# Bantu v. State of U.P

- **Citation:** (2006) 3 ILRA 1245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-29
- **Case number:** Criminal Jail Appeal (Capital Case) No. 200 of 2006
- **Bench:** M.C. Jain, K.K. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bantu-v-state-of-u-p-40694
- **Pages:** 14

## Headnote

of rare caseoffence under section 364/376/302 IPChelpless girl aged about 5 yrs.-murder
committed extremely brutal, grotesque
diabolical
revolting
and
dastardly
manner-after committing rape on herinserting '3' sticks inside vagina-causing
extensive damage taken out only at the
time of post mortem-cannot be allowed
to go back to the society-death sentence
affirmed.

Held: Para 42 & 43

Taking note of earlier decisions, tests to
determine the rarest of rare cases in
which death penalty can be inflicted
were summarized by the Apex Court in
the case of State of U.P. Vs. Satish 2005
SCC (Crl) 642. The gist is that rarest of
rare cases in which death sentence
should be awarded, is one when the
collective conscience of the community is
so shocked that it will expect the holders
of judicial power to inflict death penalty.

In our considered opinion, the present
case falls in the rarest of rare category
calling for death penalty for the murder
of helpless and hapless girl aged about 5
years who was murdered by the accused
appellant after committing rape on her.
The murder was committed in extremely
brutal, grotesque, diabolical, revolting
and dastardly manner, so as to arouse
intense and extreme indignation of the
community. The accused took away his
neighbor's daughter aged about 5 years
from the sit of 'Devi Jagran', where she
was present with her father and relatives
by deceitful means of giving her a
balloon. He straightaway took her to a
field, committed rape on her and then
brutally murdered her by inserting a
stem 13 inches inside her vagina causing
extensive damage. It is shuddering that
more than a fl. of stick had been inserted
into
her
vagina
causing
extensive
damage inside and the stick could be
taken out only at the time of post
mortem of the unfortunate girl. The
victim was an innocent child aged about
5 years. The accused is totally depraved.
He cannot be allowed to return back to
the society at all. The offence has
definitely generated a deep sense of
abhorrence in the society.
Case law discussed:

## Text

_Characters 0–39,885 of 46,352. This is a partial read: ask again with offset=39885 for what follows._

3All] Bantu V. State of U.P. 1245
(supra),
the
same
must
necessarily
prevail.

9. The writ petition is accordingly
dismissed subjected to the observations
made above. Petition Dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2006.

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE K.K. MISRA, J.

Criminal Jail Appeal (Capital Case) No.
200 of 2006

Bantu

...Appellant
Versus
State of U.P.

 ...Respondent

Counsel for the Appellant:
Sri Ram Ji Saxena
(AMICUS CURIAE)

Counsel for the Respondent:
Sri Karuna Nand Bajpai.
A.G.A.

Criminal Appeal-Confirmation of death
sentence-Phrase-rarest
of rare caseoffence under section 364/376/302 IPChelpless girl aged about 5 yrs.-murder
committed extremely brutal, grotesque
diabolical
revolting
and
dastardly
manner-after committing rape on herinserting '3' sticks inside vagina-causing
extensive damage taken out only at the
time of post mortem-cannot be allowed
to go back to the society-death sentence
affirmed.

Held: Para 42 & 43

Taking note of earlier decisions, tests to
determine the rarest of rare cases in
which death penalty can be inflicted
were summarized by the Apex Court in
the case of State of U.P. Vs. Satish 2005
SCC (Crl) 642. The gist is that rarest of
rare cases in which death sentence
should be awarded, is one when the
collective conscience of the community is
so shocked that it will expect the holders
of judicial power to inflict death penalty.

In our considered opinion, the present
case falls in the rarest of rare category
calling for death penalty for the murder
of helpless and hapless girl aged about 5
years who was murdered by the accused
appellant after committing rape on her.
The murder was committed in extremely
brutal, grotesque, diabolical, revolting
and dastardly manner, so as to arouse
intense and extreme indignation of the
community. The accused took away his
neighbor's daughter aged about 5 years
from the sit of 'Devi Jagran', where she
was present with her father and relatives
by deceitful means of giving her a
balloon. He straightaway took her to a
field, committed rape on her and then
brutally murdered her by inserting a
stem 13 inches inside her vagina causing
extensive damage. It is shuddering that
more than a fl. of stick had been inserted
into
her
vagina
causing
extensive
damage inside and the stick could be
taken out only at the time of post
mortem of the unfortunate girl. The
victim was an innocent child aged about
5 years. The accused is totally depraved.
He cannot be allowed to return back to
the society at all. The offence has
definitely generated a deep sense of
abhorrence in the society.
Case law discussed:

(Delivered by Hon'ble M.C. Jain, J.)

1. This is a capital case. The
accused-appellant
Bantu
has
been
convicted under section 364,376 and 302
I.P.C. by the impugned judgment and
order dated 24.12.2005, passed by Sri
Alok
Kumar
Bose,
Special
Judge
(E.C.Act)/Additional
Sessions
Judge,
1246 INDIAN LAW REPORT ALLAHABAD SERIES [2006
Agra in Sessions Trial No. 83 of 2004.
The sentences passed against him are as
under:

S.
No.
Sections
under which
punishment
awarded
Quantum
of
punishment
1.
364 I.P.C.
10 years' rigorous
imprisonment with a
fine of Rs.10,000/-
with a stipulation of
two
years'
further
simple imprisonment
in default of payment
of fine.
2.
376 I.P.C.
Life
imprisonment
with
a
fine
of
Rs.15,000/- with a
stipulation of three
years' further simple
imprisonment
in
default of payment of
fine.
3.
302. I.P.C.
Death Sentence

2. The genesis of the prosecution
case was the written F.I.R. lodged at P.S.
Tajganj of Agra District on 4.10.2003 at
10.45 P.M. by PW 2 Naresh Kumar. The
offence took place at about 9.30 O' clock
the same night in village Basai Khurd
within the said Police Station. The victim
was an unfortunate teenaged girl Vaishali
of about 5 years. She was the daughter of
Vishal.

3. The broad features of the case as
coming to surface from the F.I.R. and
evidence brought on record may be noted
for proper appreciation. There was "Devi
Jagran" at the house of Pw3 Chandrasen
alias Taplu in village Basai Khurd in the
eventful night. A number of persons of
the locality had assembled there. The
informant
-PW2
Naresh
Kumar
alongwith his brother Vishal and niece
Vaishali deceased had also gone there.
Around 9 P.M., the accused Bantuneighbour of the informant reached there.
After exhibiting playful and friendly
gestures with Vaishali with whom he was
familiar
from
before
because
of
neighborhood,
he
(Bantu
Accusedappellant) enticed her away on the pretext
of giving her a balloon. Several persons
including PW2 Naresh Kumar and PW6
Nand Kishore saw him going away with
the girl from the place of "Devi Jagran".
When Vaishali did not return within
reasonable time, a frantic search was
made to trace her out by the members of
the family. PW3 Chandrasen alias Taplu
and Sanjiv son of Daulat Ram informed
them that they had seen the accused Bantu
going away with Km. Vaishali hoisted on
his waist towards the pond. Around 9.30
P.M.., they reached near the field on one
Dharma in which grown up Dhaincha
plants ( a type of bushy shrubs) were
there. With the help of torches, they saw
that the accused Bantu was thrusting a
stem/stick of Dhaincha in the vagina of
Vaishali, having thrown her down. An
alarm was raised by them and Bantu was
caught red handed in completely naked
state. Vaishali was lying on the ground
unconscious with a part of stem of
Dhaincha inserted in her vagina. She was
bleeding profusely. She had other injuries
also on her person and was not
responding at all. She was instantly
rushed to S.N. Medical College, Agra
where the doctors pronounced her to be
dead. Upon interrogation, the accused
Bantu
allegedly
admitted that
after
committing rape upon her, he inserted
stem/stick in her vagina to murder her.

4. On the case being registered, the
investigation was taken up by PW 7
S.H.O. Dilip Kumar Mittal. Major part of
3All] Bantu V. State of U.P. 1247
the investigation was conducted by him
but the charge sheet came to be submitted
by subsequent Investigating officer PW 8
R.K. Dwivedi.

5. A panel of two doctors headed by
PW 1 Dr. R.S. Chahar conducted postmortem over the dead body of the
deceased on 5.10.2003 at 3P.M. the
deceased was aged about 5 years and
about one day had passed since she died.
The following ante mortem injuries were
found on her person:

1.
Multiple contusions over face and
head, more on right side, ranging in
size from .5 cm to .5 cm x 3 cm. Lips
were
contused
with
swelling.
Multiple nail marks present over left
side on her neck and behind the left
ear.

2.
Abrasion 2 cm x 4 cm present over
posterior aspect of both elbows and
right wrist.

3.
Labia minora of both sides in
posterior parts contused. Hymen
ruptured, free and clotted blood seen
vagina.

4.
Green
wooden
stick
found
inserted in vagina. Length of external part
of stick 24 cm. Incompletely broken in
two parts. On internal examination, stick
of 33 cm length found inside vagina in
continuation with external part of stick.
Thus, total length of the stick was 57 cm.
X .8 cm in diameter at most of places.
Dried blood present on external part
of stick.

6. Internal examination revealed that
small and large intestine were perforated
at places due to insertion of the stick. The
stomach contained semi digested food of
about 200 ml. Free and clotted blood was
present in the cavity. The mesenteric
vessels in the abdomen were torn due to
insertion of wooden stick. Uterus was
small in size and was ruptured due to the
insertion of wooden stick into the vagina.
The walls of cervix were lacerated. Slides
of vaginal swab were prepared for
examination. The wooden stick inserted
inside vagina was sealed. No spot of
semen was found on the part of the body.
Due to precarious condition of vagina, it
was not possible to say whether rape was
committed or not.

7. In the opinion of the Doctor, the
death was caused due to shock and
haemorrhage as a result of ante mortem
injuries due to insertion of the wooden
stick into the vagina of the deceased.

8. In this case, the accused was also
subjected to medical examination and the
result of the same formed and important
piece of evidence. PW 4 Dr. R.K. Yadav
had conducted medical examination of
accused Bantu in the District Hospital
Agra at 5.10.2003 at 2.10 A.M. Following
injuries were found on his person:

1.
Red abraded contusion 30 cm x 16
cm, back of chest, right side and
back of right arm upper part.
2.
Red contused abrasion 15 cm x 10.5
cm back of chest left side chest lower
part.
3.
Red contusion 9 x 2 cm on back of
abdomen left side middle part.
4.
Contused traumatic swelling 5 cm x
3.5 cm. Left side cheek.
5.
Red contusion 3 cm x 2 cm right side
of the cheek adjacent to the outer
part of the right eye.
1248 INDIAN LAW REPORT ALLAHABAD SERIES [2006
9. Upon examination, the genitals
were found well developed. Axillary and
pubic hair were present. There was no
matting of pubic hair and his penis was
found fully developed. The glans was
clean. No smegma was present. Red
abrasion 0.5 cm. X .5 cm. At 4 O' clock
and abrasion of .5 cm. X .5 cm at 12 O'
clock position were present on glans penis
with multiple linear abrasions. Slide was
prepared of the swab taken from the glans
penis and prepuce and the same was sent
for pathological examination.

10. The jeans pant of the accused
was sent for chemical analysis to ascertain
marks of blood and semen. As per the
Doctor
examining
the
accused,
his
injuries could be caused by blunt object
and were fresh in nature. The accused was
fully capable of performing the act of
rape. The injury report Ex. Ka-5 was
prepared. According to the Doctor since
no smegma was found present on the
glans penis of the accused and it was
clean, it was inferred that he had
committed sexual intercourse. Smegma
gets removed from the glans penis during
sexual intercourse. The abrasions on the
genitals of the accused supported his
view. The doctor denied the suggestion
that the injuries could be sustained at 7-8
P.M. that night. Rather, he testified that
the injuries could be sustained between
10-11 P.M. that night.

11. The defence was of denial and
false implication due to enmity of
witnesses arising out of land dispute. The
accused, owever, admitted that he was the
heighbour of the informant and that there
was a "Devi Jagran" at the house of PW
3 Chandrasen alias Taplu in the eventful
night. Other facts were denied by him in
his statement under section313 Cr.P.C.
12. In order to establish the guilt of
the accused appellant the prosecution in
all examined 8 witnesses. Out of them,
pw 2 Naresh Kumar (informant and uncle
of the deceased), Pw3 Chandrasen alias
Taplu and PW 6 Nand Kishore were
material witnesses of fact who supported
the prosecution case in its entirety.

13. PW2 Naresh Kumar was a
teacher by profession and knew the
accused since long,. Being his neighbour.
Gist of his testimony before the court
below was that on 4.10.2003 there was
"Devi jagran" at the house of PW 3
Chandrasen alias Taplu in which a
number of persons of the locality had
assembled. He, his brother, niece Vaishali
and other relatives were also present
there. Around 9 A.M. the accused Bantu
came and after sometime enticed away
Vaishali on the pretext of giving her a
balloon. A number of persons including
pw 6 Nand Kishore saw him taking away
the girl. When they did not return within
reasonable time, a search was made to
trace out the girl. PW 3 Chandrasen alias
Taplu and one Sanjiv stated that they had
seen the accused Bantu accused with
Vaishali hoisted on his waist going
towards pond. PW 2 Naresh Mumar with
his brother Vishal-father of the deceased,
PW 3 Chandrasen alias Taplu (at whose
house "Devi jagran" was organized), PW
6 Nand Kishore and many others went
towards the pond. When they reached
around 9.30 P.M. near the field of
Dharma in which Dhaincha plants were
grown, they saw the accused was
inserting a Dhaincha stem/stick into the
vagina of Vaishali, she being downed on
the ground,. And alarm was raised by him
and others. Bantu was caught red handed
in complete naked state. Vaishali was
lying totally unconscious with a part of
3All] Bantu V. State of U.P. 1249
stick inserted in her vagina. She was not
responding. She was rushed to S.N.
Medical College where the doctors
pronounced her to be dead. The accused,
on being caught, allegedly stated to have
raped the girl and then to have inserted
the stem/stick in her vagina in order to
murder her. This witness proved the F.I.R.
too that he had lodged. It came down
from his cross-examination that he and
other witnesses had torches and had seen
the accused c omitting crime from a
distance of about 4-5 steps. The accused,
according to him, had tried to escape from
the spot but was apprehended in totally
naked condition.

14. PW 3 Chandrasen alias Taplu
and PW 6 Nand Kishore were wholly
independent witnesses who supported the
testimony of PW 2 Naresh Kumar in
material particulars. To be short, PW3
Chandrasen alias Taplu stated that both
the parties were known to him. In the
eventful night "Devi jagran" was going
on at his house and a number of persons
had assembled including the victim
Vaishali, her father, uncle and many
others. The accused who was neighbour
of the informant also came after some
time and took away Vaishali on the
pretext of giving her balloon. He had seen
the accused Bantu taking away the girl
towards the pond. When he and others
reached near the field of Dharma, the
accused was found inserting a Dhaincha
stem/stick into the vagina of Vaishali. He
and other witnesses pounced upon him
and he was apprehended in complete
naked state. Vaishali was aged about 5
years and she was lying on the ground in
totally senseless condition. A part of the
stem was inside her vagina. She was
bleeding profusely. She was rushed to the
Medical College by her relatives. He
alongwith others had taken the accused to
the Police Station. Some force was
applied over him by the villagers after his
arrest. In his cross-examination, this
witness stated that "Devi jagran" had to
be stopped abruptly after this incident. He
categorically stated that he had seen the
accused Bantu inserting Dhaincha stem
into the vagina of Vaishali. He had tried
to escape from the spot but was
apprehended by search party including
himself. He (the witness) had told Naresh
(PW 2), Vishal and Nand Kishore (PW 6)
that he had seen the accused Bantu taking
Vaishali towards the pond. This witness,
too, had a torch with him.

15.

While
supporting
the
prosecution
case
in
all
essential
particulars, PW 6 Nand Kishore explained
that he used to run a Dhaba (an
improvised roadside restaurant) on the
Fatehabad Road and used to serve nonvegetarian food there. The restaurant used
to remain open till 11.30 P.M. but on the
date of the incident, he kept it closed due
to Nar Ratri because people do not take
non-vegetarian food during this period.
He further stated that he reached the place
of "Devi jagran" at about 8.30 P.M. and
it was around P.M. that he had seen the
accused Bantu going away with Vaishali.
Bantu had told him that he was taking
Vaishali to give her a balloon. He
informed the father of Vaishali about this
when they started searching her. He had
joined the search of the girl and had seen
the accused inserting a stick into the
vagina of Vaishali near the pond where he
was caught by him and other witnesses
naked.

16. PW 5 Head Constable Chandra
Bhan Singh had scribed the check report
on the basis of the written F.I.R. and had
1250 INDIAN LAW REPORT ALLAHABAD SERIES [2006
made entry in the G.D. regarding
registering of the case, whereas, PWs 7
and 8 were the Investigating Officers.
There is nothing particular to comment
about these formal witnesses.

17. Finding the case to be
established to the hilt, the trial Judge held
the accused appellant guilty of the
offences under sections 364,376 and 302
IPC and convicted and sentenced him as
mentioned above. He also held the case to
be of rarest of rare category and thus
imposed death sentence for the offence of
murder. While the accused appellant has
lodged this appeal from jail, the trial
judge has made reference no. 1 of 2006
for confirmation of death sentence as per
Section 366 Cr.P.C.

18. We note from the record of the
lower court that at the trial, the accused
was defended by an amicus curiae. He
having no counsel or pairokar in the High
Court too, we appointed Sri Ram Ji
Saxena, a criminal lawyer of long
standing, as amicus auriae to argue out the
appeal from his side. Sri karunand Bajpai,
A.D.A has advanced arguments from the
side of the State.

19. We have heard the arguments
advanced at the Bar and have carefully
gone through the evidence on record.

20. The first argument of the learned
amicus curiae is that as per the own case
of the prosecution, the girl having been
taken away by the accused with consent,
no offence of abduction was made out. In
other words, he contended that the
ingredients of the offence of kidnapping
or abduction were wanting in the present
case. The argument, in our opinion, is
wholly fallacious with no merit at all.
21. No doubt, the girl Vaishali aged
about 5 years was taken by the accused
from the place of "Devi jagran" in the
presence of her uncle PW 2 Naresh
Kumar and her father. PW 6 Nand
Kishore was also there. All the witnesses
of face have stated that he (accused) had
taken the girl on the pretext of giving her
a balloon. So, the tacit consent of the
father/uncle for the girl to be taken away
was for the purpose of a balloon to be
provided to her by the accused. As per his
saying, he was their neighbour. The girl
also knew him from before. He had been
there for a while showing playful gestures
with the girl. To say shortly, the consent
for taking away the girl by the accused
was for the purpose of giving a balloon to
her, and not for how he dealt with her
immediately thereafter. Actually, since he
had taken the girl for giving her a balloon,
PW 2 Naresh Kumar-uncle of the girl,
PW 6 Nand Kishore and Vishal-father of
the girl did not object to it. It has clearly
been stated by PW 2 Naresh Kumar that
he did not object to the taking of the girl
by Bantu because he was taking her for
giving balloon to her. PW 6 Nand Kishore
even stated that he had questioned the
accused as to where he was taking her and
he had replied that he was taking her for
giving a balloon. So, obviously, the said
consent of the father/uncle of the girl was
for specific purpose of balloon being
given to her by the accused. He being
their neighbor, there was hardly any
reason of their sustaining any suspicion at
that juncture. But the conduct of the
accused immediately thereafter speaks
volumes of the evil design conceived by
him right from the beginning. It was a
ruse or pretext to take away the girl from
the spot for giving her a balloon, but
actually he wanted to translate his evil
design of doing carnal act with teenaged
3All] Bantu V. State of U.P. 1251
girl of 5 years without even a grain of
humanity. After committing rape on her,
he murdered her in most merciless and
diabolic manner by deep insertion of a
stem/stick of Dhaincha plant into her
vagina. To come to the point, he enticed
away the girl by deceitful means to carry
out his evil mission. It does not admit of
slightest doubt that he committed the
offence under section 364 I.P.C., all the
ingredients
of
which
came
to
be
established
and
cemented
by
the
prosecution evidence. We, therefore,
reject this first argument of the learned
amicus curiae.

22. The second argument of the
learned amicus curiae is that none of the
witnesses saw the accused committing
rape on the victim and it was not proved
by the testimony of PW 1 Dr. R.S. Chahar
also who conducted autopsy on the dead
body
of
the
deceased.
Therefore,
according to him, the offence of rape was
not established. True, none of the
witnesses of fact saw the accused actually
committing rape on the unfortunate
teenaged girl. But on consideration of
their testimony in entirety, the post
mortem report of the victim in the light of
the evidence of PW 1 Dr. R.S. Chahar,
medical examination report of the accused
himself by PW 4 Dr. R.K. Yadav and the
report of chemical examiner (Ex. Ka-22),
we find that the offence of rape is
established beyond any shadow of doubt.

23. We shall make our meaning
clear. Needless to say, the witnesses of
fact were not supposed to manufacture
false
evidence
playing
on
their
imagination. They truthfully narrated
what they saw with their own eyes and
their testimonials assertions go a long way
to prove the factum of rape having been
committed by the accused on the
unforunate child. The panic started when
the girl, who had been taken away by the
accused on the pretext of giving her
balloon, did not return within reasonable
time. It was natural that her father, uncle
and other well wishers present in "Devi
jagran" started frantic search for her. The
testimony of PW 3 Chandrasen alias
Taplu (at whose house "Devi jagran" was
taking place) stated that on 4.10.2003 at
about 9.15 P.M., he had seen Bantu
accused taking Vishal's daughter Vaishali
towards the pond. He did not say anything
to him because he was the neighbour of
the father of the girl. When Naresh,
Vishal and Nand Kishore were searching
Bantu accused and Vaishali, he had told
them that he had seen Bantu taking
Vaishali towards the pond. Then all of
them, i.e., victim's father, uncle Naresh,
Nand Kishore, Chandra Sen alias Taplu
etc. rushed towards the pond. PW 2
Naresh Kumar, Vishal, PW 3 Chandraen
alias Taplu and another witness Sanjiv
(not examined) had flashing torches
which they showed to the Investigating
Officer and with regard to which Fard Ex.
Ka-4 came to be prepared. It should be
pointed out at the risk of repetition that
the witnesses examined before the court,
namely, PW 2 Naresh Mumar, PW 3
Chandrasen alias Taplu and PW 6 Nand
Kumar consistently stated that around .30
P.M. they saw in the light of flashing
torches
that
in
the
field
of
Dharma/Lakshman near the pond the
accused was inserting stem/stick of
Dhaincha into the vagina of Vaishali who
had been thrown down. An alarm was
raised by all of them. The accused was
caught red-handed in complete naked
state. The child was bleeding profusely.
Certain other injuries were also there on
her person. She was unconscious and not
1252 INDIAN LAW REPORT ALLAHABAD SERIES [2006
responding at all. She was rushed to
Medical College where she was declared
to be dead. On interrogation, Bantu also
stated then there that he had committed
rape on her and had thereafter inserted the
stem of Dhaincha plant into her vagina to
murder her. We should also point out that
such statement of the accused made
before the witnesses on the spot being
caught red-handed in naked condition
while inserting stem/stick into the vagina
of the victim, is a relevant fact forming
part of the same transaction and falls in
the category of res gestae evidence under
section 6 of the Evidence Act. The said
Section reads as under:

"6. Relevancy of facts forming part of
same transaction.-Facts which, though
not in issue, are so connected with a fact
in issue as to form part of the same
transaction, are relevant, whether they
occurred at same time place or at
different times and places."

Its illustration (a) is relevant which is
to the following effect:

(a) A is accused of the murder of B by
beating him. Whatever was said or done
by A or B or the by-standers at the
beating, or so shortly before or after it as
to form part of the transaction, is a
relevant fact."

24. The outcome of the post mortem
has been detailed earlier. Injuries were
there on the person of the deceased in the
form of multiple contusions over face and
head, abrasions over posterior aspect of
both elbows and right wrist. Labia minora
of both sides in posterior parts were
contused. Hymen was ruptured. Free and
clotted blood was present in vagina. Dried
blood was present on the external part of
the wooden stick which was inserted in
the vagina. Obviously, what was found on
the autopsy of the deceased, corroborates
the testimony of the eyewitnesses that
they had seen the accused inserting stick
into the vagina of the deceased. The total
length of the stem/stick was 57 cms. X .8
cm. in diameter. The length of external
part of wooden stick was 24 cms.
Whereas 33 cms. Of stick was inside the
vagina. Stomach, large and small intestine
were perforated due to insertion of the
wooden stick. Mesenteric vessels in the
abdomen were torn due to insertion of
wooden stick. Of course, PW1 Dr. R.S.
Chahar stated that on the basis of post
mortem report it could not be said
whether rape had been committed on the
deceased or not. But it does not negative
the commission of rape on her. The
Doctor also clearly stated that the other
injuries found on the person of deceased
could be caused by pressure of hands,
nails and scratches. It is well indicated
that the accused committed rape with the
teenaged girl with passionate lust and
caused other injuries too in the form of
abrasions and contusions on her person.
The statement of Doctor on the basis of
post mortem report whether rape had been
committed or not, cannot be capitalized
by the defence to argue that rape had not
been committed on her. Really speaking,
internal organs of the deceased through
vagina had been so badly mauled and
damaged by the accused by insertion of
stick into her vagina after committing
rape that clear evidence of rape could not
possibly be found at the time of post
mortem. But features found on the post
mortem cannot and do not negate rape
having been committed on her.

25. It would be recalled that as per
the testimony of the witnesses, the girl
3All] Bantu V. State of U.P. 1253
was bleeding profusely from her private
part at the spot when the accused was
caught red handed in complete naked
condition. It was a fact that on being
taken to the Medical College, the stick
was still found in her vagina and the
length of the stick in the vagina was as
much as 33 cms. Further, medical
examination of the accused himself goes a
long way to indicate that he did commit
rape. Contusions found on his person
were well explained because it was there
in the testimony of the witnesses of fact
that he had tried to run away from the
spot but had been caught after being given
some thrashing. Such instant reaction of
the witnesses was natural. The genital
examination of the accused showed that
glans penis was clean and there was no
smegma present thereon. The smegma on
the glans penis gets removed during
sexual intercourse. The presence of the
same proves that no intercourse was
committed by the person within a perios
of 12 hours. Since no smegma was
present on the glans penis of the accused
at the time of medical examination, it
could safely be inferred that he had
committed sexual intercourse within 12
hours of medical examination. In short,
the absence of smegma was compatible
with coitus, meaning theeby that he had
committed sexual intercourse a little
before his medical examination. Red
abrasion .5 cm x .5 cm at 4 O'clock
position and abrasion of .5 cm x .5 cim at
12 O'clock were present on glans penis
with multiple linear abrasions. The clear
testimony of PW 4 Dr. R.K. Yadav who
examined him on 5.10.2003 at 2.10 A.M.
indicated that the injuries found on her
person were fresh. The Doctor also
clearly stated that the abrasions found on
his
penis
could
be
sustained
in
intercourse. The Doctor was emphatic that
the abrasions found on the glans penis of
the accused could not be caused in any
other
manner
excepting
intercourse.
Therefore, the own medical examination
of the accused further supported the
factum of rape having been committed by
him.

26. As repeatedly stated, the accused
was found at the spot in naked condition
and it is there in the testimony of PW 2
Naresh Kumar that PW 3 Chandrasen
alias Taplu and others had taken him to
the police station putting on clothes. The
accused Bantu was not wearing any
underwear. The pant putting on which he
was taken to the Police Station was sealed
by the Doctor who medically examined
him. The same was sent for chemical
examination to ascertain marks of blood,
semen etc.

27. The chemical examiner in his
report EX. Ka-22 found human blood
stains on the jeans pant of the deceased
and wooden stem/stick. Sperms and
semen had also been found on the pant of
the deceased. Human blood stains, sperms
and semen had been found on the pant of
the accused also. Blood stains on pant
jeans of the deceased and on the pant of
the accused were of human blood of
group 'A'.

28. The above discussion renders it
abundantly clear that the prosecution
satisfactorily established all the features
and attributes of rape having been
committed by the accused on the hapless,
helpless and unfortunate teenaged girl of
five years. The argument advanced by the
learned amucus curiae is lost.

29. Thirdly, the learned amicus
curiae argued that the prosecution failed
1254 INDIAN LAW REPORT ALLAHABAD SERIES [2006
to establish that he intended to commit the
murder of Vaishali. He reasoned that the
offence of murder was not proved against
the accused appellant. The argument is
based on sup0erficial approach and does
not impress us at all. It has to be pointed
out that culpable himicide is murder
barring the cases covered by exceptions
contained in Section 300 I.P.C. The
intention to cause death is one of the four
parameters enumerated in Section 300
I.P.C. rendering culpable himicie to be
murder.
There
are
three
other
eventualities
described
as
"2ndly",
"3rdly" and "4thly" in Section 300 I.P.C.
It needs no debate that everybody is
supposed to know the natural and
probable consequences of his act. At
times, the intention is to be gathered from
the act itself. In the case at hand, after
committing rape on the teenaged girl of
about 5 years, the accused inserted a
stem/stick deep inside the vagina of the
victim causing great internal damage. The
total length of the stick was 57 cms x .8
cm is diameter at most of the places, i.e.,
it was about 1 inch less than 2 feet.
Horribly, the stick measuring 1 ft. 1 inch
had been inserted into the vagina, which
could only be taken out by the Doctor at
the time of post mortem. It would be
recalled that hymen was ruptured with
free and clotted blood in the vagina.
Stomach was perforated, small intestine
were also perforated at places, large
intestine were lacerated. Uterus which
was of a very small size was ruptured due
to stick insertion. Vaginal walls were
lacerated. It admits of no doubt that ost
extensive internal damage had been
caused by the accused who mercilessly
inserted stem/stick into the fragile vagina
of the teenaged girl of about 5 years after
committing
rape
on
her.
In
his
examination before the court, PW 1 Dr.
R.S. Chahar, who conducted autopsy on
the dead body of the deceased, clearly
stated that the injuries found on the
person of the deceased were sufficient to
cause death in ordinary course of nature.
He was emphatic that insertion of the
wooden stick into the vagina was bound
to cause death 100 per cent. To say in
other words, there was no possibility of
escaping the death on insertion of stick
into the vagina in the manner as detailed
and found at the time of post mortem.
Therefore, the argument is not worthy of a
moment's attention that the accused is not
guilty of the offence of murder.

30. It is obvious that he wanted to
camouflage the serious crime of rape
committed by him over the teenaged girl.
So, in a planned manner, after committing
rape, he mercilessly inserted stem/stick
deep inside the fragile vagina of the girl to
the extent of 33 cms to cause her death,
with a view to masquerade the crime as an
accident. It was his cruel innovation that
he inserted a stick deep into her vagina
causing death of the victim. It was just by
providence that due to timely reach of the
witnesses (who were frantically searching
the girl) he could be caught in naked
condition while inserting stick into the
vagina of the victim.

31. We are, therefore, in agreement
with the trial judge that the accused
committed the offence of murder and
there cannot be the slightest doubt about
it.

32. We should also point that the
accused could not show any enmity with
the witnesses of fact, namely, PW 2
Naresh Kumar-uncle of the victim, PW 3
Chandrasen alias Taplu (at whose house
"Devi jagran" was taking place) and PW
3All] Bantu V. State of U.P. 1255
6 Nand Kishore. They (while frantically
searching the girl with flashing torches)
had reached the spot and caught the
accused red-handed in complete naked
state while inserting stem/stick in the
vagina of child Vaishali. It would be
recalled that he was a neighbor of PW 2
Naresh Kumar and the father of the girl.
Actually, he abused and misused this
acquaintance with the girl and took her
way from amongst them on the pretext of
giving her a balloon. We should say as
passing reference that in his statement
under section 313 Cr.P.C. he stated that
he had been falsely implicated due to land
dispute with the witnesses. On carefully
going through the testimony of the
witnesses, we find that not even a
suggestion was given to any of them in
cross-examination about any such dispute.

33. In view of the above discussion,
it is established to the hilt that the trial
judge has rightly found that the accused
committed the offences punishable under
Section 364,376 and 302 I.P.C.

34. It takes us to the most vexed
question as to the quantum of sentence to
b imposed upon the accused. The trial
judge has awarded death sentence to him
for the offence of murder punishable
under Section 302 I.P.C. Learned amicus
curiae has argued that the extreme
penalty of death is not called for in this
case. He urged that the young age of the
accused appellant, the fact of his having
no criminal antecedents and the chances
of his reformation being there are the
mitigating circumstances to reduce the
death sentence to life imprisonment. He
has cited following three rulings to
support his argument.

1.
Raju versus State of Haryana: AIR
2001 SC 2043
2.
Bantu alias Naresh Giri versus State
of M.P. :AIR 2002 SC 70
3.
Amit alias Ammu versus State of
Maharashtra: AIR 2003 SC 3131.

35. We have given our anxious
consideration to the matter. "To be" or
"not to be" is a brain storming question.
Despite
the
emotional
and
often
persuasive arguments, the fact is that
there are some criminals, who cannot
safely be allowed back into society, lest
they cause further harm and destruction.
Besides, the principle of justice demand
that a person must be held accountable for
his actions and the punishment must fit in
6the gravity of the crime. If capital
punishment were to be abolished what
would we do with the prisoners who
would otherwise have been executed?
Should
they
be
sentenced
to
life
imprisonment instead, with no parole? Is
this economically viable? Can any State
really afford to, in effect, feed, clothe and
shelter its most notorious criminals for the
duration of their lives? Prisons even in the
most developed economy, the U.S. are
struggling to cope with an overflow of
prisoners. They would find the going even
more difficult if capital punishment was
to be abolished altogether. And there are
bound to be many taxpayers who would
be extremely exercised at the thought of
their hard earned money being used for
this purpose. Especially if the taxpayers
happened to be the relative of a person
who had been murdered, and his money
was being used to support the convicted
prisoner.

36. There is another, humanitarian,
angle of this debate. Hope is the one force
that sustains every human being. But what
1256 INDIAN LAW REPORT ALLAHABAD SERIES [2006
hope can there be for the prisoner who
knows that he is condemned to spend the
rest of the life inside the jail, with no
chance of ever walking free again? His
life is already over, it is just his demise
that
has
been
indefinitely
delayed.
Everyday, his spirit is crushed anew, his
despair intensified further. Instead of
executing him once and getting it over
with, the State executes him again and
again, every single day. Would not it be
far more humane to put him out of his
misery, as painlessly as possible?

37. Above are some aspects of the
matter which may be termed to be
academic. In our country, for the offence
of murder, death sentence has been
retained for rarest of rare cases. As
Judges, we are not concerned with the
ethics or morals of this punishment. We
must administer the law as it is. Through
a chain of decisions of the Apex Court,
this case is one which falls in the rarest of
rare category demanding extreme penalty
of death. We shall do a little discussion to
demonstrate the justification of the
imposition of death penalty in this case.

38. In the case of Kamta Tiwari Vs.
State of M.P. (1997) JIC-57 (SC) an
innocent hapless girl of 7 years was
subjected to rape and murdered with
barbaric treatment. It was found to be
rarest of rare cases and the sentence of
death was inflicted. The facts of this case
squarely apply to the present one.

39. At the time of medical
examination on 5.10.2003 the Doctor
mentioned the age of the accused as 20
years. The incident took place on
4.10.2003. In the impugned judgment
dated 24.12.2005, the trial Judge has
recorded his age as 22 years. He is an
unmarried person with no family liability.
His mere young age, having regard to the
facts and circumstances of the case and
diabolical manner in which the offence
was committed, cannot be a ground for
clemency. Relying on a Amrut Lal
Someshwar
Joshi
versus
State
of
Maharashtra (1994) 6 SCC 186, the
Supreme Court held in Om Prakash alias
Raja Versus State of Uttaranchal, 2003
SCC (Crl) 412 that mere young age of the
accused is not a ground to desist from
imposing death penalty, if it is otherwise
warranted. In that case also, none was
dependent on the appellant and the
Supreme Court held that there was no
mitigating circumstance in his favour.

40. In the Dhananjay Chatterjee
alias Dhana Versus State of West Bengal:
1994 SCC (Crl.) 358 while approving the
death sentence of the accused of rape and
murder of a young girl, the Supreme
Court observed as under:

"In our opinion, the measure of
punishment in a given case must depend
upon the atrocity of the crime; the
conduct
of
the
criminal
and
the
defenceless and unprotected state of the
victim.
Imposition
of
appropriate
punishment is the manner in which the
courts respond to the society's cry for
justice against the criminals. Justice
demands that courts should impose
punishment befitting the crime so that the
courts reflect public abhorrence of the
crime. The courts must not only keep in
view the rights of the criminal but also the
rights of the victim of crime and the
society
at
large
while
considering
imposition of appropriate punishment."

41.