Sonali Rajput | KLE Society Law College,Bangalore | 19th April 2020
State of Uttarakhand and ors v Akhtar Ali and ors. Criminal Reference No. 1 of 2016, Criminal Appeal Nos. 104, 318 of 2016, Government Appeal Nos. 07 and 08 of 2017.
FACTS
The facts of this case depict another story of depravity of senses; wanton lust and beastly passion, which made a victim girl of seven years of age to suffer in anonymity; her dignity, soul and senses were buried deep in the darkness. The victim girl was studying in Pithoragarh, Uttarakhand. She alongwith her father had come to attend a marriage
at Haldwani in their relations on 18.11.2014. The reception of the marriage was scheduled at Ram Leela Ground, Sheesh Mahal, Kathgodam. It was in the late evening on 20.11.2014. The victim girl was playing with the children. Suddenly, when the children were called for a group photograph, she was found missing. The police was informed immediately . The victim girl could not be located. On 21.11.2014 at about 11.30AM, a report of the incident was lodged by father of the victim girl. The case was lodged and investigation was carried out. On 25.11.2014, Sabir Ali, who had horses, at the relevant time noticed that one of his horses had gone into the forest. The horse suddenly galloped. When Sabir Ali went near the place, he saw the dead body of a girl. He immediately informed the people at a nearby place. The information reached the Police Station. According to the post mortem , she was raped. The victim girl had serious injuries.
During investigation, name of the Akhtar Ali came into light, who was engaged as a Driver by Shankar Dutt Padalia on 20.11.2014. His telephone number was put under surveillance and it was noticed that his phone was on the location of the place of incident at the time of incident. It had left the area on 21.11.2014 and entered into Delhi NCR Circle and on the same Cell phone another number was used, which entered in the Punjab Area. Based on this track, Police team reached Ludhiana. In fact, Special Task Force and Special Investigating Teams were constituted to solve this case. Based on the leads of the telephone surveillance, they reached Ludhiana on 27.11.2014 and in the evening on the same day, arrested Akhtar Ali. From his possession, a mobile handset and railway ticket from Haldwani to Delhi of 21.11.2014 and one Identity Card etc. were recovered. According to the prosecution, when arrested, Akhtar Ali confessed his guilt as hereunder:
“On 19.11.2014, I came Kathgodam to meet my friend Prem Pal Verma, who is a Driver by occupation and is a resident of Joshi Mohalla, Kathgodam. On my request, he got me a job of driver, in the dumper of Shankar Padaliya. I used to sleep in the dumper by parking it near Sheesh Mahal Railway Gate, on the road, leading to gas godown. On 20.11.2014, Prem Pal Verma alongwith a friend came to meet me in the evening and we collected money and purchased liquor. Thereafter, we drank and ate in the dumper. On the other side of the railway line, a marriage function was going on. We saw the ladies in that function and we lost our senses. We desired to have fun. We stood near the marriage venue. At about 7:30 a girl aged 8-9 years came behind the tent. As per plan, we threatened the girl and covered her with my blanket. Prem Pal Verma had a country-made pistol. He threatened the girl with that country-made pistol. After covering the young girl in the blanket, we went towards gas go-down, crossed Gola river and took that girl about 3/4 kilometers deep in the
bushes and raped her more than once. Due to bleeding from her vagina, the girl became unconscious. In this process of wrong doing, some scratches came on my thighs. We covered the unconscious girl with the leaves and came back. I slept in my dumper. Prem Pal Verma and his friend went to their respective houses. When the family members of the girl complained to the Police, the Police investigated the matter. Out of the fear of being arrested, in the evening of 21.11.2014, I went Delhi by train and switched off my mobile phone. From there, I came Ludhiana and did nothing for a while. Today, when I was going in search of the work you caught me.”
On 28.11.2015, Prem Pal Verma and Junior Masih were arrested. Blood samples of all of them were taken by and it was also transmitted to Forensic Science Laboratory.
After investigation, charge sheet was submitted against Akhtar Ali, Prem Pal Verma and Junior Masih, under Sections 363, 376, 302, 201, 120B and
212 IPC and Section 4, 5, 6 of the POCSO Act and Section 66C of the Act.
On 02.05.2015, charges under Sections 363, 376A in the alternate Section 302, 201, 120B IPC and Sections 3 read with 4, 5 read with 6 and 7 read with 8 of the POCSO Act and Section 66C of the Act were framed against the Akhtar Ali, charges under Sections 363, 376A in the alternate Section 302, 201, 120B and 212 IPC and Sections 16 and 17 read with Sections 4/5/6/7 of the POCSO Act and Section 66C of the Act were framed against Prem Pal Verma and charges under Section 212 IPC and Sections 16 and 17 read with Sections 4/5/6/7 of the POCSO Act and Section 66C of the Act were framed against the Junior Masih .
Akhtar Ali, Prem Pal and Junior Masih were examined under Section 313 of the Code. According to them, they have been falsely implicated in the case and they denied of having committed the crime and claimed trial.
After hearing the parties, by the impugned judgment and order, Akhtar Ali and Prem Pal Verma have been convicted and sentenced, as stated hereinbefore and Junior Masih acquitted. Aggrieved by their conviction, Akhtar Ali and Prem Pal preferred the appeal. Father of the victim girl preferred appeal against the acquittal of Junior Masih and Prem Pal for certain offences. State preferred appeal against acquittal of Junior Masih. State also preferred appeal against the acquittal of Prem Pal for the charges under Sections 363, 201, 120-B, 376-A, 302 IPC and Sections 16/17 read with Sections 4, 5, 6, 7 of the POCSO Act. Since Akhtar Ali has been sentenced to death, reference under Section 366 of the Code has also been submitted for confirmation of the death sentence.
JUDGEMENT
According to the post mortem report, the cause of death is due to shock and hemorrhage as a result of injury to vagina and perianal region following sexual assault consequent upon blunt force impact and sufficient to cause death in ordinary course of nature. The injury on the victim girl reveals that she was brutalized. It was a ghastly, diabolic and gruesome offence committed on the helpless innocent girl.
In the instant case, when the dead body was found, it had T-shirt, white undershirt and sky blue underwear. The question is as to who put underwear after rape. According to post mortem, time between injury and the death is few minutes. It means when the girl was brutally raped, she bled and died immediately thereafter.
During the course of argument, when this question was raised as to who made the victim girl to wear underwear. This possibility was outrightly rejected
that the victim girl would have tried to wear the underwear. It was argued that she must not be in a position to put underwear after such brutal attack on her. It means after the rape was committed, Akhtar Ali tried to make the victim girl wear the underwear. But, again fact remains that the victim girl was left in the forest by Akhtar Ali. She died or she was left to die. It is also not a mitigating factor.
On the day of incident, the victim girl was rejoicing alongwith the children in the marriage function. She had come from out station to attend the marriage alongwith her father. She was a girl of seven years. She was unaware of as to what awaited her in the next few minutes. She was kidnapped by Akhtar Ali. Under the cover of darkness, in the forest, Akhtar Ali, in the most diabolical manner, brutally sexually assaulted her. The body, soul and dignity of the victim girl was suppressed and submerged in that night by Akhtar Ali. She was not only violated but intruded, ruptured and squeezed so badly that she
died. She was a helpless, defenseless innocent girl. It was so brutal that it pricks or shocks not only the judicial conscience but even the conscience of the society. There is no mitigating circumstance whatsoever in the case. This case falls in the category of “rarest of rare” cases, which calls for no punishment other than DEATH. Therefore, this Court is of the view that the sentence of death imposed upon Akhtar Ali, under Section 376A IPC, deserves to be confirmed.
Conclusion
i) Conviction of Akhtar Ali under Sections 376A, 363 and 201 IPC and Section 6 Protection of Children from Sexual Offences Act, 2012 is upheld and confirmed.
(ii) Akhtar Ali is acquitted of the charge under Section 66C of the Information Technology Act, 2000.
(iii) Acquittal of Akhtar Ali of the charge under Section 120-B IPC is upheld.
(iv) Sentence of DEATH imposed upon Akhtar Ali, under Section 376A IPC is CONFIRMED.
(v) Sentence imposed upon Akhtar Ali under Sections 363 and 201 IPC is also confirmed. Although, in the event of execution of death penalty, these sentences would become redundant.
(vi) Conviction of Prem Pal under Section 212 IPC and sentence imposed upon him for this offence is upheld and confirmed.
(vii) Prem Pal Verma is acquitted of the charge under Section 66C of the Information Technology Act, 2000.
(viii) Acquittal of Prem Pal Verma of the charges under Sections 363, 376A in the alternate 302, 201, 120-B IPC & Sections 16/17 read with Sections 4/5/6/7 Protection of Children from Sexual Offences Act, 2012 is also upheld & confirmed.
(ix) Acquittal of Junior Masih @ Foxi of the charges under Section 212 IPC, Section 66C of the Information Technology Act, 2000 and Sections 16/17 read with Sections 4/5/6/7 of the Protection of Children from Sexual Offences Act, 2012 is upheld and confirmed.
(x) The impugned judgment and order is modified to the extent of acquittal of Akhtar Ali and Prem Pal, of the charge under Section 66C of the Information Technology Act, 2000.
(xi) Criminal Reference No. 1 of 2016 is answered, as above.
(xii) Criminal Appeal No. 104 of 2016, Criminal Appeal No. 318 of 2016, Government Appeal No. 7 of 2017 and Government Appeal No. 8 of 2017 are decided in terms of the orders, as above.
In cases where DNA report is produced in evidence, the trial court should not be a moot spectator. The court should get information from the expert, as stated in paragraph 86 of this judgment, so as to elicit the TRUTH.
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