Penal Code, 1860 – ss.363, 366A, 364, 346, 376D, 376A,
302 and 201 – Protection of Children from Sexual Offences Act, 2012 – s.5(g)(m) r/w s.6 – Kidnapping, rape and murder of 11 year old girl – Circumstantial evidence – PW-2 (father of victim) along with his family members attended a ceremony at the house of one ‘AM’ in the evening – His 11 years old daughter went missing and was found dead next morning – Appellant alongwith co-accused’S’ (since deceased) was convicted and sentenced to death – On appeal, held: Medical evidence shows that the deceased was raped and killed – Appellant and ‘S’ had alcohol and were together at the house of ‘AM’ – Next day morning, they went to PW-9 and told him that a big blunder took place – Their eyes were red, hair was scattered and they were scared – Pursuant to the disclosure statement, the clothes of the appellant were seized from the cowshed in his house – Insofar as Article D, a full pant of the appellant is concerned, according to DNA report multiple peaks were observed – DNA profiling of the articles Q, R and S which are the vaginal slide, rectal slide and dried blood on the hair of the deceased showed Y
(male) STR – Blood sample of ‘S’ matched with the articles found on Q, R and S – Appellant miserably failed to prove an alibi – There is lack of any explanation for the scratch injuries found on his body – Appellant guilty of committing the offences as charged – Conviction upheld, however the sentence is converted from death to that of imprisonment for life for a period of 30 years without remission.
Code of Criminal Procedure,1973 – s.235(2) – Constitution of India – Article 21 – Disturbing tendency of Trial Courts adjudicating criminal cases involving rape and murder in haste – Held: An accused is entitled for a fair trial guaranteed under Article
21 – The object and purpose of s.235 (2), CrPC is that the accused must be given an opportunity to make a representation against the sentence to be imposed on him – A bifurcated hearing for convicting and sentencing is necessary to provide an effective opportunity to the accused – Adequate opportunity to produce relevant material on the question of death sentence shall be provided to the accused by the Trial Court – In the present case, it is travesty of justice as the appellant was not given a fair opportunity to defend himself – The judgment was dictated on 03.11.2017 and on the same day, the Trial Court passed an order, sentencing him to death penalty – Deprecation.
Sentence/Sentencing – Death penalty – Mitigating circumstances – Appellant was convicted and sentenced for kidnapping, rape and murder of 11 year old girl – Held: Gravity of the crime was taken into consideration while imposing death sentence but the mitigating circumstances and the probability of reformation and rehabilitation of the accused wasn’t considered – Appellant was aged 25 years on the date of commission of the offence and belongs to a ST community, eking his livelihood by doing manual labour – No evidence to show that there is no probability of his rehabilitation and reformation and that the question of an alternative option to death sentence is foreclosed – Appellant had no criminal antecedents – Nothing adverse reported against his conduct in jail – Death sentence requires to be commuted to life imprisonment – However, taking into account the barbaric and savage manner in which the offences of rape and murder were committed on a hapless
11 year old girl, the appellant is sentenced to life imprisonment for a period of 30 years without remission.
Partly allowing the appeals, the Court
HELD: 1.1 The undisputed facts are that PW-2 along with his family members attended the Chowk Barhon ceremony at the house of ‘AM’ on the evening of 14.04.2017. His 11 years old daughter went missing and was found dead on the next day morning. The Appellant and ‘S’ were arrested on the next day and on the basis of the statements made by them, recoveries of their clothes were made. The medical evidence shows that she was raped and killed. A green shirt of check pattern whose two front black buttons were broken, which is torn near the shoulder and has blood spot was seized from the flowerpot on the roof of the cowshed of the Appellant. A red colour sando baniyan with black stripe which is torn near shoulder with dark blood spot was also seized along with one jeans pant of sky blue colour with lining of 28 no. and HARW was mentioned on the right side back. There was a dark blood spot in front of the sky-blue jeans pant. The report of the State Forensic Science Laboratory, Civil Lines, Sagar showed that all the alleles observed in the male DNA profile of ‘S’ were found to be the same as the DNA profile observed from the prosecutrix’s vaginal and rectal slides. Same female autosomal STR DNA profile was detected on the source of the deceased prosecutrix, dhoti and underwear of ‘S’. Insofar as Article D which is a full pant of the Appellant is concerned, according to DNA report multiple peaks were observed. The Appellant and ‘S’ were present in the function at the house of ‘AM’ as deposed by PWs1, 3 and 5. PW-4 deposed that he runs a small hotel in the village and the deceased visited his shop to purchase Kurkure at 9.00 p.m. 15 minutes thereafter, the Appellant visited the shop to purchase namkeen. PW-9 stated that the Appellant and ‘S’ visited his house on 15.04.2017. Their eyes were red, hair was scattered and they were scared. They informed him that they have committed a big scandal. At that time, the mother of the Appellant came, and ‘S’ and the Appellant went away. Half an hour later, there was an uproar in the village when the body of the deceased was found. [Paras 8 and 9][12-E-H; 13-A-E]
1.2 During the course of examination of ‘S’ under Section
313 CrPC, he admitted that he was present at the house of ‘AM’ on 14.04.2017 and that he visited PW-9 on the morning of 15.04.2017. The Appellant also admitted his presence at ‘AM’s’ house on 14.04.2017 and at the house of PW-9 on 15.04.2017 in the morning. He further stated in his examination under Section
313 CrPC that his eyes were red, hair was scattered and he and ‘S’ demanded liquor from PW-9. It is relevant to note that the Appellant also stated that he had gone to Sudgaon along with ‘S’ for work at 9.00 a.m. on 14.04.2017. While returning, he had liquor along with ‘S’. He visited ‘AM’s’ house along with ‘S’ at 7.00 p.m. They were asked to leave as they were in a drunken condition. The Appellant, thereafter, went to the shop of Chain Singh from where his mother took him home. He slept in the house of his neighbour. Clothes worn by the Appellant were seized from a flowerpot on the roof of the cowshed belonging to him pursuant to the disclosure statement. FSL report pertaining to Article B which is a full pant of Appellant on which there was a blood stain near the zip showed multiple peaks. The Appellant and ‘S’ had alcohol and were together at the house of ‘AM’. As they were creating nuisance, they were chased away. The next day morning, they went to PW-9 and told him that a big blunder took place. DNA profiling of the articles Q, R and S which are the vaginal slide, rectal slide and dried blood on the hair of the deceased showed Y (male) STR. Blood sample of ‘S’ matched with the articles found on Q, R and S. The Appellant miserably failed to prove an alibi. Importantly, there is lack of any explanation for the scratch injuries found on the body of the Appellant. This Court is in agreement with the concurrent findings that the Appellant is guilty of committing the offences as charged and there is no fault with the conviction of the appellant. [Paras 10 and 12][13-D-F; 14-B-E]
2. It is travesty of justice as the Appellant was not given a fair opportunity to defend himself. This is a classic case indicating the disturbing tendency of Trial Courts adjudicating criminal cases involving rape and murder in haste. An accused is entitled for a fair trial which is guaranteed under Article 21 of the Constitution of India. In respect of the order of conviction and sentence being passed on the same day, the object and purpose of Section 235
(2) CrPC is that the accused must be given an opportunity to make a representation against the sentence to be imposed on him. A bifurcated hearing for convicting and sentencing is necessary to provide an effective opportunity to the accused. Adequate opportunity to produce relevant material on the question of death sentence shall be provided to the accused by the Trial Court. The judgment was dictated on 03.11.2017. On the same day, the Trial Court passed an order, sentencing the Appellant and ‘S’ to death penalty. [Paras 13 and 14][14-E-G; 15C]
3. A perusal of the judgments of the Trial Court and the High Court would disclose that the gravity of the crime was taken into consideration while imposing death sentence. The mitigating circumstances and the probability of reformation and rehabilitation of the accused have not been considered. The Appellant was aged
25 years on the date of commission of the offence and belongs to a Scheduled Tribes community, eking his livelihood by doing manual labour. No evidence has been placed by the prosecution on record to show that there is no probability of rehabilitation and reformation of the Appellant and the question of an alternative option to death sentence is foreclosed. The Appellant had no criminal antecedents before the commission of crime for which he has been convicted. There is nothing adverse that has been reported against his conduct in jail. Therefore, the death sentence requires to be commuted to life imprisonment. However, taking into account the barbaric and savage manner in which the offences of rape and murder were committed by the Appellant on a hapless
11 year old girl, the Appellant is sentenced to life imprisonment for a period of 30 years during which he shall not be granted remission. The conviction of the Appellant under Sections 363, 366A, 364, 346, 376D, 376A, 302, 201 of IPC and Section 5(g)
(m) read with Section 6 of the POCSO Act is upheld. [Paras 1719][16-H; 17-A; 18-A-E]
Dalbir Kaur v. State of Punjab (1976) 4 SCC 158 : [1977] 1 SCR 280; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498 : [2009] 9 SCR 90; Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : [2018] 14 SCR 585; Mofil Khan and Another v. The State of Jharkhand RP (Crl.) No.641 of 2015 in Crl. A. 1795 of 2009; (Rajendra) Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 460 : [2018] 14 SCR 585 – relied on.
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Bachan Singh v. State of Punjab (1980) 2 SCC 684; Machhi Singh v. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413; Mohd. Mannan @ Abdul Mannan v. State of Bihar (2019) 16 SCC 584 : [2019] 8 SCR 266 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.