VEERENDRA VS STATE OF MADHYA PRADESH

VEERENDRA VS STATE OF MADHYA PRADESH - Supreme Court Case 2022


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CRIMINAL APPEAL NOS.5 & 6 OF 2018
 VEERENDRA Appellant
 VERSUS
STATE OF MADHYA PRADESH Respondent
J U D G M E N T
C.T.RAVIKUAMR, J.
1. The appellant, who was to avuncularise being the
cousin brother of victim’s mother, was found to have
stripped, stuprated and strangled to cause her death.
The incident took place on 19.9.2014 between 08:30 pm
and 09:30 pm, inside the ruined bada (used in the
sense ‘varanda’) of Jagan Sindhi, which is a
dilapidated, worthless building, situated at Thakur
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Das Baba Road, Dabra in the district of Gwalior in
Madhya Pradesh. Hereafter in this judgment it will be
referred to as “occurrence place” only, for brevity.
The victim was aged 8 years. The appellant, who is a
convict - awarded with capital sentence, calls in
question the common judgment dated 14.7.2016 of the
High Court of Madhya Pradesh at Gwalior in Criminal
Reference Case No.101/2015 titled as “State of Madhya
Pradesh vs. Veerendra” and in Criminal Appeal
No.39/2015 titled as “Veerendra Vs. The State of
Madhya Pradesh”. Over the stated incident, Crime
No.857/2014 was registered at Police Station, Dabra,
soon after the noon of night, to be precise at 00:05
hrs on 20.09.2014. The appellant was arrested on
20.9.2014 at about 04:00 pm. Upon culmination of the
trial for offences punishable under Sections 364A,
376A, 376(2)(i), 302 and 201 of the Indian Penal Code
(for short, “IPC”) and Section 6 of the Protection of
Children from Sexual Offence Act, 2012 (for short,
“POCSO Act”) in Session Trial No.642/2014 before the
Court of IInd Additional Sessions Judge, Dabra,
conviction was recorded against him for the offences
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punishable under Sections 302, 376A, 376(2)(i) IPC
and Section 6 of POCSO Act. Consequently, he was
awarded death sentence on first two counts, subject
to confirmation by the High Court and life sentence
under the 3rd and 4th counts besides sentence of fine
of Rs.2,000/- each, on all counts. All the
substantive sentences were ordered to run
concurrently. As ordered under the said judgment, in
respect of sentence of capital punishment, reference
was made to the High Court of Madhya Pradesh as
CRRFC.01/2015. The appellant herein filed Criminal
Appeal No.39/2015 challenging his conviction for the
stated offences and consequential sentences imposed
therefor. As per the common judgment, the High Court
partly allowed the appeal as well as the reference
made to it as hereunder: -
“In the result, the appeal filed by the
appellant is hereby partly allowed. His
conviction as well as sentence of
offence under Section 376A of IPC is
hereby set aside on technical ground
whereas the conviction and sentences of
offence under Sections 376(2)(i) and 302
IPC and Section 6 of the POCSO Act
recorded by the trial court are
confirmed. The reference sent by the
trial court is partly accepted. Death
4
sentence recorded for the offence under
Section 302 IPC is hereby confirmed by
us.”
Hence these appeals.
2. Briefly stated, the prosecution case is as
follows:
Laxmibai Batham (PW-1) and Shri Ganesh are the
parents of the deceased minor girl aged 8 years.
Brij Lal (PW-2) and Janki (PW-3) are her maternal
grand- parents. PW-1 is the cousin sister of the
appellant-convict. In other words, the appellantconvict is an uncle (mama) of the deceased minor
girl. The incident occurred between 08:30 pm and
09:30 pm on 19.9.2014. On that fateful day at about
08:30 pm, Raju Badam, who is the father of the
appellant, sent her to purchase a bundle of bidi from
a nearby shop. While proceeding to the shop she went
past the house of Sri Patiram Basudev @ Pappu (PW-4).
The appellant who was there, with PW-4 and one
Rakesh, happened to see her. They gathered there for
drinking. Upon seeing the victim, the appellant asked
her whither she was going and then, he followed her
after promising the retinue that he would return.
5
Thereafter she was found missing. After a fervent,
futile search till midnight at 00:05 hrs on
20.09.2014 PW-1 lodged Ext.P1-complaint about her
missing. On 20.09.2014 itself, upon interrogation of
the appellant and the aforesaid Rakesh and Patiram
Basudev @ Pappu, the appellant was arrested. While in
custody, the appellant made Ext.P5-disclosure
Statement and thereafter, at his instance, the
victim’s corpse concealed underneath gunny bags, was
recovered. A team of two doctors conducted autopsy
on the body of the deceased and the post-mortem and
the forensic science laboratory (FSL)reports revealed
commission of rape in a diabolically and gruesome
manner and causing of death by throttling. Subsequent
to the filing of the final report and committal of
the case, the trial Court initially framed charges
against the appellant for offences punishable under
Sections 364A, 376(2)(i), 302, 201 IPC and under
Sections 3, 5 and 6 of the POCSO Act. After the
commencement of the trial vide order dated
16.12.2014, charge for offence under Section 376A was
also framed against the appellant.
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3. Before the trial Court, for establishing the
aforesaid charges against the appellant, the
prosecution had examined PWs 1 to 19 and marked
exhibits P-1 to P-26 documents besides identifying
the material objects. In the examination under
Section 313 of the Code of Criminal Procedure (for
short ‘Cr.P.C.’) the appellant had failed to explain
the incriminating circumstances against him. Though
he was asked to enter on his defence he did not
adduce any evidence. Upon analyzing the evidence on
record, viz., the chain of events and circumstantial
evidence thereof, the trial Court convicted and
sentenced him as afore-stated. It is in
reappreciation of the said chain of events and the
circumstantial evidence that the High Court partly
allowed the aforesaid appeal and also the Criminal
Reference Case, in the stated manner.
4. In these appeals the appellant has candidly
stated thus:-
“The Petitioner at the very outset and
with great respect confines this
petition with regard to the aspect of
the sentencing awarded by the courts
below.”
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After having stated thus the appellant has,
virtually, raised various contentions to challenge
the very common judgment dated 14.07.2016 itself.
Still, it will not be inappropriate to refer to ‘the
questions of law’ framed under “A” and “B” in the
contextual situation. They read as hereunder: -
“A. Whether the conviction of the
petitioner u/s 302 IPC is sustainable in
view of the medical evidence on record
which categorically suggested the fact that
the deceased had died due to injuries
sustained on her private part?
B. Whether any intention to murder a
prosecutrix can be attributed, the death of
which has occurred in the course of
commission of alleged rape?”
5. In spite of the stated nature of the contentions,
the circumstances and also what would be deducible
therefrom we are inclined to consider the appeal, on
all permissible grounds, taking note of the fact that
the appellant herein has been handed down capital
sentence for the conviction under 302 IPC, based on
circumstantial evidence. However, we cannot be
unmindful of the scope and delineated contours of an
appeal by special leave under Article 136 of the
Constitution of India. It is worthy to note that in
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such an appeal, unlike in a regular appeal, this
Court would not undertake the exercise of an indepth
consideration by way of re-appreciation of evidence.
Normally, in such an appeal only in rare and
exceptional cases wherein manifest illegality appears
to have infected the impugned judgment (going by the
case of the appellant) concerned that this Court will
go beyond the stated scope of an appeal by special
leave. In this case, the trial Court convicted the
appellant based on circumstantial evidence and the
High Court though partly allowed the appeal and the
reference by setting aside the conviction under
Section 376A IPC maintained the conviction and the
sentences imposed for the other offences based on
circumstantial evidence. That apart, the High Court
disagreed with the findings of the trial Court as to
the admissibility and evidentiary value of the
underwear seized from the occurrence place (Art. F
described as shaddy), upon treating it to be that of
the appellant. In the circumstances thus obtained an
exercise to reassure as to the existence of a
complete chain of circumstances pointing to the guilt
9
of the appellant alone, in exclusion of every
hypothesis compatible with his innocence, is to be
undertaken.
6. In the adjudicative pursuit the trial Court
obviously considered the following circumstances: -
a)Post Mortem report together with the expert
opinion of PW-10, the Doctor who conducted
autopsy on the body of the deceased and Ext.P24 -
FSL report revealing that the victim was raped
and murdered;
b)The deceased was aged about 8 years and
therefore, fell within the definition of ‘child’,
under Section 3 of the POCSO Act;
c) The deceased was lastly seen with the accused at
about 08:30 pm on 19.09.2014 and thereafter she
was found raped and murdered;
d) After 09.00 pm on 19.09.2014 the accused was
seen coming out of the Bada of the ‘occurrence
place’;
e) Based on the disclosure statement of the accused
(Ext.P5) and at his instance the nude dead body
of the victim, concealed beneath gunny bags, was
recovered from the ‘occurrence place’;
f) Finger nail scratches were found on the body of
the accused;
g) Clothes of the deceased were recovered in
consequent to the information given by the
accused;
h) Semen was present in the vaginal swab as also on
the clothes of the accused and the deceased;
i) Human blood was found on the gunny bags and also
10
the clothes of both the accused and the deceased;
j) Additional link on account of the failure on the
part of the accused to explain the incriminating
circumstances put to him during the examination
under Section 313, Cr.P.C.
7. As stated earlier, as per the impugned common
judgment in the appeal as also in the reference made
to the High Court for confirmation of the death sentence, the High Court set aside the conviction under
Section 376A IPC. We may hasten to add that in spite
of such interference no appeal(s) has been filed by
the prosecution. It is true that despite such interference the High Court has concurred with the conviction for the offence punishable under Section 302 IPC
and confirmed the capital sentence awarded by the
trial Court. The High Court has also sustained the
conviction for the other offences and also the sentences imposed therefor. What is noticeable is that
even while concurring with the conviction and the
sentences imposed as stated above, on certain conclusions such as the underwear found at the place of occurrence as that of the appellant there is no concomitancy among the trial Court and the High Court.
The conviction under Section 376A IPC was actually
11
interfered with on technical reasons. It is bearing
in mind the aforesaid aspects and circumstances that
the rival contentions are to be adverted to and appreciated.
8. Heard Ms. Sonia Mathur, learned Senior Counsel
appearing as Amicus Curiae and Mr. Pashupatinath Razdan, learned Standing Counsel for the State of Madhya
Pradesh. These appeals were heard together and this
judgment will dispose both of them.
9. The learned Amicus Curiae appearing for the
appellant submitted that the conviction of the
appellant is founded on circumstantial evidences and
a scanning of the materials on record and the
circumstances relied on for his conviction, would
reveal that the chain of circumstances was not
complete. Furthermore, it is submitted that even a
cursory glance of such evidence and the materials
relied on would reveal that the appellant was
entitled to get the benefit of doubt. Dilating the
contentions it is submitted that there is no medical
evidence pointing to the presence of the accused in
the place of occurrence. Though blood and semen were
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found on the pants of the appellant recovered from
his house on the next day of the occurrence, the FSL
report is inconclusive and it did not connect the
appellant to the blood and semen found on the clothes
of the deceased. Following contentions were also
raised on behalf of the appellant: -
“that as per the report, in the matter of
analyzation of the samples benzidine/
phenolphthalein and crystal tests were
conducted and among them crystal test
alone is a conclusive test. Ergo, in the
absence of worksheet to demonstrate the
nature of tests conducted on each of the
items the report and the respective
conclusions ought to have been discarded;
that though in the list of articles seized
from the house of the appellant and sent
for examination, the pants seized from his
house was described as the one worn by him
at the time of the incident none of the
witnesses had testified the fact that it
was the same which he was wearing on the
day of occurrence; that the MLC of the
appellant was conducted in clear violation
of Section 53A of the Cr.P.C.; that as
relates nail scratches found on the face
and neck of the appellant, allegedly
caused by the victim, the evidence
regarding the scratches is unreliable as
despite the collection of nail samples of
the deceased by PW-10 they were not sent
to the laboratory for analysis.”
10. It is the further contention on behalf of the appellant that though, PW-14 testified that the finger
13
nail injuries were seen on the right cheek of the appellant, his MLC would indicate finger nail injuries
only on the left side of the face and neck. At any
rate, no reliance should have been given on that issue as the appellant was in the custody of the police
even before his formal arrest, as spoken by PW-4. It
was also contended that the date of birth of the victim was not proved by producing the school records.
Furthermore, it was contended that the conclusion
that the deceased was lastly seen in the company of
the accused was arrived at relying on the oral testimonies of PW-2 and PW-4 without proper appreciation
of various relevant aspects. According to the appellant neither PW-2 nor PW-4 had informed about the
same to the police at the first instance, i.e., at
the time of lodging complaint regarding missing of
the victim. The non-examination of one Rakesh who,
according to the prosecution, joined PW-4 and the appellant for drinking during that night and that of
Sri Ganesh, the father of the deceased, who was an
attesting witness to certain mahazars for the recoveries and seizures, is fatal to the case of the pros-
14
ecution. In regard to the testimony of PW-12 that he
had seen the appellant coming out of the bada of Jagan Sindhi, in the night of 19.09.2014 at about 09:00
pm, it is submitted that it ought not to have been
taken as a link in the chain of circumstances, as his
statement under Section 161 Cr.P.C. was taken belatedly. May be as an alternative contention it is contended that PW-12 is a chance witness and his testimony is not creditworthy.
11. As relates, another link in the chain of circumstances viz., the recovery of the body and clothes of
the deceased at the instance of the appellant it was
contended that no independent witness was examined to
prove the same. In that regard, it was further submitted that the recoveries and seizure ought not to
have been taken as proved by PW-2 as he is a related
witness being the maternal grandfather of the deceased. It was contended that the clothes of the appellant allegedly recovered from his house were not
sealed and therefore, the failure of the appellant to
explain the presence of human blood and semen on his
clothes recovered from his house, could not have been
15
relied on as a circumstance against him. In that regard, it was further contended that no DNA test was
conducted to connect the appellant to the samples
found on the body of the deceased and thereby Section
53A Cr.P.C., was violated. Based on the aforesaid
contentions, the learned Amicus Curiae submitted that
the conviction founded on circumstantial evidence is
unsustainable on account of such glaring discrepancies, lacuna and the stated lapses on the part of the
prosecution. At any rate, the circumstances relied
on would not establish continuity in the links of the
chain of circumstances to lead to an irresistible
conclusion regarding the guilt of the appellant. The
nub of the contentions is that appellant is entitled
to get the benefit of doubt in view of such circumstances and as such, the conviction and sentence
awarded are liable to be set aside and he is entitled
to be acquitted.
12. On the contrary, the learned counsel for the
State sought to get sustained the judgment contending
that the concurrent findings and the reasons assigned
therefor, are nothing but outcome of proper analysis
16
and appreciation/re-appreciation of evidence on
record, by the trial Court and the High Court. The
learned counsel urged that the contention based on
failure to comply with Section 53A Cr.P.C. is absolutely bereft of any basis or merits as after rightly
construing the position of law under Section 53A
Cr.P.C., the High Court had properly appreciated the
remaining evidence to arrive at the conclusion that
the prosecution had succeeded in establishing a complete chain of circumstances pointing to the guilt of
the appellant alone. It was contended that the testimonies of PWs 2, 4 and 12 are uncontroverted and
credible and, therefore, rightly accepted and acted
upon by the trial Court and the High Court. Though,
PWs 2 and 4 were thoroughly cross-examined on behalf
of the appellant, nothing could be elicited to discredit their version that they had seen the deceased
lastly in the company of appellant, just under an
hour before the commission of the gruesome acts of
rape and murder. Hence, the ‘last seen theory’ was
rightly applied, it was submitted. PW-12 is a chance
witness and his version that he had seen the appel-
17
lant coming out of the bada of Jagan Sindhi abutting
Thakur Das Baba Road around 09:00 pm on 19.09.2014,
was rightly accepted as the appellant had neither
succeeded in eliciting anything to discredit his version nor offered any alternative possible explanation
for his presence at that time near the place of the
incident. With respect to the appellant’s contention
of non-examination of independent witness to prove
the recovery of the body and clothes of the deceased,
at the instance of the appellant from the place of
occurrence, the learned counsel submitted that their
recovery was rightly taken as proved through PW-2 and
his being the maternal grandfather of the deceased is
no ground at all to discredit his evidence or to
raise such a contention. The ocular evidence of PW-16
(Mr. Jitendra Nagaich) - a Police Officer who was
party to the police team which conducted investigation and present at the time of such recovery, of PW5 (Mr. Sonish Vashishtha)- who is a reputed journalist, of PW-14 (Akhilesh Bhargava) - the then Senior
Scientific Officer, Gwalior, of PW-15 (Balakrishna) -
the police photographer and of PW-11 (Mr. Deepak
18
Shukla) who was the then Tehsildar and Executive Magistrate of the locality and present at the place of
occurrence upon direction by the Sub-Divisional Magistrate concerned, lent support to the evidence of
PW-2, on the said aspects, it was submitted. He drew
our attention to the other circumstantial evidence,
relied on to enter conviction by the trial Court and
the High Court to contend that taken together all
those circumstances would form a complete chain
pointing to the fact that the appellant alone is the
culprit and that they are incompatible with any hypothesis of his innocence. In short, it was submitted by the learned counsel appearing for the State
that the contentions raised on behalf of the appellant do not merit any serious consideration and the
appeal is liable to be dismissed.
13. In the light of the rival contentions, we have to
examine whether the conviction of the appellant for
the stated offences and the sentences imposed therefor warrant interference. In this case, the appellant has been awarded death sentence for the conviction under Section 300 IPC. The conviction is based
19
on circumstantial evidence. Rarely, death penalty
would be awarded if the conclusion on the connection
of the accused with the offence(s) is fixed based on
circumstantial evidence. It is true that even in
such cases existence of exceptional
circumstances/special circumstances would make death
penalty awardable. This position was reiterated by
this Court in the decision in Rajendra Pralhadrao
Wasnik Vs. State of Maharashtra [(2019) 12 SCC 460].
We need to dilate on this issue only if the challenge
of the appellant against the conviction for the offence punishable under Section 302 IPC is repelled.
14. Obviously, there is concurrent finding in favour
of the prosecution as relates the first circumstance
viz., the victim was raped and murdered. In order to
establish the same, the prosecution mainly relied on
the expert opinion of Dr. D.C. Arya (PW-10), who performed autopsy on the body of the deceased along with
Dr. Asha Singh, and Ext.P17 post-mortem report proved
by him wherein all the ante-mortem injuries are
noted. PW-10 deposed that post-mortem was jointly
performed by him and Dr. Asha Singh and Ext.P17 re-
20
port was prepared by him in his handwriting. Hence,
his competency as a witness is indisputable. While
being examined, he deposed thus on the ante-mortem
injuries found on the body of the deceased :-
1. Wound 3 inch x 2.5 cm., on inside direction
of little finger;
2. Abrasion 3.5 inch x 2.5 cm. on left side of
Labia Majora.
3. Contusion 4 cm. X 5 cm. on upper side of
right thigh.
4. Contusion 4 cm. X 3 cm. on upper side of
left thigh.
5. 3.5 inch x 2.5 cm. vaginal perennial tear
of grade fourth extended up to anus.
6. Swelling and congestion were present on entire vagina. Uterus was torn and coming
out from vagina.
7. 8 cm x 2 cm. petechial hemorrhage was
present underneath the sub cutaneous tissues of the neck extending from left side
to right side of the neck.
15. As per Ext.P17 post-mortem report the cause of
death is ‘asphyxia due to throttling’. PW-10 - Dr.
D.C. Arya had also deposed to that effect. However,
the contention of the appellant is that when recalled
and cross-examined, subsequent to the addition of
charge under Section 376A IPC against the appellant,
PW-10 would depose that the reason of death could
21
possibly be a ruptured uterus with excessive bleeding. However, on scrutiny of his testimony, we did
not find anything to suggest that PW-10 was prevaricating. His version was to the effect that death
would be possible going by the nature of injury Nos.7
and 8. ‘It is incorrect to say that today I am
wrongly stating the death to have occurred due to injuries No. 7 & 8,’ he deposed with reference to the
following injuries :-
1. The vaginal perineal tear of 3.5 inch x
2.5 cm of grade fourth extended up to
anus.
2. Swelling and congestion were present on
entire vagina. Uterus was torn and coming out from vagina.
Attempt on the part of the appellant is to depict
and bring it as an incongruence in the opinion of
PW-10 regarding the cause of death and ultimately to
canvass the position that the case would not fall under Section 300 IPC punishable under Section 302 IPC.
16. In the context of the contentions it is only apposite to refer to the following aspects as also the
probative value of the deposition of a doctor, deposing as an expert. Post-mortem certificate is a
22
medico-legal certificate and it contains two parts.
The first being the facts as found by the doctor who
conducted the autopsy, such as the number of injuries
(including ante-mortem), position of injuries and
their extent etc., and the second part being his expert opinion as to the cause of death. Though the
opinion of the doctor given with the support of postmortem report is entitled to get great weight, the
court cannot abdicate its function as the ultimate
opiner. Taking into account the ocular and medical
evidence and upon their deeper analysis, the court
has to form and record its opinion as to the cause of
death for the purpose of finding out whether the
death involved in a given case is accidental or suicidal or homicidal, in nature. In the decisions in
Tahsildar Singh & Anr. Vs. State of UP (AIR 1959 SC
1012) and Pudhu Raja & Anr. Vs. State [(2012) 11 SCC
196] this Court virtually held it as the duty of the
Court to separate the chaff from the husk and to
dredge the truth from the pandemonium of statements.
16.1 In the decision in State of Haryana Vs. Bhagirath [(1999) 5 SCC 96] this Court held :
23
“The opinion given by a medical witness
need not be the last word on the subject. Such an opinion shall be tested
by the Court.”
16.2 In the decision in Mayur Panabhai Shah Vs.
State of Gujarat [(1982) 2 SCC 396], while allowing
an appeal by special leave filed against a judgment
of Gujarat High Court summarily dismissing an appeal
preferred against an order convicting the appellant
for the offence under Section 376 IPC, this Court
held :
“We think that this is not a case which
should have been summarily rejected by
the Learned Single Judge and moreover we
do not think the Learned Judge was right
in observing that, “our courts have always been taken the doctors as witnesses
of truth”. Even where a doctor has deposed in court, his evidence has to be
appreciated like the evidence of any
other witness and there is no irrebuttable presumption that a doctor is always a witness of truth.”
16.3 In the decision in State of WB Vs. Mir Mohammed Omar and Ors. reported in (2000) 8 SCC 382
(referred to hereinafter to as ‘Mir Mohammed Omar’s
case’ only), this Court held thus :
“21. The post-mortem report made by PW30
(Dr Debabrata Chaudhary) shows that the
victim was murdered. He noticed as many as
24
45 injuries on the dead body which included fracture of 5 ribs (2-6) on the
left side towards sternal and, fracture of
some of the fingers and extravasation of
blood on the right side of occipital region and also on the situs of the rib
fractures. The remaining injuries included
a few lacerated wounds, contusions and
aberrations. There was just one minor incised wound on the left pinna. The right
lung was congested the doctor opined that
the death of the deceased had resulted
from multiple injuries and injuries of vital organs and it was homicidal in nature.
22. The trial court made a fallacious conclusion regarding the death of the deceased on the premise that the Public
Prosecutor did not elicit from the doctor
as to whether the injuries were sufficient
in the ordinary course of nature to cause
death. The Sessions Judge concluded that
on the said issue:
“There being no evidence on record to
show that the injuries were sufficient in the ordinary course of nature to cause death, it cannot be
said that the injuries noticed by the
autopsy surgeon (PW30) were responsible for causing the death of the deceased Mahesh.”
23. No doubt it would have been of advantage to the court if the Public Prosecutor
had put the said question to the doctor
when he was examined. But mere omission to
put that question is not enough for the
court to reach wrong conclusion. Though
not an expert as PW30, the Sessions Judge
himself would have been an experienced judicial officer looking at the injuries he
himself could have deduced whether those
injuries were sufficient in the ordinary
25
course of nature to cause death. No sensible man with some idea regarding the features of homicidal cases would come to a
different conclusion from the injuries indicated above, the details of which have
been stated by the doctor (PW30) in his
evidence.
(Emphasis added)
16.4 Pithily stated, in the light of the decisions
referred (supra) it can only be said that like any
other evidence, the expert opinion also requires
proper appreciation at the hands of the Court, though
the opinion of the doctor given with the support of
post-mortem report carries great weight, for arriving
at the rightful conclusion as to question whether the
death involved is homicidal or not.
17. Bearing in mind the position derived from the decisions referred (supra) we will consider the question whether the concurrent finding that the death of
the victim was homicidal in nature calls for interference. As noted earlier, in holding so, the oral
testimony of PW-10 with Ext.P17 post mortem report
was relied on by the Courts. Obviously, PW-10 who
conducted the post mortem on the body of the deceased, with the support of Ext.P17 prepared by him,
deposed that the deceased had sustained the stated
26
ante-mortem injuries, as indicated specifically in
Ext.P17 report. The presence of such ante-mortem injuries on the body of the deceased is not in dispute.
The alleged incongruence was only with reference to
the opinion of PW-10 as to the cause of death. PW-10
opined ‘Asphyxia due to throttling’ as the cause of
her death. He deposed about the presence of petechial hemorrhage of the size 8 cm. x 2 cm., underneath the sub-cutaneous tissues of the neck extending
from left side to right side. In fact, these aspects
were specifically mentioned in Ext.P17, as well.
Now, we will consider some aspects of asphyxia. When
the respiratory functions of lungs stop as a result
of lack of oxygen, it causes failure of heart due to
oxygen deprivation and this mode of death is called
Asphyxia. Asphyxia can occur due to external pressure like strangulation, to close air passages.
Strangulation is a violent form of death which occurs
from constriction of the neck by means of ligature or
by other means without suspending the body and throttling is strangulation by constriction of neck produced by fingers or palms. Post mortem appearance of
27
death by Asphyxia includes numerous petechial hemorrhages seen under the serous membranes of various organs due to rupture of capillaries caused as a result
of increased pressure in them. PW-10 deposed about
the presence of petechial hemorrhage underneath the
subcutaneous tissues of the neck extending from left
side to right side. Though, PW-10 was cross-examined
nothing could be elicited from him to discredit his
version. When that be the circumstances, the trial
Court and the High Court were justified in giving
weight to the oral testimony of PW-10 with Ext.P17
report, to form the opinion as to the cause of death
as Asphyxia by throttling.
18. It is also worthy to take note of the injuries
sustained by the deceased on her private parts in the
context of the contentions and in view of the nature
of the evidence tendered by PW-10. He would depose,
with the support of Ext.P17, that the deceased had
sustained perennial tear of grade fourth extending
upto anus of the size 3.5 cms x 2.5 cms. He also deposed that swelling and congestion were present on
entire vagina and that her uterus was torn and was
28
coming out of the vagina. PW-10 deposed that all
those injuries were ante-mortem. The above factual
aspects contained in Ext.P17 report regarding the
ante-mortem injuries and their positions proved
through PW-10 were also taken into account by the
trial Court. The injury referred above supporting
the opinion of cause of death as Asphyxia due to
throttling and the grave nature of the pudical injuries referred above sustained by the deceased, evidently, made the trial Court and the High Court to
form the opinion that the death of the deceased girl
was homicidal in nature. Both the Courts, evidently
concluded that Asphyxia by throttling is the cause of
death and further that the grave injuries sustained
by her on the private parts were also sufficient to
cause death in the ordinary course of nature. The
aforesaid contention of the appellant did not commend
to us in the circumstances and also taking note of
their combined effect. In short, we have no hesitation to hold that the concurrent finding that the
death of the victim was homicidal in nature invites
no interference.
29
19. We will consider the contentions of the appellant
that conviction for the offence punishable under Section 302 IPC, consequent to the finding that the victim was murdered, is unsustainable and that if at all
he is guilty of causing her death the offence attracted would only be under Section 304 IPC, a little
later.
20. In the light of the graveness of the injuries
sustained on the private parts by the deceased, as
detailed above in Ext.P17 post-mortem report proved
by PW-10 and also taking note of Ext.P21 FSL report
revealing the presence of blood and semen in the
vaginal swab of the deceased, the trial Court held
that the deceased was subjected to rape. The High
Court also carefully considered the nature of the
said injuries and the factum of presence of blood and
semen in the vaginal swab taken from the deceased and
sustained the finding that the deceased was subjected
to rape. In the light of the nature of the evidence
thus obtained and also the way in which they were analysed and appreciated, we find no illegality or per-
30
versity at all with the concurrent finding that the
deceased was subjected to rape.
21. Obviously, both the trial Court and the High
Court answered the question as to who is the author
of the crimes by relying on the circumstantial evidence. We have already taken note of the various
circumstances relied on by the trial Court and subsequently by the High Court, to fix culpability on the
appellant. Though the Courts concurrently found him
guilty of the offences of rape and murder there is
lack of concomitancy in respect of conclusions/findings on certain aspects and circumstances, as noted
above. Before adverting to the said issue, it is
only proper to deal with a crucial contention of the
appellant founded on Section 53A of the Code of Criminal Procedure, which was added to the Code by
Cr.P.C. (Amendment) Act, 2005 (Act 25 of 2005). The
relevant portion of Section 53A(1) reads thus :-
“[53A. Examination of person accused of
rape by medical practitioner.-(1) When a
person is arrested on a charge of committing an offence of rape or an attempt to
commit rape and there are reasonable
grounds for believing that an examination
of his person will afford evidence as to
31
the commission of such offence, it shall
be lawful for a registered medical practitioner employed in a hospital run by the
Government or by a local authority and in
the absence of such a practitioner within
the radius of sixteen kilometers from the
place where the offence has been committed
by any other registered medical practitioner acting at the request of a police
officer not below the rank of a sub-inspector, and for any person acting in good
faith in his aid and under his direction,
to make such an examination of the arrested person and to use such force as is
reasonably necessary for that purpose.”
22. The above extracted provision under Section
53A(1) Cr.P.C. would go to show that it provides for
a detailed examination, (which term has been explained under Explanation (a) to Section 53A
Cr.P.C.), of a person accused of an offence of rape
or attempt to commit rape, by a registered medical
practitioner employed in a hospital run by the Government or by a local authority and in the absence of
such a practitioner within the radius of 16 kilometers from the place where the offence has been committed, by any other registered medical practitioner.
It is the said legal provision and the undisputed
factual position of non-conduct of DNA profiling of
the samples of the appellant that made him to take up
the contention of violation of Section 53A Cr.P.C. In
32
the said circumstances, he would further contend that
there is absence of conclusive evidence to connect
him with the samples taken from the body of the deceased. Certainly, non-conduct of DNA profiling in
terms of the provisions under Section 53A Cr.P.C., is
a flaw in the investigation. But then, the question
emerged from the aforesaid indisputable position of
not holding DNA profiling is whether the conviction
of the appellant for the said offences, is liable to
be set aside on that sole score.
23. There can be no doubt with respect to the position that a fair investigation is necessary for a
fair trial. Hence, it is the duty of the investigating agency to protect the rights of both the accused
and the victim by adhering to the prescribed procedures in the matter of investigation and thereby to
ensure a fair, competent and effective investigation.
Even while holding so, we cannot be oblivious of the
well-nigh settled position that solely on account of
defects or shortcomings in investigation an accused
is not entitled to get acquitted. In other words, it
also cannot be the sole reason for interference with
33
a judgment of conviction if rest of the evidence are
cogent enough to sustain the same.
24. In the decision in Mir Mohammad Omar’s case
(supra), this Court held :-
“In our perception it is almost impossible
to come across a single case wherein the
investigation was conducted completely
flawless or absolutely foolproof. The
function of the criminal courts should not
be wasted in picking out the lapses in investigation and by expressing unsavoury
criticism against investigating officers.
If offenders are acquitted only on account
of flaws or defects in investigation, the
cause of criminal justice becomes the victim. Effort should be made by courts to
see that criminal justice is salvaged despite such defects in investigation.”
(Emphasis added)
25. In the context of the contentions it is more appropriate to refer to the decision of this Court in
Sunil Vs. State of Madhya Pradesh [(2017) 4 SCC 393].
It was a case of rape and murder of a four (4) year
old child. A three-Judge Bench held herein thus :
“3. At the very outset, we deal with the
arguments advanced on behalf of the appellant that in the present case the report
of DNA testing of the samples of blood and
spermatozoa under Section 53-A of the Code
of Criminal Procedure, 1973 has not been
proved by the prosecution. The prosecu-
34
tion has, therefore, failed to prove its
case beyond reasonable doubt. Reliance in
this regard has been placed on the decision of this Court in Krishan Kumar Malik
v. State of Haryana [(2011) 7 SCC 130.
4. From the provisions of Section 53-A of
the Code and the decision of this Court in
Krishan Kumar it does not follow that
failure to conduct the DNA test of the
samples taken from the accused or prove
the report of DNA profiling as in the
present case would necessarily result in
the failure of the prosecution case. As
held in Krishan Kumar (para 44), Section
53-A really “facilitates the prosecution
to prove its case”. A positive result of
the DNA test would constitute clinching
evidence against the accused if, however,
the result of the test is in the negative
i.e. favouring the accused or if DNA profiling had not been done in a given case,
the weight of the other materials and evidence on record will still have to be considered. It is to the other materials
brought on record by the prosecution that
we may now turn to.”
26. Krishna Kumar Malik’s case (referred supra) was
rendered by a two-Judge Bench of this Court, wherein
at paragraph 43 with respect to the matching of the
semen, the following passage from Taylor’s Principles
and Practice of Medical Jurisprudence, 2nd Edn. (1965)
was extracted thus :-
“Spermatozoa may retain vitality (or free
motion) in the body of a woman for a long
period, and movement should always be
35
looked for in wet specimens. The actual
time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours.
Seymour claimed to have seen movement in a
fluid as much as 5 days old. The detection of dead spermatozoa in stains may be
made at long periods of 5 years. Nonmotile spermatozoa were found in the
vagina after a lapse of time which must
have been 3 and could have been 4 months.”
In paragraph 43 of Krishna Kumar Malik’s
case, after extracting the above, it was further
held :
“Had such a procedure been adopted by the
prosecution, then it would have been a
foolproof case for it and against the appellant.”
This Court went on to hold thus in Paragraph
44 therein :-
“Now, after the incorporation of Section
53-A in the Criminal Procedure Code w.e.f.
23.6.2006, brought to our notice by the
learned counsel for the respondent State,
it has become necessary for the prosecution to go in for DNA test in such type of
cases, facilitating the prosecution to
prove its case against the accused.”
27. Evidently, the three Judge Bench in Sunil’s case
(supra) considered Krishna Kumar Malik’s case carrying such observations and finding before coming to
the conclusion that ‘a positive result of the DNA
test would constitute clinching evidence against the
36
accused if, however, the result of the test is in the
negative i.e., favouring the accused or if DNA profiling had not been done in a given case, the weight
of the other materials and evidence on record will
still have to be considered’.
28. In view of the nature of the provision under
Section 53A Cr.P.C and the decisions referred (supra)
we are also of the considered view that the lapse or
omission (purposeful or otherwise) to carry out DNA
profiling, by itself, cannot be permitted to decide
the fate of a trial for the offence of rape especially, when it is combined with the commission of
the offence of murder as in case of acquittal only on
account of such a flaw or defect in the investigation
the cause of criminal justice would become the victim. The upshot of this discussion is that even if
such a flaw had occurred in the investigation in a
given case, the Court has still a duty to consider
whether the materials and evidence available on
record before it, is enough and cogent to prove the
case of the prosecution. In a case which rests on
circumstantial evidence, the Court has to consider
37
whether, despite such a lapse, the various links in
the chain of circumstances forms a complete chain
pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour.
29. As a matter of fact, the decision in Rajendra
Pralhadrao Wasnik’s case (supra), would also fortify
our view. The Bench was considering review petitions
in Criminal Appeal Nos.145-146 of 2011. That was a
case involving rape and murder of a three (3) year
old girl where the case was held as proved on the basis of circumstantial evidence. So also, in that
case DNA evidence was not produced before the Court,
in spite of samples being taken. Obviously, taking
note of the unerring nature of the circumstantial evidence pointing only to the guilt of the accused and
the other circumstances the trial Court convicted and
awarded him capital punishment. The High Court confirmed not only the conviction but also the award of
capital sentence. Originally, this Court dismissed
the appeals and thereafter, the dismissed review petitions were restored for consideration solely in
view of a Constitution Bench decision of this Court
38
in Mohd. Arif Vs. Supreme Court of India reported in
(2014) 9 SCC 737. In paragraph 79, this Court in Rajendra Pralhadrao Wasnik’s case held therein thus :-
“Insofar as the present petition is concerned, we are of opinion that for the
purposes of sentencing, the Sessions
Judge, the High Court as well as this
Court did not take into consideration the
probability of reformation, rehabilitation
and social re-integration of the appellant
into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one
way or the other and for whatever it is
worth on the facts of this case. The prosecution was remiss in not producing the
available DNA evidence and the failure to
produce material evidence must lead to an
adverse presumption against the prosecution and in favour of the R.P. (Crl.) Nos.
306-307 of 2013 in Crl. Appeal Nos.145-146
of 2011 Page 43 of 43 appellant for the
purposes of sentencing. The Trial Court
was also in error in taking into consideration, for the purposes of sentencing, the
pendency of two similar cases against the
appellant which it could not, in law, consider. However, we also cannot overlook
subsequent developments with regard to the
two (actually three) similar cases against
the appellant.”
30. In the light of the above referred decisions, the
contentions of the appellant founded on the factum of
non-holding of DNA profiling and the provision under
Section 53A, is only to be repelled. As held in
39
Sunil’s case (supra), a positive result of DNA test
would constitute clinching evidence against the accused. But, a negative result of DNA test or DNA
profiling having not been done would not and could
not, for that sole reason, result in failure of prosecution case. So much so, even in such circumstances, the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the appellant herein
and that exactly what was done by the trial Court and
then by the High Court, in the instant case.
31. Now, we will refer to other materials and evidence on record. PW-3, who is the maternal grandmother of the deceased deposed that the deceased was
aged 8 years and was wearing a frock and jeans pant
on the day of occurrence. She would further depose
that herself and the deceased were in the house of
Raju who is none other than the father of the appellant. As already noted, they are all relatives. PW3 would depose that by about 08:30 pm Raju Badam sent
the deceased for fetching a bundle of bidi from a
40
nearby shop. Since then, she had not returned home
alive.
32. The case unfolded by the prosecution through the
witnesses to fix the culpability on the appellant
constitute a chain of circumstances, including the
“last seen theory”. The deceased was lastly seen
with the appellant by PW-2 and PW-4. ‘Last seen theory’ is certainly applicable in a crime like the one
on hand which was carried out on sly and in secrecy
during night, in the absence of availability of any
eye-witnesses.
32.1 In the decision in Nizam and Anr. Vs. State
of Rajasthan [(2016) 1 SCC 550] this Court held that
it would not be prudent to base conviction solely on
‘last seen theory’. This Court, obviously, sounded a
caution that where time gap between ‘last seen’ and
‘time of occurrence’ is long it would be unsafe to
base the conviction solely on the ‘last seen theory’
and held that in such circumstances, it is safer to
look for corroboration from other circumstances and
evidence adduced by the prosecution.
41
32.2 In State of Rajasthan Vs. Kashi Ram reported
in (2006) 12 SCC 254, at paragraph 23 this Court held
:
“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 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
42
succinctly stated in Naina Mohd., AIR 1960
Mad 218:1960 Crl LJ 620.”
32.3 In Arabindra Mukherjee Vs. State of West Bengal [(2011) 14 SCC 352], while dismissing the appeal
by the convict who stood sentenced for offences punishable under Section 302, 364, 120B and 201 of IPC,
this Court held: “once the appellant was last seen
with the deceased, the onus is upon him to show that
either he was not involved in the occurrence at all
or that he had left the deceased at her home or at
any other reasonable place. To rebut the evidence of
last seen and its consequence in law, the onus was
upon the accused to lead evidence in order to prove
his innocence.”
32.4 In Pattu Rajan Vs. State of Tamil Nadu
[(2019) 4 SCC 771] this Court held in paragraph 63
thus :-
“It is needless to observe that it has
been established through a catena of judgment of this court that the doctrine of
last seen, if proved, shifts the burden of
proof on to the accused, placing on him
the onus to explain how the incident occurred and what happened to the victim who
was last seen with him. Failure on the
part of the accused to furnish any explanation in this regard, as in the case on
43
hand, or furnishing false explanation
would give rise to strong presumption
against him, and in favour of his guilt,
and would provide an additional link in
the chain of circumstances.”
(Emphasis supplied)
32.5 The various aspects relating to the ‘last
seen theory’, derived from the aforementioned decisions, are well-settled and hence, we do not think it
necessary to burden this judgment with further authorities on the subject.
33. A scanning of the circumstances and the evidence
adduced in the case on hand would reveal that conviction by the trial Court was not solely based on “last
seen theory”. Naturally, the confirmation of the conviction and sentence in the stated manner by the High
Court is also not solely based on the “last seen theory”. Obviously, to establish that the deceased was
lastly seen with the appellant the prosecution had
relied on the oral testimonies of PWs 2 and 4. Before
adverting to their testimonies it is only worthwhile
to refer to the oral evidence of PW-3, the maternal
grandmother of the deceased. As noted earlier, she
deposed that on the fateful day she was in the house
of Raju along with the deceased and at about 08:30 pm
44
Raju sent the deceased to purchase bidi and thereafter she did not return home. PW-3 would also submit
that the deceased was then wearing an embroidered
broad frock and a blue-coloured jeans. Her evidence
was not seriously challenged. Now, we will refer to
the evidence of PWs 4 and 2. It is enroute to the
shop that the deceased girl went past the house of
PW-4 viz., Pappu @ Patiram. Both PW-4 and the appellant are rickshaw pullers. PW-4 would depose that on
19.09.2014 himself, the appellant and one Mr. Rakesh
were sitting in front of his house and were preparing
to get intoxicated and he was making the pegs. He
would depose that earlier the appellant had given him
Rs.50 as drink-money and further that upon seeing the
deceased, the appellant asked her where she was going
and then followed her after promising them that he
would return. Evidently, a feeble attempt was made to
establish that PW-4 was entertaining animosity towards the appellant. Evidently, the suggestion was
repudiated by him. Besides, putting the said suggestion nothing to shatter the credibility of PW-4 was
brought out. Both the trial Court and the High Court
45
found the testimony of PW-4 as uncontroverted and believable. When the evidence is to the effect that in
the evening of that fateful day the appellant, PW-4
and another had gathered at the residence of PW-4,
that too for intoxication, it can only be said that
the suggestion of animosity was righty repelled by
both the Courts.
34. Now, we will refer to the testimony of PW-2. He
is the maternal grandfather of the deceased. But,
that by itself cannot be a reason to discredit or to
eschew his oral testimony. Both the trial Court and
the High Court had analysed and appreciated the evidence of PW-2 acknowledging the said position. Evidently, they found no reason to disbelieve PW-2. Upon
scrutiny of his testimony, we also found that despite
his thorough cross-examination on behalf of the appellant, nothing to discredit his version was brought
out. He deposed to the effect that he was sitting at
the door of his house at Thakur Baba Road, Dabra and
at about 8:00 to 8:30 in the night of the day of occurrence he had seen the accused following the deceased. He would also depose to the effect that
46
thereafter the deceased had not returned. There is
not even a suggestion to the effect that his house is
not near to the road and it was not possible to see
someone passing from there. PW-2 further deposed that
the appellant is his nephew and that the deceased was
his grand-daughter. He was one of the attesting witnesses to several prosecution documents including Ext.P2 Safina Form, Ext.P3 dead body panchayatnama, Ext.P4 arrest memo, Ext.P5 that carries the disclosure
statement of the appellant and Ext.P6 which is the
dead body recovery memo and its identification memo
and in Court, he had testified all of them. He deposed to the effect that the body of the victim as
also her dresses were recovered from the place of occurrence viz., bada of Jagan Sindhi at the instance
of the appellant. The contention of the appellant is
that since PW-2 being the grandfather of the deceased
the prosecution ought to have examined independent
witness to the mahazhars of seizures and recoveries.
As noticed earlier, despite thorough cross-examination on behalf of the appellant nothing to discredit
his evidence was elicited. There can be no two views
47
that being related to the victim, by itself, is no
reason at all to discredit the testimony of a witness. This position has been made clear by this
Court in various decisions.
35. In Dalip Singh and Ors. Vs. State of Punjab reported in AIR 1953 SC 364, wherein four persons appealed against sentences of death imposed on them for
conviction for a double murder, this Court held :-
 “A witness is normally to be considered independent unless he or she springs
from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely. Ordinarily, a close relative
would be the last to screen the real culprit and falsely implicate and innocent
person. It is true, when feelings run high
and there is personal cause for enmity,
that there is a tendency to drag in an innocent person against whom a witness has a
grudge along with the guilty, but foundation must be laid for such a criticism and
the mere fact of relationship far from being a foundation is often a sure guarantee
of truth. However, we are not attempting
any sweeping generalization. Each case
must be judged on its own facts. Our observations are only made to combat what is
so often put forward in cases before us as
a general rule of prudence. There is no
such general rule. Each case must be limited to and be governed by its own facts.”
48
35.1. In Khurshid Ahmed Vs. State of Jammu & Kashmir [(2018) 7 SCC 429], this Court while setting
aside the order of acquittal and convicting the accused (the respondent therein) for charges under Section 302, 341 IPC, held that there could be no preposition in law that relatives ought to be treated as
untruthful witnesses. On the contrary reason has to
be shown when a plea of partiality is raised to show
that the witness had reason to shield actual culprit
and falsely implicate the accused, it was further
held. In this case there is an added reason. PW-2
is also equi-related to the appellant-convict. The
accused is his nephew. Therefore, the question is why
should such a person who lost the granddaughter implicate his nephew in the case. The suggestion that
he had a clash with the appellant was repudiated by
him and still, no evidence to establish that suggestion was produced by the appellant. A suggestion to a
witness when repudiated can have no relevance at all
in the absence of any material produced, in accordance with law, to prove the factum suggested, certainly, subject to admissibility. Hence, the said
49
suggestion is impactless and inconsequential. Taking
note of the nature of the contention raised against
the testimony of PW-2, idest, that he is related to
the deceased, it is apposite to refer to another aspect. Noticeably, the appellant has taken up a contention in respect of the seizure/recoveries, involved in this case, that non-examination of Sri.
Ganesh, the father of the deceased, is fatal to the
prosecution as he being the other attesting witness
to most of such documents. This would reveal the
paradox and hollowness in the contentions of the appellant inasmuch as, he would contend that PW-2 being
a relative of the deceased another independent witness ought to have been examined to prove the
seizures and recovery and in the same breath he would
raise contention against the non-examination of the
father of the deceased to prove the same. In this regard it is relevant to note the position of law that
evidence is only to be weighed and not to be counted
and that it is essentially, for the prosecution to
decide as to how many witnesses are to be examined to
establish its case on any particular point. In this
50
case the version of PW-2 as relates the fact that the
deceased was lastly seen with the appellant would get
support from the oral testimony of PW-4 Pappu @ Patiram. The evidence of PW-4 and the fact that nothing
was elicited from PW-2 to discredit his version that
the appellant was following the deceased there was no
reason to disbelieve PW-2 on that issue. In short,
there is no reason to mistrust the said material witnesses on the point that the deceased was lastly seen
with the appellant as concurrently held by the trial
Court and the High Court.
36. The evidence of PW-12 was actually taken as res
gestae under Section 6 of the Indian Evidence Act,
1872 by the High Court. In Sukhar Vs. State of UP
[(1999) 9 SCC 507] this court explained the said provision. It was held therein that the statement
sought to be admitted, as forming part of res gestae,
must have been made contemporaneously with the acts.
Thus, it is evident that the essence of the doctrine
of res gestae is that a fact which, though not in issue, is so connected with the fact in issue “as to
form part of the same transaction” that it becomes
51
relevant by itself. A conduct of the accused after
the incident may become admissible under Section 6 of
the Evidence Act, though not in issue, if it is so
connected with the fact in issue.
37. The statement of PW-12 is to the effect that after finishing his work he was returning home during
the night, at about 9 o’clock. He would depose that
he saw the appellant then coming out of bada of Jagan
Sindhi and dusting his clothes. It is true that a
suggestion was put to him, while being cross-examined, that he had not actually seen the appellant
coming out of the bada and he was deposing otherwise
due to animosity with the appellant. Though PW-12 had
repudiated the said suggestion, the appellant had not
adduced any further evidence to establish the same. A
careful scanning of the evidence of PW-12 would reveal that he had categorically stated that he knew
the appellant-accused and on the fateful day he had
seen him coming out of the bada of Jadan Sindhi. Applying the doctrine the evidence of PW-12 that he had
seen the appellant at about 9:00 pm on the fateful
day, coming out of the bada of Jagan Sindhi and dust-
52
ing his clothes, is admissible under Section 6 of the
Evidence Act. It was treated as another incriminating circumstance against the appellant. There can be
no doubt with regard to the position that he is an
independent witness though he was described as a
‘chance witness’. In this context it is relevant to
refer to the decision in Chanakya Dhibar Vs. State of
West Bengal (2004 (1) Crimes 196) whereas this Court
observed thus :-
“In a murder trial by describing the independent witness as ‘chance witness’ it
cannot be implied thereby that their evidence is suspicious and their presence at
the scene doubtful. Murders are not committed with previous notice to witnesses;
soliciting their presence. If murder is
committed in a dwelling house, the inmates
of the house are natural witnesses. If
murder is committed in a street, only
passerby will be witnesses. Their evidence cannot be brushed aside or viewed
with suspicion on the ground that they are
mere ‘chance witnesses’. The expression
‘chance witness’ is borrowed from countries where every man’s home is considered
his castle and everyone must have an explanation for his presence elsewhere or in
another man’s castle. It is quite unsuitable an expression in a country where people are less formal and more casual.”
We referred to the aforesaid decision to give emphasis on the aspect that description of a witness as
53
‘chance witness’ cannot and will not by itself denude
the admissibility or relevance of the evidence of
such a witness if nothing was brought out to make his
version suspicious and thereby unacceptable. It is
to be noted that despite cross-examining PW-12 on behalf of the appellant nothing to make his version
suspicious and untrustworthy was brought out. He deposed that he knew the appellant and further that at
about 9:00 pm he had seen him coming out of the bada
in question and dusting his clothes.
38. The evidence of PW-6 (Jagdish @ Jagan) is to the
effect that he is the son of Laxmibai, the owner of
the bada which is the occurrence place. According to
him, the said property was purchased by his mother
and its eastern and western boundaries are respectively Thakurdas Baba Road and Dhan mill. He would
further depose thus :-
 “On the aforesaid plot, four rooms were already
constructed. Presently, the aforesaid rooms and the
plot are not in use. Presently, the plot is in the
shape of a Bada (verandah), whose boundary is broken.
The rooms are in dilapidated condition.” According
54
to him, at that place, miscellany (empty sacks) of
the mills have been kept and the fallen clay wall of
the Bada gives easy access to the Bada, and it is not
worthy for use. The evidence of PW-6 on the aforesaid
aspects remains unchallenged. It is to be noted that
it is from such a place, which is in a dilapidated
and unusable condition, that the appellant was seen
coming out during the night by PW-12. Moreover, the
corpse of the victim was recovered from there the
very next day, based on Ext.P5 disclosure statement
of the appellant and at his instance.
39. It was on 20.09.2014 at about 04:00 pm that the
appellant was arrested. Ext.P4 is his arrest memo.
While in custody he gave Ext.P5-disclosure statement
regarding the concealment of the dead body of the deceased as also her dresses. The factum of the appellant having made such a disclosure statement as also
their subsequent recovery is proved through PW-2. PW19 deposed that he had recorded Ext.P5 memo. PW-16
Jitendra Nagaich, the then Station House Officer, Police Station, Dabra, deposed to the effect that along
with the appellant they proceeded to the place of oc-
55
currence, as shown by the appellant and from there
the dead body of the victim, concealed beneath the
gunny bags, was recovered at the instance of the appellant. They would also depose that the body was
seen in disrobed condition. The dresses of the deceased were recovered from the place of occurrence
itself. The oral evidence of PW2 and PW16 that the
corpse of the deceased girl and her dresses were recovered from the said place of occurrence, at the instance of the appellant, gained corroboration from
the oral testimonies of PW-5 Mr. Sonish Vasistha, a
journalist and PW-11 Mr. Deepak Shukla, who was the
then Tehsildar and Executive Magistrate of the locality.
40. In the decision in Govindaraju @ Govinda Vs.
State [(2012) 4 SCC 722] this Court held that there
would be nothing wrong in relying on the testimony of
police officers if their evidence is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence. In the light of the
fact that nothing was brought out to discredit the
testimonies of PW-16 and PW-19 and their oral testi-
56
monies gained corroboration from the testimonies from
PWs 2, 5 and 11 it can only be held that the aforesaid aspects were rightly appreciated by the Courts
below and taken as circumstances against the appellant.
41. The recovery of the dead body, which was in a
concealed condition from an unused and dilapidated
building based on the disclosure statement of an accused is a crucial incriminating circumstance. In the
decision in Jaharlal Das Vs. State of Orissa [AIR
1991 SC 1388], this Court held therein that the discovery of the body at the instance of the accused is
a crucial circumstance, in a case resting on circumstantial evidence. This position was iterated in
Mohd. Mannan @ Abdul Mannan Vs. State of Bihar
[(2011) 5 SCC 317].
42. Now, we will advert to the other incriminating
circumstances taken into consideration by the High
Court to confirm the conviction of the appellant for
the stated offences.
43. The impugned judgment would reveal that the High
Court had interfered with the conviction of the ap-
57
pellant under Section 376A IPC. Among other things,
it also evident that on reappreciation of the evidence the High Court disagreed with and reversed the
finding of the trial Court in regard to the admissibility and evidentiary value of the recovery of an
underwear (Article F-described as shaddy) from the
occurrence place and also its result on analysis.
Nonetheless, the High Court went on to consider the
question whether the rest of the circumstantial evidence and the supporting materials would unerringly
point to the guilt of the appellant alone. The said
approach cannot be said to be wrongful or illegal and
in fact, it is the rightful approach in view of the
fact that the conviction of the appellant was based
on various circumstantial evidences, in the light of
the decision of this court in State of West Bengal
Vs. Dipak Haldar & Anr. [(2009) 7 SCC 288]. Evidently, the High Court had considered the cumulative
effect of the rest of the circumstantial evidences
and materials supporting them. In Dipak Haldar’s case
this court held thus:-
“17. In a case based on circumstantial
evidence, the court is required to
58
consider whether the cumulative effect of
all the circumstances leads to a
conclusion that the same was a case of
murder and the accused was responsible for
such murder. A conviction can be based on
circumstantial evidence if it is of such a
character that the same is wholly
inconsistent with the innocence of the
accused and is consistent only with his
guilt. The incriminating circumstances
that are being used against the accused
must be such as to lead only to a
hypothesis to reasonably exclude every
possibility of his innocence.
18. To put it differently, the court
should find out whether the crime was
committed by the accused and the
circumstances proved formed themselves
into a complete chain, which clearly
points to the guilt of the accused. If on
the other hand, the circumstances proved
against the accused are consistent either
with the innocence of the accused or raise
a reasonable doubt about the way the
prosecution has alleged the offence is
committed, the accused would be entitled
to the benefit of doubt.”
 (Emphasis added)
We are of the considered view that a different
approach in re-appreciating the evidence would have
defeated dispensation of justice, as in cases based
on circumstantial evidence also it is not the quantity of the evidence that counts, but it is its quality. In other words, the question is only whether a
complete chain of circumstantial evidence of such a
character that the same is wholly inconsistent with
59
the innocence of the accused and is consistent only
with his guilt, is available.
44. PW.16-Shri. Jitendra Nagaich proved Ext.P-8
Seizure memo by which a pants and a shirt were
recovered from the residence of the Appellant. PW-2
also deposed to the same effect and he testified his
thumb impression in Ext.P-8 Seizure memo. In Ext.P-21
FSL Report human blood was found on the said pants
(article-C). True that the serological part of Ext.P21 report did not indicate the group of the blood
stains found in the pants. This aspect was
highlighted by the appellant before the High Court as
also before us to contend that in view of the failure
of the prosecution to establish that the blood stains
found thereon belonged to the deceased it could not
in anyway connect him with the crime and hence, could
not have been taken as an incriminating circumstance
against him. At the first blush this contention would
appear to be attractive and acceptable. However, as
per the impugned judgement the High Court had rightly
repelled the said contention by relying on the
decision of this court in Kansa Behera Vs. State of
60
Orrisa (AIR 1987 SC 1507). In the said decision this
Court exposited that when conviction is to be
recorded solely on the basis of presence of blood
stains in any article(s) seized from the accused
concerned the prosecution has to prove beyond doubt
that the blood found on that article(s) is that of
the deceased and for that the group of the blood
found on the seized article(s) should match with that
of the deceased upon their grouping. At the same
time, it was further held therein that when other
circumstances are available non-detection of blood
group by itself would not be fatal. The decision of
this Court in R. Shaji Vs. State of Kerala [(2013) 14
SCC 266] also assumes relevance in this context. This
court held thus :-
“30. It has been argued by the learned
counsel for the appellant that as the
blood group of the blood stains found on
the chopper could not be ascertained, the
recovery of the said chopper cannot be relied upon.
31. A failure by the serologist to detect
the origin of the blood due to disintegration of the serum does not mean that the
blood stuck on the axe could not have been
human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological
changes and plasmatic coagulation, that a
61
serologist may fail to detect the origin
of the blood in question. However, in such
a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by
the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by the accused, the
matching or non-matching of blood group(s)
loses significance. (Vide Prabhu Babaji
Navle v. State of Bombay, Raghav Prapanna
Tripathi v. State of U.P., State of Rajasthan v. Teja Ram, Gura Singh v. State
of Rajasthan, John Pandian v. State and
Sunil Clifford Daniel v. State of Punjab.)
32. In view of the above, the Court finds
that it is not possible to accept the submission that in the absence of a report
regarding the origin of the blood, the accused cannot be convicted, for it is only
because of the lapse of time that the
blood could not be classified successfully. Therefore, no advantage can be conferred upon the accused to enable him to
claim any benefit, and the report of disintegration of blood, etc. cannot be
termed as a missing link, on the basis of
which the chain of circumstances may be
presumed to be broken.”
(Emphasis added)
The evidence on record in the case on hand would
reveal that conviction of the appellant herein was
not based solely on a presumptive finding that the
blood stains present in the pants (Article-C) seized
from the residence of the appellant is that of the
deceased. At the same time, it is a fact that it was
62
taken as one of the incriminating circumstances. It
is not the case of the appellant that the said pants
was not the one recovered from his residence. In
fact, under Ext.P8 it was recovered from his residence and that fact was proved through PWs 2 and 16.
Ext.P21 would reveal that upon analysis the blood
stains stuck thereon were ascertained to be of human
origin. In the light of Shaji’s decision (supra) once
the blood stains were ascertained as that of human
origin the mere non-detection of blood group would be
of no consequence. Despite the difference in factual
situation the exposition of law that on account of
mere non-detection of blood group no advantage could
be conferred upon the accused to enable him to claim
any benefit in such situation. Certainly, in such
circumstances a case of missing link in the chain of
circumstances could not be claimed on that sole score
and at the same time, absence/failure of explanation
from the appellant when the said incriminating circumstance was put to him during his examination under
Section 313 Cr.P.C. would work out against him.
In these circumstances, the Courts below cannot
63
be found in fault in taking it as an incriminating
circumstance against the appellant.
45. As noted earlier, another incriminating circumstance considered against the appellant is the presence of nail marks on his face and neck and also his
failure to offer explanation therefor. In this regard
the evidence of PW-17 (Dr. Harish Arya) with Ext.P24-
MLC was relied on. PW-17 was the doctor who examined
the appellant when he was produced for medical examination after his arrest. He found the following four
nail scratches on the body of the appellant: -
1. 1.5 cm x .02 mm on the left side neck
near
angle of left jaw.
2. 1 cm x 2 mm on left side of neck in
front
of injury no. 1.
3. 0.5 cm x 2 mm on left cheek.
4. 0.5 cm x 2 mm over angle of left jaw.
46. As per PW-17 those injuries were found on him on
21.09.2014 at about 1:00 pm and those injuries were
caused within 48 hours before his examination. When
this incriminating circumstance was put to the appellant during his examination under Section 313
64
Cr.P.C., he did not offer any explanation as to how
such injuries were caused. Obviously, the trial Court
found that the appellant sustained such injuries in
the incident in question that occurred on 19.09.2014
at about 09:00 pm, after taking into account the evidence of PW-17 with Ext.P24 and in the absence of explanation from the appellant as to how those injuries
have been caused. The High Court did not disturb the
said conclusion. We find no illegality or infirmity
on such conclusion and finding.
47. We have already observed that since the High
Court had interfered with the conviction of the appellant under Section 376A IPC the question whether
the rest of the incriminating circumstances formed a
complete chain leading solely to the guilt of only
appellant in exclusion of all hypothesis in favor of
his innocence, as held by the High Court. We have
already considered in detail all the incriminating
circumstances and materials available to support them
that weighed with the High Court. It is absolutely
unnecessary to refer to each of them again. Suffice
it to say that they would go to show that despite
65
what are eschewed a continuous and complete chain of
circumstances and materials supporting them, is
available and they are wholly inconsistent with the
innocence of the appellant and consistent only with
his guilt. Above all, it is evident that an additional link is available in this case owing to the
failure on the part of the appellant to explain all
the aforesaid incriminating circumstances. While being examined under Section 318, Cr.P.C. in respect of
all questions his answers were either ‘it is false’
or ‘I do not know’. There is absolutely no case for
the appellant that all the incriminating circumstances were not put to him. In view of Pattu Rajan’s
case (supra) and other decisions such as, Trimukh
Maroti Kirkan Vs. State of Maharashtra (2006 AIR SCW
5300) offering no explanation on incriminating circumstances mentioned above would become an additional
link in the chain of circumstances. The cumulative
effect of all the aforesaid circumstances, referred
to in detail hereinbefore, would definitely justify
the finding of the High Court as to the guilt of the
appellant.
66
48. The trial Court and also the High Court had concurrently concluded that the death of the victim is
homicidal in nature. We have found, based on the evidence on record, that the Courts have rightly found
that the victim was raped. The diabolic and gruesome
manner in which the appellant had ravished the hapless girl is evident from the grave injuries on her
pudenda. There occurred perennial tear of grade
fourth extending up to anus and that her uterus was
torn and was coming out from the vagina. As noticed
above, the vaginal swab on examination revealed the
presence of blood and semen. Hence, the finding that
the deceased was subjected to rape warrants no interference.
49. Though the appellant had disputed the age of the
deceased before the trial Court, the impugned judgment would reveal that the said contention was given
up at the appellate stage. When that be so, the appellant could not now be permitted to dispute the age
of the deceased at the time of occurrence in these
appeals. Even otherwise, the evidence on record would
reveal that PWs 1 to 3, who are respectively the
67
mother, the maternal grandfather and the maternal
grandmother of the victim, had deposed that the deceased was aged 7-8 years. PW-1 would further depose
that the deceased was studying in Class-I in the
Govt. School situated near Laddaram. PW-10 who along
with the Dr. Asha Singh performed autopsy on the body
of the victim and prepared Ext.P17 report noted
therein that the deceased appeared to be of 8 years
old and he had also deposed to that effect while being examined before the Court. That apart, PW-9 who
was the Headmistress-in-charge in Govt. Primary Boys
School, Jawaharganj, brought and proved Ext.P14 -
School Admission Application of the deceased, Ext.P15
- Admission Register and the copy of which was marked
as Ext.P15C and also and also Ext.P16 which is her
age verification Certificate issued from the school.
They would disclose her Admission Number as 1937 and
the date of birth as 10.09.2006. Her evidence was
not seriously challenged by the appellant during the
cross-examination. At any rate, no contra-evidence
was adduced in this regard by the appellant. Taking
into account the nature of the commission of rape re-
68
vealed from the evidence on record and discussed
hereinbefore the concurrent finding of the courts below that the appellant has committed the offence of
aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act also invites no interference.
50. The question, now to be considered is whether the
homicidal death of the victim amounts to murder or
whether it falls either under Section 304(1) or
304(2) as contended by the appellant. The impugned
judgment would reveal that the High Court concurred
with the finding of the trial Court that the
homicidal death of the victim amounts to murder. The
right approach in cases of culpable homicide is to
first find out whether the offence falls under any of
the four clauses viz., clauses firstly to fourthly
under Section 300 IPC. If it is so found, then the
Court has to see whether the case is covered by any
one of the five exceptions to section 300 IPC, which
would make a culpable homicide ‘not amounting to
murder’. The offence, if proved, to fall under one of
the said exceptions would be punishable under Section
69
304, either under Part 1 or Part 2 as the case may
be, or otherwise it would be murder punishable under
Section 302 IPC. In the case on hand both the trial
Court and the High Court, had analysed evidence on
record and found that the appellant had pressed the
neck of the victim so hard unmindful of the fact that
she was aged only 8 years and caused internal
hemorrhage. The cause of death was asphyxia due to
throttling. The nature of the injuries found on the
neck of the deceased would reveal the pressure
exerted by the appellant on the neck. The fact that
the victim was a hapless girl aged only 8 years has
to be taken into account while considering the
question. Intention is a subjective element and every
sane person must be presumed to intend the result
that his action normally produces. Hence,
constriction of the neck of a girl child aged about 8
years by fingers or palm by a young man aged 25
years, with such force to cause the injuries
mentioned hereinbefore cannot be said to be sans
intention to take her life. If the said act was
subsequent to commission of rape in the diabolic and
70
gruesome manner revealed from the grave injuries
sustained on her private parts, causing death alone
can be inferred from the circumstances. If the act of
constricting the neck with such force resulting in
the stated injuries preceded the offence of rape,
then, the manner by which she was ravished should be
taken only as an act done knowingly that it is so
imminently dangerous that it must in all probability
cause death or such bodily injury as is likely to
cause death. Thus, viewing in any angle the homicidal
death would fall either Clause 1 or Clause 4 of
Section 300 IPC. A feeble attempt was made by the
appellant to contend that the Courts had erred in
finding the appellant guilty under Section 300 IPC,
punishable under 302 IPC and that if at all he has to
be convicted for causing death of the victim it ought
to have been under Section 304 IPC. It is to be
noted, once it is found that the act falls under any
one of the 4 clauses under Section 300 IPC, to bring
it out of its purview it must be proved that it falls
under any one of the five exceptions to Section 300
IPC. There is nothing on record and no contention was
71
also raised by the appellant, with support of
material, to show that any one of the said five
exceptions attracts in this case. In fact, the only
contention urged and also taken in the written
submission by the appellant is that the deceased had
died due to an injury on her neck which had occurred
quite naturally during the commission of the rape. We
have no hesitation to hold that the said contention
is palpably untenable and at any rate, not at all
sufficient to bring the offence under any one of the
five exceptions to Section 300 IPC. The long and
short of the discussion is there is no reason to
interfere with the finding of the Trial Court, which
was confirmed by the High Court, that the appellant
is guilty of committing murder punishable under
Section 302 IPC. Thus, on a careful examination of
the matter in its entirety, we do not find any
perversity or manifest illegality with respect to the
concurrent finding of the trial Court and the High
Court that the appellant herein had committed
offences punishable under Section 302 IPC, 376(2)(i)
IPC and Section 6 of the POCSO Act.
72
51. As noticed hereinbefore, upon conviction for each
of the offence under Section 376(2)(i) IPC and under
Section 6 POCSO Act, the appellant was sentenced to
undergo rigorous imprisonment for life and to pay a
fine of Rs.2000/- and in default of payment of fine
to undergo imprisonment of one year. No extenuating
circumstances warranting an interference with the
sentence thus imposed by the trial Court, which was
confirmed by the High Court, for the conviction for
the stated offences were brought to our attention by
the appellant.
52. The next question is whether death sentence
awarded by the trial Court and confirmed by the High
Court for the conviction of the offence of murder be
maintained or substituted? This penalty is awardable
to a culprit only the category of the case falls under ‘rarest of rare cases’, the culprit has become a
threat to the society at large and beyond reformation
and his elimination is the only way for eradication
of the threat. For deciding the said question various
aspects have to be considered. On a careful scanning
of the consideration made by the trial Court as also
73
the High Court for awarding the sentence for the conviction under Section 300 IPC, punishable under section 302 IPC, we are of the view that the question
regarding the correctness of the death sentence
awarded to the appellant requires further consideration, taking into account the statutory requirements
under Section 354(3) Cr.P.C. For awarding termination
of natural life, a careful scrutiny is required. The
statutory requirements under Section 354(3) Cr.P.C.
are as under :
“When the conviction 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 offence.”
53. On the aforesaid subject this Court has already
enunciated the principles. A careful survey of such
decisions was made by this very three-Judge Bench in
the decision in Pappu Vs. The State of Uttar Pradesh
(Criminal Appeal Nos.1097-1098/2018, pronounced on
9.2.2022. Paragraph 49 of the decision in Shankar
Kishanrao Khade Vs. State of Maharashtra reported in
(2013) 5 SCC 546, highlighting the requirement of
74
application of ‘crime test’, ‘criminal test’ and
‘rarest of rate test’ was referred therein. In the
said paragraph, with reference to the previous
decisions, the aggravating circumstances (crime test)
and the mitigating circumstances (criminal test) were
narrated as hereunder :
“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.
(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.
75
(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, 90
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
76
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 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.
77
(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
78
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.”
54. After taking into account the same and such other
decisions specifically referred to therein, in
Pappu’s case (supra) it was held thus:-
“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.”
55. On going through the judgment of the trial Court
and the High Court, we are of the considered view
that in handing down capital sentence what had
79
weighed with the Courts are the horrendous feature of
commission of crime and the hapless state of the
victim. The trial Court considered the question of
sentence and awarded the same on the very same day on
which the appellant was convicted. We shall not be
understood to have held that this is absolutely
illegal and impermissible. Ultimately, what is
required is consideration of the aggravating and
mitigating circumstances with application of mind.
They were not given the proper attention while
considering the question of awarding the sentence for
conviction under Section 302 IPC, in the case on
hand. In the said circumstances, we will proceed to
consider the question of sentence in the present case
bearing in mind the principles enunciated by this
Court in the matter of awarding the capital sentence.
The trial Court as also the High Court arrived at the
conclusion that the act of the appellant herein
invited the extreme indignation of the community and
therefore, it deserves a deterrent sentence so as to
give a message to the society that such crimes should
not be repeated by anyone. In short, we are of the
80
considered view that the ‘crime test’ and the
‘criminal test’ require to be followed before
awarding capital sentence, did not gather the
required attention of the trial Court as also the
High Court.
56. It is true that all murders are inhuman. For
imposing capital sentence, the crime must be uncommon
in nature where even after taking into account the
mitigating circumstances the Court must be of the
opinion that the sentence of imprisonment for life is
inadequate and there is no alternative but to impose
death sentence. The heinous and brutal nature of the
commission of crime, viz., brutal rape and murder of
an eight-year old girl child who is none other than
the daughter of his own cousin, that too in a hapless
situation, is definitely an aggravating circumstance.
The nature of the injuries caused on the private
parts of the victim as is evident from the evidence
of PW10 with Ext.P17 report would definitely shock
the conscience. At the same time, the principles
enunciated by this Court in the matter of awarding of
death sentence and in such circumstances, the
81
undisputed and indisputable fact that the appellant
had no criminal antecedents and he hails from a poor
socio-economic background and also his unblemished
conduct inside the jail cannot go unnoticed. So also,
it is a fact that at the time of commission of the
offence the appellant was aged 25 years. Hence,
viewing the issue taking into account the aforesaid
aspects, we do not find any reason to rule out the
possibility and the probability of the reformation
and rehabilitation of the appellant. The long and
short of the discussion is that the present case
cannot be considered as one falling in the category
of ‘rarest of rare cases’ in which there is no
alternative but to impose death sentence.
57. In the aforesaid circumstances, the next question
is what is the comeuppance for the conviction for
offence of murder in this case. In the decision in
Swamy Shraddananda Vs. State of Karnataka [(2008) 13
SCC 767], taking into account the tenets of penology
and with a view to have a just, reasonable and proper
course in a case where the Court is of the opinion
that sentence for life is inadequate but imposition
82
of death sentence is unwarranted this Court adopted
the course of awarding life imprisonment without
application of the provisions of premature
release/remission before an actual imprisonment for a
definite period of time. This position was iterated
with agreement in the decision in Union of India Vs.
Sriharan [(2016) 7 SCC 1], thus :
“We hold that the ratio laid down in
Swamy Shraddananda (supra) 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.
58. Thus, taking into account the fact that in the
case on hand a hapless 8 year old girl child, who is
none other than the daughter of appellant’s cousin
sister raped and murdered and that too, in an
extremely brutal manner revealed from the evidence on
record, we are of the considered view that course
adopted in the decision in Swamy Shraddananda’s case
(supra) and reiterated in Sriharan’s case (supra)has
to be adopted in this case. In other words, even
while commuting capital punishment, the appellant has
83
to be awarded life imprisonment without application
of the provisions of premature release/remission for
a substantial length of period. On such
consideration we are of the view that it would be
just and proper to award punishment of imprisonment
for life to the appellant for the offence punishable
under Section 302 IPC, by providing for an actual
imprisonment for a period of 30 (thirty) years
without application of the provisions of premature
release/remission.
59. In the circumstances, these appeals are partly
allowed as hereunder:
(i) The conviction of the appellant for the
offences punishable under Section 302 and
376(2)(i), IPC and conviction for the offence
punishable under Section 6 of POCSO Act is
upheld and the sentences awarded to him for
the conviction therefor, are confirmed, for
the offence under Section 302 IPC;
(ii) However, the death sentence awarded to the
appellant for the offence under Section 300,
IPC punishable under Section 302, IPC is
84
commuted to that of imprisonment for life
with the stipulation that he shall not be
entitled to premature release or remission
before undergoing actual imprisonment for a
period of thirty (30) years;
(iii) The other terms of sentences awarded to the
appellant including fine amount and default
stipulations also stand confirmed. All the
substantive sentences awarded to the
appellant shall run concurrently.
………………………………………………J.
(A.M. KHANWILKAR)
………………………………………………J.
(DINESH MAHESHWARI)
………………………………………………J.
(C.T. RAVIKUMAR)
New Delhi;
May 13, 2022.

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