RAJU v. STATE OF HARYANA

Citation: [2001] 3 S.C.R. 409

Court: Supreme Court of India

Bench: M.B. SHAH, BRIJESH KUMAR

Judgment text

RAW v. - _. ,. _ STATE OF HARYANA MAY 2, 2001 [M. B. SHAH AND BRIJESH KUMAR, JJ. ] . ,. ' Indian Penal Code-Sections 302 and 376-Death Penalty-Justification of-Accused raped and thereafter committed murder ofan 11 year old girli Accused admitted that he had committed murder as the girl threatened to disclose the incident to her family-Accused not a habitual criminal-Held, this is not the rarest of rare crimes justifying death penalty. .. The Appellant was prosecuted for commission of offences under Sections, 302, 376 and 363 of the Indian Penal Code. The prosecution stQry was that ' on 5. 1. 1997, the deceased, an eleven-year-old girl, had gone out to fetch milk at about 6 p. m. PW2 saw the Appellant offering toffees to the deceased and, other children. Thereafter, the Appellant and the deceased went away. As the deceased did not come back till 9. 00 p. m. , PWl and some other persons searched for her through the night. The dead body of the deceased was found the next morning.

Blood stained brick and blood was also found on the spot FIR was lodged by PWl on 6. 1. 1997 at 7. 30 a. m. " The Appellant made an extra judicial confession before PW3 and : admitted that he had committed rape and murder of the deceased. PW3 was known to the father of the ~ppellant The Appellant admitted that he gave two ~ brick blows to the deceased as she stated that she would disclose the incident, at her house. The Appellant requested PW3 to help him. A The FSL report established that that the pants and the shirt worn by I{ the Appellant had several stains of human blood. Semen lUld blood were found on the underwear of the Appellant. ...... The Appellant was convicted by the Sessions Judge under Sections 302, 376 and 363 of the Indian Penal Code and was sentenced to death under HELD : 1. The High Court after appreciating the entire evidence has rightly confirmed the conviction order passed by the Sessions Court.

The evidence on record, particularly the evidence of PWl and PW2 which clearly establishes that Appellant enticed deceased, a young girl aged about 11 years, to accompany him on 5. 1. 1997 at about 6 P. M. There is no reason to discard the extra judicial confession made by the Appellant before PW3. There is no explanation given by the Appellant as to how blood was there on the shirt put on by him and how there were blood stains on the pant and underwear. [412-D-E] ,. 2. In the present case, from the confessional statement made by the Appellant, it would appear that there was no intention on the part of the Appellant to commit the murder of the deceased child. He caused injury to the deceased by giving two brick blows as she stated that she would disclose the incident at her house. On the spur of the moment without there being any premeditation, he gave two brick blows which caused her death.

There is nothing on record to indicate that the Appellant was having any criminal record nor he can be said to be a grave danger to the society at large. In these > circumstances, it would be difficult to hold that the case of the Appellant would be rarest of rare case justifying imposition of death penalty. [414-B-D] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 581of2000. From the Judgment and Order dated 26. 4. 2000 of Punjab and Haryana High Court in Murder Reference No. 3 of 1999 and Crl. A. No. 463-DB/99. Tara Chand Sharma, Rajeev Sharma and Ms. Pankhuri Srivastava for the ~ Appellant. Gautam Awasthi and Mahabir Singh for the Respondent. RAJU v. STATE OF HARYANA [SHAH, J. ] 411 The Judgment of the Court was delivered by .. -~ SHAH, J. In Sessions Case No. 7 of 1997 after appreciating the evidence, the Sessions Judge, Gurgaon by order dated 7. 9. 1999 convicted the appellant for the offence punishable under Sections 302, 376 and 363 I. P. C.

and sentenced him to death under Section 302, to 7 years rigorous imprisonment under Section 376 and 3 years rigorous imprisonment. under Section 363. The High Court of Punjab and Haryana at ChanCiigarh by order dated 26th April, 2000 in Murder Reference No. 3of1999 and Criminal Appeal No. 463-DB of 1999 .... confirmed the conviction and sentence. That judgment and order is under challenge in this appeal. It is the prosecution case that Rinku aged about 11 years was missing from the evening of January 5, 1997. Her body was found on the next day at about 6. 30 a. m. The prosecution story as revealed by PW 1 Ram Kewal was that he lodged the FIR at 7. 30 a. m. on finding the dead body of Rinlm near the bushes at Medical College ground. It is his say that on 5. 1. 1997, she had gone out of the house at about 6. 00 p. m. to bring milk. After she brought milk, he saw Raju (accused) offering toffees to Rinku and other children.

PW2 Makhan Lal a neighbour had also seen Rinku and Raju going towards Chandan ' <-.. unnecessary to refer to them. In course of hearing of the appeals, Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be i;ontinued. " Thus, the said judgment was on the facts of that case, having regard to various factors including the nature of offences, relationship between the parties, the trust deed and correspondence following the creation of tenancy. The ~gh Court has read para 7 in isolation. If para 7 is read carefully two aspects are to be satisfied: (1) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (2) whether it is expedient and in the interest ofjustice to permit a prosecution to continue.

~ On plain reading of the order of the Magistrate, issuing summons to the respondents keeping in view ~he allegations made in the complaint and sworn statement of the appellant it appears to us that a prima facie case is made out at that stage. There are no special features in the case to say that it is not expedient and not in the interest ofjustice to permit a prosecution to continue. y The learned Judge has failed to apply the tests indicated in para 7 of the judgment on which he relied. The High Court could not say at that stage that • there was no reasonable prospect of conviction. resulting in the case after a trial. The Magistrate had convicted the respondents for the offences under Sections 138 of the Negotiable Instruments Act and the appeal filed by the respondents was also dismissed by the learned Sessions Judge.

Assuming that the imputations made could be covered by exception 9 of Section 499 IPC, several questions still remain to be examined - whether such imputations ~ were made in good faith, in what Circumstances, with what intention, etc. All these can be examined on the basis of evidence in the trial. The decisions in Manjaya against Sesha Shetti, (1888) ILR 11 Mad. , 477, SayedAlly v. King Emperor, AIR 1925 Rangoon 360 and Anthoni Udayar and others v. Velusami Thevar and another, AIR 35 (1948) Madras 469, cited by the learned counsel for the respondents are the cases considered "after conviction" having regard to the facts of those cases and the evidence placed on record. The decision in Baboo Gunnesh Dutt Singh v. Mugneeram Chowdry and others, (1872) - WR 11 SC 283 arose out ofa suit for damages for defamation.

These decisions, in our view, are of no help to the respondents in examining whether the High ~ Court was justified and right in law quashing the criminal proceedings that too exercising its jurisdiction under Section 482 Cr. P. C. Para 6 of the judgment in Sewakram s case (supra) reads: "6. The order recorded by the High Court quashing the prosecution under Section 482 of the Code is wholly perverse and has resulted in manifest miscarriage of justice. The High Court has prejudged the whole issue without a trial of the accused persons. The matter was at the stage of recording the plea of the accused persons under Section 251 of the Code. The requirements of Section 251 are still to be complied with. The learned Magistrate had to ascertain whether the respondent pleads guilty to the charge or demands to be tried.

The circumstances brought out clearly show that the respondent was prima facie guilty of defamation punishable under Section 500 of the Code unless he pleads one of the exceptions to Section 499 of the Code. " xxx xxx xxx "It is for the respondent to plead that he was protected under Ninth Exception to Section 499 of the Penal Code. The burden, such as it is, to prove that his case would come within that exception is on him. The ingredients of the Ninth Exception are that (1) the imputation must be made in good faith, and (2) the imputation must be for the protection of the interests of the person making it or of any other person or for the public good. " Again, in para 18 of the judgment dealing with the aspect of good faith in relation to 9th Exception of Section 499, it is stated that several questions _,_ arise for consideration if the 9th Exception is to be applied to the facts of the case.

Questions that may arise for consideration depending on the stand taken by the accused at the trial and how the complainant proposes to demolish the defence and that stage for deciding these questions had not arrived at the stage of issuing process. It is stated, "Answers to these questions at this stage, even before the plea of the accused is recorded can only be a priori conclusions. 'Good faith' and 'public good' are, as we said, questions of fact and matters for evidence. So, the trial must go on. " Para 13 of the judgment in Shatrughna Prasad Sinha s case (supra) reads: - "13. As regards the allegations made against the appellant in the complaint filed in the Court of Judicial Magistrate, 1st Class, at Nasik, on a reading ofthe complaint we do not think that we will be justified at this stage to quash that complaint. It is not the province of this Court to appreciate at this stage the evidence or scope ofand meaning of the statement.

Certain allegations came to be made but whether these allegations do constitute defamation of the Marwari community as a business class and whether the apJ)ellant had intention to cite as an instance of general feeling among the community and whether the context in which the said statement came to be made, as is sought to be argued by the learned Senior Counsel for the appellant, are all matters to be considered by the learned Magistrate at a later stage. At this stage, we cannot embark upon weighing the evidence and come to any conclusion to hold, whether or not the allegations made in the complaint constitute an offence punishable under section 500. It is the settled legal position that a court has to read the complaint as a whole and find out whether allegations disclosed constitute an offence under Section 499 triable by the Magistrate.

The Magistrate prima facie came to the conclusion that the allegations might come within the definition of 'defamation' under Section 499 IPC and could be taken cognizance of. But these are the facts to be established at the trial. The case set up by the appellant are either defences open to be taken or other steps offraming a charge at the trial at whatever stage known to law: Prima facie we think that at this stage it is not a case warranting quashing of the complaint filed in the Court of Judicial Magistrate, Ist Class at Nasik. To that extent, the High Court w~s right in refusing to quash the complaint under s·ection 500 IPC. " Having regard to the facts of the instant case and in the light of the decisions in Sewakram Sobhani v. R. K. Karanjia, ChiefEditor, Weekly Blitz and others, [1981] 3 SCC 208 and Shatrughna Prasad Sinha v.

Rajbhau Surajmal Rathi, [1996] 6 SCC 263, we have no hesitation in holding that the High Court committed a manifest error in quashing the criminal proceedings exercising jurisdiction under Section 482 Cr. P. C. Since the question of limitation was not raised before the High Court by the respondents and further whether the offence is continuing one or not and whether the date of the commission of offence could be taken as the one mentioned in the complaint are not the matters to be examined here at this 1 stage. In these circumstances we have to reverse the impugned order of the High Court and restore that of the Magistrate. In the result for the reasons stated the impugned order of the High A Court is set aside and that of the Magistrate is restored. The appeal is allowed accordingly. B. K. M Appeal allowed~