station and lodged a report
Exh. P-1. Police party then arrived at the spot and after removing the
cover of the septic tank the dead body of Naveen was taken out. After
making the inquest panchnama, the body was sent to the hospital for post
mortem examination. During, the investigation they suspected Santosh (A 1)
and Molai (A 2) might be the offenders and, therefore, they were taken into
custody on 21.2.96. During the investigation Santosh (A 1) made a statement
under Section 27 of the Evidence Act which led to the recovery of a cycle
from the septic tank, One Toulia of white khadi, one handkerchierf, cotton
underwear of khadi, and a piece of khadi cloth (white) were also recovered
which were concealed in the Parchhi (where the cow fodder was stored).
Molai (A 2) also made a disclosure statement under Section 27 of the
Evidence Act, which led to the recovery of piece to Pajji, one bed-sheet
and a Pajji, which were concealed in the fodder in the Parchhi A knife,
which was concealed in the heep of cow dung cakes was also recovered.
Santosh (A 1), who had some injuries on his person, was sent for medical
examination and was accordingly examined. The incriminating articles
recovered at the instance of both the accused were sent to F.S.L. Sagar for
examination. After receipt of the report and on completion of the
investigation a charge sheet came to be filed against both the accused for
offences punishable under Section 376, 302/34 and 201 of the Indian Penal
Code. The criminal case was then committed to the Sessions Court for trial

The Additional Sessions Judge framed the charges against appellants for the
offices mentioned hereinabove. Both the appellants (accused) pleaded not
guilty to the aforesaid charges and pleaded that they are innocent and were
falsely implicated. Molai (A 2) pleaded that on 20.2.96 he was posted at
cloth godown, which was under the supervision of Somvanshi (PW 6) and was
working there from 8 a.m. to 11 a.m. and after closing the godown be went
to the court as he was to appear before Sari Srivastava Magistrate, and
after attending the court he left for his village at 12.30 p.m. He also
produced certified copy of the Roznama dated 202.1996 (Ex. D-9).

thus both the accused prayed that they be acquitted.

The prosecution case soly rested on circumstantial evidence and in order to
bring home the guilt of both the appellants (accused) the prosecution at
the trial relied upon the following circumstances :-

(1)    On 20.2.1996 Molai (PW 6) when Ku. Naveen was alone inside the
house. Santosh (A 1) was working in the garden around the quarter of
Somvanshi (PW 6). They came at about 9 a.m.

(2)    Shrieks were heard at about 10 a.m. by Ruchi Mishra Shobha Mishra,
PW 2 and Shailender (PW 4).

(3)    Both accused falsely told to Ku. Ruchi Mishra (PW 1) and Shailender
Singh (PW 4) at about 11 a.m. that Ku, Naveen had gone with her friend on
cycle.

(4)    At about 11.30 a.m. Santosh (A 1) was seen by Ruchi Mishra (PW 1)
taking cycle of Naveen towards the back side of her house. Both the accused
thus made a false statement as regards whereabouts of Ku. Naveen and her
cycle to these two witnesses.

(5)    At about 12 noon when Pratibha (PW 3) returned from her school, both
the accused falsely told her that Naveen had gone on cycle with her friend.

(6)    Both the accused had an opportunity to commit the offences.

(7)    Santosh (Al) was having nail injuries on his person.

(8)    Medical evidence on record has proved that Ku. Naveen was raped and
thereafter she was strangulated and stabbed.

(9)    Recovery of certain incrimination articles pursuant to the
disclosure statement recorded under Section 27 of the Evidence Act of A-l
and A-2, Some of these articles were identified to be of Naveen which had
blood and semen stains.

(10)  The plea of alibi taken by both the accused was found to be false.

The circumstances mentioned at SI. Nos. 1 to 4 could be taken together
since the witnesses in this behalf are common. As regards the first
circumstance Mr. Somvanshi (PW 6), who was the Assistant Jailor has stated
that he had asked Molai (A 2)’to go to his quarter and do the work in his
house. He stated that Santosh (Al) was also doing the work in the garden
when he left. He refers to the practice followed in that jail where the
prisoners were sent to do such work in the garden around the quarters. This
evidence also gets corroboration from the defence witness Ramraj Saundhia
(DW 1), who was working as a Head Constable at the Central Jail Reeva. He
stated that Molai (A 2) was working as a guard and he had taken 5
prisoners, one of them being Santosh (A 1) to work in garden No. 5-6. Ruchi
Mishra (PW 1), Shobha Mishra (PW 2) and Shailender (PW 4) in their evidence
have also stated that Molai (A 2) was working in the house whereas Santosh
(A 1) was working in the garden. Thus the presence of both accused at the
relevant time stands established,

The three other circumstances, namely, hearing of shriek at about 10 a.m.,
both the accused falsely telling Ruchi (PW 1} and Shailender (PW 4) that
Naveen had gone with her friend on cycle and the same falsehood was
repeated to Pratibha (PW 3) when she came from her school at about 12 noon.
Ruchi Mishra (PW 1) in her evidence has stated that when she was sitting in
the verandah she heard shrieks coming from the house of Somvanshi (PW 6).
Shobha Mishra (PW 2) is the mother of Ruchi Mishra (PW 1) who was then
working in the kitchen also heard shrieks. Both of them went towards the
house of Somvanshi (PW 6) but they did not notice anything unusual and
therefore, they came back to their quarter. They also heard the barking of
a dog. Shailender (PW 4), who was playing cricket with his friends in front
of his quarter also heard shrieks and when he came near the quarter of
Somvanshi (PW 6) he did not see anybody around the quarter of Somvanshi (PW
6} and, therefore, he came back and started playing the cricket. All these
three witnesses were cross-examined on behalf of defence but there is
nothing in the evidence to discredit them on any score. Minor omissions,
namely, that Ruchi (PW 1) and Shobha Mishra (PW 2) did not state before the
police mat after hearing the shrieks they came out of their quarter. The
courts below have attached no importance to this omission and in our
opinion rightly because both these witnesses as well as Shailender Singh
(PW 4) have consistently stated mat they heard shrieks coming from me house
of Somvashi (PW 6) at about 10 a.m.

Ruchi (PW 1) and Shobha (PW 2) have asserted that when they went near the
quarter of Somvanshi (PW 6) they did not see either of the accused and UK
door of the quarter was closed. The evidence of Shailender (PW 4) also
corroborates the evidence of Ruchi Mishra (PW 1) and Shobha Mishra (PW 2)
in this behalf. He has stated that when he was playing a cricket he heard
the shrieks at about 10 a.m. and after some time when he went to search his
ball near the quarter of Somvanshi (PW 6) both the accused were not seen in
the compound and the door was closed. It was suggested to Shailender Singh
(PW 4) that he was not playing the cricket at the relevant time and he was
responsible for the present crime. He denied the said suggestion. There is
nothing in the evidence of Shailender Singh (PW 4) which would persuade us
to disbelieve his evidence. Thus the evidence of all these three witnesses
unerringly establishes that about 10 a.m. shrieks were heard by them.
Santosh (A 1) was not in the garden, Molai (A2) wag working in the house
and the door of the quarter was closed.

In continuation of the above chain of circumstances Ruchi Mishra (PW 1) and
Shailender Singh (PW 4) have stated mat when they asked A-l and A-2 about
Naveen they told them falsely that Naveen had gone with her friend on
cycle. Evidence of Ruchi Mishra (PW I) is quite clear and emphatic that
when she had gone to the house of Naveen to return her cassette, both the
accused falsely told her that Naveen had gone along with her friend on
cycle. Thus the first three circumstances were rightly held proved by the
courts below.

At about 11.30 a.m. Ruchi Mishra (PW I) saw Santosh (A I) taking the cycle
of Naveen towards the back side of her house. This has significance because
both the accused had told Ruchi Mishra (PW I), at about 11 a.m. that Naveen
had gone along with her friend on cycle. The evidence of Ruchi Mishra (PW
I) clearly proves that both the accused gave false information in this
behalf. This clearly shows that Naveen had not gone with her friend on
cycle but it was very much there.

The next circumstance that when Pratibha (PW 3) returned to her house from
her school at about 12 noon she asked the whereabouts of Naveen to accused
persons. Thereupon both of them had told her that she had gone along with
her friend on cycle. Molai (A 2) told her that Naveen had kept some snacks
and she may take the same.

The above set of circumstances thus clearly indicates that Naveen was alone
in the house when Molai (A 2) was working in the house at about 9 a.m. and
thereafter Santosh (A 1) had come to work in the garden. They were together
till 12 noon and during this period A-l and A-2 had an opportunity to
commit the present crime.

Both the accused did not dispute that Naveen had met with a homicidal
death. The medical evidence in the present case assumes a great importance
because it supports the prosecution case as regards the rape, strangulation
and thereafter causing a stab injury on the person of Naveen, Dr. B.K.
Sharma (PW 10), who was attached to Forensic Medicine Department, Medical
College, Reeva, in his evidence has stated that dead body of Ku. Naveen was
brought to the Medical College Hospital on 21.2.96 at about 12.45 p.m. He
along with Dr. D.S. Kapoor and Dr. Neeta Mishra, performed the autopsy on
the dead body and found the following injuries :

(i) “A bruise with abrasion on the right maxillary and cheek area crescent
shape looking to be from deep kissing with intermittent marks of teeth size
2 cm. X 2 cm. I have shown its picture in post-mortem report.

(ii) Abrasion of right mandibular region 4 cm. right to the medial line
sized 1/2 cm x1/2 cm.

(iii)   Abrasion with bruise present just below the left lower eye lid in
lateral aspect 1 cm. x1/2 cm.

(iv) Stab wound present 10 cm. below the xiphoid process, on the upper
portion on stomach upto the depth of stomach a cut wound 18 cm. in length
on the wall of the stomach. The intestines had been cut Peritonlum had been
cut Undigested food was coming out from the wound.

(v) A brown colour piece underwear was tightly tied on the neck over the
thyroid cartiledge. This cloth was horizontal and two ordinary knots were
tied in it which in the front of the neck. One part of the cloth was
elastic and main cloth was synthetic. This cloth had been taken out and
preserved,….”

All these injuries were ante-mortem.

Dr. Sharma noticed the following injuries on the private part of Ku. Naveen
:

“There were bruise marks on libia majora and libia minora, The hymen was
found torn at 6 to 4 and mere was bleeding from the vagina with some blood
mixed matter on the vagina of which slides were prepared Advise was given
for its examination so mat it could be known whether sperms were present or
not”

Dr. Sharma then noted mat as vaginal discharge was coming from her vagina,
he prepared a slide of this discharge and forwarded ft to the chemical
analyser for his opinion and report. The report of the chemical analyser is
at Ex. P-29, wherein it is stated that Wood with semen and human sperms
were found on the slide.

Dr. Sharma opined mat rape on Naveen must have been committed first and
thereafter she was strangulated followed by a stab injury. All these
injuries were ante-mortem. The cause of death was failure of cardiac and
blood circulation as a result of strangulation. Dr. Sharma opined that
death must have occurred within 18-36 hours before the post-mortem. Thus
the medical evidence on record clearly establishes that Ku. Naveen was
subjected to ripe and thereafter she was strangulated as ligature marks
were present around her neck and then followed by an assault by sharp edged
weapon. Thus the prosecution has proved that before committing the murder
of Ku. Naveen she was subjected to rape, strangulation and then injury by
sharp edged weapon. We accordingly confirm the finding in this behalf
recorded by the courts below.

The next circumstances relied upon by the prosecution relates to the nail
injuries on the person of Santosh (A 1). Dr. R.P. Shrivastava, (PW 8) who
was attached to Gandhi Memorial Hospital, Reeva, examined Santosh (A I) on
21.2.96 and recorded the following injuries :

“Small scratch injuries in right and left side of neck, which were 1 cm. x
5 cm. and above the mastoid bone behind the right ear and left ear and
three scratch injuries were present on his right forearm towards front
side.”

Dr. Srivastava described them as nail injuries and stated that they might
have been caused within 36 hours of examination. He further examined
Santosh Kumar (A 1), who was found to be capable of sexual intercourse.
There is nothing in the evidence to discard his evidence. The explanation
given by the accused is that he was subjected to ill treatment by the
investigating officer causing injuries to him. Courts below have rightly
discarded this explanation. The only legitimate inference in this behalf is
that Ku. Naveen must have resisted sexual assault and in that process the
accused had sustained nail injuries. We may also add here that Dr. B.K.
Sharma, who performed that autopsy on the dead body had also noticed an
injury on the cheek of Naveen and according to him having regard to the
size and shape of the said injury it could have been caused when the
assailant tried to have a deep kiss.

We may now take up a very importance circumstance which relates to the
recovery of various incriminating articles – some of which were the clothes
of Naveen. During the course of investigation Santosh (A 1) on 21.2.96 at
about 2.30 p.m. made a disclosure statement under Section 27 of the
Evidence Act. Memorandum is at Exh. 6. He disclosed that he had hidden the
clothes in the Parchhi (cow shed). He further stated that he would produce
Naveen’s cycle which he had thrown into septic tank.

Molai (A 2) was separately interrogated and he made a disclosure statement
under Section 27 of the Evidence Act stating that he had concealed a knife
in the heep of cow dung cakes. He then stated he had concealed a piece of
underwear, one bed sheet and one Pajji in the fodder room near the septic
tank and he would produce the same. The memorandum is at Ex. P-7.

Both these memorandums were drawn in the presence of two witnesses. Mirza
Safdar Beg and Shyamji Singh (PW 7). Both the accused then led the panch
witnesses and the investigating team separately to the respective places
and produced these various incriminating articles. Santosh Kumar (A 1)
produced the following items, which came to be seized vide panchnamas Ex,
P-8 and P-9. The items mentioned therein are:

(i)   one white khadi cloth stained with blood at two places;

(ii)   one handkershief and an underwear, which were having blood and semen
stains; and

(iii) one white khadi cloth.

Santosh (A 1) then took the panel) witnesses and the investigating officer
to the septic tank from where a cycle belonging to Naveen was recovered.

Molai (A 2) then took the panch witnesses and the investigation officer
towards the heep of the cow dung cakes near the septic tank from where he
took out a knife which was stained with blood, Molai (A 2) then produced an
underwear, a bed sheet and one pajji, which were concealed in the fodder
room near the septic tank. All these items were seized under the Panchnama
(Ex. P-10& P-11).

In order to prove this recovery at the instance of A1 and A2, the
prosecution examined Shyamji Singh s/o Rajbhan Singh, (PW 7). In his
evidence he has given all minute details as to bow the disclosure
statements came to be recorded under Section 27 of the Evidence Act and how
all these incriminating articles were recovered at the instance of Al and
A2. this witness has been searchingly cross-examined by the learned
advocates appearing for the respective accused but we do not find any
material on record which would discredit his evidence. The evidence of
Shyamji Singh (PW 7) was accepted by the trial court as well as by the High
Court and Mr. Shukla, the learned senior counsel appearing for the accused
could not persuade us to reject his evidence. Thus the prosecution has
established the recovery of various incriminating articles of which some
belonged to Naveen, All these articles were sent to F.S.L. Sagar for its
report. The F.S.L’s report is Ex. P-30. The findings of the F.S.L. are that
the under-garments of Naveen had Mood stains as well as semen stains. The
under-garments and other articles which do not belong to Naveen also
contained blood and semen stains except cycle. As far as the knife
recovered at the instance of Molai (A-2), it did have the human blood but
the blood group could not be determined. These incriminating articles
connect the accused with the crime in question, Mr. Shukla, the learned
senior counsel, however, urged that it would be unsafe to connect the said
knife with the crime in question and attribute the use of the same by the
accused persons in me absence of determination of the blood group. This
argument does not appeal to us because the FLS’s report has clearly
certified that the blood found on the knife was human origin. This question
fell for consideration in State of Rajasthan v. Teja Ram and Ors,, [1999] 3
SCC 507, and this Court held that it would be an incriminating circumstance
if blood on the weapon was found to be of human origin. Mr. Shukla while
assailing the findings as regards the recovery of various incriminating
articles urged that the prosecution ought to have examined other panch
witnesses to corroborate the evidence of Shyamji Singh (PW 7). No such
contention was raised in the courts below and we do not think it proper to
entertain at this late stage. In addition to this, it is not necessary to
examine both the panch witnesses. If the accused wanted the other panch
witness for cross examination, certainly he could have taken proper
recourse during the trial. The trial court as well as the High Court
accepted the evidence of Shyamji Singh (PW 7), who has proved recovery of
articles pursuant to the disclosure statements (Ex. P-6 and P-7) and the
recovery thereof vide Exs. P-8, P-9, P-10 and P-11. The prosecution in our
opinion has successfully proved this circumstance beyond every reasonable
doubt.

Coming to the next circumstance that both the accused had an opportunity to
commit the offence need not detain us any longer. The evidence of Ruchi
Mishra (PW 1), Shobha Mishra (PW 2) and Shailender (PW 4) unmistakably
point out that A-l was working in the garden where as A-2 was working in
the house of Somvanshi (PW 6) at about 9 or 10 A.M. when Naveen alone was
inside the house. When these witnesses heard the shriek they went near the
quarter of Somvanshi (PW 6) but they could not see either of the accused in
the garden and the door was closed. Thus Santosh (A1) and Molai (A2) had
full opportunity to commit the crime in question. It cannot be disputed
that Molai (A2) was a Guard working at the quarter of Somvanshi (PW 6), who
had reposed full confidence in him as regards safety and security of
Naveen. Santosh Kumar (A 1) was working in the garden as he was then
undergoing a sentence for the offence of rape, Mr. Shukla, learned senior
counsel, however, informed us that the High Court has acquitted A-l of the
said charge. Both the accused in our opinion have totally misused the
confidence reposed by Somvanshi (PW6) and behaved in a most   shameful,
barbaric and a brutal manner by committing rape and murder of Naveen. This
circumstance is also proved by the prosecution beyond any pale of doubt.

The next circumstances relied upon by the prosecution is the injuries on
Santosh Kumar (A 1). Dr. R.P. Srivastava (PW 8) examined Santosh Kumar (A
1) on 21.2.1996 and he found small scratch/injuries on his light and left
side of the neck and above the mastoid bone behind the right ear and left
ear and three scratch/injuries on his right forearm toward front side.
According  to him, these injuries could be accused with nail and they were
within 36 hours of examination. The explanation given by santosh kumar (A
1) in his statement recorded u/s 313 Cr, P.C. in that because of scratching
by himself he got these injuries. This explaination is untenable. The only
legal inference that must follow from these injuries is  that Naveen must
have resisted sexual assault and in that process A1 had received these
injuries. However, it needs to be noted at this stage that no injuries were
found on the person of Molai (A 2) The court below, in our opinion, were
right in drawing a legitimate conclusion that Naveen must have resisted he
sexual assault committed by accused persons and in mat process A-l had
sustained these injuries. This circumstance clearly shows the complicity of
A-1 in the present crime.

The next circustance, namely, the false explanation given by A-1 and A-2
when Ruchi Mishra (PW 1) went to return the cassette to Naveen at her
quarter, they told her that Naveen bad gone along with her Mend on a cycle.
The same false information was also given to Pratibha (PW 3), the sister of
Naveen, when she returned from the school at about 12 noon. This false
explanation itself is a circumstances which can be used against A-1 and
A-2. The courts below have rightly taken this circumstance as proved
against both  the accused.

The next circumstance which has also got a bearing on the complicity of
accused person is when Ruchi Mishra (PW 1) saw Santosh Kumar (A 1) taking
cycle of Naveen at about 11.30 a.m. towards me back side of her house. It
is therefore clear that the information given by A-l and A-2 that Naveen
had gone along with her friend on a cycle was false and misleading to
cover-up the crime.

Coming to the last circumstances, namely, the plea of alibi taken by both
the accused. Molai (A 2) has produced a certified copy of the proceeding
sheet in Crl. Case No. 764/92, from the court of Shri S.K. Srivastava, 1st
Class Magistrate, Reeva. Relying upon this document, Mr. Shukla, learned
senior counsel urged that this document clearly indicates that on 20th of
February, 1996 (the date of incident) Molai (A 2) had gone and attended the
court and if this be so his complicity in the present crime is totally
ruled out and at any rate A2 is entitled for benefit of doubt. We see no
substance in this contention because the other evidence on record has
positively established that Molai (A 2) was working in the house of
Somvanshi (PW 6) and he was there till Pratibha (PW 3) came from the school
at about 12 noon. The incident in question had occurred between 10 a.m. and
11.30 a.m. The proceeding sheet, Ex. D’9 produced on record does not even
remotely suggest at what point of time Molai (A 2) had gone to the
Magistrate’s court. This document in our opinion does not help Molai (A 2)
to show even prima facie his absence from the place of occurrence. The
defence witness examined on behalf of the accused also does not take the
defence case any further.

Thus after taking into account the oral and documentary evidence on record,
we are satisfied that the court below have committed no error in convicting
both the accused for offences punishable under Sections 302, 376 and 201
read with 34 I.P.C.

Coming to the question of sentence, Mr. Shukla, the learned senior counsel
urged that the courts below have committed an error while awarding death
sentence to both the accused. He urged that the prosecution has failed to
establish that the present case is one of the rarest of rare cases and
therefore the capital punishment was uncalled for. He then contended that
the courts below have failed to consider the various decisions of this
Court on the question of capital sentence in proper perspective and
resultantly committed a serious error while awarding the death sentence.

Learned counsel for the State of Madhya Pradesh, however, urged that Molai,
A-2 was posted as a Guard at the quarter of Somvanshi (PW 6) and was
supposed to protect the person and property. He has totally committed the
breach of confidence which was reposed in him by Somvanshi (PW 6). Santosh
Kumar (A-l) was then serving a sentence for the offence of rape. He was
working in the garden. Both the accused took the undue advantage of the
situation knowingly full well that Naveen was alone in the house and her
father Somvanshi (PW 6) would not return before the lunch break as also
Pratibha (PW 3), sister, would not come before 11.30 a.m. Both the accused
had every opportunity to commit the crime in question and they had done a
most brutal, heinous and shameful act by committing rape on Naveen, then
strangulated and thereafter caused stab injuries and threw her body into
the septic tank with the cycle with an intention to cause disappearance of
evidence. Counsel further urged that the courts below have very carefully
scrutinised the material on record and after following the decisions of
this Court, which were also discussed threadbare in their judgments,
awarded capital punishment to both the accused, ft is a case where no
leniency in the matter of sentence be shown inasmuch as neither of the
accused had brought on record any mitigating circumstances which would
justify reduction in the sentence.

We have very carefully considered the contentions raised on behalf of the
parties. We have also gone through various decisions of this Court relied
upon by the parties in the courts below as well as before us and in our
opinion the present case squarely falls in me category of one of the rarest
of rare cases, and if this be so, the courts below have committed no error
in awarding capital punishment to each of me accused. It cannot be
overlooked that Naveen, a 16 year old girl, was preparing for her 10th
examination at her house and suddenly both the accused took advantage of
she being alone in the home and committed a most shameful act of rape. The
accused did not stop there but they strangulated her by using her under-
garment and thereafter took her to die septic tank alongwith the cycle and
caused injuries with a sharp edged weapon. The accused did not even stop
there but they exhibited the criminality in their conduct by throwing the
dead body into the septic tank totally disregarding the respect for a human
dead body. Learned counsel for the accused (appellants) could not point any
mitigating circumstances from the record of me case to justify the
reduction of sentence of either of the accused. In a case of this nature,
in our considered view, the capital punishment to both the accused is the
only proper punishment and we see no reason to take a different view than
the one taken by the courts below.

In the result Criminal Appeal No. 678 of 1999 is dismissed. The conviction
of the appellants on all counts as well as the death sentence awarded by
the courts below are upheld.