# MOHD. FIROZ v. STATE OF MADHYA PRADESH

- **Citation:** [2022] 19 S.C.R. 168
- **Court:** Supreme Court of India
- **Decided:** 2022-04-19
- **Case number:** Criminal Appeal No. 612 of 2019
- **Bench:** Uday Umesh Lalit, S. Ravindra Bhat, Bela M. Trivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-firoz-v-state-of-madhya-pradesh-36222
- **Pages:** 34

## Headnote

Penal Code, 1860 - Ss. 302, 376(2)(i), 376(2)(m), 363, 366,
376A - Protection of Children from Sexual Offences Act, 2012
(POCSO) - ss. 5 (i), 5 (m), 6 - Evidence Act, 1872 - s. 106 - Code
of Criminal Procedure, 1973 - ss. 304, 313 - Rape and sexual
assault on the young child-victim - Appellant-accused along with
one another accused person was convicted for death sentence and
life imprisonment, respectively, by the trial court for the offences u/
ss. 302, 376(2)(i), 376(2)(m), 363, 366 IPC r/w. s. 5(i) r/w. s. 6 and
s.5(m) r/w. s. 6 of the POCSO Act - High Court, while dismissing
the appeal, affirmed the order of conviction by trial court regarding
the appellant herein but acquitted the other accused person -
Appellant has, thus, preferred the present appeal - Whether the
trial had been conducted in a fair manner by following the due
procedure and the prosecution had proved the guilt of the accused
beyond reasonable doubt since the case was based on circumstantial
evidence- Whether the prosecution had adequately proved the
circumstance with regard to the theory of "last seen together"-
Whether the prosecution had sufficiently proved the "proximity of
time" i.e. 'the time gap between the victim being lastly seen with the
appellant-accused and the time when she was found injured and
unconscious in the field' - Held: In the instant case, neither any
explanation was offered by the appellant in his further statement
under Section 313 of Cr.P.C. nor any concrete defence was taken
during the course of the cross-examination of the witnesses -
Conduct of the accused in absconding away also was a
circumstance duly proved by the prosecution against him - Time
gap between the victim being lastly seen with the appellant-accused
and the time when she was found injured and unconscious in the
field was hardly 12 hours- The said injuries had resulted into her
death - Prosecution had proved the close proximity of time when
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the victim was last seen with the appellant and when the victim was
found unconscious and in injured condition, which ultimately
resulted into her death - Nothing on record to suggest that the due
procedure was not followed or there was deprivation of the legal
aid or legal assistance to accused -Views taken by the Courts below
with regard to the conviction of the appellant for offences charged
against him, deem it proper to commute, and accordingly commute
the sentence of death for the sentence of imprisonment for life, for
offence punishable u/s.302 IPC - While balancing the scales of
retributive justice and restorative justice, appellant-accused,
sentenced to imprisonment for a period of twenty years instead of
imprisonment for the remainder of his natural life for the offence
under section 376A, IPC.
Sentencing - Restorative Justice- One of the basic principles
of restorative justice is to give an opportunity to the offender to
repair the damage caused, and to become a socially useful
individual when he is released from the jail- maximum punishment
prescribed may not always be the determinative factor for repairing
the crippled psyche of the offender- Hence, while balancing the
scales of retributive justice and restorative justice.
Partly allowing the appeal, the Court
HELD: The first and foremost circumstance regarding the
visit of the appellant along with 'R' on the date and time as alleged
was very crucial and that was admitted by the appellant. By such
admission, even his identity had stood proved. There cannot be
gainsaying that no conviction could be based on the statement of
the accused recorded under section 313 of the Cr.P.C. and the
prosecution has to prove the guilt of the accused by leading
independent and cogent evidence, nonetheless it is equally
settled proposition of law that when the accused makes
inculpatory and exculpatory statements, the inculpatory part of
the statement can be taken aid of to lend credence to the case of
prosecution. In the instant case also, though the conviction

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[2022] 19 S.C.R. 168
168
MOHD. FIROZ
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 612 of 2019)
APRIL 19, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
BELA M. TRIVEDI, JJ.]
Penal Code, 1860 - Ss. 302, 376(2)(i), 376(2)(m), 363, 366,
376A - Protection of Children from Sexual Offences Act, 2012
(POCSO) - ss. 5 (i), 5 (m), 6 - Evidence Act, 1872 - s. 106 - Code
of Criminal Procedure, 1973 - ss. 304, 313 - Rape and sexual
assault on the young child-victim - Appellant-accused along with
one another accused person was convicted for death sentence and
life imprisonment, respectively, by the trial court for the offences u/
ss. 302, 376(2)(i), 376(2)(m), 363, 366 IPC r/w. s. 5(i) r/w. s. 6 and
s.5(m) r/w. s. 6 of the POCSO Act - High Court, while dismissing
the appeal, affirmed the order of conviction by trial court regarding
the appellant herein but acquitted the other accused person -
Appellant has, thus, preferred the present appeal - Whether the
trial had been conducted in a fair manner by following the due
procedure and the prosecution had proved the guilt of the accused
beyond reasonable doubt since the case was based on circumstantial
evidence- Whether the prosecution had adequately proved the
circumstance with regard to the theory of "last seen together"-
Whether the prosecution had sufficiently proved the "proximity of
time" i.e. 'the time gap between the victim being lastly seen with the
appellant-accused and the time when she was found injured and
unconscious in the field' - Held: In the instant case, neither any
explanation was offered by the appellant in his further statement
under Section 313 of Cr.P.C. nor any concrete defence was taken
during the course of the cross-examination of the witnesses -
Conduct of the accused in absconding away also was a
circumstance duly proved by the prosecution against him - Time
gap between the victim being lastly seen with the appellant-accused
and the time when she was found injured and unconscious in the
field was hardly 12 hours- The said injuries had resulted into her
death - Prosecution had proved the close proximity of time when
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the victim was last seen with the appellant and when the victim was
found unconscious and in injured condition, which ultimately
resulted into her death - Nothing on record to suggest that the due
procedure was not followed or there was deprivation of the legal
aid or legal assistance to accused -Views taken by the Courts below
with regard to the conviction of the appellant for offences charged
against him, deem it proper to commute, and accordingly commute
the sentence of death for the sentence of imprisonment for life, for
offence punishable u/s.302 IPC - While balancing the scales of
retributive justice and restorative justice, appellant-accused,
sentenced to imprisonment for a period of twenty years instead of
imprisonment for the remainder of his natural life for the offence
under section 376A, IPC.
Sentencing - Restorative Justice- One of the basic principles
of restorative justice is to give an opportunity to the offender to
repair the damage caused, and to become a socially useful
individual when he is released from the jail- maximum punishment
prescribed may not always be the determinative factor for repairing
the crippled psyche of the offender- Hence, while balancing the
scales of retributive justice and restorative justice.
Partly allowing the appeal, the Court
HELD: The first and foremost circumstance regarding the
visit of the appellant along with 'R' on the date and time as alleged
was very crucial and that was admitted by the appellant. By such
admission, even his identity had stood proved. There cannot be
gainsaying that no conviction could be based on the statement of
the accused recorded under section 313 of the Cr.P.C. and the
prosecution has to prove the guilt of the accused by leading
independent and cogent evidence, nonetheless it is equally
settled proposition of law that when the accused makes
inculpatory and exculpatory statements, the inculpatory part of
the statement can be taken aid of to lend credence to the case of
prosecution. In the instant case also, though the conviction of
the appellant-accused could not be made merely on his admission
of the circumstance of his visit to the house of the informant on
the previous day evening of the fateful day, such admission could
certainly be taken aid of to lend assurance to the evidence of the
prosecution [Paras 23 & 24][188-E-G; 190-E]
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1.2 The next and most important circumstance was with
regard to the theory of "last seen together" propounded by the
prosecution. In this regard, if the version of the witnesses
examined by the prosecution are closely appreciated, there
remains no shadow of doubt that it was duly proved that after 'H'
refused 'R' to permit the appellant-accused to stay at their house,
'R' had left the house, but the appellant continued to sit in the
courtyard of the house of the informant. It was also proved that
at that time the victim along with her cousins was playing in the
said courtyard, and after sometime the appellant-accused, victim
and RK were not seen at the courtyard. According to the mother
of the victim, when she was searching for her daughter, she saw
that RK was coming with a polythene bag containing bananas,
and RK told her that the said bananas were given by Bhaijaan
i.e., the appellant, and that he (i.e. Bhaijaan) had taken the victim
along with him. The said RK had fully corroborated the said
version of RK, in his deposition before the Court and the fruit
vendor had also stated that the appellant along with two children
had come to his shop to purchase the bananas and that he had
given three bananas to RK and asked him to leave home, and he
had taken the victim with him. The evidence of these witnesses
could not be disbelieved merely because they happened to be
the relatives of the informant. Pertinently there was no concrete
defence taken during the cross-examination of any of these
witnesses examined by the prosecution. Some minor discrepancies
in the evidence of the witnesses could not be said to be major
contradictions to throw away the case of the prosecution
overboard or disbelieve the prosecution. It was also duly proved
that the appellant-accused had taken the victim with him from
the shop of fruit vendor in the evening hours of the alleged
incident, which was a very strong circumstance proved against
the accused. [Para 25][190-F-H; 191-A-E]
1.3 Once the theory of "last seen together" was established,
the accused was expected to offer some explanation as to under
which circumstances he had parted the company of the victim. It
hardly needs to be reiterated that in the criminal jurisprudence,
the entire burden of proving the guilt of the accused rests on the
prosecution, nonetheless if the accused does not throw any light
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upon the facts which are proved to be within his special knowledge
in view of Section 106 of the Evidence Act, such failure on the
part of the accused may also provide an additional link in the
chain of circumstances required to be proved against him. Of
course, Section 106 of the Evidence Act does not shift the burden
of the prosecution on the accused, nor requires the accused to
furnish an explanation with regard to the facts which are especially
within his knowledge, nonetheless furnishing or non-furnishing
of the explanation by the accused would be a very crucial fact,
when the theory of "last seen together" as propounded by the
prosecution is proved against him, to know as to how and when
the accused parted the company of the victim. [Para 26][191-EH; 192-A]
1.4 In the instant case, though it was duly proved that the
appellant-accused had taken the victim with him from the shop of
fruit vendor, neither any explanation was offered by the appellant
in his further statement under Section 313 of Cr.P.C. nor any
concrete defence was taken during the course of the crossexamination of the witnesses. It is pertinent to note that after
the alleged incident, he had run away to his native place at Bihar.
Admittedly he was arrested therefrom and was brought back after
obtaining the transit remand from the concerned court at
Bhagalpur. The said conduct of the accused in absconding away
also was a circumstance duly proved by the prosecution against
him. [Para 30][194-F-H]
1.5 So far as the proximity of time is concerned, coupled
with the other evidence, the prosecution had proved the close
proximity of time when the victim was last seen with the appellant
and when the victim was found unconscious and in injured
condition, which ultimately resulted into her death. [Paras 31 &
32][195-E-F]
1.6 The next issue with regard to the trial having not been
conducted in fair manner, there is nothing on record to suggest
that the due procedure was not followed or that the appellantaccused had suffered on account of deprivation of the legal aid or
legal assistance to him. The trial court did provide legal assistance
to both the accused by appointing a lawyer at the expense of the
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State, who had thoroughly cross-examined all the witnesses
examined by the prosecution, and had also examined two
witnesses on behalf of accused R. Apart from the fact that no
such contention was raised during the course of trial or even
before the High Court in the two separate appeals filed by the
accused represented by two separate lawyers, no such contention
has been raised by the appellant-accused even in the memorandum
of the present appeal. The oral submission made by the learned
Senior Advocate appearing on behalf of the accused at the fag
end of his arguments that there was no fair trial conducted, without
substantiating the said submission, cannot be entertained. Even
otherwise, it may noted that during the course of recording the
further statement, the appellant-accused had responded to the
incriminating circumstances brought to his notice, after fully
understanding them as transpiring from the answers recorded
by the court. It is possible that the incident in question would
have created an anguish amongst the public at large as also
amongst the media, nonetheless in absence of any material on
record, no inference could be drawn that because of such media
pressure, the trial was not conducted in fair manner. [Paras 33,
34][195-G; 196-E-G; 197-A-B]
1.7 Having regard to the proved circumstances on record,
more particularly the circumstances that preceded and followed
from the point the deceased-victim was seen last together with
the appellant-accused, the court has no hesitation in holding that
the prosecution had proved beyond reasonable doubt all the
circumstances individually and also proved the circumstances
forming a chain, so conclusive as to rule out the possibility of any
other hypothesis except the guilt of the appellant-accused. It was
duly proved that while committing the barbaric acts of rape and
sexual assault on the young child-victim aged about 04 years, the
appellant-accused had inflicted bodily injuries as mentioned in
the post-mortem report which had caused her death. The trial
court had rightly convicted the appellant-accused for the offences
punishable under sections 302, 376(2)(i), 376(2)(m), 363, 366 of
IPC and section 5(i) read with section 6 and section 5(m) read
with section 6 of the POCSO Act. The said order of conviction
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was affirmed by the High Court; and is being further affirmed by
this Court. [Para 36][197-F-H; 198-A]
1.8 The next question that falls for consideration is with
regard to the sentence to be imposed on the appellant. While
affirming the view taken by the courts below with regard to the
conviction of the appellant for the offences charged against him,
This Court deem it proper to commute, and accordingly commute
the sentence of death for the sentence of imprisonment for life,
for the offence punishable under Section 302 IPC. Since, Section
376A IPC is also applicable to the facts of the case, considering
the gravity and seriousness of the offence, the sentence of
imprisonment for the remainder of appellant's natural life would
have been an appropriate sentence, however, this Courtis
reminded of what Oscar Wilde has said - "The only difference
between the saint and the sinner is that every saint has a past
and every sinner has a future". One of the basic principles of
restorative justice as developed by this Court over the years,
also is to give an opportunity to the offender to repair the damage
caused, and to become a socially useful individual, when he is
released from the jail. The maximum punishment prescribed may
not always be the determinative factor for repairing the crippled
psyche of the offender. Hence, while balancing the scales of
retributive justice and restorative justice, this Courtdeems it
appropriate to impose upon the appellant-accused, the sentence
of imprisonment for a period of twenty years instead of
imprisonment for the remainder of his natural life for the offence
under section 376A, IPC. The conviction and sentence recorded
by the courts below for the other offences under IPC and POCSO
Act are affirmed. It is needless to say that all the punishments
imposed shall run concurrently. [Paras 37 & 43][198-B; 200-DG; 201-A]
Masalti vs. State of U. P. AIR 1965 SC 202 : [1964]
SCR 133; Ajay Singh vs. State of Maharashtra (2007)
12 SCC 341 : [2007] 7 SCR 983; K. Anbazhagan vs.
The superintendent of Police & Ors. (2004) 3 SCC 767
: [2003] 5 Suppl. SCR 610; Zahira Habibullah Sheikh
& Anr. Vs. State of Gujarat & Ors. (2006) 3 SCC 374 :
[2006] 2 SCR 1081 - referred to.
MOHD. FIROZ v. STATE OF MADHYA PRADESH
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Sharad Birdhichand Sarda vs. State of Mahashtra 1984
(4) SCC 116 : [1985] 1 SCR 88; Mohan Singh vs. Prem
Singh & Anr. (2002) 10 SCC 236 : [2002] 3 Suppl.
SCR 5; Rajender vs. State (NCT of Delhi) (2019) 10
SCC 623; Satpal vs. State of Haryana (2018) 6 SCC
610; Surajdeo Mahto vs. The State of Bihar (2022) 11
SCC 800; Maneka Gandhi vs. UOI (1978) 1 SCC 248
: [1978] 2 SCR 621; Bachan Singh Vs. State of Punjab
(1980) 2 SCC 684; Machhi Singh vs. State of Punjab
(1983) 3 SCC 470 : [1983] 3 SCR 413; Shatrughna
Baban Meshram Vs. State of Maharashtra (2021) 1 SCC
596 - relied on.
Case Law Reference
[1964] SCR 133
referred to
Para 20
[2007] 7 SCR 983
referred to
Para 20
[2003] 5 Suppl. SCR 610
referred to
Para 20
[2006] 2 SCR 1081
referred to
Para 20
[1985] 1 SCR 88
relied on
Para 22
[2002] 3 Suppl. SCR 5
relied on
Para 23
(2019) 10 SCC 623
relied on
Para 27
(2018) 6 SCC 610
relied on
Para 28
(2022) 11 SCC 800
relied on
Para 29
[1978] 2 SCR 621
relied on
Para 33
(1980) 2 SCC 684
relied on
Para 38
[1983] 3 SCR 413
relied on
Para 41
(2021) 1 SCC 596
relied on
Para 42
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
612 of 2019.
From the Judgment and Order dated 15.07.2014 of the High Court
of Madhya Pradesh at Jabalpur in Criminal Appeal Nos. 09, 2920 and
3132 of 2013.
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B. H. Marlapalle, Sr. Adv., Ms. Shreya Rastogi, Ms. Harini
Raghupathy, Satya Mitra, Advs. for the Appellant.
P. V. Yogeswaran, AAG, Pashupathi Nath Razdan, Ms. Samridhi
Jain, Astik Gupta, Ms. Sneh Bairwa, Prakhar Srivastav, Advs. for the
Respondent.
The Judgment of the Court was delivered by
BELA M. TRIVEDI, J.
1. The present appeal was initially filed by the appellant-Bibi
Sidhika, the mother of the accused Mohd. Firoz, challenging the legality
and validity of the impugned common judgement and order dated
15.07.2014 passed by the High Court of Judicature, Madhya Pradesh at
Jabalpur, in the Criminal Reference No. 09 of 2013, Criminal Appeal
No. 2920 of 2013 and Criminal Appeal No. 3132 of 2013. During the
pendency of the present appeal, the said appellant having expired, the
accused Firoz has been substituted as the appellant in view of the order
passed by this Court on 21.10.2021.
Case of Prosecution : -
2. The case of the prosecution as unfolded before the trial court
was that on 17.04.2013, at about 06:30 PM, one Rakesh Choudhary
(original accused no. 2) came to the house of the informant Ramkumari
(mother of the victim) along with an unknown person (the present
appellant-original accused no. 1) and requested the said Ramkumari and
her mother Himmabai to provide an accommodation to the said unknown
person for a day, however, Himmabai refused to provide such
accommodation. Thereafter, Rakesh Choudhary left and his friend sat
for a while at the courtyard of the house of the complainant, where the
victim aged about four years was playing with her brother Ramkishan
and other cousins. After sometime, Ramkumari found that her daughter
was missing and the other person (the accused no. 1) was also not
there. She along with others tried to search her daughter at the nearby
places, however, her daughter was not found. After sometime Ramkishan
came with some bananas and told Ramkumari that Bhaijaan (accused
no. 1) had taken the victim with him. Ramkumari therefore went to the
police station Ghansaur for lodging a missing report. On the next day
i.e., on 18.04.2013 morning, some villagers found that one girl child was
lying unconscious in the field of one Badri Yadav. On receiving such
information, Shyam Yadav, the brother of Ramkumari went to the spot
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and found that the victim was lying unconscious and blood was oozing
from her mouth and nostrils. He immediately took the victim first to the
Police Station and then to the Government Hospital at Ghansaur, however,
since the condition of the victim was deteriorating, she was shifted to
the hospital at Jabalpur. The Doctors who examined and treated her
confirmed that a rape was committed on the victim. Considering her
serious condition, the victim was taken to the Care Hospital at Nagpur,
however, on 29.04.2013, the victim expired at the said hospital. Dr.
Pradeep Gangadhar Dixit, a professor and H.O.D. in Forensic Medicine
Department, Medical College, Nagpur along with his colleagues
conducted the postmortem of the dead body of the victim at about 10.35
AM on 30th April 2013 and noted the external and internal injuries on the
body of the victim. The final cause of death was stated to be
"bronchopheumonia and cerebral hypoxia, which was caused by
smothering the nose and mouth."
3. In the meantime, Mr. R.D. Barthi, In-charge Inspector, Police
Station, Ghansaur, on the missing person report given by Ramkumari
Bai had started investigation and found that the accused Firoz Khan (the
present appellant), who was working in Jhabua Power Plant had taken
away the victim deceitfully. He therefore registered an FIR being no. 68
of 2013 against the accused at about 06:40 AM on 18.04.2013 for the
offences under Section 363 and 366 of IPC. The accused Rakesh
Choudhary came to be arrested on 20th April 2013 and the appellantaccused Firoz was arrested on 23rd April, 2013 from Husainabad, Police
Station Mojahidpur, Balsaur, Bhagalpur, Bihar.
4. The investigating officer after completing the investigation laid
the charge-sheet against both the accused before the trial court. The
accused Mohd. Firoz was charged for the offences under sections 363,
366, 376(2)(i), 376(2)(m) and 302 of IPC and under section 5(i), 5(m)
and Section 6 of the Protection of Children from the Sexual Offences
Act, 2012 (hereinafter referred to as the POCSO Act), and the accused
Rakesh Choudhary was charged for the offences under sections 363
and 366 r/w Section 34 and under Section 109 of IPC and under Section
16/17 of the POCSO Act. Both the accused having abjured their guilt
and claimed to be tried, the prosecution examined as many as 34 witnesses
to prove their guilt. Both the accused denied the allegations levelled
against them in their respective further statements recorded under section
313 of Cr.PC and stated that they were falsely implicated in the case.
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The accused no. 2 Rakesh Choudhary in his defence examined two
witnesses i.e., DW-1 Virendra Choudhary and DW-2 Gopal Prasad
Ahirwar. The Sessions Court at Seoni after appreciating the evidence
on record convicted both the accused for the offences charged against
them and awarded death sentence to the accused Firoz for the offence
under section 302 of IPC and directed to undergo rigorous imprisonment
for a period of 07 years and pay fine of Rs. 2000/- for the offence under
section 363, to undergo rigorous imprisonment for a period of 10 years
and pay fine of Rs. 2000/- for the offence under section 366 of IPC, to
undergo life imprisonment and pay fine of Rs. 2000/- for the offences
under sections 376(2)(i), 376(2)(m) of IPC and under sections 5(i)r/w 6
& 5(m) r/w 6 of POCSO Act. The Sessions Court directed the accused
Rakesh Choudhary to undergo rigorous imprisonment for a period of 07
years and pay fine of Rs. 2000/- for the offences under section 363/34,
to undergo rigorous imprisonment for a period of 10 years and pay fine
of Rs. 2000/- for the offences under section 366/34 and to undergo life
imprisonment and pay fine of Rs. 2000/- for the offence under section
109 of IPC and for the offences under section 16/17 of POCSO Act.
5. The reference made by the Sessions Court to the High Court
of M.P. at Jabalpur, for the confirmation of the death sentence to the
accused-Firoz was registered as Criminal Reference No. 09 of 2013.
The accused Mohd. Firoz had also filed an appeal being Criminal Appeal
No. 2920 of 2013 and the accused Rakesh Choudhary had filed an appeal
being Criminal Appeal No. 3132 of 2013 before the High Court. The
High Court vide the impugned common judgement and order dated
15.07.2014 allowed the Criminal Appeal No. 3132 of 2013 filed by the
accused Rakesh Choudhary and acquitted him from the charges levelled
against him, however, dismissed the Criminal Appeal No. 2920 of 2013
filed by the accused Mohd. Firoz and confirmed the death sentence
awarded to him. Being aggrieved by the same, the appellant has preferred
the present appeal before this Court.
Evidence: -
6. In order to prove the guilt of the accused, the prosecution had
examined three sets of witnesses. In the first set, the relatives and
acquaintances of the informant- Ramkumari, mother of the victim, were
examined. The informant Ramkumari deposed inter alia that on 17th
April, 2013 at about 7.00 p.m., when she came home after finishing her
work, she saw that one person (the accused-Firoz Khan) was sitting on
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[BELA M. TRIVEDI, J.]
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a chair in the courtyard of her house and Rakesh Choudhary (the other
accused) was sitting on the platform of the courtyard. According to her,
Rakesh Choudhary was telling her mother Himmabai that "Amma
Bhaijaan will sleep here", however, her mother refused. After the said
conservation, she did not know where the said Choudhary had gone but
Bhaijaan (Firoz) kept sitting on the chair. At that time, her daughters
Pooja, Madhu, her brother's son- Ramkishan and her sister's son Nilesh
all were playing in the courtyard. She went inside the house and after
some time when she came out, she saw that her daughter Pooja and her
brother's son Ramkishan were not in the courtyard, and the said Firoz
Bhaijaan was also not seen. She therefore started searching Pooja and
Ramkishan, and she saw Ramkishan coming with bananas in a polythene
bag. On being inquired by her as to where Pooja was, Ramkishan told
her that Bhaijaan had taken Pooja along with him. She thereafter continued
to search Pooja but could not find her. She, therefore, along with her
sister Jyoti went to the Police Station, Ghansaur to lodge the report. The
said report of missing person was lodged at about 20:35 at the police
station, Ghansaur, (Exhibit P-1). She further deposed before the Court
that on the next day, the persons who go out to defecate in open came to
her house and told her brother Shyam that one girl was lying unconscious
in the field. Her brother, therefore, went to the field and found that the
victim was lying unconscious there and blood was oozing from her nose
and genital organs. Thereafter, she alongwith her mother Himmabai and
her brother Shyam took her daughter Pooja to the police station and then
to the Ghansaur Hospital however Pooja remained unconscious. Her
daughter, thereafter, was taken to the Medical College, Jabalpur, from
Ghansaur Hospital and then to Nagpur by air for treatment, where she
was admitted in the Care Hospital. Her daughter was treated for about
08 days in the said hospital and she died on 29th April, 2013. She further
deposed that the doctors of all the places like Ghansaur, Jabalpur and
Nagpur, where her daughter had undergone the treatment had told that
a rape was committed on her and that an attempt was made to murder
her by strangulating her neck. After her death, the Nagpur police had
registered a report (Exhibit P-2). During the course of her deposition,
she had identified the accused-Firoz present in the Court and stated that
he was the same Bhaijaan. She also stated that the said Firoz had raped
Pooja and inflicted injuries which caused her death. The said version of
PW-1 Ramkumari was fully supported by the witnesses PW-2 Madhu
Yadav who happened to be the sister of the deceased, PW-6 Himmabai
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who happened to be the grandmother of the deceased and mother of
Ramkumari, PW-7 Preeti Yadav who happened to be the younger sister
of Ramkumari. They had stated to be present in the house when both
the accused Rakesh and Firoz had come to the house of Ramkumari.
7. The prosecution, in order to prove that the victim was last seen
together with the accused-Firoz had examined PW-31 Ramkishan Yadav.
The said Ramkishan aged about four years happened to be the son of
PW-5 Shyam Yadav i.e., brother of Ramkumari. Ramkishan deposed
before the Court inter alia that Firozbhai had come to their home and
then had taken him and Pooja to a fruit shop. Firozbhai had given him
three bananas and biscuits and thereafter asked him to go home, however,
had taken Pooja with him. Identifying the accused-Firoz sitting in the
Court, Ramkishan had stated that he was Firoz Bhaijaan who had taken
her sister Pooja with him and thereafter Pooja was found dead. He
specifically denied in the cross-examination that after Firoz Bhaijaan
gave bananas and biscuits to him, Pooja also came along with him.
8. PW-4 Nitin Namdev was the fruit seller. He deposed that on
17.04.2013 at about 7.00 pm, one person wearing a white shirt and black
full pant had come with one girl and a boy, both aged about four years,
and had purchased six bananas from his shop for Rs.20/-. He also
identified the accused-Firoz sitting in the Court and stated that he had
come to his shop. He further stated that the said person had given three
bananas to the boy and asked him to go home and had taken the four
years old girl with him, and then had gone towards the crossing. On the
next day he came to know that a person named Firoz working in the
Power Plant had committed rape on the girl and had killed her, and that
he was the same person who had bought bananas from his shop. In the
cross-examination, he had stated that after some days of the incident,
the Tehsildar had asked him to come to a school, where he had identified
the accused Firoz.
9. PW-5 Shyam Yadav who happened to be the brother of
Ramkumari and maternal uncle of the victim, had stated that he was not
staying with his mother and sister, however, on the day, when the victim
was found missing, he had stayed back with them. On the next day
morning, the Village Kotwar Santosh Das had come and informed him
that a girl was lying in the field of Badri Yadav. He therefore went to the
field along with the Kotwar and saw that the girl-Pooja was lying
unconscious and blood was oozing from her nostrils. He also saw her
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underwear, skins of bananas and some money lying near her body. He
took Pooja first to the police station Ghansaur and from there took her to
the Ghansaur Hospital for treatment. According to him, since her condition
was very critical, she was taken to the Hospital at Jabalpur and thereafter
to the hospital at Nagpur for treatment, however, she died there.
10. In the second set of witnesses, the prosecution had examined
the doctors who had treated the victim. PW-17 Dr. Bharti Sonkeshariya,
the Medical Officer at the Community Health Center, Ghansaur had
examined the victim at about 7.30 a.m on 18.04.2013. She had stated
that the patient was unconscious, and blood was oozing from her nose
and also from her vagina. As her condition was very critical, she was
referred to the Medical College, Jabalpur. Her Medical Report was
marked as Exhibit P-36. PW-20 Dr. Bharti Sahu, Assistant Professor at
Medical College, Jabalpur had stated that on 18.04.2013 at about 9.30
a.m. one girl named Pooja was brought for treatment by the police
constable Dilip Rajput of police station, Ghansaur and she had found
that Pooja was unconscious and was having seizures. After referring to
the injuries, she had opined in the medical report (Exhibit P-40) that the
victim's hymen was found ruptured due to sexual intercourse and that a
rape was committed on her. PW-21 Dr. Hemant, a Private Medical
Practitioner (Pediatrician) at Jabalpur Hospital, Jabalpur had also
examined Pooja and carried out C.T. Scan. He had found swelling in her
brain. She was kept on the ventilator, but her condition was very critical
and, therefore, she was shifted to Nagpur.
11. PW-29 Dr. Deepak Ramratan Goyal, Pediatric Surgeon at the
Care Hospital, Nagpur had deposed that on 20th April, 2013 at about
11.00 p.m. Kumari Pooja Yadav was brought to the Hospital by air
ambulance from Jabalpur Research Centre. The girl was unconscious
and was kept on artificial respiration. She was immediately admitted in
the Intensive Care Unit of Children. He had found swelling in her brain
due to deficiency of oxygen, and several injuries on her vaginal area.
According to him, in spite of all the efforts, the girl could not be saved
and she died on 29th April, 2013 at about 7.45 P.M. In his opinion, the
cause of death was "Hypoxic Ischemic Encephalopathy with vaginal
injury with cardiorespiratory arrest" i.e., she died due to cardiorespiratory
arrest due to deficiency of oxygen in the brain, due to pressing of mouth
and neck and due to excessive injury in the genital organ. The medical
report given by him was marked as Exhibit P-50.
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12. The post-mortem of the victim was conducted by PW-24 Dr.
Pradeep Gangadhar Dixit, Professor and H.O.D in Forensic Medicine
Department, Medical College, Nagpur, on 30th April, 2013, along with
his colleagues. He had recorded the following in the post-mortem note
(Exhibit P-44) -
"1. The dead was wearing a shirt and Pajama of the Hospital.
There were 8 teeth in upper portion and 10 temporary teeth
on the lower portion of mouth. Right upper incisor tooth and
left upper lateral incisor tooth were absent. Left upper central
incisor tooth was loose with blue colored swollen gums of its
surroundings.
1. On examination of the external genitals, I had found that
labia majora and labia minora contused, oedematous with
blue discolouration. Superficial partially healed vulva
laceration present at 6 "O" clock position of size 0.3 cm x
0.3 cm. Vaginal canal oedematous and hyperemic. Hymen
torn at 3.6 and 7 O'clock position. Dilatation of hymenal
opening. Urethral meatas oedematuous and bruised present.
2. The following injuries were found on the body of
deceased: -
1. Partially healed lacerated wound present over upper
lip in midline involving mucosal area of size 0.2. cm x 0.2
cm muscle deep surrounding area contused, bluish.
2. Partially healed lacerated wound present over lower lip
in midline involving mucosal area of size 0.2 x 0.2 cm
muscle deep surrounding area contused, bluish.
3. Abrasion present over lateral aspect of neck on right
side, 3 cm below tip of right mastoid bone of seize 2 cm x 2
cm dark brown.
4. Abrasion present 2 cm below of injury no. 3 of size 2 cm
x 0.3 cm.
5. Abrasion present over area overlying right submandibular
region of size 0.3 cm x 0.3 cm.
6. Abrasion present over nape of neck on right side at the
level of C-7 vertebra of size 0.4 cm x 0.4 cm.
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7. Abrasion present over right intra scapular region of size
0.2 cm x 0.2 cm.
8. Abrasion present over left scapular region of size 1.5
cm x 0.5 cm.
9. Multiple abrasions present over lower portion of stomach
at right side of size varying from 0.3 cm x 0.2 cm to 0.2.
cm x 0.1 cm.
10. Multiple linear abrasions present over posterior aspect
of left thigh, middle 1/3rd part over an area of size 4 cm x
3 cm of size varying from 4 cm x 0.2 cm to 3 cm x 0.1 cm.
11. Tracheotomy wound present over anterior aspect of
neck with stiches in situ which is done for ventilator.
12. A hole over right side of next which is made to assess
the central venous pressure.
13. Puncture marks present over both elbow of hands,
upper portion of right wrist, dorsum of right hand and both
legs for administering I.V. fluids.
14. On conducting internal examination of the body, I had
found the following: -
1. Symptoms of pneumonia were found in her right lung.
Blood clotted over internal muscles of the neck. All the
organs were found congested. Brain was found
edematous."
13. The said doctor had deposed that all the injuries found on the
body were ante-mortem and the opinion regarding the cause of death
was kept reserved. Thereafter, on 15.05.2013, the histopathology report
(Exhibit P-46) was received from the Pathology Department, Medical
College, Nagpur, in which the final cause of death reported was
"bronchopneumonia and cerebral hypoxia, which was caused by
smothering the nose and mouth."
14. The accused Firoz was medically examined by PW-18 Dr.
Dipendra Sallame, the Medical Officer at C.H.C. Lakhnadon, District
Seoni on 25.04.2021 and after his examination, he had opined that the
accused Firoz was capable to do sexual intercourse. Doctor had prepared
and sealed two semen slides of the semen of Mohd. Firoz and had also
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sealed a black coloured underwear of the said Firoz encircling a white
spot, and had handed over the same to the said Constable. His examination
report was exhibited as Exhibit P-39. PW-23 Dr. Vinod Dahayat, the
Medical Officer at District Hospital, Seoni to whom the accused Firoz
was brought on 04.05.2013, had taken his blood sample for the D.N.A.
test. He had also attested the photograph of accused Firoz. The said
Doctor had identified the accused Firoz sitting in the Court by stating
that he was the same person whose blood sample was taken and whose
photograph was attested by him.
15. PW-25 Dr. Pankaj Shrivastava, Scientific Officer at F.S.L.,
Sagar had received the Articles relating to the present case through the
letter dated 21.04.2013 of the Superintendent of Police, Seoni brought
by the Constable, Police Station Ghansaur on 24.04.2013, and through
the letter dated 04.05.2013 of Superintendent of Police Station, Seoni
brought by the Constable, Police Station Ghansaur on 06.05.2013 for
conducting the D.N.A. test. He had stated that at the time of examination,
all the Articles were found in sealed condition and the seals were found
intact. He had also stated about the method used by him to obtain the
D.N.A. from the received Articles and also about the opinion (Exhibit
P-47) given by him on the basis of D.N.A. examination. He had opined
as under -
"(i)Identical female D.N.A. profile was obtained from the
source frock and vaginal smear slide of Pooja Yadav (Article
"A"), frock and swab (Article "F") and blood sample (Article
"G").
(ii)The D.N.A. profile obtained from the hair (Article "B")
found from the place of incident and D.N.A profile obtained
from the source blood sample (Article "I") of the accused
Firoz is identical, which confirms this fact that these hair
strands are of the accused Firoz."
16. The last set of witnesses examined by the prosecution
comprised of the Police Witnesses, panch Witnesses and the Tehsildar
who had conducted the T.I. Parade. PW-13 Mohammad Sultan was the
Assistant Sub Inspector at the Police Station, Ghansaur. He alongwith
the DSP R.N. Parteti had found the hair strands and skins of bananas in
the field and had sealed them as per the seizure memo (Exhibit P-10)
dated 20.04.2013. He had also stated that on 21.04.2013, he had received
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from the Constable Dilip, a sealed yellow envelope containing a Frock
and vaginal slides of the deceased in presence of the witnesses and had
prepared the Seizure Memo (Exhibit P-29). PW-15 Head Constable
Niyaz Ahmad at Police Station Ghansaur had registered the missing
person report at Sanha no. 747 as stated by Smt. Ramkumari Yadav on
17.04.2013 at 20:35.
17. PW-30 S. Ram Maravi, the Sub Inspector, In-charge Police
Station at Police Station Kindrai, District Seoni (M.P.) was part of the
team constituted by the Superintendent of Police, Seoni for search and
arrest of the accused Firoz. According to this witness, he alongwith
others had gone to Bhagalpur, Bihar and after collecting the call details
of the accused, his location was found out with the cooperation of the
local police of Bhagalpur. The accused Firoz was arrested from a place
near a mosque situated near the house of his aunt on 23.04.2013, and
was brought back after obtaining the transit remand from the concerned
Court at Bhagalpur as per the order at Exhibit P-50.
18. PW-33 In-charge Police Station, Ghansaur Mr. R.D. Barthi
had conducted the investigation of the Missing Person Case No. 10/13,
and during the course of investigation, it was found that the alleged
offences were committed by the accused-Firoz. He therefore had
registered the Crime No. 68/13 for the offence under Section 363, 366
of I.P.C. (Exhibit P-60) against the accused. He had stated about the
investigation carried out by him and about the arrest of the accused
Rakesh Choudhary. The D.S.P. Mr. R.N. Parteti who had carried out
the further investigation was examined as PW-34. He had deposed about
the details of investigation carried out by him till the chargesheet was
filed in the case. PW-16 Tehsildar at Seoni Mr. Sudhir Jain had conducted
the identification parade of the accused-Mohd. Firoz. According to him,
the witnesses Smt. Ramkumari, Preeti Yadav, Nitin Namdev and
Himmabai had identified the accused during the course of the T.I. Parade.
19. Significantly the accused-Firoz in his further statement recorded
under Section 313 of Cr.P.C. had admitted about his visit to the house of
the victim along with the other accused Rakesh Choudhary for making
an inquiry about Shyam. The accused had also admitted having told the
mother of Shyam that he (accused) had come from Gorakhpur and was
staying in the house of Dassi Yadav. The accused also admitted about
his arrest as per the arrest memo Exhibit P-54 and about he having been
brought to Ghansaur after obtaining the transit remand from the Chief
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Judicial Magistrate, Bhagalpur.