It was nowhere alleged by the prosecution, at any point of time, that death of the victim had occurred in the manner in which it has been found by the learned trial judge and the high court, the Bench observed.
Live Law has accessed an order (Rajesh vs. State of Madhya Pradesh dated 8th September 2016) of the Supreme Court wherein it acquitted a rape-cum-murder accused of murder charges and upheld life imprisonment and conviction under Section 376 (2)(f) and 377 IPC.
The Bench comprising Justice Ranjan Gogoi, Justice Prafulla C. Pant and Justice Uday Umesh Lalit, just like it did in Govindachamy vs. State of Kerala, altered the conviction under Section 302 IPC to one under Section 325 IPC and awarded seven-year rigorous imprisonment for the same.
The deceased victim in this case was a 7-year-old girl, daughter of a relative of Rajesh, the accused. Param Singh, upon request by Rajesh, who was issueless, had handed over the custody of his daughter so that he could bring her up as his own daughter. On 26th September, 2012, this girl was found dead and upon investigation, it was revealed that the accused had committed forceful natural and unnatural sex on the girl, as a result of which she had died. The trial court found the accused guilty of committing rape and murder of the girl, and sentenced him to death, which was later confirmed by the High Court of Madhya Pradesh.
On an appeal to the Supreme Court, the Bench observed that they had no doubt regarding the conviction of accused under Sections 376 (2)(f) and 377 of IPC, since the result of DNA profiles obtained from the two sources (accused and deceased) matched. Senior Advocate Sanjay Hegde appeared for the Appellant/Accused
With regard to conviction of the accused under Section 302 IPC murder, the Bench observed: “What must be noticed is that the prosecution case was not what the learned trial court eventually held against the accused. It was nowhere alleged by the prosecution, at any point of time, that the death of the victim had occurred in the manner in which it has been found by the learned trial Judge and the High Court, namely, that on account of beating of the victim by the accused, the gastric juices from her stomach had come up and chocked her wind pipe.”
The doctor, in his report, had opined that the death happened due to asphyxia as a result of aspiration of gastric content in the air passage. The court, altering the conviction from Section 302 to 325 IPC, observed: “Out of the several injuries mentioned in the said report only injuries 1, 3, 5, 6, 20, 21 and 22 were fresh injuries that were found to have been caused on the date of the incident. The other injuries were several days old. None of the injuries have been caused on any part of the body of the victim which could reasonably lead the court to conclude that the said injuries could have caused “or as deposed to by Dr. A.K. Rastogi (PW-15), namely, “asphyxia (obstruction in breathing) reason for which is aspiration of liquid from stomach into windpipe”. The injuries which were caused by the accused on the day of the incident were either on the skull or the hand or the thumb and, therefore, could not have been the reason for which death had occurred as testified by Dr. A.K. Rastogi (PW-15). In such a situation the liability of the accused for the commission of the offence under Section 302 IPC would remain in serious doubt, the benefit of which must go in favour of the accused.”
Read the order here.