4/1/24, 6:04 PM The State Of Jharkhand vs Mathura Yadav on 29 March, 2019

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The State Of Jharkhand vs Mathura Yadav on 29 March, 2019

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5. P.W.-8 Ramdeo Saw is the informant of the case and the grandfather of the deceased. This witness has stated that the
occurrence had taken place less than two years ago. He had gone to graze his cattle at about 7:00 A.M., in the morning, and at
about 10:45 A.M., his granddaughter came there, asking him to pluck mango for her. She was aged about seven years. Mathura
Yadav was sitting nearby and asked her to come with him, assuring that he would pluck the mango for her, and he took her
away along with him by holding her hand. This witness returned back to his house. When the father of the girl asked him about
her, he told him that she was with Mathura Yadav for taking mango. Thereafter, she was searched and both of them were not
found. On the next day again they were searched along with the villagers, and the dead body of his granddaughter was found in
the putus bushes near the boring of the accused Mathura Yadav. There was cut injury in her neck and she was bleeding from
other parts of the body also. There was mobil oil also on her body. This witness has stated that upon Death Reference (D.B)
No.01 of 2016 With Criminal Appeal (D.B) No.429 of 2016 seeing them, Bhikhari Mahto and Mathura Yadav, were fleeing
away after throwing her dead body. Bhikhari Mahto was apprehended there, but Mathura Yadav managed to flee away. The
police reached there and inspected the place of occurrence, and upon search in the boring house, blood was found on the bed. It
was apparent that the deceased girl was murdered after committing rape upon her, and the dead body was attempted to be
concealed with the help of Bhikhari Mahto. He gave the fardbeyan before the police, which was read over to him, and finding
the same to be true, he had put his signature on the fardbeyan, which on his identification was marked Exhibit-3. This witness
had identified both the accused persons in the Court. He was put to extensive cross-examination wherein he has admitted that
Bhikari Mahto had lodged a case against him, in which, he had been acquitted. He has stated that there was no proceeding
under Section 107 of the Cr.P.C., between them in which he was the first party. He has admitted that he had not seen the
accused committing the rape and murder of the deceased, but he has stated that the accused Mathura Yadav had taken away
his granddaughter, which he had seen. His attention was drawn towards his statement before the police, and he has admitted to
have given the statement before the police that Mathura Yadav and Bhikari Mahto were fleeing away when the dead body was
found, and Bhikhari Mahto was apprehended, but Mathura Yadav managed to flee away. He has stated that there is no habitat
near the boring house and he has denied the suggestion to have falsely implicated the accused.

15. On the basis of the materials on record, the Trial Court below has convicted the accused, Mathura Yadav for the offences
under Sections 376 and 302 of the Indian Penal Code, whereas both the appellants have been convicted for the offence under
Section 201 of the Indian Penal Code, and have been sentenced as aforesaid.

16. Learned counsel for the appellants has challenged the conviction and sentence of the appellants, submitting that there is no
eye witness to the occurrence of rape and murder, and the case rests only on the circumstantial evidence, which is also very
weak in the case, as no blood was found on the tangi blade, the stick, or other cloth, and no semen could be detected in the
underwear of the accused, or in the vaginal swab or vaginal smear of the deceased, as is apparent from the forensic test reports
proved as Exhibits-14 and 14/1. Even the weapon of offence was not produced in the Court, which is fatal to the prosecution,
and in this connection, he has placed reliance upon the decision of the Hon'ble Supreme Court, in Sk. Yusuf Vs. West Bengal,
reported in (2011) 11 SCC 754. It is also submitted that no question was put to the accused, Mathura Yadav in Death Reference
(D.B) No.01 of 2016 With Criminal Appeal (D.B) No.429 of 2016 his statement recorded under Section 313 of the Cr.P.C.,
with respect to the DNA test, and still the conviction of the appellant was based upon that piece of evidence, which cannot be
sustained in the eyes of law. In this connection learned counsel has placed reliance upon the decision of the Hon'ble Supreme
Court in Shaikh Maqsood Vs. State of Maharashtra, reported in (2009) 6 SCC 583. Learned counsel, accordingly, submitted
that there being only circumstantial evidence against both the accused and there being no eyewitness to the occurrence of rape,
murder or concealing the dead body, it was a fit case, in which, the appellants ought to have been given at least the benefits of
doubt.

21. Faced with this situation, learned counsel for the accused appellants has confined his arguments mainly challenging the
death sentence, awarded to the accused Mathura Yadav, for the offence under Section 302 of the Indian Penal Code. We have
heard learned counsels for both the sides in detail on the point of sentence.

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4/1/24, 6:04 PM The State Of Jharkhand vs Mathura Yadav on 29 March, 2019
22. Learned counsel for the State, supporting the death reference, has placed reliance upon the decisions of the Hon'ble Apex
Court in Bachan Singh Vs. State of Punjab, reported in (1980) 2 SCC 684 and Machi Singh & Ors. Vs. State of Punjab,
reported in (1983) 3 SCC 470, giving the necessary guidelines for awarding the death sentence, and submitted that in Machi
Singh's case (supra), it has been held that when the victim of murder is an innocent child who could not have or has not
provided even an excuse, much less a provocation, for murder, the case comes within the rarest of the rare category, and it is a
fit case for imposing the death sentence. Learned counsel has further placed reliance upon the decision of the Hon'ble Apex
Court in Bantu Vs. State of U.P., reported in (2008) 11 SCC 113, which related to the rape and murder of a child, aged about
five years, wherein the Apex Court held that the case fell within the category of rarest of rare cases, affirming the death
sentence. Similarly, in Shivaji Vs. State of Maharashtra, reported in (2008) 15 SCC 269, which related to rape and murder of
a child aged about nine years, it was held that the plea that in cases of circumstantial evidence, the death sentence should not be
awarded, is without any logic. This case was also found to be falling within the category of rarest of rare cases, and the death
sentence to the accused was affirmed. In Mohd. Mannan Vs. State of Bihar, reported in (2011) 5 SCC 317, which related to
rape and murder of a child aged about eight years, again it was held to be falling within the rarest of rare category, and death
sentence was affirmed by the Supreme Court, re-iterating the guidelines for imposing death sentence, as follows :-

26. On the other hand, learned counsel for the appellants has submitted that simply because the case relates to rape and
murder of a child, it does not come under the category of rarest of rare cases. Learned counsel has placed reliance upon the
decisions of the Supreme Court in Sebastian Vs. State of Kerela, reported in (2010) 1 SCC 58, Ram Deo Prasad Vs. State of
Bihar, reported in (2013) 7 SCC 725, Tattu Lodhi Vs. State of M.P., reported in (2016) 9 SCC 675, and in all these cases, the
child aged between 2 to 7 years were murdered after committing rape upon them. The Supreme Court, in the facts of these
cases, held that they do not come within the category of rarest of rare cases, and the death sentence awarded by the Trial Court
below, and confirmed by the High Court, were commuted to life imprisonment. Learned counsel also placed reliance upon the
decision of the Apex Court in Ramnaresh and Ors. Vs. State of Chattisgarh, reported in (2012) 4 SCC 257, which related to the
gang rape and murder of a married lady, and in that case also, the Supreme Court held that it did not come within the category
of rarest of rare cases, and the death sentence was converted into the life sentence. Learned counsel has also placed reliance
upon the decision of Rameshbhai Chandubhai Rathod (2) Vs. State of Gujarat, reported in (2011) 2 SCC 764, which also
related to rape and murder of a child by the guard of the building. The Hon'ble Supreme Court laid down the law that it was
obligatory upon the Trial Court to have given the finding as to a possible rehabilitation and reformation and the possibility that
the accused could still be a useful member of the society, in case, he was given a chance to do so, and in absence of such
finding, the death sentence awarded by the Trial Court and confirmed by the High Court, was commuted to the sentence for
whole life, but subject to any remission or commutation of sentence by the State Government for good and social reasons.
Similar view was taken by the Apex Court in Amit Vs. State of U.P, reported in (2012) 4 SCC 107, which also related to rape
and murder of Death Reference (D.B) No.01 of 2016 With Criminal Appeal (D.B) No.429 of 2016 a three years old child. In
the said case also, the ratio of Rameshbhai Chandhubhai Rathod's case (supra), was applied by the Supreme Court and the
death sentence was commuted to the sentence of life in the same terms.

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