PAPPU vs STATE OF UTTAR PRADESH - Important Supreme Court Judgment on POCSO Act

PAPPU vs STATE OF UTTAR PRADESH - Important Supreme Court Case / Judgment on POCSO Act

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1097-1098 OF 2018
PAPPU ……. APPELLANT(S)
 VERSUS
THE STATE OF UTTAR PRADESH ……. RESPONDENT(S)
JUDGMENT
Dinesh Maheshwari, J.
Table of Contents
Preliminary.......................................................................................................2
Relevant factual and background aspects....................................................6
Prosecution Evidence.....................................................................................9
Defence Version and Evidence....................................................................19
Trial Court found the appellant guilty and awarded death sentence.......19
High Court confirmed the death sentence awarded to the appellant.......24
Rival Submissions.........................................................................................28
The scope and width of these appeals........................................................46
1
Concurrent findings of fact: whether requiring interference in these
appeals...........................................................................................................52
Whether death sentence be maintained or substituted by any other
sentence.........................................................................................................76
Conclusion.....................................................................................................97
Preliminary
1. These appeals by special leave are directed against the judgment
and order dated 06.10.2017 in Reference No. 13 of 2016 and Capital
Case No. 6601 of 2016 whereby, the High Court of Judicature at
Allahabad has affirmed the judgment and order dated 07/08.12.2016 in
Sessions Case No. 414 of 2015, as passed by the Additional Sessions
Judge, Court No. 2, Kushinagar; and, while upholding the conviction of
the appellant of offences punishable under Sections 376, 302, 201 of the
Indian Penal Code, 18601
 and Section 5/6 of the Protection of Children
from Sexual Offences Act, 20122
, has confirmed the death sentence
awarded to him for the offence under Section 302 IPC.
1.1. In addition to sentence of death for the offence under Section 302
IPC, the appellant has also been punished with fine of Rs. 20,000/- for the
offence under Section 302 IPC. This apart, he has been awarded the
punishments of rigorous imprisonment for a term of 10 years and fine of
Rs. 10,000/- for the offence under Section 376 IPC; rigorous
imprisonment for a term of 7 years and fine of Rs. 5,000/- for the offence
under Section 201 IPC; and rigorous imprisonment for a term of 10 years
1 ‘IPC’, for short.
2 ‘POCSO’, for short.
2
and fine of Rs. 10,000/- for the offence under Section 5/6 POCSO. While
providing for further imprisonment in case of non-payment of fine amount,
it has also been directed that half of the fine amount shall be given to the
mother of deceased girl as compensation.
2. In these appeals, the conviction of the appellant as also the
punishment awarded to him, particularly the capital punishment, are
under challenge. Before dealing with the matter in necessary details, we
may draw a brief sketch to indicate the contours of the forthcoming
discussion.
2.1. The appellant has been accused of enticing a seven-year-old girl
to accompany him on the pretext of picking lychee fruits; having thereafter
committed rape upon the child; having caused her death; and having
dumped the dead body near a bridge on the riverbank, after having
dragged the dead body over a distance of one and one-quarter
kilometres.
2.2. The prosecution case rested on circumstantial evidence to the
effect that the victim was lastly seen in the company of the appellant; that
her dead body was recovered at the instance of the appellant; that the
appellant had failed to satisfactorily explain his whereabouts and his
knowledge of the location of dead body; and that the medical and other
scientific evidence was consistent with the accusation. Per contra, the
appellant alleged that he was falsely implicated due to enmity with the
families of the deceased and other witnesses because of a land dispute.
3
2.3. The Trial Court, after analysing the material placed on record,
came to the conclusion that the prosecution had been able to substantiate
the charges by proving beyond doubt that the appellant had taken the
deceased with himself by enticing her to pluck and eat lychee fruits,
committed rape and then murdered her, and concealed the dead body in
bushes near the riverbank. Thus, the appellant was convicted by the
judgment dated 07.12.2016. Next day, the learned Additional Sessions
Judge heard the accused and the prosecution on the question of
sentence; and looking to the heinous crime committed by the appellant,
found it unjustified to show any mercy in punishment and thus, awarded
varying punishments, including that of death sentence for the offence
under Section 302 IPC.
2.4. The sentence of death was submitted for confirmation to the High
Court in terms of Section 366 of the Code of Criminal Procedure, 19733
.
On the other hand, the accused-appellant preferred an appeal against the
judgment and order of the Trial Court. Both, the reference case for
confirmation of death sentence and the appeal preferred by the appellant,
were considered together, where the High Court found no reason to
disbelieve the evidence led by the prosecution; and while rejecting the
defence story of wrongful prosecution for enmity due to land dispute,
affirmed the findings on conviction of the appellant. The High Court further
dealt with the question of sentence and with reference to the nature of
offence, in brutal rape and murder of a seven-year-old girl child, found the
3 ‘CrPC’, for short.
4
present one to be ‘rarest of rare case’, where the sentence of death was
considered ‘eminently desirable’. The High Court, accordingly, dismissed
the appeal filed by the appellant and confirmed the punishment awarded
to him, including the sentence of death.
2.5. In the present appeals, conviction of the appellant has been
questioned essentially with the contentions that the relevant factors are
indicative of ante-dating of the FIR; that the prosecution has not been
able to prove that the deceased was last seen with the appellant; that the
story of discovery of dead body at the instance of the appellant was also
not established; and that the medical and forensic evidence was not
conclusive to connect the appellant with the crime. The sentence
awarded to the appellant has also been put to question, essentially with
the submissions that the Trial Court as also the High Court have not
examined the mitigating circumstances existing in this matter, including
that it is a case of weak chain of circumstances; and that the appellant is
having no criminal antecedent and comes from a poor socio-economic
background with family members, including wife and children, being
dependent on him. Per contra, it is contended on behalf of the respondent
that concurrent findings on the guilt of the appellant, based on proper
appreciation of facts, call for no interference. It is also submitted that the
abhorrent nature of the crime justifies the death sentence in the present
case where the appellant, a grown-up person of about 35 years of age,
enticed a seven-year-old girl child and committed brutal rape and murder.
5
2.6. Thus, two major points would arise for determination in these
appeals: first, as to whether the conviction of the appellant calls for any
interference; and second, if the conviction of the appellant is maintained,
as to whether the sentence of death awarded to the appellant deserves to
be maintained or deserves to be substituted by any other sentence?
3. With the aforesaid outline, we may take note of the relevant
factual and background aspects in necessary details.
Relevant factual and background aspects
4. The prosecution in the present case had its foundation in a
complaint (Ex. Ka-1) submitted by PW-1 Nisha wife of Manoj Harijan, at
Police Station Kasya, District Kushinagar on 14.05.2015 at about 12:35
p.m., with the allegations that the previous evening, at around 06:30 p.m.,
her seven-year-old daughter, when playing with other kids of
neighbourhood, was taken by the appellant Pappu towards southern side
of the house on the pretext of plucking lychee, while shooing away other
children; and her sister PW-2 Anita and many neighbours had seen the
appellant Pappu taking her daughter. The complainant further stated that
after turning dark, she searched for her daughter who was not found
anywhere and the appellant Pappu was also not found. The complainant
also stated her strong apprehension that the appellant had committed
rape on her daughter, caused her death, and concealed the dead body.
On the basis of this complaint, FIR No. 840 of 2015 (Ex. Ka-13) came to
be registered for offences under Sections 376, 302, 201 IPC and Sections
6
3/4 POCSO. The complaint so made by PW-1 Nisha, on which the said
FIR was registered, has its own relevance on the questions sought to be
raised in this matter. Therefore, the translated version of the same is
reproduced for ready reference as under4
-
5
: -
“To,
The SHO,
PS-Kasya
Sir,
It is requested that complainant Nisha w/o Shri Manoj, casteHarijan is a r/o village- Sabaya Khas, PS- Kasya, DistrictKushinagar. Yesterday evening i.e. on 13.05.2015 my daughter
Am aged around 7 years was playing with neighbour Rajendra
Dhobi’s daughter Ashna, Mishri’s daughter Rinku and other kids of
neighbourhood near the home. At around 6:30 o’clock, native of
my village and of my caste Pappu s/o Shri Ram Preet took my
daughter Am with him towards the southern side of home on the
pretext of plucking lychee. He gave toffee to other children of
neighbourhood playing with her and shooed them off the spot. My
younger sister Anita and many neighbours had seen Pappu taking
away my daughter. After sometime when it turned dark, I started to
search my daughter. Children who were playing with her, my sister
Anita and neighbours told that Pappu had taken her in the orchard
of lychee towards the south. I went to the house of Pappu where
he could not be found. I kept searching my daughter but nothing
could be known. I am damn sure that Pappu had taken my
daughter Am with him on the pretext of plucking lychee and he
committed rape on her, caused her death and concealed her
corpse at some lonely place. It is requested that report be lodged
and appropriate action be taken.
 Complainant
 Sd/- Nisha
Name- Nisha w/o Manoj Harijan
Village- Sabya Khas
PS- Kasya
District- Kushinagar
Date- 14.05.2015”

4 It may be indicated that the relevant documents and depositions in the original record of this
case are in Hindi language. The translated versions in English language, as placed before us,
carry several obvious errors where the words and even sentences are rather incomprehensible.
We have scanned through the record with the assistance of learned counsel for the parties; and
the extractions in this judgment are, as far as feasible, near to the correct translation and
meaning of the text in original.
5 Having regard to the nature of case, the name of victim has been omitted in the extractions
and at all other places in this judgment; and substituted by the expression ‘Am’.
7
5. According to the prosecution, after registration of FIR, the
investigation was taken over by the Station House Officer6
 of Police
Station Kasya, Gyanendra Nath Shukla (PW-8)7
; the statement of PW-1
Nisha was recorded; and a search was mounted for the appellant. The
SHO obtained information on the whereabouts of the appellant and acting
upon such information, found the appellant near the Community Health
Centre. It has been the case of prosecution that on being questioned, the
appellant disclosed the place of incident as also the location where body
of the daughter of the complainant had been dumped near the bridge on
the banks of the river Hiranmati. On the basis of his disclosure, the
corpse was recovered along with clothes of the deceased. The
Investigating Officer prepared the necessary memos, plans and reports
and sent the dead body for post-mortem examination. A few aspects
related with preparation of such memos and reports have also been put to
question in this matter on behalf of the appellant, which we shall examine
hereafter later.
5.1. In the post-mortem conducted by PW-6 Dr. Himanshu Kumar,
eleven injuries were found on the dead body and it was opined that death
had occurred due to haemorrhage and shock, as a result of ante-mortem
injuries.
6. After other processes of investigation, charge-sheet was filed
against the appellant on 12.08.2015 and the case was committed to the
6 ‘SHO’, for short.
7 Hereinafter also referred to as ‘the Investigating Officer’ or ‘the IO’.
8
Court of Sessions where the appellant was charged of the offences under
Sections 376, 302, 201 IPC and Sections 3/4 POCSO (later on rectified to
Sections 5/6 POCSO). The appellant pleaded not guilty and claimed trial.
Prosecution Evidence
7. The case against the appellant was tried as Sessions Trial No.
414 of 2015 before the Additional Sessions Judge, Court No. 2,
Kushinagar, Padrauna. The prosecution examined 8 witnesses, and
produced 19 documents. In view of the contentions urged, we may take
note of the salient features of the relevant evidence adduced by the
prosecution.
7.1. PW-1 Nisha, mother of the deceased-child, deposed in her
examination-in-chief as under: -
“…Pappu Gautam had called and taken along my daughter
namely Am aged 7 years at about 6:30/7:00. First of all he fed
toffee then took her southwards in the village on the pretext of
plucking litchi. My daughter was playing at the door along with
other children. When (he) called and took along my daughter, my
sister and other children who were playing with her and I had seen
it. When the girl did not return home, we had searched for her
throughout the night but in vain. When I did not find my daughter, I
had given a complaint at Police Station Kasya the next day after
getting it written on the basis of which the case was lodged. Pappu
had sexually assaulted my daughter and thereafter had thrown her
at the river bank on Deoria Road where cremation rites are
performed.
When I did not find my daughter, I enquired at Pappu’s home
then his wife said that she did not know where Pappu had gone
after quarrelling. Pappu used to consume liquor. I know it. When
police arrested Pappu and interrogated him, Pappu got the dead
body recovered. My Jija (brother-in-law) and my uncle (bade papa)
identified the dead body. When the case was lodged, the S.I. had
recorded my statements. I had also shown the place to the S.I.
from where the girl was taken along…”
9
7.1.1. The relevant part of her testimony in the cross-examination would
read as under: -
“…I had got written the complaint by an educated boy. I was
coming to the police station crying then this boy met me on the
way. I asked him to write it, he wrote. I had gone to the police
station at about 11-12 (during day time). Sister and I had gone to
the police station and no one else had gone…..
Q: At what time and day your siter Anita had told you that your
daughter is missing?
A: Pappu had taken along the girl at 6.30, thereafter we made a
search for 1-1½ hours. Then (we) had gone to Pappu’s house to
inquire, his wife told that her husband is out of the hourse since
evening after quarrelling.
Anita and I had seen Pappu carrying the girl.
Police/Chowkidar/Pradhan had not been informed first- firstly the
girl was searched for. We had been searching for the girl
throughout the night. My Jija (brother-in-law) and father had
informed about the death of the girl. When police had arrested
Pappu, only then I came to know that my daughter has died. I had
not given the complaint at the police station on my Jija’s advice. I
did not have mobile at the time of the incident. I can’t state as to
from where the police had arrested Pappu. At the time when
Pappu was arrested, I was at home. I had got the complaint
written by a boy on dictation. He had written so much as I had
dictated. I was satisfied with the thing that the same is written in
my complaint what I had dictated. I had also told the same thing to
the S.I. what I had got written in the complaint. We both (my sister
and I) had seen Pappu taking along the girl. If darogaji had not
written such point in my statement, I could not tell its reason. If
darogaji had written this point that my sister had seen Pappu
taking along my child, then it is correct. I had heard and seen at
the door that Pappu is taking along the girl on the pretext of toffee
and litchi. I had written in my complaint that I believe that it is
Pappu who has taken along my daughter- this point is true
because Pappu had taken along my daughter before me.
Q: When you saw Pappu taking along your daughter, despite it
you gave complaint on the next day with delay. Can you tell its
reason.
A: Firstly, I kept on searching for my daughter, when I did not
find her, I gave the complaint on the next day.
I kept on searching for my daughter in the entire village
throughout the night. I kept on searching door to door in the entire
village. Whose name do I tell? I recognize the people of village. I
kept on searching throughout the night. Names of how may
persons do I tell? I can’t tell the names of the persons of entire
village. Pappu drinks liquor for many days. I don’t know whether
he falls inebriated condition at some place or not but he consumes
liquor. Pappu drinks liquor daily. Prior to this incident, we had
10
normal relation with Pappu’s house. I went to see the dead body.
Firstly I had gone to the bridge itself and thereafter had gone to
the Police Station. It was 5-6pm when Pappu was arrested. The
dead body was recovered on the next day of the incident. When I
saw the girl, one of her eyes had come out, vein was also coming
out below the eye, leg was also fractured. The animals had not
eaten the dead body. The neck of my daughter was also twisted.
…..
It is wrong to state that I had falsely implicated Pappu due to
village animosity.”

7.2. PW-2 Anita (maternal aunt of the deceased) largely corroborated
the testimony of PW-1. The relevant parts of her assertions in the
examination-in-chief would read as under: -
“The incident is of 13.05.2015 at 6:30 pm. My sister’s daughter
namely Am aged 7 years was playing along with other children
near Gokul Gupta’s house beside my house. There came Pappu
Gautam and gave a twenty rupee note to a girl called Aashna and
asked her to bring toffees. He distributed toffees to the children
and then made all the children go from there. Thereafter, he
stopped my sister’s daughter namely Am and took her along on
his back on the pretext of plucking litchi. I had seen all this through
my window. When my sister’s daughter did not return home till
night, we started search for her. But we could not find her in the
night and my sister gave complaint at the Police Station on the
next day.
Police arrested Pappu Gautam. Accompanying the police, Pappu
had got recovered the dead body from the bush near the bridge.
Pappu Gautam had concealed the dead body of my sister’s
daughter Am in the bush after committing rape upon her and killing
her…”
7.2.1. In her cross-examination, this witness PW-2 Anita stated as
under:-
“…The distance from my window to the place where children were
playing is 4-5 steps…when I was watching the children playing…
my sister was sitting at the place where I was standing…I had told
my sister about the missing of the child after an hour. We had
started to search for the girl child after one or one and half (1-1½)
hour. Pappu Gautam had taken the child towards the south
direction. We first went to the orchard of litchi and thereafter, went
to Pappu’s house. Pappu was not at home. We met Pappu’s wife
at home who told that she did not know where Pappu had gone
after quarrelling…When we reached Pradhan’s house at about 12-
11
1 at night, Pappu came home, his feet and clothes were laced with
mud. When we asked, Pappu said that he had not taken the child.
When we were interrogating Pappu at about 12 at night,
Pradhanji was not present there. We had met Pradhanji before
Pappu came to Pradhanji’s house then we proceeded to his
house. Jamaluddin Ansari was the then Pradhan. By the time
when we had gone to Pradhanji’s house, Pappu’s father had also
arrived and we said that we are going to complain at police station
then Pappu’s father counselled and forbad us from going to police
station by saying that if he would have gone somewhere, he would
return. At that time my sister Nisha was not with me…After coming
to know that Pappu had come to his house, we didn’t go to the
police station because only girls were present at our house and
there was no guardian so that we could leave for the police
station. I don’t remember the exact time but it was 10.00 to 10.30.
Only Nisha and I had gone to the Police Station for giving the
information. Pappu was not behind the bars when we reached the
Police Station.
How much time after giving the information, the dead body was
recovered we don’t remember. Later, when the policeman
apprehended Pappu and interrogated him then he told that the
dead body of the child was there. The people of the entire village
were shouting the dead body had been found there- when my
brother-in-law lifted the dead body, it was the dead body of my
sister’s daughter.…. No quarrel etc had taken place between my
house and the house of Pappu before the incident.…It is wrong to
say that Pappu has been falsely implicated in this case due to
factionalism.”
7.3. PW-3 Aashna, said to be about 10 years of age at the time of her
deposition, was found to be a competent witness. She deposed that the
appellant gave her Rs. 20 to bring sweets and to distribute them amongst
other children. She brought sweets worth Rs. 4, returned the remaining
amount to the appellant, and distributed the toffees. While corroborating
PW-1 and PW-2, this child-witness further stated that the appellant invited
the deceased to accompany him to the farm to pluck lychee. When the
other children attempted to follow, they were scolded by the appellant and
shooed away. She further stated that in the morning, it came to be known
12
that Am had been murdered and thrown; and she had stated this fact to
Darogaji.
7.3.1. A few aspects emerging from the cross-examination of this
child-witness PW-3 Aashna have been underscored during submissions
on behalf of the appellant, particularly as regards the place where the
children were playing and as regards the time of her having seen the
dead body of the victim child. We may take note of the relevant facts
stated by this witness in the cross-examination as under: -
“…..was playing game at Rampravesh’s door. Am’s house falls
behind one house after the house of Rampravesh and the middle
one is Bablu’s. Pappu’s house is adjacent to Rampravesh’s house.
Pappu scolded us at 7 O’clock in the evening and thereafter we
started playing at the door of Ram Parvesh and kept playing for
almost 5 hours. Thereafter, we returned back home. At the time
when we were playing, Am was there. Myself, daughter of my
father’s elder brother, my mama’s daughter and my mausi’s
daughter were there; we all went back home. When met Pappu at
my house, at that time my mother, father, brother and myself were
present. My father did not talk to Pappu. (He) took away Am which
was witnessed by my mother and father. Thereafter, I did not meet
Am. After getting up in the morning, I got the information that Am
had died. The information about death of Am was given by the
sister and brother-in-law and when brother-in-law (jija) told the
said fact then at that time, his sister Sunita was present.
…...When Anita and Sunita told that Am has died then I along
with them went to that place at about 10 O’clock where dead body
of Am was lying. Many persons had gathered there and after that,
I went to the police station. My brother-in-law (jija) took me there,
but I cannot tell the name of brother-in-law(jija); he is husband of
Neelam. I was interrogated at the police station on the same day
and had stated to the sub-inspector that I have come after seeing
the dead body…..”
7.4. PW-4 Ambedkar is the uncle of the deceased child and residing at
a place about 22 kms from the village of incident-Sabya. This witness
asserted to have reached Sabya after getting information from PW-1 that
her daughter was missing. He also stated that the appellant Pappu was
13
interrogated by the IO before him whereupon the appellant agreed to
show the place where he had thrown the child after committing rape and
murder. The witness asserted that the dead body of victim and her
clothing were recovered at the instance of the appellant before him. He
also deposed regarding preparation of inquest report, the memos of
arrest and recoveries, and identified his signatures on the memos Ex. Ka2 and Ex. Ka-3. In his cross-examination, this witness PW-4 Ambedkar
pointed out that he reached Sabya by bus but was unable to state the
time of his arrival. As regards the facts concerning arrest of the appellant
and recoveries, this witness stated in the cross-examination, inter alia, as
under: -
“…The police brought Pappu in afternoon. Perhaps, Pappu was
arrested two hours prior to my arrival, he was arrested by police at
Sabya-square. Thereafter, the sub-inspector brought Pappu from
police station before me and obtained signature of arrest at the
spot of arrest. I do not remember as to the signature of which
persons were obtained there besides me. When I affixed my
signature, there were no signatures of other persons. When
signature was obtained, about 40-50 persons had gathered there.
I had come to my relative’s place, therefore I cannot tell the names
but I am acquainted with the relatives. Recovered panty and Tshirt are not before the court. Panty and T-shirt were sealed and
stamped at the police station and after seal and stamp
proceedings, signature was obtained. Panty was of black
colour….. It is wrong to state that I did not see the place of
occurrence and put the signature at the police station before the
police.”
7.5. The post-mortem was conducted by PW-6 Dr. Himanshu Kumar
on 15.05.2015, beginning at 3:05 p.m. and ending at 4:05 p.m. The
relevant extracts of the post-mortem examination report (Ex. Ka-11) are
as under: -
14
“External ExaminationRigor mortis upper and lower limb present.
External General AppearanceTongue protruded mouth eye (L) closed, eye ( R ) protruded.
External Injuries-
(1) Contusion 5 cm X 3 cm on the ( R ) side of eye.
(2) Contusion 10 cm X 3 cm on the ( R ) side face.
(3) Contusion 7 cm X 3 cm on the posterior aspect of ( R ) arm.
(4) Contusion 12 cm X 5 cm on the front of chest.
(5) Lacerated wound 3 cm X 1 cm on the anus.
(6) Protruded trunk.
(7) Eye Protruded ( R ) side.
(8) Loss of hair (on the head).
(9) Germ found on the whole body.
(10) Contusion 5 cm X 3 cm on the ( R ) side parietal region.
(11) Contusion 3 cm X 2 cm on the (L) side parietal region.
 xxx xxx xxx
Bones of Scalp and skull: Right and left Parietal region fractured
 xxx xxx xxx
Genital Organs: Vagina found in tear position and clotting present.
Vaginal swab is taken and sealed and sent to lab.”
 xxx xxx xxx
 Opinion:
 1. Time since death: about 2 and 3 days.
(i) Cause and manner of death: Death is due to haemorrhage sand
shock- result of Ante-Mortem Injury.”
7.5.1. It was opined in the post-mortem report that possible time of death
was about 2-3 days; and the cause of death was haemorrhage and shock
as a result of ante-mortem injuries. A few factors relating to the probable
time of death, as occurring in the statement of this witness PW-6 Dr.
Himanshu Kumar, would read as under: -
“The probable time of her death would be within 2 to 3 days…. The
time of 2-3 days means that the probable time of death could be
between 48 hours and 72 hours before the post-mortem.”
7.6. PW-8, Gyanendra Nath Shukla, the Investigating Officer, stated in
his examination-in-chief that at the relevant time, he was posted as the
SHO of Police Station Kaysa, when Case Crime No. 840 of 2015 was
registered on the complaint submitted by PW-1. He immediately started
15
investigation and attempted to locate the appellant. This witness further
stated that he received a tip-off about the location of the appellant and
acting on this information, he apprehended the appellant Pappu near the
Community Health Centre. PW-8 stated that Pappu Gautam was then
interrogated. The relevant part of his testimony as regards disclosures by
the appellant Pappu and preparation of memos would read as under: -
“…And when asked about the dead body, he said, I could get the
dead body recovered. On the pointing of the accused Pappu, the
dead body of Am was recovered in the presence of witnesses,
namely Siri s/o Jhagru, Ambedkar s/o Ram Nagine, Ishteyaq s/o
Jamaluddin, which was identified by the above persons. Asked the
lady constable Rinku Yadav and constable Om Prakash to bring
the jild panchayatnama from the Police Station and instructed SI
Rakesh Kumar Singh for the panchayatnama and inspected the
spot of occurrence. During the inspection of the recovery spot, Tshirt and underwear of Am were recovered on the pointing of the
accused Pappu. It was placed in a piece of cloth, sealed &
stamped and recovery memo was prepared. …”
7.6.1. It has rightly been pointed out on behalf of the appellant that a few
parts of the testimony of this witness PW-8 in the cross-examination, as
available in the original record, have not appeared in the English
translation, particularly regarding the timing of his recording the statement
of the complainant. As per that part of the statement, this witness stated
that he commenced investigation at about 2 p.m. on 14.05.2015; he
started from the Police Station about half an hour after commencing the
investigation; and at that time, the person accompanying the complainant
was not present. This witness deposed that he recorded the statement of
complainant next day after entering into investigation but then, stated that
he recorded the statement on the day of incident itself and then, further
16
stated that he recorded the statement of the complainant at about 2 p.m.;
that it took about 20 minutes to record the statement; and that he reached
the site about 2-2½ hours thereafter. This witness further deposed about
the tip-off regarding the location of the appellant and stated as under: -
“….Arrest of the accused took place at the road near CHC. I
prepared the arrest memo at the spot. I did not write the arrest
memo at the place where the accused Pappu was arrested. I,
immediately after the accused was arrested and he confessed his
crime, started preparing the arrest memo at the spot of arrest. I
don’t remember it well as to how long did it take to prepare the
arrest memo. The memo was prepared after the proceeding was
completed. Body of the deceased was recovered on being pointed
out by the accused. Moreover, clothes of the deceased viz. Kachhi
and T-shirt of the deceased were recovered from the place of
occurrence. All these proceedings were recorded in the memo.
It is right to say that at the time of arresting, the accused was
apprised of the reason of his arrest. But the arrest memo was
prepared after the recovery memo was written. The accused was
not handed over the copy of the memo at the place where he was
arrested because the memo was not prepared completely there. It
is wrong to say that during the arrest, I did not abide by the rules
of 50 CrPC, of the Human Right Commission and of the Hon’ble
Supreme Court. The truth is that after arresting the accused, the
arrest memo was prepared after the body of the deceased and her
clothes were taken into custody. The accused was orally informed
of the reason of his arrest before he was taken into police
custody….”
7.6.2. This witness, the IO, further pointed out in his cross-examination
about preparation of memos, inter alia, in the following terms: -
“….Memo of arrest and the memo of recovery are same and one;
they don’t have different witnesses. Arrest memo of the accused,
recovery memo of kachhi and T-shirt of deceased and recovery of
Kachhi are mentioned in one. The witness again stated that
recovery memo of dead body and arrest of dead body (sic) are in
one and memo of recovery of kachhi of the deceased is one and
recovery of kachhi of accused is in different memo which bear the
signature of Siri and Ambedkar….”8
8 This part of the statement of PW-8 carries obvious overlapping of expressions even in the
original; and its translated version also carries several question marks (?) which have been
omitted herein, to make it read, as close as possible, to the original version.
17
7.6.3. This witness, the IO, also admitted the fact that the report of
Forensic Science Laboratory had not been received while filing the
charge-sheet but according to him, the offence of rape was made out
from a perusal of the post-mortem report.
7.7. It may be noticed at this juncture that as per the report dated
10.08.2016 (Ex. Ka-19) prepared by the Forensic Science Laboratory,
U.P. Ramnagar, Varanasi, ‘spermatozoa and sperms were found’ on the
underwear of the deceased.
7.8. There had been two more witnesses in this case namely, PW-5 SI
Rakesh Kumar Singh and PW-7 HCP Nagendra Singh. PW-5 Rakesh
Kumar Singh deposed in relation to the preparation of memos and
reports. PW-7 Nagendra Singh stated that the complainant had arrived at
the Police Station with her brother-in-law and with a hand-written
complaint, which was duly entered as G.D. No. 30 at 12:35 p.m. and
thereupon, FIR No. 840 of 2015 was registered. He indeed stated in the
cross-examination that no other person had accompanied the
complainant. He also stated that the SHO immediately left for
investigation and had recorded the statement of the complainant at the
Police Station; and that the statement of the brother-in-law of the
complainant was also recorded at the Police Station. The relevant
aspects of his testimony in the cross-examination would read as under: -
“….Complainant of the case had come to the Police Station along
with her Bahnoi (sister’s husband) namely Ambedkar. She had
given me the complainant. Other than her Bahnoi, no other person
was accompanying her. SHO was also present there. The case
18
was registered when the SHO directed the same. Had not issued
any order on the complaint and had asked it verbally. It was a
serious matter, when I told him, he verbally asked to register the
FIR. The SHO had said that he himself would investigate the case.
Then his name was written as the IO of the case. The copy of the
FIR was given to the SHO after registering the case. It would have
taken 10 minutes in making the entry in the GD and FIR. The SHO
immediately left for the investigation after the case was registered.
SHO had recorded the statement of complainant at the police
station. The statement of her bahnoi (sister’s husband) was also
recorded at the police station….”
Defence Version and Evidence
8. The appellant, in his examination under Section 313 CrPC stated,
inter alia, that he had been falsely implicated in the case under a
conspiracy; and that the investigation conducted by the IO was false, in
pursuance whereof, a false charge-sheet had been filed.
8.1. One witness, DW-1 Shameem, was examined by the defence.
DW-1 stated in his examination-in-chief that there was a commotion in the
village on the 13th and again the next day, when it was said that a body
was lying near the bridge. The villagers reached the site and the body of
the deceased was identified by the father of the child. This witness stated
that only after that did the police arrive and took the dead body into
custody. The witness further stated that there was some hubbub about
enmity of Ram Preet (father of the appellant) and Rajendra Dhobi (father
of PW-3) and Manoj (father of the deceased) as regards a piece of land
sold by Ram Preet to one Gokul; and Pappu was falsely implicated.
Trial Court found the appellant guilty and awarded death sentence
9. After conclusion of the trial and after having heard the parties, the
Trial Court accepted the prosecution case; and while rejecting the
19
contentions urged on behalf of the appellant, held that the chain of
circumstances established by the prosecution was a complete and
continuing one, bringing home the guilt of the appellant, who had not
been able to rebut the presumption under Section 29 POCSO. The Trial
Court, accordingly, convicted him of the aforementioned offences of rape
and murder of the girl child and destroying evidence; and awarded
varying punishments, including that of death.
9.1. By relying on the testimonies of PW-1, PW-2 and PW-3, it was
held by the Trial Court that the deceased child was playing with the
children of her village; the appellant gave money to PW-3 to buy toffees,
who distributed toffees amongst other children; and the appellant then
took the deceased child by enticing her on the pretence of picking lychee
and shooed the other children away when they attempted to follow them.
9.2. The contentions regarding delay in lodging the FIR were rejected
by the Trial Court, while holding that the delay was duly explained by PW1 and PW-2, since the father of the appellant had met and assured them
that their daughter would be returned if she was taken by the appellant;
and since PW-2 had stated that no guardian was available at home, so
they could not go to the Police Station in the night. The Trial Court
observed as under: -
“…The reason for delay in lodging the FIR has been made
apparent by PW-2, the sister of the complainant and it has been
stated that ‘the guardian was not present at home. It was assured
by Pappu’s father that he would come back, if he had taken (her)
somewhere.’ Because of it, as the deceased could not be found on
the second day, the First Information Report was lodged…”
20
9.3. The defence sought to question the story of prosecution by
submitting that due procedure had not been followed while arresting the
appellant, since it was not mentioned in the arrest memo and recovery
memo whether a copy thereof had been supplied to the appellant. This,
the defence argued, weakened the assertion about the discovery of dead
body and clothing of the deceased child at the instance of the appellant.
However, these submissions were rejected by the Trial Court after
perusing the testimonies of PW-4 Ambedkar, PW-5 Rakesh Kumar, PW-7
Nagendra Singh and PW-8 Gyanendra Nath Shukla (IO); and while
observing that since the IO was deposing after one and a half year and
was reciting from memory, minor contradictions would not affect the case
of the prosecution. The Trial Court rejected the contentions concerning
the procedure followed by the Investigating Officer and held proved that
the dead body as also clothing of the daughter of the complainant were
recovered at the instance of the appellant. The relevant findings of the
Trial Court could be usefully reproduced as under: -
“Thus it is clear from the above mentioned evidence that T shirt
and panty belonging to deceased was recovered by the IO at the
instance of accused after his arrest and arrest memo of accused
as well as recovery memo were prepared at that very spot in the
said order, copy of which is said to have been provided to accused
and statement regarding absence of this fact in memo has been
provided. Thus question raised by defence has been rebutted by
PW-8 by the evidence provided by him in his examination due to
which there is no weight in the defence argument. Thus it is amply
proved from the above mentioned scrutiny that body, panty and T
Shirt recovered at the instance of the accused belongs to the
daughter of complainant only.”
21
9.4. Further, with reference to the site plans Ex. Ka-14 and Ex. Ka-15,
in addition to the post-mortem report Ex. Ka-11 and the testimony of PW6 Dr. Himanshu Kumar, the Trial Court held that the site plans and the
medical evidence clearly proved that the deceased was dragged after
being killed due to which, wheat stacks were trampled and a line was
formed in the tilled field; and the deceased received numerous minor as
well as major injuries. The Trial Court, inter alia, held as under: -
“…Spot marked as A 1 on the sketch map is the place where
accused is shown to have committed rape of the deceased and
murdered her, Spot marked as A 2 is the place from where panty
of deceased was recovered, spot marked as A 3 is the place from
where T Shirt belonging to deceased was recovered. Mark ----
exhibits the line made on accused dragging the body of deceased.
Wheat stack was found trampled and a line due to dragging the
body was present in the tilled field…Thus the sketch map… is
corroborated by the evidence provided by medical witness PW-6
Dr. Himanshu Kumar…which clearly proves that deceased Am
was dragged after being killed till the chak road due to which
wheat stacks were trampled and a line was formed in the tilled
field. Deceased received numerous minor as well as major
contusion injuries on her head.”
9.5. The Trial Court also examined the contention urged on behalf of
the appellant that in the charge-sheet, he was charged of the offence
under Section 376 IPC even though there was no eye-witness to the
incident of rape and even before the IO had perused the report of the
Forensic Science Laboratory. The Trial Court rejected this contention
while holding that the nature of the injuries in the post-mortem report, the
report of the Forensic Science Laboratory, the recovery of the underwear
of the deceased child as also her T-Shirt at the instance of the appellant
corroborated the fact that she had been subjected to rape.
22
9.6. Another contention urged on behalf of the appellant was that the
complainant PW-1 mentioned in the written complaint about her
apprehension that the appellant had raped and murdered her daughter
and had concealed the dead body, though there was no reason for her to
state such apprehensions while filing the complaint. It was argued that
such assertions in the complaint demonstrated that the appellant had
been falsely implicated. This contention was, however, negatived by the
Trial Court while observing that PW-1 suspected from the beginning that
the appellant had raped and murdered her daughter and the suspicions
were confirmed by the post-mortem report as also the report of the
Forensic Science Laboratory.
9.7. The defence put forth by the appellant as regards enmity due to
land dispute was also rejected by the Trial Court after examining the
statement of DW-1 and with the observation that such a statement was of
no assistance to the accused in the face of cogent evidence adduced by
the prosecution.
9.8. Thus, in the ultimate analysis, Trial Court found proved the case of
the prosecution beyond reasonable doubt and convicted the appellant
accordingly by its judgment and order dated 07.12.2016.
9.9. Next day i.e., on 08.12.2016, the Trial Court heard the parties on
the question of sentence where it was urged on behalf of the appellant
that he had no criminal antecedents; he was in the young age of 35
years; and there was none else to look after his children and old parents.
23
On the other hand, the prosecution referred to the heinous nature of
crime and urged that the present case was of ‘rarest of rare’ category
where the accused-appellant ought to be punished with death sentence.
The Trial Court observed that the appellant was around 33-34 years of
age at the time of the incident and was sensible enough to understand
the consequences of his actions, and yet committed such a heinous
offence, for which no leniency was called for. Consequently, the Trial
Court awarded the punishments as noticed at the outset, including the
death sentence.
High Court confirmed the death sentence awarded to the appellant
10. As noticed, this case came up before the High Court of Judicature
at Allahabad on two counts, i.e., the death sentence submitted for
confirmation and the appeal against conviction and sentence preferred by
the appellant. The High Court reappreciated the material placed on
record, including the testimony of witnesses and, in its judgment and
order dated 06.10.2017, upheld the decision of the Trial Court in
convicting the appellant of the aforementioned offences and sentencing
him to death for the offence under Section 302 IPC.
10.1. The counsel for the appellant attempted to highlight the
inconsistencies in the testimonies of PW-1, PW-2, PW-3, PW-4 and PW-7
while arguing that the FIR was not filed immediately after it came to be
noticed that the deceased girl had been taken away by the appellant; that
it was a case of manipulated rediscovery because according to PW-3, she
24
had seen the body of the deceased at around 10.00 a.m. but the FIR was
lodged at about 12.35 p.m.; that PW-4 had incorrectly stated the colour of
the recovered underwear to be black; that PW-1 had deposed that she
came to the Police Station to file the FIR with PW-2 whereas it was
deposed by PW-7 that PW-1 was accompanied by PW-4.
10.2. The High Court, however, held that the testimonies of PW-1, PW-2
PW-3 and PW-4 were trustworthy and were natural, being not a result of
tutoring. Since the witnesses were deposing after a year and were rustic
villagers, minor inconsistencies in their testimonies would not be of any
adverse impact on the case of the prosecution. Additionally, it was held by
the High Court that merely because the witnesses were related to the
deceased, they could not be characterised as interested witnesses once
their testimonies were found to be natural.
10.3. The High Court reasoned that there was delay in lodging the FIR
because the deceased child was being searched for in the village; and
only when PW-1 and PW-2 failed in their search that they gave a written
complaint the next day. Furthermore, it was held by the High Court that
the delay would not be fatal to the case of the prosecution since the
cases involving sexual offences had to be considered with a different
yardstick, where the delay in lodging FIR was natural because it involved
the prestige and reputation of the family.
10.4. On reappreciating the medical evidence, being the post-mortem
report, the report of the Forensic Science Laboratory, and the testimony of
25
PW-6, the High Court noted that vagina of the deceased was torn; there
was presence of blood clots; the time of death was 2-3 days before postmortem; and human sperm and spermatozoa were found on the
underwear of the deceased. These corroborated the story of the
prosecution and confirmed that rape had been committed upon the
deceased child before her death.
10.5. The High Court also referred to the effect of discoveries made on
the information furnished by the appellant in terms of Section 27 of the
Evidence Act, 18729
 and observed, inter alia, that the appellant himself
having led the police to the place of recovery of the body, and having
failed to offer any explanation as to how it came to be concealed there,
the only inference would be that the appellant had murdered the
deceased girl and concealed the body. The High Court observed and held
thus: -
“43. Learned trial Judge has legally and correctly interpreted the
ocular testimony of the witnesses. Here the accused took police
party and pointed out the place from where dead body of the
deceased was recovered, in absence of explanation by accused
as to how dead body was kept and concealed there, court can
draw inference that it was accused who murdered deceased and
concealed dead body and such interpretation is not inconsistent
with principle embodied in Section 27 of Evidence Act.
44. In the present case, the declarant accused person was in the
custody of the police and alleged information received from the
accused person was made in consequence of his statement which
resulted into the recovery of the dead body of the minor girl at the
pointing out of the accused person.
45. Only this component or a portion which was immediate cause
of the recovery of the corpse of minor girl would be legal evidence
and not the rest. This may therefore pro tanto (to that extent)
permits the derivative use of custodial statements in the ordinary
course of events.”
9 Hereafter referred to as ‘The Evidence Act’.
26
10.6. The High Court found the prosecution evidence reliable and
pointing towards guilt of the appellant while the appellant having failed to
discharge the burden placed upon him under Section 29 POCSO. The
High Court held the prosecution case established while observing as
under: -
“54. Thus, the ocular testimony of P.W. 1 Smt. Nisha, P.W. 2 Km.
Anita and P.W. 3 Km. Ashana is wholly reliable and trustworthy.
We see no reason to disbelieve the testimony of P.W. 6 Dr.
Himanshu Kumar. The oral evidence of P.W. 6 Dr. Himanshu
Kumar fully supports prosecution version. The medical evidence of
P.W. 6 Dr. Himanshu Kumar who conducted the autopsy found that
the death of Km. Am aged about 7 years minor girl had taken
place due to ante-mortem injuries and the time of death mentioned
in the post-mortem report (Exhibit Ka-11) corresponds to the time
mentioned in the F.I.R. (Exhibit Ka-1) as well as in the ocular
testimony of P.W. 1 Smt. Nisha, P.W. 2 Km. Anita and P.W.3 Km.
Ashana.”
10.7. The High Court also rejected the defence story of false implication
due to prior enmity while observing that no cogent documentary evidence
was produced as regards the alleged sale of land by Rampreet to Gokul;
and it was also not shown as to how the appellant was concerned with
the said land deal.
10.8. Having thus affirmed the conviction, High Court examined the
question of sentence and, while holding that cases of such nature were
crimes against humanity, upheld the death sentence awarded to the
appellant while observing as under: -
“61. In this case, the accused person-appellant Pappu who
belonged to the same caste, social strata and native place of the
deceased minor girl Am; allured her to provide her Lychee
apparently as a prelude to his sinister design which resulted in her
kidnapping, brutal rape and gruesome murder-as the numerous
ante-mortem injuries on her person testify; which culminated in
27
concealing her dead body near the banks of the river beside the
bushes and innocent helpless and hapless girl of 7 years was
subjected to such barbaric treatment by a person who was in a
position to win her trust. His culpability is of enormous proportion
and arouses a sense of revulsion in the mind of the common man.
62. In fine, the motivation of the perpetrator, the vulnerability of
the victim, the enormity of the crime, the execution thereof
persuade us to hold that this is a ‘rarest of rare cases’ where the
sentence of death is eminently desirable not only to deter others
from committing such atrocious crimes but also to give emphatic
expression to society’s abhorrence of such crime.
63. Taking an overall view of all the facts and circumstances of the
instant case in the light of the above propositions we are of the
firm opinion that the sentence of death should be maintained. In
vain, we have searched for mitigating circumstances-but found
aggravating circumstances aplenty.”
Rival Submissions
11. Learned counsel for the appellant has assailed the judgment and
order aforesaid while raising questions against the findings leading to the
conviction of the appellant as also against the sentence awarded to the
appellant.
12. As regards conviction of the appellant, learned counsel has, in the
first place, strenuously argued that probability of ante-timing of the FIR
cannot be ruled out; and in this regard, has referred to the facts stated in
the testimony of PW-3 that she, along with PW-2 and one Sunita, had
visited the spot where the dead body was found at 10:00 a.m. on
14.05.2015. It is submitted that until that time, FIR had not been
registered because the complaint was made only around 12:35 p.m. on
14.05.2015 and the dead body was allegedly recovered between 4:10-
5:15 p.m. Yet further, learned counsel has referred to the fact that
according to PW-1, she came to know about the killing of her daughter
28
only after the appellant was arrested but, in her complaint, she stated with
confidence that the appellant had raped and murdered her daughter and
concealed the dead body. According to the learned counsel, she could not
have known the factum of alleged offences at the time of making the
complaint. The learned counsel has also contended that the dead body
having been found prior to the prosecution’s claimed sequence of events
is also probabilised by the fact that in the post-mortem conducted on
15.05.2015, the time of death was stated to be about 2-3 days and thus,
the dead body was found in the afternoon of either 13.05.2015 or
12.05.2015. The contention has been that from the evidence on the
record, it cannot be ruled out that the body was found before 10:00 a.m.
on 14.05.2015 and the FIR was registered subsequently, while pinning
the blame on the appellant due to prior enmity.
12.1. The inconsistencies in regard to the facts as to who was present
at the Police Station at the time of registration of FIR as also the timing of
recording of the informant’s statement under Section 161 CrPC have also
been highlighted. It has also been submitted that no particulars were
mentioned in column 15 of the FIR as regards ‘date and time of dispatch
to the Court’. It is submitted that the inconsistencies, taken together with
the doubts concerning circumstantial evidence would entitle the appellant
to the benefit of doubt.
12.2. Learned counsel for the appellant has strongly assailed the
findings relating to the circumstantial evidence, taken as proved by the
29
Trial Court and the High Court. Taking up the circumstance that the
deceased was lastly seen alive in the company of the appellant, the
learned counsel has endeavoured to point out certain inconsistencies in
the evidence which, according to him, falsify the prosecution case.
12.2.1. It has been contended that there are inconsistencies in
testimonies of PW-1, PW-2 and PW-3 regarding the location where the
children and the deceased were playing before the appellant allegedly
enticed the deceased. This apart, the conduct of PW-1 and PW-2 has
also been questioned, in that they allowed the deceased child to be taken
away in the evening by a man they would describe as an alcoholic,
without attempting to intervene. Various other features of inconsistencies
in the prosecution case are referred to, where PW-3 Aashna stated that
the children kept on playing for 5 hours and upon returning home, she
found the appellant being there; and it is submitted that either the
testimony may be seen as incoherent, or is required to be disregarded, or
it casts strong doubts on the testimonies of PW-1 and PW-2. According to
the learned counsel, the High Court has erroneously ignored the material
contradictions and inconsistencies with reference to the so-called rustic
background of witnesses, while ignoring that in any case, benefit of doubt
arising from such material contradictions should go to the appellant.
12.2.2. It has also been contended that PW-1 and PW-2 were not
believable for they could not name a single villager whose house they
visited in search of the deceased; and in fact, PW-2 stated about meeting
30
the appellant at the house of village Pradhan between midnight and 1:00
a.m. on 14.05.2015 but such facts were not stated in the testimony of
PW-1 or PW-8.
12.2.3. Learned counsel would contend that burden of explanation for the
intervening period between the time of ‘last seen’ and ‘recovery of the
dead body’ would not be shifted on the appellant because the
circumstance of last seen itself is not satisfactorily proven with
definiteness.
12.3. It has also been strongly argued that the prosecution has not been
able to prove that the body of the deceased was recovered at the
instance of the appellant, or that he had any knowledge of the location of
the dead body.
12.3.1. The learned counsel would contend that the discovery of the dead
body before registration of FIR is not ruled out and when the appellant
was arrested later, there could not have been any so-called discovery
pursuant to any statement made by the appellant. In this very sequence,
it has also been submitted that the appellant cannot be said to have
exclusive knowledge of the location of the dead body since such a
knowledge to many persons beforehand is not ruled out. Therefore, the
High Court has erred in drawing inference with reference to Section 27 of
the Evidence Act.
12.3.2. It has also been argued that even the fact relating to the arrest of
the appellant has itself not been proved in accordance with law and in this
31
regard, inconsistencies in the statement of PW-4 have been indicated
coupled with the fact that the arrest memo was not prepared at the spot of
arrest and was finished few hours later after making of alleged recoveries.
The learned counsel would contend that when the circumstance of arrest
is doubtful, the subsequent disclosure statement and recovery cannot be
taken as proved.
12.3.3. It has further been argued that the disclosure sought to be relied
upon in this matter had been non-specific and the alleged recovery
cannot be connected with the alleged disclosures. The submission is that
no aspect of disclosure pointing out or leading to recovery has been
proved and, in any case, such foisted recovery cannot be made the basis
of conviction. It has also been contended that the Trial Court had
erroneously taken into consideration the incriminating statements
allegedly made by the appellant in police custody, including the factum of
dragging of the deceased.
12.4. The learned counsel for the appellant has further contended that
the medical and forensic evidence in this case are neither proved against
the appellant nor are sufficient to connect the appellant to the crime. As
regards the presence of human sperm on the underwear of the deceased,
it is submitted that there has been no connecting evidence qua the
appellant nor any sperm was found on the appellant’s underwear. It is
also submitted that the seizures were neither proved nor appeared
scientifically proper. The clothes of the deceased were sealed at the
32
Police Station and not at the spot. Even the storage and forwarding were
also unscientific in as much as PW-8 admitted that there was no facility in
the Police Station malkhana to store the seized clothes in a scientific
manner. Further, the FSL report was delivered on 10.08.2016 and it was
improbable that spermatozoa could still be discovered on the cloth one
year and three months after the incident; and no expert was examined to
prove the scientific criteria and basis for the conclusion in the report. It
has thus been submitted that the offence of rape is not established in the
present case.
12.5. The learned counsel has also argued that the Courts below have
seriously erred in relying on Section 29 POCSO while failing to consider
that to shift the burden of proof on the appellant, foundational facts must
have been established by the prosecution which, in the context of
offences under POCSO, include ‘proving the alleged offence beyond
reasonable doubt’. According to the learned counsel for the appellant, the
prosecution having failed to prove the alleged offences beyond
reasonable doubt, no presumption with reference to Section 29 POCSO
could have been drawn in the present case.
12.6. The learned counsel would also contend that the Courts below
have erred in not drawing adverse inferences in terms of Section 114
illustration (g) of the Evidence Act on account of non-examination of
material witnesses whose names had surfaced on the record; and in
failing to consider that the rules of prudence and circumspection were
33
required to be applied while appreciating the testimony of PW-1 to PW-4,
who were to be personally benefitted by securing a conviction of the
appellant because of prior enmity, thereby making them interested
witnesses.
12.7. The learned counsel for the appellant has also referred to several
decisions in support of his contentions, including those in Sudarshan
and Anr. v. State of Maharashtra: (2014) 12 SCC 312, Sharad
Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC 116, Anjan
Kumar Sarma and Ors. v. State of Assam: (2017) 14 SCC 359, State
(NCT of Delhi) v. Navjot Sandhu: (2005) 11 SCC 600, D.K. Basu v.
State of W.B.: (1997) 1 SCC 416, Rammi Alias Rameshwar v. State of
M.P.: (1999) 8 SCC 649, Raj Kumar Singh Alias Raju Alias Batya v.
State of Rajasthan: (2013) 5 SCC 722, Aghnoo Nagesia v. State of
Bihar: (1966) 1 SCR 134, Abdulwahab Abdulmajid Baloch v. State of
Gujarat: (2009) 11 SCC 625, Ramesh Chandra Agrawal v. Regency
Hospital Limited and Ors.: (2009) 9 SCC 709, Noor Aga v. State of
Punjab and Anr.: (2008) 16 SCC 417 and Justin v. Union of India and
Ors.: 2020 SCC OnLine Ker 4956.
13. In the second limb of submissions, learned counsel for the
appellant has contended, without prejudice to his arguments against
conviction, that the sentencing exercise by the Courts below has been in
violation of settled law and in any case, the sentence of death deserves
not to be confirmed.
34
13.1. With reference to the judgment of the Trial Court, the learned
counsel would contend that it had only considered the circumstances of
the crime but has failed to consider the elements relating to the probability
of reform and rehabilitation of the appellant. The learned counsel would
contend that the respondent-State did not adduce any evidence to show
even a probability of the appellant committing criminal acts of violence,
posing a threat to the society. The mitigating circumstances like no
criminal antecedents, the family being dependent on the appellant and
probability of reform were not considered by the Trial Court and no case
law was discussed at all. The learned counsel would further submit that
the High Court also repeated the same errors of sentencing while only
discussing the seriousness of child rape offences and then recording a
cursory finding that no mitigating circumstances were found.
13.2. The learned counsel has argued that the sentencing exercise by
the Courts below in the present case had not been in conformity with the
ratio of this Court in various pronouncements including those in the
Constitution Bench decision in Bachan Singh v. State of Punjab: (1980)
2 SCC 684, and a 3-Judge Bench decision in Mohd. Mannan Alias
Abdul Mannan v. State of Bihar: (2019) 16 SCC 584.
13.3. The learned counsel for the appellant has emphasised on the
elements relating to ‘probability of reform’ and has submitted that in taking
a case in ‘the rarest of rare’ category, the principles are clear that the
sentence of life imprisonment cannot be said to be ‘unquestionably
35
foreclosed’ until there is scope or probability of reformation. The learned
counsel has referred to the decision in Rajendra Pralhadrao Wasnik v.
State of Maharashtra: (2019) 12 SCC 460 to submit that the said case
also related to the rape and murder of a minor and therein, a 3-Judge
Bench of this Court held that the probability that a convict could be
reformed and rehabilitated in society must be ‘seriously and earnestly
considered’ by the Courts before awarding the death sentence, and such
an enquiry may require the period between date of conviction and
sentencing to be prolonged so as to enable the parties to gather and lead
evidence to assist the sentencing Court. The learned counsel would
submit that in the present case, the Trial Court convicted the appellant on
07.12.2016 and, on the very next day, i.e., on 08.12.2016, sentenced him
to death. Thus, the appellant was not given reasonable opportunity to
bring on record material or evidence in relation to the relevant mitigating
circumstances.
13.4. The learned counsel has further relied upon several factors which,
according to him, are indeed the mitigating circumstances and for which,
the sentence of death deserves not to be approved.
13.4.1. It has been argued that the first mitigating circumstance is of the
good jail conduct of the appellant where he has also been assigned the
cleaning work of the jail office and the fact that he has pursued a
Certificate Course in Food and Nutrition, though he could not clear the
36
examination. It is submitted that the appellant is using all available
opportunities to reform himself.
13.4.2. According to the learned counsel, the second mitigating
circumstance is that the appellant has no criminal antecedents and he
had been a decent member of the society, which also shows strong
possibility of reformation. The learned counsel has referred to the case of
Gudda Alias Dwarikendra v. State of Madhya Pradesh: (2013) 16 SCC
596 and Kalu Khan v. State of Rajasthan: (2015) 16 SCC 492 to submit
that therein, this Court has considered the absence of criminal
antecedents and the age (35 years) as mitigating factors.
13.4.3. The third mitigating circumstance relied upon in this case is with
reference to the family dependence and socio-economic background of
the appellant. It is submitted with reference to the affidavit of the wife of
the appellant that he had been a caring husband to her and a good father
to the children; he continues to call his family and ask about their welfare;
and even the people in the village are concerned about his well-being. It
is also submitted that the appellant comes from an extremely poor dalit
family, had been working as daily wage labourer and the family had hardly
enough money to make both ends meet with no direct electricity or water
connections. Further, the house they live in has been given to them as a
part of the Pradhan Mantri Awas Yojana - Gramin in 2016. It has also
been pointed out that after the appellant’s arrest in the present case, his
brother drowned in a river and his mother also passed away in the year
37
2018; that because of poverty, the eldest son of the appellant was
required to be sent to Gujarat to live with his maternal uncle; that his
father Rampreet, despite old age, has to exert himself in order to feed the
family and even the children are forced to work but still, the entire income
of the family is only about Rs.3000/- per month; and that the appellant’s
wife is fragile and weak and the imposition of the death sentence on the
appellant has caused her immense mental agony and stress. With
reference to various decisions of this Court including that in M. A. Antony
v. State of Kerala: 2018 SCC OnLine SC 2800, it is submitted that such
factors are also of mitigating circumstance. It is also submitted that the
appellant's continuing connection with his family and the local community;
and the financial and emotional dependence of the family on him, are
additional factors suggesting a probability of reformation.
13.4.4. As a fourth mitigating circumstance, the learned counsel for the
appellant would submit that the present one being a case dependant on
circumstantial evidence, awarding of extreme punishment is not
warranted. The learned counsel has referred to various decisions of this
Court including those in the cases of Mohd. Mannan and Kalu Khan
(supra). The learned counsel would contend with reference to the
decision in Shatrughna Baban Meshram v. State of Maharashtra:
(2021) 1 SCC 596 that while considering the imposition of death penalty
in a case of circumstantial evidence, the circumstantial evidence must be
of ‘unimpeachable character’, or lead to an ‘exceptional case’, or be so
38
strong as to convince the Court that the option of a sentence lesser than
the death penalty is foreclosed. Further, it has been contended, with
reference to the decision in Ravishankar Alias Baba Vishwakarma v.
State of Madhya Pradesh: (2019) 9 SCC 689, that therein a 3-Judge
Bench of this Court has invoked ‘residual doubt’, which means that in
spite of being convinced of the guilt of the accused beyond reasonable
doubt, there might be lingering or residual doubts regarding such guilt
and, therefore, the Court would not consider it safe to impose the death
sentence. The learned counsel has submitted that, there are several
inconsistencies and shortcomings in the prosecution case; and with
reference to the contentions urged in assailing the conviction, the learned
counsel would submit that the present one is clearly a case of lingering
residual doubts, which should act as another mitigating factor in favour of
the appellant.
13.4.5. The learned counsel has also placed before us a table of
comparable decisions where this Court has commuted the death
sentence into 'simple life imprisonment'. Further, the learned counsel has
referred to the enunciations in the case of Union of India v. V. Sriharan
Alias Murugan and Ors.: (2016) 7 SCC 1, where this Court has
approved the special category of sentence in substitution of death
sentence, (i.e., life sentence barring remission for specified term beyond
14 years, or life sentence barring remission for remainder of natural life).
The learned counsel has also placed before us a table of comparable
39
cases of rape and murder of minors, where remission has been excluded
while commuting the death sentence into life imprisonment, either for a
fixed term or for the remainder of life.
13.4.6. With reference to the aforesaid and while seeking to draw strength
even from the decisions cited on behalf of the respondent, the learned
counsel has argued that in the present case, the death sentence awarded
to the appellant deserves to be disapproved.
14. Per contra, learned counsel for the respondent-State has duly
supported the conviction and sentencing of the appellant with reference to
the material on record and several decisions of this Court.
15. As regards the conviction of the appellant, learned counsel for the
respondent-State has argued that the concurrent findings returned by the
Trial Court and High Court after thorough appreciation of the evidence do
not suffer from any infirmity and call for no interference.
15.1. The learned counsel has reiterated the chain of circumstances
held proved against the appellant and has submitted that the
inconsistencies sought to be referred on behalf of the appellant are of
minor nature and do not prejudice the case of the prosecution. With
reference to the decision of this Court in the case of Inspector of Police,
Tamil Nadu v. John David: (2011) 5 SCC 509, the learned counsel has
argued that minor loopholes and irregularities in the investigation process
cannot form the crux of the case when strong circumstantial evidences
40
are found in the investigation, which logically point towards the guilt of the
accused.
15.2. The learned counsel has submitted that the entire chain of
events, from disappearance of the deceased to arrest of the appellant
occurred within 20 hours inasmuch as the victim disappeared at around
6:30 p.m. on 13.05.2015 and the appellant was arrested the next day at
around 3:30 p.m.; and the prosecution has established the entire chain of
significant circumstances which lead only to the conclusion of the guilt of
the appellant.
15.3. The learned counsel has submitted, with reference to the
depositions of PW-1, PW-2 and PW-3, that the victim was indeed lastly
seen with the appellant when the appellant cunningly dissociated her from
the company of her friends with whom she was playing, in a pre-planned
manner after luring her on the pretext of picking lychees; and the guilt of
the appellant could be deduced from the fact that he scolded the friends
of the victim when they tried to follow him while he was taking the victim
on his back. Thus, according to the learned counsel, the deliberate
dissociation of victim from her friends itself proves that it was a
premeditated, pre-planned, cold-blooded case of brutal rape and murder
of a helpless child.
15.4. The learned counsel would further argue that since the deceased
was last seen with the appellant, the burden was upon him to prove as to
what happened thereafter, since those facts were within his special
41
knowledge. According to the learned counsel, in the face of credible
evidence to prove that the appellant took away the victim child and
thereafter the child went missing and then, was only found inhumanely
raped and murdered, heavy burden was on the appellant to explain as to
where he was between 6:30 p.m. of the day when he took the child and
3:30 p.m. of the next day when he was arrested; as to why did he not take
the responsibility of bringing back the minor girl since he was the one
taking her away; as to when did he part company with the deceased if he
did not commit the crime; and as to how he came to know about the
location of the dead body of the deceased? Since the appellant has failed
to provide any explanation to any of these pertinent questions, it could be
concluded without an iota of doubt that the appellant has failed to
discharge the burden cast upon him by Section 106 of the Evidence Act.
This, according to the learned counsel, provides a strong link in the chain
of circumstances which prove his guilt beyond reasonable doubt. The
learned counsel has referred to the decision of this Court in the case of
State of Rajasthan v. Kashi Ram: (2006) 12 SCC 254. The learned
counsel has also emphasised on Section 29 POCSO.
15.5. The learned counsel for the respondent-State has also referred to
the evidence regarding discovery of the dead body of victim child on the
basis of the information of the appellant; and has submitted that when the
information furnished by the appellant was proximate to the cause of
discovery of material objects of the crime and there was no evidence to
42
signify any involvement or interference of third party in the intervening
period between the time when the victim was last seen alive in the
company of the appellant and when her dead body was recovered, it
provides another strong link in the chain of circumstances against the
appellant. It has also been argued that the seizures made by the IO have
neither been challenged nor their authenticity put in question during his
cross-examination. The learned counsel has again referred to the
decision in the case of John David (supra).
15.6. The learned counsel has also referred to the post-mortem report
indicating a large number of gruesome injuries on the dead body of the
victim child including those on her private parts and has submitted that
those facts indicate heinous nature of inhuman crime committed by the
appellant on the helpless victim, who was only 7 years of age.
15.7. The learned counsel for the respondent-State has also submitted
that all the material facts in relation to the FIR have been duly proved in
the statement of PW-1 and there had not been any contradiction in the
cross-examination nor any question was put to her to discredit the
information given to the police. It is also submitted that nothing has
surfaced in the cross-examination to discredit the testimony of material
witnesses of the prosecution nor the story of false implication due to
enmity is established by the defence; rather the prosecution evidence
disproves any such alleged enmity between the parties or their families
43
for which, the appellant would be wrongly prosecuted by the family of the
victim.
15.8. Thus, learned counsel for the respondent would submit that the
prosecution case squarely falls within the principles relating to
circumstantial evidence, as enunciated by this Court in the case of
Sharad Birdhichand Sarda (supra) and the concurrent findings leading
to the conviction of the appellant call for no interference.
16. Learned counsel for the respondent-State has also countered the
submissions made on behalf of the appellant in relation to the question of
sentence and has submitted that the present one is undoubtedly a ‘rarest
of rare’ case where the sentence of death has rightly been awarded and
deserves to be affirmed.
16.1. The learned counsel has referred to the enunciations of this Court
in Bachan Singh (supra) and has submitted that within the norms laid
down and the principles explained by this Court, the punishment of death
is called for in the present case, where there are no mitigating
circumstances and on the contrary, the facts of the case disclose only
aggravating circumstances against the appellant. The learned counsel
has contended that the victim, who was about 7 years of age, must have
reposed complete confidence in the appellant since he was their nextdoor neighbour; and on account of such faith and belief, she
accompanied him under the impression that she was being taken to pluck
lychees, completely oblivious to the pre-planned evil designs of the
44
appellant. The victim was a totally helpless child, and the appellant had
the knowledge of the fact that there was no one to protect her in the
deserted area where he took her by misusing her confidence to fulfil his
lust. The appellant also had full knowledge of the fact that there was no
male member in the family and hence, he hatched the plan to commit the
crime by resorting to diabolical methods and with that object, took the girl
to a lonely place to execute his dastardly act. The learned counsel has
also referred to the decision of this Court in the case of Shankar
Kisanrao Khade v. State of Maharashtra: (2013) 5 SCC 546 and has
submitted that the triple tests laid down therein, i.e., ‘crime test’, ‘criminal
test’ and ‘rarest of rare test’ stand satisfied against the appellant for
awarding capital punishment in this case.
16.2. In support of his submissions, learned counsel for the respondentState has also referred to the observations of this Court in the cases of
Machhi Singh and Ors. v. State of Punjab: (1983) 3 SCC 470,
Dhananjoy Chatterjee Alias Dhana v. State of W.B.: (1994) 2 SCC 220,
Laxman Naik v. State of Orissa: (1994) 3 SCC 381 and Kamta Tiwari
v. State of M.P.: (1996) 6 SCC 250.
17. Learned counsel for the respondent-State has also submitted that
though the guilt of the appellant and the beastly manner in which the
crime was committed stand established beyond doubt but, if at all this
case is not considered falling within the ‘rarest of rare’ paradigm, the
appellant does not deserve to be released and even if his sentence is
45
commuted into life imprisonment, the same is required to be without
remission and for whole of the remainder of his natural life. The learned
counsel would submit that looking into the nature of crime committed by
the appellant, if he is released at any time in the future, the ends of justice
would fail and his release would have an adverse impact on the society.
The learned counsel has referred to such fixed term sentences awarded
by this Court in cases of Swamy Shraddananda (2) v. State of
Karnataka: (2008) 13 SCC 767, Mohd. Mannan and Rajendra
Pralhadrao Wasnik (supra).
18. We have given anxious consideration to the rival submissions and
have scanned through the material on record.
The scope and width of these appeals
19. As could be readily noticed, in the wide range of submissions
made on behalf of the appellant, the concurrent findings leading to his
conviction have been challenged as if it were a matter of regular appeal;
and are practically to the effect that the entire evidence led in the matter
be reappreciated on its contents as also its surrounding factors. However,
while entering into the process of analysis, we cannot lose sight of the
fact that the present one is a matter of concurrent findings of fact by the
Trial Court and the High Court. Though the periphery of an appeal by
special leave under Article 136 of the Constitution of India and the
parameters of examining the matters in such appeals have been laid
down repeatedly by this Court in several of the decisions but, having
46
regard to the submissions made in this case, we feel rather impelled to
recapitulate the nuanced principles, particularly on the subtle but relevant
distinction in the scope of a regular appeal and an appeal by special
leave.
19.1. Before adverting to the relevant decisions, it would be worthwhile
to notice that the regular appellate jurisdiction of this Court in regard to
the criminal matters is specified in Article 134 of the Constitution of India.
For the present purpose, Article 134 and Article 136 of the Constitution of
India could be reproduced as under: -
“134. Appellate jurisdiction of Supreme Court in regard to
criminal matters. -
An appeal shall lie to the Supreme Court from any judgment, final
order or sentence in a criminal proceeding of a High Court in the
territory of India if the High Court –
(a) has on appeal reversed an order of acquittal of an accused
person and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the
accused person and sentenced him to death; or
c) certifies under Article 134-A that the case is a fit one for
appeal to the Supreme Court:
Provided that an appeal under sub-clause (c) shall lie subject to
such provisions as may be made in that behalf under clause (1) of
Article 145 and to such conditions as the High Court may establish
or require.
Parliament may by law confer on the Supreme Court any further
powers to entertain and hear appeals from any judgment, final
order or sentence in a criminal proceeding of a High Court in the
territory of India subject to such conditions and limitations as may
be specified in such law.”
“136. Special leave to appeal by the Supreme Court. - (1)
Notwithstanding anything in this Chapter, the Supreme Court may,
in its discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India.
Nothing in clause (1) shall apply to any judgment, determination,
sentence or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces.”
47
19.1.1. Further, the enlarged appellate jurisdiction of this Court in regard
to the criminal matters is provided in Section 2 of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 197010 that reads as
under: -
“2. Enlarged appellate jurisdiction of Supreme Court in regard
to criminal matters. – Without prejudice to the power conferred
on the Supreme Court by clause (1) of Article 134 of the
Constitution, an appeal shall lie to the Supreme Court from any
judgment, final order of sentence in a criminal proceeding of a
High Court in the territory of India if the High Court-
(a) has on appeal reversed an order of acquittal of an accused
person and sentenced him to imprisonment for life or to
imprisonment for a period of not less than ten years;
(b) has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the
accused person and sentenced him to imprisonment for life or
to imprisonment for a period of not less than ten years.”
19.2. As back as on 05.05.1950, i.e., at the very early stage of the
evolution of constitutional scheme and principles, this Court, in the case
of Pritam Singh v. State: AIR 1950 SC 169, made it clear that even
when leave is granted, the entire matter is not at large in such an appeal
by special leave. This Court said: -
“5. In arguing the appeal, Mr Sethi proceeded on the
assumption that once an appeal had been admitted by special
leave, the entire case was at large and the appellant was free to
contest all the findings of fact and raise every point which could be
raised in the High Court or the trial court. This assumption is, in
our opinion, entirely unwarranted. The misconception involved in
the argument is not a new one and had to be dispelled by the
Privy Council in England in Ibrahim v. Rex [(1914) Ac 615] in these
words: “…the Board has repeatedly treated applications for leave
to appeal and the hearing of criminal appeals as being upon the
same footing: Riel Case; Ex-parte Deeming. The Board cannot
give leave to appeal where the grounds suggested could not
sustain the appeal itself; and, conversely, it cannot allow an appeal
on grounds that would not have sufficed for the grant of
permission to bring it.”
10 ‘the Act of 1970’, for short.
48
6. The rule laid down by the Privy Council is based on sound
principle, and, in our opinion, only those points can be urged at the
final hearing of the appeal which are fit to be urged at the
preliminary stage when leave to appeal is asked for, and it would
be illogical to adopt different standards at two different stages of
the same case.”
 (emphasis supplied)
19.3. The scope of Article 136 in relation to the findings of facts and
appreciation of evidence came to be further exposited by a 3-Judge
Bench of this Court in the case of Ramaniklal Gokaldas and Ors. v.
State of Gujarat: (1976) 1 SCC 6 in the following terms: -
“3. It is a wholesome rule evolved by this Court, which has
been consistently followed, that in a criminal case, while hearing
an appeal by special leave, this Court should not ordinarily embark
upon a reappreciation of the evidence, when both the Sessions
Court and the High Court have agreed in their appreciation of the
evidence and arrived at concurrent findings of fact. It must be
remembered that this Court is not a regular Court of appeal which
an accused may approach as of right in criminal cases. It is an
extraordinary jurisdiction which this Court exercises when it
entertains an appeal by special leave and this jurisdiction, by its
very nature, is exercisable only when this Court is satisfied that it
is necessary to interfere in order to prevent grave or serious
miscarriage of justice. Mere errors in appreciation of the evidence
are not enough to attract this invigilatory jurisdiction. Or else, this
Court would be converted into a regular Court of appeal where
every judgment of the High Court in a criminal case would be
liable to be scrutinised for its correctness. That is not the function
of this Court.”
 (emphasis supplied)
19.4. A few days after the aforesaid decision, a 2-Judge Bench of this
Court in the case of Mst. Dalbir Kaur and Ors. v. State of Punjab:
(1976) 4 SCC 158, with reference to several decided cases, summarised
the principles in the lead judgment as follows: -
“8. Thus the principles governing interference by this Court in a
criminal appeal by special leave may be summarised as follows:
49
“(1) that this Court would not interfere with the concurrent
finding of fact based on pure appreciation of evidence even if it
were to take a different view on the evidence;
(2) that the Court will not normally enter into a reappraisement
or review of the evidence, unless the assessment of the High
Court is vitiated by an error of law or procedure or is based on
error of record, misreading of evidence or is inconsistent with the
evidence, for instance, where the ocular evidence is totally
inconsistent with the medical evidence and so on;
(3) that the Court would not enter into credibility of the
evidence with a view to substitute its own opinion for that of the
High Court;
(4) that the Court would interfere where the High Court has
arrived at a finding of fact in disregard of a judicial process,
principles of natural justice or a fair hearing or has acted in
violation of a mandatory provision of law or procedure resulting in
serious prejudice or injustice to the accused;
(5) this Court might also interfere where on the proved facts
wrong inferences of law have been drawn or where the
conclusions of the High Court are manifestly perverse and based
on no evidence.”
It is very difficult to lay down a rule of universal application, but the
principles mentioned above and those adumbrated in the
authorities of this Court cited supra provide sufficient guidelines for
this Court to decide criminal appeals by special leave. Thus in a
criminal appeal by special leave, this Court at the hearing
examines the evidence and the judgment of the High Court with
the limited purpose of determining whether or not the High Court
has followed the principles enunciated above. Where the Court
finds that the High Court has committed no violation of the various
principles laid down by this Court and has made a correct
approach and has not ignored or overlooked striking features in
the evidence which demolish the prosecution case, the findings of
fact arrived at by the High Court on an appreciation of the
evidence in the circumstances of the case would not be disturbed.”
 (emphasis supplied)
The aforesaid parameters were redefined in the concurring opinion in
the following terms: -
“30. The decisions of this Court referred to in the judgment of
my learned brother lay down that this Court does not interfere with
the findings of fact unless it is shown that “substantial and grave
injustice has been done”. But whether such injustice has been
done in a given case depends on the circumstances of the case,
and I do not think one could catalogue exhaustively all possible
circumstances in which it can be said that there has been grave
and substantial injustice done in any case. In the appeals before
50
us the findings recorded by the trial court and affirmed by the High
Court do not disclose any such exceptional and special
circumstances as would justify the claim made on behalf of the
appellants whose appeals we propose to dismiss that there has
been a failure of justice in these cases.”
19.5. We need not multiply the case law on the point but may usefully
refer to one of the recent decisions of a 3-Judge Bench of this Court in
the case of Hari & Anr. v. The State of Uttar Pradesh: Criminal Appeal
No. 186 of 2018 decided on 26.11.2021. Therein, after referring to the
aforesaid enunciations in Mst. Dalbir Kaur (supra), this Court has said: -
“19. In the said judgment, this Court observed that the evidence
and the judgment of the High Court is examined for the limited
purpose for determining whether or not the High Court has
followed the aforementioned principles. If the High Court has
committed no error or violation of the said principles and has not
ignored or overlooked striking features of the evidence which
demolish the prosecution case, the findings of fact arrived at by
the High Court on an appreciation of the evidence in the
circumstances of the case would not be disturbed. Article 136 of
the Constitution of India is an extraordinary jurisdiction which this
Court exercises when it entertains an appeal by special leave and
this jurisdiction, by its very nature, is exercisable only when this
Court is satisfied that it is necessary to interfere in order to prevent
grave or serious miscarriage of justice. Mere errors in appreciation
of the evidence are not enough to attract this invigilatory
jurisdiction. It is not the practice of this Court to reappreciate the
evidence for the purpose of examining whether the finding of fact
concurrently arrived at by the High Court and the subordinate
courts is correct or not. It is only in rare and exceptional cases
where there is some manifest illegality or grave and serious
miscarriage of justice that this Court would interfere with such
finding of fact.
20. Regarding the argument on behalf of the accused persons with
respect the contradictions and inconsistencies in the evidence of
the eye-witnesses, the High Court found that the contradictions
and inconsistencies indicated in the statements of the four eyewitnesses were trivial in nature. Following the law laid down by this
Court in State of MP v. Ramesh [(2011) 4 SCC 786], the High
Court ignored the contradictions and inconsistencies…..”
(emphasis supplied)
51
20. In summation of what has been noticed hereinabove, it is but clear
that as against any judgment/final order or sentence in a criminal
proceeding of the High Court, regular appeals to this Court are envisaged
in relation to the eventualities specified in Article 134 of the Constitution of
India and Section 2 of the Act of 1970. The present one is not a matter
covered thereunder and the present appeals are by special leave in terms
of Article 136 of the Constitution of India. In such an appeal by special
leave, where the Trial Court and the High Court have concurrently
returned the findings of fact after appreciation of evidence, each and
every finding of fact cannot be contested nor such an appeal could be
dealt with as if another forum for reappreciation of evidence. Of course, if
the assessment by the Trial Court and the High Court could be said to be
vitiated by any error of law or procedure or misreading of evidence or in
disregard to the norms of judicial process leading to serious prejudice or
injustice, this Court may, and in appropriate cases would, interfere in
order to prevent grave or serious miscarriage of justice but, such a course
is adopted only in rare and exceptional cases of manifest illegality. Tersely
put, it is not a matter of regular appeal. This Court would not interfere with
the concurrent findings of fact based on pure appreciation of evidence nor
it is the scope of these appeals that this Court would enter into
reappreciation of evidence so as to take a view different than that taken
by the Trial Court and approved by the High Court.
Concurrent findings of fact: whether requiring interference in these
appeals
52
21. As noticed, the Trial Court and the High Court have concurrently
recorded the findings that the prosecution has been able to successfully
establish the chain of circumstances leading to unmistakable conclusion
that the appellant is guilty of the offences of rape and murder of the victim
child as also of concealing her dead body. The fundamental fact, as held
proved against the appellant is that the deceased was lastly seen in the
company of the appellant when he took the deceased along with himself
while shooing away other children. The other significant fact, as held
proved, is that the dead body of the victim child was recovered at a
faraway place near the riverbank at the instance of the appellant. Coupled
with the said two aspects is the factor that the appellant had failed to
satisfactorily explain his whereabouts since he was last seen in the
company of the deceased as also his knowledge of the location of the
dead body. These facts and factors, taken together with the medical and
other scientific evidence, are said to be of a complete chain of
circumstances, leading to the conclusion on the guilt of the appellant.
22. The concurrent findings returned by the Trial Court and the High
Court on conviction of the appellant have been questioned in these
appeals with a wide range of submissions directed towards the matters of
appreciation of evidence. As noticed, this Court would not be embarking
upon wholesome reappreciation of evidence but, of course, the matter
may be examined from the point of view that there ought not be any
misreading of evidence or disregard of any principle of law or procedure,
53
i.e., the findings ought not be suffering from manifest illegality. While
taking up this exercise, we may summarise the principles in the cited
decisions, so far relevant for the present purpose.
22.1. The principles explained and enunciated in the case of Sharad
Birdhichand Sarda (supra), referred to and relied upon by learned
counsel for both the parties, remain a guiding-light for the Courts in
regard to the proof of a case based upon circumstantial evidence.
Therein, this Court referred to the locus classicus of Hanumant v. State
of Madhya Pradesh: AIR 1952 SC 343, deduced five golden principles,
and named them panchsheel of proving a case based upon circumstantial
evidence. This Court exposited as follows: -
“152. ...It may be useful to extract what Mahajan, J. has laid down
in Hanumant case:
 “It is well to remember that in cases where the evidence is of
a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance
be fully established, and all the facts so established should
be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive
nature and tendency and they should be such as to exclude
every hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be
such as to show that within all human probability the act must
have been done by the accused.”
153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be said to be
fully established:
 (1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
 It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
between “may be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
54
Maharashtra [(1973) 2 SCC 793] where the observations were
made :
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental distance
between ‘may be’ and ‘must be’ is long and divides
vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the one
to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.
155. It may be interesting to note that as regards the mode of
proof in a criminal case depending on circumstantial evidence, in
the absence of a corpus delicti, the statement of law as to proof of
the same was laid down by Gresson, J. (and concurred by 3 more
Judges) in King v. Horry [1952 NZLR 111] thus:
“Before he can be convicted, the fact of death
should be proved by such circumstances as
render the commission of the crime morally certain
and leave no ground for reasonable doubt: the
circumstantial evidence should be so cogent and
compelling as to convince a jury that upon no
rational hypothesis other than murder can the
facts be accounted for.”
156. Lord Goddard slightly modified the expression “morally
certain” by “such circumstances as render the commission of the
crime certain”.
157. This indicates the cardinal principle of criminal jurisprudence
that a case can be said to be proved only when there is certain
and explicit evidence and no person can be convicted on pure
moral conviction...”
22.1.1. Learned counsel for the appellant has particularly relied upon
paragraphs 159 to 161 of the said decision in Sharad Birdhichand
Sarda. In that part of the judgment, this Court dealt with a contention
55
urged by the Additional Solicitor General that if the defence case is false,
it would constitute an additional link so as to fortify the prosecution case.
While not accepting such a contention, this Court said as follows: -
“159. It will be seen that this Court while taking into account the
absence of explanation or a false explanation did hold that it will
amount to be an additional link to complete the chain but these
observations must be read in the light of what this Court said
earlier viz. before a false explanation can be used as additional
link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution
have been satisfactorily proved,
(2) the said circumstance points to the guilt of the accused with
reasonable definiteness, and
(3) the circumstance is in proximity to the time and situation.
160. If these conditions are fulfilled only then a court can use a
false explanation or a false defence as an additional link to lend an
assurance to the court and not otherwise. On the facts and
circumstances of the present case, this does not appear to be
such a case. This aspect of the matter was examined
in Shankarlal case [(1981) 2 SCC 35, 39] where this Court
observed thus: [SCC para 30, p. 43]
“Besides, falsity of defence cannot take the place
of proof of facts which the prosecution has to
establish in order to succeed. A false plea can at
best be considered as an additional
circumstances, if other circumstances point
unfailingly to the guilt of the accused.”
161. This Court, therefore, has in no way departed from the five
conditions laid down in Hanumant case [AIR 1952 SC 343].
Unfortunately, however, the High Court also seems to have
misconstrued this decision and used the so-called false defence
put up by the appellant as one of the additional circumstances
connected with the chain. There is a vital difference between an
incomplete chain of circumstances and a circumstance which,
after the chain is complete, is added to it merely to reinforce the
conclusion of the court. Where the prosecution is unable to prove
any of the essential principles laid down in Hanumant case [AIR
1952 SC 343], the High Court cannot supply the weakness or the
lacuna by taking aid of or recourse to a false defence or a false
plea. We are, therefore, unable to accept the argument of the
Additional Solicitor-General.”
22.2. In the case of Sudarshan (supra), this Court noted the unusual
behaviour on the part of complainant and his friends who, after the
56
incident of killing of two persons, approached a lawyer living 15 kms
away, instead of registering an FIR straightaway. Then, the FIR was not
lodged in the jurisdictional Police Station and there was no date and time
marked on it. It was also not shown as to who took, and how, the FIR to
the Magistrate. In the given set of facts, this Court found the FIR antetimed.
22.3. The case of Anjan Kumar Sarma (supra) has been cited on
behalf of the appellant in support of the contention that when other
circumstances are not proved, solely the circumstances of last seen
cannot form the basis of conviction. In the said case, the prosecution
relied upon nine circumstances to prove the guilt of the accused but this
Court found that seven of them were to be disregarded as not proved.
This Court, thereafter, examined the two circumstances, that the
deceased was last seen with the accused and they had failed to offer the
necessary explanation and found that only those circumstances were not
completing the chain to prove the guilt of the accused, while observing as
under: -
“23. It is clear from the above that in a case where the other links
have been satisfactorily made out and the circumstances point to
the guilt of the accused, the circumstance of last seen together
and absence of explanation would provide an additional link which
completes the chain. In the absence of proof of other
circumstances, the only circumstance of last seen together and
absence of satisfactory explanation cannot be made the basis of
conviction.…”
22.4. The case of Navjot Sandhu (supra) has been cited in support of
the argument that a fact already known cannot be discovered pursuant to
57
the statement made by an accused in police custody. The relevant part in
the relied upon paragraph shows that Section 27 of the Evidence Act was
not found applicable in relation to a particular packet of silver powder
which carried the name of the shop and thus, it was found that the name
and address of the shop were already known to the police. Even then,
this Court said that the conduct of the accused in pointing out the shop
and its proprietor would be relevant under Section 8 of the Evidence Act.
22.5. The decision in D.K. Basu (supra) has been referred in support of
the submission that arrest memo is required to be prepared at the time of
arrest. In the case of Rammi Alias Rameshwar (supra), after finding that
there was material discrepancy as to the time of arrest of the accused,
this Court declined to place reliance on the evidence of the IO as to the
recovery of weapon on the information furnished by the accused in police
custody. In the said case, the conviction was maintained with reference to
the reliable testimony of eye-witnesses.
22.6. In the case of Raj Kumar Singh (supra), the requirement of
putting relevant circumstances to the accused have been reaffirmed while
also holding that the circumstances which are not put to the accused in
his examination under Section 313 CrPC, cannot be used against him
and have to be excluded from consideration.
22.7. The case of Aghnoo Nagesia (supra) has been cited to submit
that the incriminating portions of custodial disclosure are inadmissible and
58
therefore, the appellant’s alleged admission of dragging the dead body
would not be admissible.
22.8. The decision in Abdulwahab Abdulmajid Baloch (supra) has
been cited in support of the contention that sole circumstance of recovery
cannot be the basis of conviction. In the said case, this Court held thus: -
“38. The learned trial Judge himself opined that the recovery
having been made after nine months, the weapon might have
changed in many hands. In absence of any other evidence
connecting the accused with commission of crime of murder of the
deceased, in our opinion, it is not possible to hold that the
appellant on the basis of such slander evidence could have been
found guilty for commission of offence punishable under Section
302 of the Penal Code.”
22.9. The case of Ramesh Chandra Agrawal (supra) related to the
compensation claim for medical negligence and therein, the issues
involved had been concerning the relevance of the expert evidence where
it was alleged that the appellant was impaired because of the faults in
treatment by the respondent. As regards the principle concerning expert
evidence in terms of Section 45 of the Evidence Act, this Court said: -
“20. An expert is not a witness of fact and his evidence is really of
an advisory character. The duty of an expert witness is to furnish
the Judge with the necessary scientific criteria for testing the
accuracy of the conclusions so as to enable the Judge to form his
independent judgment by the application of these criteria to the
facts proved by the evidence of the case. The scientific opinion
evidence, if intelligible, convincing and tested becomes a factor
and often an important factor for consideration along with other
evidence of the case. The credibility of such a witness depends on
the reasons stated in support of his conclusions and the data and
material furnished which form the basis of his conclusions…..”
22.10. The principle relating to reverse burden of proof in special
enactments came up for consideration in the case of Noor Aga (supra)
59
wherein this Court dealt with the provisions of Sections 35 and 54 of the
Narcotic Drugs and Psychotropic Substances Act, 1985. This Court, inter
alia, observed as follows: -
“58. Sections 35 and 54 of the Act, no doubt, raise presumptions
with regard to the culpable mental state on the part of the accused
as also place the burden of proof in this behalf on the accused; but
a bare perusal of the said provision would clearly show that
presumption would operate in the trial of the accused only in the
event the circumstances contained therein are fully satisfied. An
initial burden exists upon the prosecution and only when it stands
satisfied, would the legal burden shift. Even then, the standard of
proof required for the accused to prove his innocence is not as
high as that of the prosecution. Whereas the standard of proof
required to prove the guilt of the accused on the prosecution is
“beyond all reasonable doubt” but it is “preponderance of
probability” on the accused. If the prosecution fails to prove the
foundational facts so as to attract the rigours of Section 35 of the
Act, the actus reus which is possession of contraband by the
accused cannot be said to have been established.”
22.11. In the case of Justin (supra), the Kerala High Court, while
rejecting the challenge to the validity of Sections 29 and 30 of POCSO,
has underscored the requirement that the duty to rebut the presumption
arises only after the prosecution has established the foundational facts of
the offence alleged against the accused.
22.12. In the case of John David (supra) relied upon by the learned
counsel for the respondent, this Court has reiterated the principle that
when there is a recovery of an object of crime on the basis of information
given by the accused which provides a link in the chain of circumstances,
such information leading to discovery is admissible. It has also been held
that minor loopholes and irregularities in investigating process cannot
form the crux of the case on which the accused can rely upon to prove his
innocence, when there is strong circumstantial evidence deduced from
60
the investigation which logically and rationally point towards the guilt of
the accused. This Court, inter alia, said as under: -
“72. It is well-settled proposition of law that the recovery of crime
objects on the basis of information given by the accused provides
a link in the chain of circumstances. Also failure to explain one of
the circumstances would not be fatal to the prosecution case and
cumulative effect of all the circumstances is to be seen in such
cases. At this juncture we feel it is apposite to mention that
in State of Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715] this
Court has held that: (SCC p. 720, para 19)
“19. … The court must have predominance and
pre-eminence in criminal trials over the action
taken by [the] investigating officers. Criminal
justice should not be made a casualty for the
wrongs committed by the investigating officers in
the case. In other words, if the court is convinced
that the testimony of a witness to the occurrence
is true the court is free to act on it….”
73. Hence, minor loopholes and irregularities in the investigation
process cannot form the crux of the case on which the respondent
can rely upon to prove his innocence when there are strong
circumstantial evidences deduced from the said investigation
which logically and rationally point towards the guilt of the
accused.”
22.13. As regards the last seen theory and operation of Section 106 of
the Evidence Act, in the case of Kashi Ram (supra) this Court has
explained and laid down as follows: -
“23. It is not necessary to multiply with authorities. The principle is
well settled. The provisions of Section 106 of the Evidence Act
itself are unambiguous and categoric in laying down that when any
fact is especially within the knowledge of a person, the burden of
proving that fact is upon him. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and when he
parted company. He must furnish an explanation which appears to
the court to be probable and satisfactory. If he does so he must be
held to have discharged his burden. If he fails to offer an
explanation on the basis of facts within his special knowledge, he
fails to discharge the burden cast upon him by Section 106 of the
Evidence Act. In a case resting on circumstantial evidence if the
accused fails to offer a reasonable explanation in discharge of the
burden placed on him, that itself provides an additional link in the
chain of circumstances proved against him. Section 106 does not
shift the burden of proof in a criminal trial, which is always upon
61
the prosecution. It lays down the rule that when the accused does
not throw any light upon facts which are specially within his
knowledge and which could not support any theory or hypothesis
compatible with his innocence, the court can consider his failure to
adduce any explanation, as an additional link which completes the
chain. The principle has been succinctly stated in Naina Mohd.,
Re. [AIR 1960 Mad 218]
24. There is considerable force in the argument of counsel for the
State that in the facts of this case as well it should be held that the
respondent having been seen last with the deceased, the burden
was upon him to prove what happened thereafter, since those
facts were within his special knowledge. Since, the respondent
failed to do so, it must be held that he failed to discharge the
burden cast upon him by Section 106 of the Evidence Act. This
circumstance, therefore, provides the missing link in the chain of
circumstances which prove his guilt beyond reasonable doubt.”
23. Keeping the aforesaid principles in view, we may examine the
contentions urged in this matter as regards conviction of the appellant.
24. Learned counsel for the appellant, while seeking to challenge the
conviction, has put at the forefront the contentions that the probability of
ante-timing of FIR cannot be ruled out. In this regard, three major factors
have been highlighted: first, that according to the witness PW-3, she had
seen the dead body at 10:00 a.m. on 14.05.2015 though until that time,
FIR had not been registered; second, that in the FIR itself, mother of the
victim child stated with confidence that the deceased was raped and
murdered and the dead body was concealed by the appellant though
there was no reason for her to make such assertions at the time of
lodging the FIR; and third, that there had been inconsistencies as regards
the presence of people at the time of lodging the FIR and as regards the
timing of recording the statement of mother of the victim child under
Section 161 CrPC as also that there had been opaqueness as regards
compliance of Section 157 CrPC in dispatching the FIR to the Court.
62
24.1. We are unable to persuade ourselves with this line of
submissions; rather, we are clearly of the view that these factors, whether
taken individually or taken collectively, cannot be decisive of the
questions calling for determination in this case. It is the overall view of the
evidence as regards the chain of circumstances that alone is decisive of
the matter. We may, however, indicate that the contentions urged with
reference to the factors aforesaid carry their own shortcomings.
24.2. It is true that the child-witness PW-3 Aashna stated as if she had
gone to the site and looked at the dead body at 10:00 a.m. in the morning
but then, the said child-witness was about 10 years of age at the time of
her deposition and was coming from a rural background. Her
comprehension of timings had obviously been crude or amateurish, which
is borne out of the fact that in the other part of statement, she stated that
after 7 p.m., she and other children kept on playing for 5 hours. Such a
narrative about the timing by her had obviously been lacking in the
requisite maturity and comprehension. In the process of appreciation of
evidence, the Trial Court and High Court have looked at the crux of the
matter emerging from her testimony that she was indeed a witness to the
fact that the deceased child was last seen in the company of the appellant
when he took her along towards lychee farm.
24.3. Similarly, the overt assertion made in the complaint by PW-1
Nisha, mother of the victim child, that as per her belief, the child was
raped and murdered and the dead body was concealed by the appellant,
63
is also required to be visualised with reference to the backdrop that she
had the knowledge about the appellant having taken her daughter in the
evening and had been searching for her daughter for the whole night.
This is coupled with the fact that she was undoubtedly a rustic villager
and even got the complaint scribed from someone else. Again, in the
process of appreciation of evidence, the Trial Court and High Court have
looked at the substance and core of the matter emerging from her
testimony while consciously taking note of her background.
24.4. Yet further, as to who accompanied PW-1 Nisha to Police Station
is not a factor for which, the FIR could be taken as ante-timed. PW-1
Nisha and PW-2 Anita had been consistent that both of them had gone to
the Police Station before the noon hours of 14.05.2015. It has, of course,
appeared in the statements of PW-7 Nagendra Singh that PW-4
Amebdkar had accompanied PW-1 Nisha to Police Station but, such a
minor discrepancy occurring in the statement of the said police officer
posted at the Police Station concerned cannot override the entire
evidence on record. Moreover, he had been the person who registered
the FIR and there had not been any specific suggestion to this witness
that dead body had been seen by anyone before lodging of FIR. Similarly,
PW-8, the IO initially stated in the cross-examination that he took the
statement of the complainant next day after taking over investigation but
thereafter, corrected himself to say that he took her statement at about
2.00 p.m. after registration of the case. This aspect has also been duly
64
taken note of by the Trial Court and the contentions urged on behalf of the
appellant have been rejected with reference to the fact that the IO had
deposed from memory after one and a half year of the investigation; and
PW-7 has clarified that the statement of the complainant was taken by the
SHO at the date of registration of FIR and thereafter, he proceeded to
investigate. Further, even if the particulars regarding date and time of
dispatch of FIR to the Court were not stated in the form, that could only
be regarded as a procedural fault on the part of the staff of the Police
Station and that cannot nullify all other material on record. In the case of
Sudarshan (supra), the FIR was not lodged immediately and not even in
the jurisdictional Police Station. In the given set of facts, this Court found
that the FIR was recorded after due deliberation and was ante-timed to
give it a colour of promptly lodged FIR. The said decision is hardly of any
assistance to the appellant in the present case. Even otherwise, every
irregularity in maintaining the record pertaining to the investigation cannot
take away the crux and substance of the matter, if there are strong
substantial evidences deduced from the investigation, which logically and
rationally point towards the guilt of the accused, as held by this Court in
John David (supra).
24.5. It has been repeatedly argued in this matter that a fact already
known cannot be said to have been discovered pursuant to the statement
made by the accused-appellant in police custody. As noticed above, this
line of argument has been developed with reference to minor and
65
irrelevant inconsistencies in the deposition of witnesses, particularly the
child witness PW-3 Aashna. Further, strength is sought to be taken with
reference to certain irregularities in maintaining the investigation record.
This line of submission is required to be rejected because minor
inconsistencies or irregularities cannot take away the substance of the
matter and the crucial facts proved in evidence. The decisions, like that in
the case of Navjot Sandhu (supra), about the facts already known to the
police, have no application to the facts of the present case. There is no
such material discrepancy as regards the time when the police took the
appellant into custody, as it has been consistently deposed by the
witnesses and found established by the Courts that the IO started from
the Police Station at about 2:00 p.m. on 14.05.2015 and apprehended the
appellant near the Community Health Centre in the afternoon hours.
Then, he started preparing the arrest memo and at the same time, also
took the appellant to the site after the appellant agreed to lead to the
location where he had dumped the dead body. Thus, the principles in
D.K. Basu and Rammi Alias Rameshwar (supra) also do not enure to
the benefit of the appellant.
25. For what has been discussed hereinabove, it is but clear that a
few discrepancies here or there do not establish that the FIR was antetimed or that the dead body had already been seen by anyone before
lodging of FIR. As noticed, while recording the findings against the
appellant, the so-called discrepancies/inconsistencies have also been
66
duly taken note of by the Trial Court and the High Court before finding
them either of trivial nature or duly explained. We find no infirmity in such
appreciation of evidence by the Trial Court and the High Court.
26. Apart from above, learned counsel for the appellant has made all
endeavours to point out some more inconsistencies or shortcomings in
the prosecution case. For example, it is submitted that there has been
inconsistency as regards the location where other children and the
deceased were playing before the appellant allegedly enticed the
deceased; that the witness PW-2 had stated about meeting the appellant
between midnight and 1:00 a.m. on 14.05.2015 but such facts were not
stated by PW-1 or PW-8. These and other such minor factors cannot be
said to be of any relevant inconsistency so as to create a reasonable
doubt on the prosecution case; rather, such minor variations are more of
natural presentation of their versions by the witnesses. The learned
counsel would further submit that PW-1 and PW-2 could not name a
single villager whose house they visited in search of the deceased. We
are unable to find even a logic in such an argument. It is too far-stretched
to suggest that even the factum of search of the missing child by her
mother and aunt is required to be corroborated by any other evidence.
The learned counsel has expanded on his submissions even to the extent
that adverse inference ought to be drawn for the prosecution not
examining the persons whose names had surfaced on the record. Such a
contention remains bereft of logic. All the necessary witnesses to prove
67
the relevant facts have been examined by the prosecution. The principles
of drawing adverse inference for non- production of a material evidence
available with the prosecution do not even remotely come into operation
in this case. To put it in a nutshell, the so-called inconsistencies do not
take away the substance of the matter where the prosecution has
established fundamental facts leading to the chain of circumstances
pointing towards the guilt of the appellant. In an overall view of the
evidence, the statements of PW-1, PW-2 and PW-3 appear to be genuine
and the discrepancies or inconsistencies therein appear to be rather of
natural character as are likely to arise from the persons of their
background. It gets, perforce, reiterated that in the present appeal against
concurrent findings of fact, the whole of the evidence on record is not to
be reappreciated as if it were a matter of regular appeal.
27. Having examined the matter in its totality, we find no infirmity in
the Trial Court and the High Court concurrently finding the prosecution
case proved that on 13.05.2015, at around half past six in the evening,
while the deceased was playing with PW-3 Aashna and other children of
the village Sabaya Khas, Kushinagar, appellant gave Rs. 20 to PW-3, for
buying sweets for the children. After distributing these sweets amongst
them, the deceased was lured by appellant by suggesting that they go
together and pluck lychees from the farm. When the other children sought
to follow them, he sent them away by scolding them, picked and placed
the deceased on his back, and set off towards the farm. The testimony of
68
child witness PW-3 Aashna is categorical in regard to these facts and
there appears no reason to disbelieve her testimony, even if her
comprehension of time and hours appears to be wanting in maturity. It
would be rather unrealistic to expect such maturity from a ten-year-old
child coming from a rustic background. PW-2 Anita, the maternal aunt of
the deceased, has also corroborated PW-3 in regard to these crucial
facts, establishing that the deceased was last seen with the appellant. In
fact, the evidence has been categorical that it was the appellant alone
who enticed the deceased to go along with him and rather carried the
deceased child on his back. PW-2 Anita has also testified to the fact that
she saw the appellant taking the deceased child from the window of the
house while standing and PW-1 Nisha, mother of the deceased child was
sitting. This explains even the statement of PW-1 Nisha that she had also
seen the appellant taking the deceased child. The submission that why
these women allowed the child to taken in the evening by a man they
described as alcoholic is, again, only an attempt at hair-splitting exercise
in the matter of appreciation of evidence. In the rural background, where
the appellant was a neighbour and a person of the same community,
there could not have been any reason for the ladies to suspect the intent
of the appellant towards the child. The assertion that the ladies searched
for the child for the whole night cannot be a cooked-up story because, if
the seven-year-old girl child did not return home until late hours, they
were, obviously, expected to look for the child. The fact that while
69
searching, they indeed reached the house of the appellant, where his wife
stated about his having gone out after quarrelling, has also been
consistently stated by PW-1 and PW-2. Of course, PW-2 stated about
herself having met the appellant past midnight but, also made it clear that
PW-1 was not with her at that time. It is also given out that the ladies
could not take steps for approaching the police because at the relevant
point of time i.e., during the night intervening 13.05.2015 and 14.05.2015,
they were not having any person of support with them.
27.1. The sum and substance of the matter is that we find no infirmity in
the finding that the deceased was lastly seen in the company of the
appellant. This finding remains a cogent finding based on proper
appreciation of evidence and calls for no interference.
28. So far as the factum of discovery of the dead body of the victim
child at the information of appellant is concerned, as indicated
hereinabove, the same stands proved by the evidence of relevant
witnesses including PW-4 Ambedkar and PW-8 IO. As noticed, the IO of
this case seems to have not meticulously prepared the papers of
investigation and even the memorandum of discovery of dead body and
arrest of the appellant was prepared as one document (Ex. Ka-2).
However, a perusal of the said document Ex. Ka-2, duly proved by the
relevant witnesses including PW-4 Ambedkar and PW-8 IO, makes it
clear that the relevant facts stand established therefrom and cannot be
ignored. As already observed, mere irregularity in preparation of memos
70
by the IO would not falsify the factum of information by the accusedappellant leading to the discovery of the dead body.
29. The submission that the incriminating part in the statement of the
appellant made to the police while in custody, like that of ‘dragging the
dead body’, has been relied upon by the Trial Court is also not correct.
The Trial Court essentially relied upon the site plan (Ex. Ka-15), where it
was indicated that a line over the tiled field with trampling of wheat stack
was clearly visible at the site (vide paragraph 9.4. hereinabove). Thus,
the decision in Aghnoo Nagesia (supra) is of no relevance to the present
case.
30. The principles in the case of Anjan Kumar Sarma (supra) that
solely the circumstance of last seen cannot form the basis of conviction
as also in Abdulwahab Abdulmajid Baloch (supra) that the sole
circumstance of recovery cannot be basis of conviction have no relevance
to the present case where both the circumstances of ‘last seen’ as also
‘recovery pursuant to disclosure by appellant’, forming strong links in the
chain of circumstances, have been duly established on record.
31. It is hardly a matter of doubt or debate that when ‘last seen’
evidence is cogent and trustworthy which establishes that the deceased
was lastly seen alive in the company of the accused; and is coupled with
the evidence of discovery of the dead body of deceased at a far away and
lonely place on the information furnished by the accused, the burden is on
the accused to explain his whereabouts after he was last seen with the
71
deceased and to show if, and when, the deceased parted with his
company as also the reason for his knowledge about the location of the
dead body. The appellant has undoubtedly failed to discharge this burden.
Applying the principles enunciated in the case of Kashi Ram (supra), we
have no hesitation in endorsing the view of the High Court that the
appellant having been seen last with the deceased, the burden was upon
him to prove as to what happened thereafter, since those facts were
within his special knowledge. For the appellant having failed to do so, it is
inevitable to hold that he failed to discharge the burden cast upon him by
Section 106 of the Evidence Act. This circumstance, therefore, provides
another strong link in the chain of circumstances against the appellant.
32. For what has been discussed hereinabove, it is also but clear that
the foundational facts of the offences alleged against the appellant have
been established. In the given set of circumstances, it could safely be
said that the presumption contemplated by Section 29 POCSO came into
operation and the burden came staying with the appellant; and it was for
him to rebut the presumption and to prove that he had not committed the
offence. The appellant has failed to discharge this burden. Viewed from
this angle too, the decisions in Noor Agha and Justin (supra) do not
come to the rescue of the appellant; rather on the principles stated therein
and in terms of Section 29 POSCO, the presumption would only lead to
the finding of guilt against the appellant.
72
33. It has unnecessarily been argued with reference to the case of
Raj Kumar Singh (supra) that the circumstances not put to accused in
his examination under Section 313 CrPC cannot be used against him.
The said decision has no application to the present case, particularly
when we find that all the material and incriminating circumstances have
indeed been put to the appellant.
34. It has also unnecessarily been argued that even if the defence
case is taken to be false, it would not constitute an additional link to the
chain of circumstances. It is not of taking any additional link to the chain
of circumstances but, from the failed attempt of defence to suggest
enmity due to the land dispute, it is clear that there was not even a
remote reason for the mother of the victim to direct the imputations
against the appellant while allowing the real culprit, if there was any other
but the appellant, to escape. In fact, the haphazard suggestions in
relation to the alleged enmity had also been of strange nature where it
was suggested to PW-1 that the appellant was implicated for ‘village
animosity’ whereas the suggestion to PW-2 was of ‘factionalism’. The Trial
Court and the High Court have also rightly indicated that nothing of
concrete evidence towards the alleged land dispute was available on
record. Even the basic fact is also not clear as to how the appellant or his
family were concerned with any sale made to one Gokul?
34.1. Having examined the baseless defence plea of enmity due to land
dispute and its consideration by the Trial Court and the High Court, we
73
are satisfied that this failed defence plea has not been used as an
additional link to the chain of circumstances required to be proved by the
prosecution. It has only been referred to as an additional assuring
circumstance, after finding that all other circumstances unfailingly point
towards the guilt of the appellant. The principles stated in paragraphs 159
to 161 of the decision in Sharad Birdhichand Sarda (supra), as relied
upon by the learned counsel for the appellant, do not make out a case for
interference in the present appeals.
35. Yet another distended line of arguments, with reference to the
decision in Ramesh Chandra Agrawal (supra), is also of no assistance
to the appellant. The Forensic Science Laboratory had reported that
traces of ‘spermatozoa and sperms’ were found on the underwear of the
deceased. Even if the said report was drawn on 10.08.2016, its veracity
cannot be doubted and there is no reason to consider the said report with
suspicion. The relevant articles were indeed sealed as proved in
evidence and did reach the laboratory in the same sealed condition. The
alleged want of upgraded and sophisticated facilities for sealing of the
articles at the Police Station cannot override and nullify the proceedings
otherwise lawfully conducted by the Police Station and the Investigating
Officer. In any case, it is also far-stretched to argue that the offence under
Section 376 IPC could not have been imputed in the charge-sheet before
receiving such report. The said report was only corroborative scientific
evidence but the other facts directly available on record, more particularly
74
as per the conditions of the dead body of the seven-year-old girl child, as
seen at the site and then the relevant aspects of gruesome injuries,
including those on private parts, as reported in the post-mortem report,
could not have been ignored. The decision in Ramesh Chandra Agrawal
(supra) is of no support to the contentions urged in this matter on behalf
of the appellant.
36. A rather strange line of submission in this case has been that as
per post-mortem report, the death had occurred 2-3 days before
examination and that opinion would take the time of death even much
before the evidence of last seen or that the dead body might have been
seen by other persons much before its recovery at the instance of the
appellant. The approximate time of death before examination, as
indicated in the post-mortem report, cannot be applied as something of
mathematical precision. The post-mortem examination was conducted in
the afternoon of 15.05.2015; and approximation of two days before such
examination matches the proven time when the deceased was last seen
with the appellant i.e., around 6:30 p.m. on 13.05.2015. In fact, the
indications in the post-mortem report are only to the effect that the
appellant did not provide any time to the child and rather carried out his
misdeeds immediately after taking her along.
37. Thus, even after examining the principal contentions urged on
behalf of the appellant against the concurrent findings returned by the
Trial Court and the High Court, we do not find any case of perversity or
75
manifest illegality for which any interference in such concurrent findings
would be called for. In an overall view of the matter, it is proved beyond
doubt in this case that the hapless child, seven-year-old daughter of the
complainant, met with her gruesome end after having been treated
inhumanely and having been subjected to sexual assaults; that the victim
was lastly seen in the company of the appellant when he enticed and took
her along to pluck and eat lychee fruits while shooing away the other
children playing with her; that the dead body of the victim child was
recovered at the instance of the appellant; and that the appellant failed to
satisfactorily explain his whereabouts and his knowledge of the location of
dead body. The medical and other scientific evidence has been consistent
with the prosecution case and then, the defence version of enmity due to
land dispute turns out to be false. That being the position, we have no
hesitation in holding that the present case of circumstantial evidence
answers the panchsheel principles of Sharad Birdhichand Sarda
(supra). The appellant was rightly convicted by the Trial Court and his
conviction has rightly been maintained by the High Court. This part of the
submissions on behalf of the appellant stand rejected.
Whether death sentence be maintained or substituted by any other
sentence
38. Even when we find no reason to consider interference in the
concurrent findings of fact leading to conviction, the question still remains
about correctness of the death sentence awarded to the appellant. The
sentence, when being of termination of a natural life, obviously requires
76
closer scrutiny with reference to the statutory requirements of Section
354(3) CrPC as also the principles enunciated by this Court.
39. The requirements of Section 354(3) CrPC are as under: -
“(3) When the conviction is for an offence punishable with death
or, in the alternative, with imprisonment for life or imprisonment for
a term of years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of death, the
special reasons for such sentence.”
40. We need not elongate this discussion with dilation on all the cited
decisions but, having regard to the issues raised and the circumstances
of the present case, we may usefully summarise the evolution of legal
position and norms for dealing with the question of sentencing in such
matters and the connotations of ‘special reasons’ for awarding death
sentence.
40.1. In Bachan Singh (supra), this Court examined two broad
questions: One, as to whether death penalty provided for the offence of
murder under Section 302 IPC was unconstitutional; and if not, as to
whether the sentencing procedure in Section 354(3) CrPC was
unconstitutional on the ground that it invested the Court with unguided
and untrammelled discretion, which allowed death sentence to be
arbitrarily imposed in relation to the offences punishable with death or life
imprisonment.
40.1.1. A variety of features and factors including those pertaining to
Articles 19(1) and 21 of the Constitution of India were examined by this
Court while answering the first question in the negative, which are not of
bearing in the present case. The relevant part of enunciations in Bachan
77
Singh had been in relation to the second question, where, while
upholding the constitutionality of Section 354(3) CrPC, this Court noted
that the legislature had explicitly prioritised life imprisonment as the
normal punishment and death penalty as being of exception. For
operation and application of this legislative policy, this Court also
examined several of the past decisions, particularly the case of
Jagmohan Singh v. State of U.P.: (1973) 1 SCC 20 and modulated the
propositions as follows: -
“164. Attuned to the legislative policy delineated in Sections
354(3) and 235(2), propositions (iv)(a) and (v)(b)
in Jagmohan [(1973) 1 SCC 20] shall have to be recast and may
be stated as below:
“(a) The normal rule is that the offence of murder shall be
punished with the sentence of life imprisonment. The court
can depart from that rule and impose the sentence of death
only if there are special reasons for doing so. Such reasons
must be recorded in writing before imposing the death
sentence.
(b) While considering the question of sentence to be
imposed for the offence of murder under Section 302 of the
Penal Code, the court must have regard to every relevant
circumstance relating to the crime as well as the criminal. If
the court finds, but not otherwise, that the offence is of an
exceptionally depraved and heinous character and
constitutes, on account of its design and the manner of its
execution, a source of grave danger to the society at large,
the court may impose the death sentence.”
(emphasis supplied)
40.1.2. This Court also said that special reasons in the context of Section
354(3) CrPC would obviously mean exceptional reasons, meaning
thereby, that the extreme penalty should be imposed only in extreme
cases. This Court said: -
78
“161. .…The expression “special reasons” in the context of this
provision, obviously means “exceptional reasons” founded on the
exceptionally grave circumstances of the particular case relating to
the crime as well as the criminal. Thus, the legislative policy now
writ large and clear on the face of Section 354(3) is that on
conviction for murder and other capital offences punishable in the
alternative with death under the Penal Code, the extreme penalty
should be imposed only in extreme cases.”
(emphasis supplied)
40.1.3. This Court further made it clear that standardisation of sentencing
would not be possible because no two criminal cases were identical and
standardisation would leave no room for judicial discretion and
additionally, standardisation of sentencing discretion was a policy matter
belonging to the sphere of legislation. This Court, of course, referred to
the suggested aggravating circumstances as also mitigating factors, but
reiterated that the Court would not fetter judicial discretion by attempting
to make an exhaustive enumeration one way or the other11. Having said
so, this Court ultimately laid down the ‘rarest of rare case’ doctrine in the
following terms:-
“209. There are numerous other circumstances justifying the
passing of the lighter sentence; as there are countervailing
circumstances of aggravation. “We cannot obviously feed into a
judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating society.”
Nonetheless, it cannot be over-emphasised that the scope and
concept of mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the courts in
accord with the sentencing policy writ large in Section 354(3).
Judges should never be bloodthirsty. Hanging of murderers has
never been too good for them. Facts and Figures, albeit
incomplete, furnished by the Union of India, show that in the past,
courts have inflicted the extreme penalty with extreme infrequency
— a fact which attests to the caution and compassion which they
have always brought to bear on the exercise of their sentencing
discretion in so grave a matter. It is, therefore, imperative to voice
the concern that courts, aided by the broad illustrative guide-lines
11 vide paragraphs 169-175, 202 and 206 of the decision in Bachan Singh (supra)
79
indicated by us, will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the highroad
of legislative policy outlined in Section 354(3) viz. that for persons
convicted of murder, life imprisonment is the rule and death
sentence an exception. A real and abiding concern for the dignity
of human life postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the rarest of rare
cases when the alternative option is unquestionably foreclosed.”
 (emphasis supplied)
40.2. In Machhi Singh (supra), a 3-Judge Bench of this Court was
considering as to whether the case fell within the ‘rarest of rare’ category
where the appellant was convicted of orchestrating a conspiracy and then
carrying it out, which resulted in the murder of 17 people due to a family
feud. This Court explained the philosophy pertaining to the death
sentence while observing, inter alia, as under: -
“32. …Every member of the community owes a debt to the
community for this protection. When ingratitude is shown instead
of gratitude by “killing” a member of the community which protects
the murderer himself from being killed, or when the community
feels that for the sake of self-preservation the killer has to be
killed, the community may well withdraw the protection by
sanctioning the death penalty. But the community will not do so in
every case. It may do so “in rarest of rare cases” when its
collective conscience is so shocked that it will expect the holders
of the judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of
retaining death penalty. The community may entertain such a
sentiment when the crime is viewed from the platform of the
motive for, or the manner of commission of the crime.…”
40.2.1. This Court also explained the propositions of Bachan Singh
(supra) and the pertinent queries for applying those propositions in the
following passages: -
“38. In this background the guidelines indicated in Bachan Singh
case [(1980) 2 SCC 684] will have to be culled out and applied to
the facts of each individual case where the question of imposing of
death sentence arises. The following propositions emerge
from Bachan Singh case [(1980) 2 SCC 684] :
80
(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances
of the ‘offender’ also require to be taken into consideration
along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be
imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and
only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised
having regard to the nature and circumstances of the
crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before
the option is exercised.
39. In order to apply these guidelines inter alia the following
questions may be asked and answered:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and
calls for a death sentence?
 ( b) Are the circumstances of the crime such that there is
no alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances
in the light of the aforesaid proposition and taking into account the
answers to the questions posed hereinabove, the circumstances
of the case are such that death sentence is warranted, the court
would proceed to do so.”
 (emphasis supplied)
40.3. The decision in Swamy Shraddananda (2) (supra) was rendered
by a 3-Judge Bench of this Court in the backdrop that though the 2-Judge
Bench of this Court upheld the conviction of the appellant of offences
under Sections 302 and 201 IPC but, one of the learned Judges felt that
in the facts and circumstances of the case, punishment of imprisonment
till the end of the natural life of the convict would serve the ends of justice,
81
whereas the other learned Judge took the view that the appellant
deserved nothing but death penalty. In keeping with the ever-progressing
tenets of penology and the anxiety to evolve a just, reasonable and
proper course, the 3-Judge Bench adopted the course of not awarding
death penalty, but conditioning the life imprisonment sentence with the
rider of not releasing the convict from the prison for the rest of his life. The
Court explained the logic of such sentencing, which overrides the
availability of remission, in the following terms: -
“92. The matter may be looked at from a slightly different angle.
The issue of sentencing has two aspects. A sentence may be
excessive and unduly harsh or it may be highly disproportionately
inadequate. When an appellant comes to this Court carrying a
death sentence awarded by the trial court and confirmed by the
High Court, this Court may find, as in the present appeal, that the
case just falls short of the rarest of the rare category and may feel
somewhat reluctant in endorsing the death sentence. But at the
same time, having regard to the nature of the crime, the Court may
strongly feel that a sentence of life imprisonment subject to
remission normally works out to a term of 14 years would be
grossly disproportionate and inadequate. What then should the
Court do? If the Court's option is limited only to two punishments,
one a sentence of imprisonment, for all intents and purposes, of
not more than 14 years and the other death, the Court may feel
tempted and find itself nudged into endorsing the death penalty.
Such a course would indeed be disastrous. A far more just,
reasonable and proper course would be to expand the options and
to take over what, as a matter of fact, lawfully belongs to the Court
i.e. the vast hiatus between 14 years' imprisonment and death. It
needs to be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the case, the
sentence of 14 years' imprisonment would amount to no
punishment at all.
93. Further, the formalisation of a special category of sentence,
though for an extremely few number of cases, shall have the great
advantage of having the death penalty on the statute book but to
actually use it as little as possible, really in the rarest of rare
cases. This would only be a reassertion of the Constitution Bench
decision in Bachan Singh besides being in accord with the modern
trends in penology.”
 (emphasis supplied)
82
40.4. In Rameshbhai Chandubhai Rathod v. State of Gujarat : (2009)
5 SCC 740, the Court was dealing with the case of rape and murder of a
young child by a young man. Herein too, the learned Judges of a 2-Judge
Bench of this Court differed on the question of sentence. One learned
Judge held that death sentence could also be awarded in cases of
circumstantial evidence, if those circumstances were of unimpeachable
character and it would have nothing to do with the question of sentencing.
If the circumstantial nature of evidence was considered to be a mitigating
circumstance, it would amount to consideration of an irrelevant aspect,
since the same material was found cogent enough to convict the
accused. It was reiterated that what was to be considered for sentencing
was the balance-sheet of aggravating and mitigating circumstances. The
other learned Judge, however, observed that the Trial Court had not
provided the accused an opportunity to demonstrate that he could be
reformed; and opined that the Court must not be oblivious of the right of
an accused to a fair sentencing policy. Consequently, this matter was also
placed before a 3-Judge Bench leading to the decision in Rameshbhai
Chandubhai Rathod (2) v. State of Gujarat :(2011) 2 SCC 764. The 3-
Judge Bench agreed with the view that the Trial Court was obligated to
render a finding on whether the accused could be reformed and
rehabilitated; and that the young age of the accused (being only 27 years
old), was a mitigating factor operating in his favour. However, it was also
observed that the gravity of offence, the behaviour of accused, and the
83
fear and concern such incidents generate in society, were also the factors
which could not be ignored. In result, the 3-Judge Bench, following the
course adopted in a couple of other decisions, commuted the death
sentence into that of life imprisonment for the remainder of the natural life
of the appellant but subject to any remission or commutation at the
instance of the Government for good and sufficient reasons.
40.5. Such propositions, whereby this Court had provided for special
category sentencing by way of life sentence sans remission in substitution
of death sentence gave rise to yet further debate in this Court and led to
the reference to the Constitutional Bench that came to be answered in V.
Sriharan (supra). There had been several questions referred to the
Constitutional Bench as regards the powers of remission, but all those
aspects need not be dilated herein. The relevant part of the matter is
concerning the first question, as stated in paragraph 52.1 of the referral
order. A majority of three Judges approved the ratio in Swamy
Shraddananda (2) (supra) providing for special category of life sentence
without remission. Though the minority opinion concurred on the point
that imprisonment for life in terms of Section 52 read with Section 45 IPC
only meant imprisonment for the rest of the life of the convict, where the
right to claim remission, commutation etc. as provided under Article 72 or
161 of the Constitution of India would always be available but, did not
concur with the other part of the majority opinion approving the aforesaid
special category sentence with the reasoning that such a course of
84
providing mandatory period of actual imprisonment would be inconsistent
with Section 433-A CrPC. The majority view, being the declaration of law
by this Court, reads as under: -
“Question 52.1: Whether imprisonment for life in terms of
Section 53 read with Section 45 of the Penal Code meant
imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim remission
and whether as per the principles enunciated in paras 91 to
93 of Swamy Shraddananda (2), a special category of
sentence may be made for the very few cases where the
death penalty might be substituted by the punishment of
imprisonment for life or imprisonment for a term in excess of
fourteen years and to put that category beyond application of
remission?
Answer
177. Imprisonment for life in terms of Section 53 read with
Section 45 of the Penal Code only means imprisonment for the
rest of the life of the convict. The right to claim remission,
commutation, reprieve, etc. as provided under Article 72 or Article
161 of the Constitution will always be available being constitutional
remedies untouchable by the Court.
178. We hold that the ratio laid down in Swamy Shraddananda
 (2) that a special category of sentence; instead of death can be
substituted by the punishment of imprisonment for life or for a term
exceeding 14 years and put that category beyond application of
remission is well founded and we answer the said question in the
affirmative.”
 (emphasis supplied)
40.6. In Ravishankar (supra), a 3-Judge Bench of this Court re-affirmed
the conviction of the appellant of the offences of kidnapping, rape, and
resultant death of a 13-year-old girl and destruction of evidence. The case
had been that of circumstantial evidence and on the question of sentence,
this Court examined as to whether death sentence was justified. Though
this Court made it clear that even in the case where conviction is based
on circumstantial evidence, capital punishment could indeed be awarded
but then, proceeded to observe that this Court had been increasingly
85
applying the theory of ‘residual doubt’, which effectively create a higher
standard of proof over and above the “beyond reasonable doubt”
standard used at the stage of conviction, as a safeguard against routine
capital sentencing, keeping in mind the irreversibility of death. Applying
this theory and indicating certain ‘residual doubts’, it was held that the
said case fell short of ‘rarest of rare’ case. In that case too, the Court
commuted the death sentence into one of life for the remainder of the
natural life.
40.7. In Shatrughna Baban Meshram (supra), another 3-Judge Bench
of this Court considered an appeal against conviction and award of death
sentence for rape and murder of a 2½ year old girl by her maternal uncle.
On the question of sentencing, a table of 67 cases decided by the
Supreme Court over the past 40 years was perused and it was observed
that when the offences were of Sections 376 and 302 IPC, and the age of
the victim was under 16 years, death sentence was confirmed in 15, but
in 3, was later on commuted to life in review. Hence, in only 12 of the 67
cases was the death sentence confirmed. As regards the guiding factors
in sentencing, it was held that death penalty was not entirely
impermissible to be awarded in circumstantial evidence cases but the
circumstantial evidence ought to be of unimpeachable character with
option of lesser sentence foreclosed. The Court also examined the theory
of ‘residual doubt’; and after a survey of the decisions of this Court and
those of the U.S. Supreme Court, observed as under: -
86
“75.4. These features are only illustrative to say that the theory of
“residual doubt” that got developed was a result of peculiarity in
the process adopted. Even then, what is material to note is that
the theory has consistently been rejected by the US Supreme
Court and as stated by O'Connor, J.: “Nothing in our cases
mandated the imposition of this heightened burden of proof at
capital sentencing.”
Thereafter, this Court also referred to some of the decisions of this
Court where the said theory of ‘residual doubt’ was referred to, including
that in Ashok Debbarma Alias Achak Debbarma v. State of Tripura:
(2014) 4 SCC 747, and it was pointed out that those matters were
considered from the standpoint of individual fact situation where, going by
the higher or stricter standard for imposition of death penalty, alternative
to death sentence was found to be appropriate.
40.8. In the case of Rajendra Pralhadrao Wasnik (supra), the
appellant was convicted of offences under Section 376(2)(f), 377 and 302
IPC for rape and murder of three-year-old girl on the basis of
circumstantial evidence and was sentenced to death. Though his appeal
to this Court was dismissed and review petition was also dismissed but,
his review petition was later on reopened and heard by a 3-Judge Bench.
This Court held that there was no hard and fast rule that death sentence
could not be awarded if conviction was based on circumstantial evidence,
but proceeded to commute death sentence into life after finding that the
Trial Court and the High Court did not consider various factors including
the probability of the petitioner to be reformed. This Court, inter alia, held
as under: -
87
“47. Consideration of the reformation, rehabilitation and
reintegration of the convict into society cannot be
overemphasised. Until Bachan Singh [Bachan Singh v. State of
Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] , the emphasis
given by the courts was primarily on the nature of the crime, its
brutality and severity. Bachan Singh [Bachan Singh v. State of
Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] placed the
sentencing process into perspective and introduced the necessity
of considering the reformation or rehabilitation of the convict.
Despite the view expressed by the Constitution Bench, there have
been several instances, some of which have been pointed out
in Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (2009) 6 SCC 498 : (2009) 2 SCC (Cri) 1150] and
in Sangeet v. State of Haryana [Sangeet v. State of Haryana,
(2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] where there is a
tendency to give primacy to the crime and consider the criminal in
a somewhat secondary manner. As observed
in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452 :
(2013) 2 SCC (Cri) 611] “In the sentencing process, both the crime
and the criminal are equally important.” Therefore, we should not
forget that the criminal, however ruthless he might be, is
nevertheless a human being and is entitled to a life of dignity
notwithstanding his crime. Therefore, it is for the prosecution and
the courts to determine whether such a person, notwithstanding
his crime, can be reformed and rehabilitated. To obtain and
analyse this information is certainly not an easy task but must
nevertheless be undertaken. The process of rehabilitation is also
not a simple one since it involves social reintegration of the convict
into society. Of course, notwithstanding any information made
available and its analysis by experts coupled with the evidence on
record, there could be instances where the social reintegration of
the convict may not be possible. If that should happen, the option
of a long duration of imprisonment is permissible.”
40.9. In the case of Kalu Khan (supra), while examining various factors
concerning the crime and the criminal and the abhorrent circumstances
reflected through the nature of crime, this Court also took into
consideration that there was no criminal antecedent of accused-appellant
and the circumstantial evidence included extra-judicial confession. In the
given set of facts, this Court commuted the sentence of death into that of
imprisonment for life.
88
40.10. In the case of M.A. Antony (supra), this Court underscored that
the socio-economic factors relating to a convict should also be taken into
consideration for the purpose of deciding whether to award life sentence
or death sentence.
40.11. In Mohd. Mannan (supra), this Court summarised the proposition
of law to be applied in the process of sentencing in such cases in the
following terms: -
“72. The proposition of law which emerges from the judgments
referred to above is itself death sentence cannot be imposed
except in the rarest of rare cases, for which special reasons have
to be recorded, as mandated in Section 354(3) of the Criminal
Procedure Code. In deciding whether a case falls within the
category of the rarest of rare, the brutality, and/or the gruesome
and/or heinous nature of the crime is not the sole criterion. It is not
just the crime which the Court is to take into consideration, but
also the criminal, the state of his mind, his socio-economic
background, etc. Awarding death sentence is an exception, and
life imprisonment is the rule.”
40.12. In Shankar Kisanrao Khade (supra), after survey of a wide
variety of cases and pointing out the requirement of applying ‘crime test’,
‘criminal test’ and ‘rarest of rare test’, this Court recounted, with reference
to previous decisions, the aggravating circumstances (crime test) and the
mitigating circumstances (criminal test) as follows: -
“49. In Bachan Singh and Machhi Singh cases, this Court laid
down various principles for awarding sentence: (Rajendra
Pralhadrao case, SCC pp. 47-48, para 33)
“‘Aggravating circumstances — (Crime test)
(1) The offences relating to the commission of heinous crimes
like murder, rape, armed dacoity, kidnapping, etc. by the accused
with a prior record of conviction for capital felony or offences
committed by the person having a substantial history of serious
assaults and criminal convictions.
89
(2) The offence was committed while the offender was
engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a
fear psychosis in the public at large and was committed in a public
place by a weapon or device which clearly could be hazardous to
the life of more than one person.
(4) The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful
custody.
(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or custody in a
place of lawful confinement of himself or another. For instance,
murder is of a person who had acted in lawful discharge of his
duty under Section 43 of the Code of Criminal Procedure.
(9) When the crime is enormous in proportion like making an
attempt of murder of the entire family or members of a particular
community.
(10) When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a child,
helpless woman, a daughter or a niece staying with a father/uncle
and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences
total depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks
not only the judicial conscience but even the conscience of the
society.
Mitigating circumstances — (Criminal test)
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or emotional
disturbance or extreme provocation in contradistinction to all these
situations in normal course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.
(3) The chances of the accused of not indulging in commission
of the crime again and the probability of the accused being
reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally
defective and the defect impaired his capacity to appreciate the
circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would
render such a behaviour possible and could have the effect of
giving rise to mental imbalance in that given situation like
persistent harassment or, in fact, leading to such a peak of human
90
behaviour that, in the facts and circumstances of the case, the
accused believed that he was morally justified in committing the
offence.
(6) Where the court upon proper appreciation of evidence is of
the view that the crime was not committed in a preordained
manner and that the death resulted in the course of commission of
another crime and that there was a possibility of it being construed
as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a
sole eyewitness though the prosecution has brought home the
guilt of the accused.’”
This Court further said: -
“52. Aggravating circumstances as pointed out above, of
course, are not exhaustive so also the mitigating circumstances. In
my considered view, the tests that we have to apply, while
awarding death sentence are “crime test”, “criminal test” and the
“R-R test” and not the “balancing test”. To award death sentence,
the “crime test” has to be fully satisfied, that is, 100% and “criminal
test” 0%, that is, no mitigating circumstance favouring the
accused. If there is any circumstance favouring the accused, like
lack of intention to commit the crime, possibility of reformation,
young age of the accused, not a menace to the society, no
previous track record, etc. the “criminal test” may favour the
accused to avoid the capital punishment. Even if both the tests are
satisfied, that is, the aggravating circumstances to the fullest
extent and no mitigating circumstances favouring the accused, still
we have to apply finally the rarest of the rare case test (R-R test).
R-R test depends upon the perception of the society that is
“society-centric” and not “Judge-centric”, that is, whether the
society will approve the awarding of death sentence to certain
types of crimes or not. While applying that test, the court has to
look into variety of factors like society's abhorrence, extreme
indignation and antipathy to certain types of crimes like sexual
assault and murder of intellectually challenged minor girls,
suffering from physical disability, old and infirm women with those
disabilities, etc. Examples are only illustrative and not exhaustive.
The courts award death sentence since situation demands so, due
to constitutional compulsion, reflected by the will of the people and
not the will of the Judges.”
40.13. The case of Dhananjoy Chatterjee (supra), decided on
11.01.1994, had been that of rape and murder of a young girl about 18
years of age; and this Court found it justified to confirm the death
sentence for a cold-blooded and pre-planned murder after committing
91
rape. Therein, this Court essentially referred to the atrocity of the crime on
the defenceless and unprotected state of the victim; and observed that
imposition of appropriate punishment is the manner in which the Courts
respond to the society’s cry for justice against the criminals. This Court,
inter alia, observed as under: -
“15. 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.”
40.14. The case of Laxman Naik (supra), decided on 22.02.1994, was
that of offence of rape and murder of a 7-year-old girl by her own uncle.
This Court analysed the fact situation and said as under: -
“27. The hard facts of the present case are that the appellant
Laxman is the uncle of the deceased and almost occupied the
status and position that of a guardian. Consequently the victim
who was aged about 7 years must have reposed complete
confidence in the appellant and while reposing such faith and
confidence in the appellant must have believed in his bona fides
and it was on account of such a faith and belief that she acted
upon the command of the appellant in accompanying him under
the impression that she was being taken to her village unmindful of
the preplanned unholy designs of the appellant. The victim was a
totally helpless child there being no one to protect her in the desert
where she was taken by the appellant misusing her confidence to
fulfil his lust. It appears that the appellant had preplanned to
commit the crime by resorting to diabolical methods and it was
with that object that he took the girl to a lonely place to execute his
dastardly act.”
40.15. Kamta Tiwari (supra), decided on 04.09.1996, was again a case
of rape followed by murder of a 7-year-old girl by a person who was close
92
to the family of the deceased and the deceased used to call him “Tiwari
uncle”. The girl was kidnapped by the accused and was subjected to rape
and then was strangulated to death and later, the dead body was thrown
into the well. The enormity of crime coupled with the misuse of trust seem
to have weighed with this Court in confirming the death sentence.
41. It could readily be seen that while this Court has found it justified
to have capital punishment on the statute to serve as deterrent as also in
due response to the society’s call for appropriate punishment in
appropriate cases but at the same time, the principles of penology have
evolved to balance the other obligations of the society, i.e., of preserving
the human life, be it of accused, unless termination thereof is inevitable
and is to serve the other societal causes and collective conscience of
society. This has led to the evolution of ‘rarest of rare test’ and then, its
appropriate operation with reference to ‘crime test’ and ‘criminal test’. The
delicate balance expected of the judicial process has also led to another
mid-way approach, in curtailing the rights of remission or premature
release while awarding imprisonment for life, particularly when dealing
with crimes of heinous nature like the present one.
41.1. We may proceed to deal with the question of sentence in the
present case while keeping in view the principles so evolved and applied
by this Court.
42. It could at once be noticed that both the Trial Court as also the
High Court have taken the abhorrent nature of crime alone to be the
93
decisive factor for awarding death sentence in the present case. As
noticed, the Trial Court convicted the appellant on 07.12.2016 and on the
next day, proceeded to award the sentence. The impugned sentencing
order of the Trial Court does not indicate if the appellant was extended
reasonable opportunity to make out a case of mitigating circumstances by
bringing relevant material on record. The sentencing order also fails to
satisfy if the Trial Court consciously pondered over the mitigating factors
before finding it to be a ‘rarest of rare’ case. The approach of the Trial
Court had been that the accused-appellant was about 33-34 years of age
at the time of occurrence and was supposed to be sensible. The Trial
Court would observe that ‘if such heinous crime is committed by him, it is
not justifiable to show any sort of mercy in the punishment.’ The High
Court though has made rather intense comments on the menace of rape
and brutal murder of children as also on the society’s abhorrence of such
crime12 but has, thereafter, proceeded to confirm the death sentence with
a cursory observation that there were no substantial mitigating factors
and the aggravating circumstances were aplenty.
42.1. In other words, the impugned orders awarding and confirming
death sentence could only be said to be of assumptive conclusions,
where it has been assumed that death sentence has to be awarded
because of the ghastly crime and its abhorrent nature. The tests and the
norms laid down in the relevant decisions commencing from those in
12 In the words of the High Court, ‘beastly act of the accused person- appellant Pappu shakes
the confidence of society and tears to shreds the warp and woof of the social fabric’
94
Bachan Singh (supra) seem not to have acquired the requisite attention
of the Trial Court and the High Court. It would have been immensely
useful and pertinent if the High Court, while taking up the question of
confirmation of death sentence and making several comments in regard
to the abhorrent nature of crime and its repulsive impact on society, would
have also given due consideration to the equally relevant aspect
pertaining to mitigating factors before arriving at a conclusion that option
of any other punishment than the capital one was foreclosed. The
approach of the Trial Court and the High Court in this matter while
awarding sentence could only be disapproved; and we do so in no
uncertain terms.
43. What has been observed and held hereinabove leaves us with the
question as to whether in the present case, capital punishment is called
for or it should be substituted by any other sentence.
43.1. The heinous nature of crime like that of present one, in brutal rape
and murder of a seven-year-old girl child, definitely discloses aggravating
circumstances, particularly when the manner of its commission shows
depravity and shocks the conscience. But, at the same time, it is
noticeable that the appellant has no criminal antecedents, comes from a
very poor socio-economic background, has a family comprising of wife,
children and aged father, and has unblemished jail conduct. When all
these factors are added together and it is also visualised that there is
nothing on record to rule out the probability of reformation and
95
rehabilitation of the appellant, in our view, it would be unsafe to treat this
case as falling in ‘rarest of rare’ category. Putting it differently, when the
appellant is not shown to be a person having criminal antecedents and is
not a hardened criminal, it cannot be said that there is no probability of
him being reformed and rehabilitated. His unblemished jail conduct and
having a family of wife, children and aged father would also indicate
towards the probability of his reformation.
43.2. Having said so, we may observe that so far as the other
arguments on behalf of the appellant, with reference to the theory of
‘residual doubt’, are concerned, in the later 3-Judge Bench decision of
this Court in Shatrughna Baban Meshram (supra), it was observed that
the said theory, developed as a result of peculiarity in the process
adopted in U.S. jurisdictions, has not found favour even by the U.S.
Supreme Court. We need not dilate on this aspect any further in the
present case for the simple reason that the strong mitigating factor of
probability of reformation and rehabilitation, particularly with reference to
the antecedents and background of the appellant coupled with his
satisfactory jail conduct, make out a case for communing death sentence
into that of imprisonment for life. 44. However, and even when the
present case is taken to be not falling in the category of ‘rarest of rare’ so
as to require termination of the life of the appellant yet, the impact of the
offences in question on the conscience of the society as a whole cannot
be ignored. Thus, it appears just and proper to apply the course adopted
96
in various cases involving the crimes of similar nature where, even while
commuting capital punishment, this Court has provided for life
imprisonment without application of the provisions of premature
release/remission before mandatory actual imprisonment for a substantial
length of time.
45. The appellant was about 33-34 years of age at the time of
commission of crime in the year 2015. Looking to the overall facts and
circumstances, in our view, it would be just and proper to award the
punishment of imprisonment for life to the appellant for the offence under
Section 302 IPC while providing for actual imprisonment for a minimum
period of 30 years. Having regard to the circumstances of this case and
other punishments awarded to the appellant, it is also just and proper to
provide that all the substantive sentences shall run concurrently.
Conclusion
46. Accordingly, these appeals are partly allowed in the following
manner: -
 (i) The conviction of the appellant of offences under Sections 376,
302, 201 IPC and Section 5/6 POCSO is upheld and the sentences
awarded to him are confirmed except the death sentence for the offence
under Section 302 IPC.
(ii) The death sentence awarded to the appellant for the offence
under Section 302 IPC is commuted into that of imprisonment for life, with
the stipulation that the appellant shall not be entitled to premature release
97
or remission before undergoing actual imprisonment for a period of 30
(thirty) years.
(iii) The other terms of sentences awarded to the appellant, including
the amount of fine and default stipulations, are also confirmed. The
direction for payment of half of the amount of fine to the mother of the
deceased girl is also confirmed.
(iv) All the substantive sentences awarded to the appellant shall run
concurrently.
47. These appeals and the pending applications stand disposed of
accordingly.
……....…………………….J.
(A.M. KHANWILKAR)1
……....…………………….J.
(DINESH MAHESHWARI)
……....…………………….J.
(C.T. RAVIKUMAR)
New Delhi;
February 09, 2022
98

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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