Penal Code, 1860: ss. 302, 376(2)(f), 377, 363, 364, 367 and 201 r/w ss. 3,4,5 (i) (l) and (m) of the Protection of Children from Sexual Offences Act, 2012 – Rape and murder of minor child – Conviction by trial court – Death sentence – High Court confirmed the conviction and sentence – Appeal to Supreme Court – Held: In view of the forensic reports along with extra-judicial confession made by the accused, conviction upheld – However, there is no material to show that the intention of the accused was to kill the victim – There is also no evidence to show any diabolic planning by the accused to commit the crime or that the murder was premeditated – Therefore, the case does not fall in the category of rarest of rare cases – The accused was also not defended effectively before the courts below – The accused neither sought nor was given the opportunity to place on record mitigating circumstances – Trial court imposed the extreme penalty of death sentence without considering as to whether there was no alternative to death sentence or that in absence of death sentence, the accused would be threat to society or whether the accused could be reformed – The accused has been denied an effective and meaningful hearing on the question of sentence u/s. 235(2) Cr.P.C.– Therefore death sentence is commuted to sentence of life imprisonment – Considering the heinous, revolting, abhorrent and despicable nature of the crime, accused is directed to undergo imprisonment for life, till his natural death without any remission of sentence – Sentence/Sentencing – Death sentence – Code of Criminal Procedure, 1973 – s. 235(2). Code of Criminal Procedure, 1973:
s. 235(2) – Scope of – Held: Provision u/s. 235(2) is not a mere formality and should be obeyed in letter and spirit – It is obligatory on the part of the trial Judge to hear the accused on the question of sentence and deal with it – For effective hearing u/s. 235(2) the suggestion that the court intends to impose death penalty should specifically be made to the accused, so as to enable the accused to make effective representation against death sentence, by placing mitigating circumstances before the Court – Even if such issues are not raised on behalf of accused, the court is obliged on its own to elicit facts relevant to the question of existence of miltigating circumstances – Sentence/Sentencing. Sentence/Sentencing:
Life imprisonment – Length of incarceration – Determination of – Held: It is open to the Court to prescribe the length of incarceration, especially in cases where death sentence has been replaced by life imprisonment.
Life imprisonment – Length of incarceration – Held: Life imprisonment means imprisonment for entire life. Allowing the appeals, the Court
HELD : 1. Even though, there is nothing in the evidence of any of the witnesses, except the evidence of PW-12 and PW18 and the weak evidence of the PW Nos. 4 and 5 purported to be corroborated by PW-10, to prove the accused-appellant guilty of the offences alleged, the forensic reports along with the extrajudicial confession made by the accused-appellant to his wife PW18, clearly establishes the guilt of the accused-appellant. The examination of the reports of the Directorate of Forensic Laboratories, being Ex. No. 22 to 25 and in particular the examination report in Ex.25 indicates that DNA profile of the blood detected on the plastic bag and the clothes and those obtained from the nails of the victim are identical and are from one and the same source of female origin. The DNA profile of semen detected on the underwear (Bermudas), the bedsheet, vaginal swab and anal swab of the victim are identical and from one and the same source of male origin. The DNA analysis establishes beyond reasonable doubt that the victim was raped by the accused-appellant. Therefore, the conviction of the accused-appellant for the offences under Sections 302, 376(2)(f),
377 of the IPC read with Sections 3, 4 and 5 of the POCSO is confirmed. [Paras 85, 86 and 96] [322-B-E; 324-G]
2.1 In the present case, there is no evidence at all of any diabolic planning to commit the crime though the crime was undoubtedly cruel and heinous. The circumstances in which the victim entered the tenement of the accused-appellant are not known. There is no evidence to show that the accused-appellant took the victim to his tenement. Though unlikely, she might even have gone to his tenement on her own. [Para 122] [336-E]
2.2 As a mature man, over fifty years of age, the accusedappellant should have known that the rape of a five year old child by an adult was dangerous and could lead to such injuries, as was in all probability likely to cause death. The death of the deceased victim was not caused under any provocation, not to speak of sudden provocation. No such defence has been taken by the accused-appellant. Nor is it anybody’s case that the death was caused in legitimate exercise in good faith of any right of the accused-appellant, whether of private defence or otherwise. The totality of the injuries support the finding of the Trial Court and the First Appellate Court that the accused-appellant murdered the deceased victim. Though the act of the accused squarely amounts to rape and murder, there is not a scrap of material to show that the intention of the accused-appellant was to kill the minor child. [Paras 125, 126 and 127] [337-B-D]
2.3 The doctor who had prepared the post mortem report opined that the cause of death was asphyxia due to smothering, associated with head injuries and sexual assault. He deposed that all the 5 injuries were possible by repeated sexual acts and forceful penetration. He opined that all the injuries were sufficient to cause instant death in the ordinary course. However, in view of the evidence of the post mortem report it would be appropriate to modify the sentence by reducing the same to imprisonment for life. [Paras 128 and 130] [337-E, H]
2.4 There can be no doubt that rape and murder of a 5 years old girl shocks the conscience. It is barbaric. There is, however, no evidence to support the finding that the murder was premeditated. The petitioner did not carry any weapon. The possibility that the accused-appellant might not have realized that his act could lead to death cannot altogether be ruled out. Moreover, the Trial Court has apparently not considered the question of whether the crime is the rarest of rare crimes. [Para 131] [338-A-B]
2.5 The present case does not fall in the category of the rarest of rare cases. Moreover, the accused-appellant was not defended effectively. The lawyer representing the accusedappellant only pleaded not guilty, emphasizing that there was no eye witness to the incident and sought leniency only on the ground of the age of the accused-appellant which was 53 years. The accused-appellant neither sought nor was given the opportunity to file any affidavit placing on record relevant mitigating circumstances. The legal assistance availed by the accusedappellant was patently not satisfactory and he was not accompanied by a social worker. No attempt was made to place on record mitigating circumstances. No argument was advanced to the effect that there was no similar case against the accused-appellant. [Paras 136 and 137] [338-G-H; 339-A-B]
2.6 Considering the nature of the crime against a five year old child, the Trial Court imposed the extreme penalty of death without deciding the question of whether there was no alternative to imposing death sentence on the accused-appellant. There is no finding that in the absence of death sentence, the accusedappellant would continue to be a threat to the society. The question of whether the accused-appellant could be reformed, had not at all been considered. [Para 138] [339-C]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 – followed.
Rajesh Kumar v. State (through Govt. of NCT of Delhi) (2011) 13 SCC 706 Machhi Singh & Others v. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413 ; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ; Ajay Pandit and Another v. State of Maharashtra (2012)
8 SCC 43 : [2012] 10 SCR 70 ; Mohinder Singh v. State of Punjab (2013) 3 SCC 294 : [2013] 3 SCR 90 ; Panchhi and Others v. State of U.P. (1998) 7 SCC
177 : [1998] 1 Suppl. SCR 40 ; Bantu v. State of M.P. (2001) 9 SCC 615 ; Amit v. State of Maharashtra (2003)
8 SCC 93 : [2003] 2 Suppl. SCR 285 ; Rahul v. State of Maharashtra (2005) 10 SCC 322 ; Surendra Pal Shivbalakpal v. State of Gujarat (2005) 3 SCC 127 : [2004] 4 Suppl. SCR 464 ; Mukesh and Another v. State (NCT of Delhi) and Others (2017) 3 SCC 717 ; Mohd. Manan @ Abdul Mannan v. State of Bihar
2019 AIR 2934 Haru Ghosh v. State of West Bengal (2009) 15 SCC 551 : [2009] 13 SCR 847 ; Lehna v. State of Haryana (2002) 3 SCC 76 : [2002] 1 SCR
377 ; Rajendra Prahladrao Wasnik v. State of Maharashtra Review Petition (Crl.) No. 306-307 of 2013 – relied on.
3.1 Section 235(2) CrPC is not a mere formality. It is obligatory on the part of the trial Judge to hear the accused on the question of sentence and deal with it. The mandate of Section 235(2) CrPC had to be obeyed in letter and spirit. [Paras 103 and 105] [327-E; 329-D]
Santa Singh v. State of Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229 ; Dagdu and Others v. State of Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636 – relied on.
3.2 Irrespective of whether these issues were raised on behalf of the accused, the Court is obliged on its own to elicit facts relevant to the question of existence of mitigating circumstances. The Court made no attempt to elicit any facts relevant to the sentence. For effective hearing under Section 235(2) Cr.P.C., the suggestion that the court intends to impose death penalty should specifically be made to the accused, to enable the accused to make an effective representation against death sentence, by placing mitigating circumstances before the Court. This has not been done in the present case. The Trial Court made no attempt to elicit relevant facts, nor did the Trial Court give any opportunity to the petitioner to file an affidavit placing on record mitigating factors. As such the petitioner has been denied an effective and meaningful hearing on the question of sentence under Section 235(2) of the Cr.P.C. The death sentence imposed on the petitioner is liable to be commuted to life imprisonment on this ground. [Paras 139, 140 and 141] [339-D-G]
4. It is open to the Court to prescribe the length of incarceration. This is especially true in cases where death sentence has been replaced by the life imprisonment. Even though life imprisonment means imprisonment for entire life, convicts are often granted reprieve and/or remission of sentence after imprisonment of not less than 14 years. Considering the heinous, revolting, abhorrent and despicable nature of the crime committed by the appellant, the appellant should undergo imprisonment for life, till his natural death and no remission of sentence be granted to him. [Paras 143 and 144] [340-A-C] Mulla and Another v. State of U.P. (2010) 3 SCC 508 : [2010] 2 SCR 633 – relied on.
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.
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