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Penal Code, 1860: ss.120B, 365/366, 307, 3 76(2)(g), 377, 302/1208, 395 - Conviction and death sentence - Nirbhaya case - Forcible sexual intercourse with the prosecutrix, one after the other by six persons and insertion of iron rod in her private parts and thereafter throwing her out of moving bus along with informant - Prosecutrix's alimentary canal from the level of duodenum upto 5 cm of anal sphincter was completely damaged - It was beyond repair - Septicemia was the direct result of multiple internal injuries - The conduct of the accused in committing such heinous offences with the prosecutrix in concert with each other and thereafter throwing her out of the bus in an unconscious state along with PW-I unequivocally bring home the charge u/s.1208 in case of each of them - The criminal acts done in furtherance of the conspiracy is evident from the acts and also the word.~ uttered during the commission of the offence - Evidence on record lead to a singular conclusion that the accused persons were guilty of criminal conspiracy - Recovery of articles belonging to the informant and prosecutrix from the custody of the accused persons founded on the disclosure statements of accused was relevant circumstance against the appellants - The chain of events described by the prosecutrix in her dying declarations coupled with the testimonies of the other witnesses clearly established that as soon as the informant and the prosecutrix boarded the bus, the accused persons formed an agreement to commit heinous offences against the victim - No interference with the concurrent findings of lower courts called for - Evidence Act, 1872 - s.10 - Crime against women. s.120B - Rationale behind- Held: Conspiracy is a clandestine activity - Persons generally do not form illegal covenants openly -In the interest of security, a person may carry out his part of a compiracy without even being informed of the identity of his co- conspirators - An agreement of this kind can rarely be shown by direct proof; it must be inferred ji-om the circumstantial evidence of co-operation between the accused - ft becomes clear that the prosecution must adduce evidence to prove that: the accused agreed to do or caused to be done an act; such an act was illegal or was to be done by illegal means within the meaning of !PC: irrespective of whether some overt act was done by one of the accused in pursuance of the agreement. s.302/1208 - Conspiracy - In achieving the goal of the conspiracy, several offences committed by some of the conspirators may not be known to others, still all the accused will be held guilty of the offence of criminal conspiracy - Use of iron rod by one or more of the accused was sufficient to inculcate all the accused for the same - Gang rape and use of iron rod caused grave injuries to victims vagina and intestines: throwing her out of the bus in that D vegetative state in chilled weather led to her death: all this taking place in the course of same transaction and with the active involvement of all the accused was sufficient evidence to find the accused guilty of criminal conspiracy - The findings of the courts below with regard to conviction of all the accused u/s.120-8 and E s.302 r/w s.1208 is affirmed. (R. Banumathi, J.) c s.376(2)(g), Explanation l - Essential ingredients - Held: In order to establish an offence under s.376(2)(g) r/w Explanation l thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape is committed by even one, all the accused are guilty, irrespective of the fact that only one or more of them had actually committed the act - s.376(2)(g} rlw Explanation l thus embodies a principle of joint liability. (R. Banumathi, J) Sentence/Sentencing: Death sentence - Mitigating and aggravating circumstances - Held: In the instant case, the mitigating factors highlighted by the appellants pertain to the strata to which these accused belong, the aged parents, marital status and the young children and the suffering they would go through and the calamities they would face in case of affirmation of sentence, their conduct while they are in custody and the reformative path they have chosen and their transformation and the possibility of reformation - The brutal, barbaric and diabolic nature of the crime is evincible fi"om the acts committed by the accused persons, viz., the assault on the informant with iron rod and tearing off his clothes; assaulting the informant and the deceased with hands, kicks and iron rod and robbing them of their personal belongings like debit cards, ring, informant's shoes, etc.; attacking the deceased by forcibly disrobing her and committing violent sexual assault by all the appellants; their brutish behaviour in having anal sex with the deceased and forcing her to perform oral sex; injuries on the body of the deceased by way of bite marks and insertion of rod in her private parts that, inter alia, caused perforation of her intestine which caused sepsis and, ultimately, led to her death - The accused persons had found an object for enjoyment in her and, as is evident, they were obsessed with the singular purpose sans any feeling to ravish her as they liked, treat her as they felt and, the gross sadistic and beastly instinctual pleasures came to the forefi"ont when they, ajler ravishing he1; thought it to be just a matter of routine to throw her along with her friend out of the bus and crush them - The casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is hwnan(F inconceivable - The appetite for sex, the hunger for violence, the position of the empowered and the attitude of perversity are bound to shock the collective conscience which knows not what to do - The aggravating circumstances outweighed the mitigating circumstances brought on record - Therefore, the High Court correctly confirmed the death penalty - No interference called for - Crime against women. Death sentence - Rarest of rare cases - In the instant case, gruesome offences were committed with highest viciousness - Human lust was allowed to take such a demonic form - The accused may not be hardened criminals; but the cruel manner in which the gang-rape was committed in the moving bus; iron rod were inserted in the private parts of the victim; and the coldness with which both the victims were thrown naked in cold winter night shocks the collective conscience of the society - The instant case clearly comes within the category of 'rarest of rare case' where the question or any other punishment is 'unquestionably foreclosed· - If the dreadfulness displayed by the accused in committing the gang-rape, unnatural sex, insertion of iron rod in the private parts of the victim does not fall in the 'rarest of rare category, then one may wonder what else would fall in that category - Penal Code, I 860. (R. Banumathi, J.) Mitigating and aggravating circumstances - Question of awarding sentence is a matter of discretion and has to be exercised on consideration of circumstances aggravating or mitigating in the individual cases - Protection of society and deterring the criminal is the avowed object of law - While determining sentence in heinous crimes, courts ought to weigh its impact on the society and impose adequate sentence considering the collective conscience or society for justice - While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and the society at large. (R. Banumathi, J.) Delay/Laches - Delay in registration of FIR - Effect on prosecution case - Held: Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused - Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay - In the instant case, the victim was seriously injured and giving medical treatment to her was of prime importance - PW-1 himself was injured and was admitted to hospital and, therefore, no delay can be said to have been caused in registering the FIR. FIR - Non-mentioning of assailants in FIR - Effect on prosecution case - Held: It is settled law that FIR is not an encyclopedia of facts and it is not expected ji-om a victim to give details of the incident either in the FIR or in the brief history given to the doctors - It may be sufficient if the broad facts of the G prosecution case alone appear - It cannot be said that merely because the names of the accused persons were not mentioned in the FIR, it raises serious doubts about the prosecution case in the light of injuries on PW-I '.I· person and the gruesome acts against the victim must have put him in a traumatic condition and it would not have been possible for him to recall and narrate the entire incident to the police at one instance. Evidence: Related witness, testimony of - Evidentiary value - Held: The evidence of a witness is not to be disbelieved simply because he is a partisan witness or related to the prosecution - It is to be weighed whether he was present or not and whether he is telling the truth or not - In the instant case, when informant-PW-I was first examined, his friend (the prosecutrix) was critically injured and he was in a shockea mental condition - PW-1, in his deposition, clearly spoke about the occurrence and also corroborated his complaint - The evidence of PW-1 was unimpeachable in character and the roving cross-examination did not erode his credibility - The injuries found on the person of PW-I lent assurance to his testimony that he was present at the time of the occurrence along with the prosecutrix. Testimony of prime witness - Allegation that testimony of PW- ! was not trustworthy as it was not believable that he did not try to resist the assailants - Held: The accused persons were in group and were also armed with iron rods - PW-1 was held by them - It would not have been possible for PW-1 to resist the number of' accused persons and save the prosecutrix - The evidence of PW-I cannot he doubted on the ground that he had not interfered with the occurrence - The FIR, supplementary statements recorded under E s.164, CrPC and the evidence in court show that there was no justification or warrant to treat the version of the witness as inconsistent - The testimony of PW-I was placed reliance upon by both the courts and there is no reason to differ with the said view. Testimony of injured witness - Evidentiary value of- Held: Evidence of injured witness is entitled to greater weight and the testimony of such a witness is considered to be beyond reproach and reliable. Scientific evidence - DNA - Evidentiary value of- Held: DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance - If the sampling is proper and if' there is no evidence as to tampering of samples, the DNA test report is to be accepted - Forensic science. |
