Penal Code, 1860: ss. 302, 376, 364, 366A and 201 – Rape and murder – Prosecution case that accused raped and murdered a five year old girl, and then disposed of her body, tied in a gunny bag, into the stream – Conviction and sentence for commission of offence u/s. 302, 376, 364, 366A and 201 – Upheld by the High Court – On appeal, held: On overall view of the evidence and witness statements adduced by the prosecution, the chain of circumstances affirmatively establishes the guilt of the appellant – Contradictions and inconsistencies highlighted in the prosecution’s case, do not create a reasonable doubt – Circumstances relied upon are fully established – They are conclusive in nature and tendency – Chain of evidence is so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the appellant – Facts established consistent only with the hypothesis of the guilt of the accused and exclude every hypothesis except the one proved – Thus, the order of the courts below convicting the appellant for offences u/s. 302, 376, 364, 366A and 201 upheld.
Sentence/Sentencing: Death sentence – Imposition of – Commission of rape and murder of 5 year old – Conviction and sentence of the appellant for the offences u/ss. 302, 376, 364, 366A and 201 – Commutation of sentence of death imposed – Held: There is hope for reformation and rehabilitation – There are sufficient mitigating factors to commute the sentence of death imposed by the courts below into imprisonment for life – Young age of the appellant at the time of commission of the offence (23/25 years), his weak socio-economic background, absence of any criminal antecedents, non pre-meditated nature of the crime, and that the accused has spent nearly 10 years 10 months in prison are other extenuating factors – No doubt the appellant has committed an abhorrent crime, incarceration for life would serve as sufficient punishment and penitence for his actions – Thus, death sentence commuted to imprisonment for life – However, the appellant not entitled to premature release/remission for the offence u/s. 302 until he has undergone actual imprisonment for at least thirty years.
Code of Criminal Procedure, 1973: s. 235(2) – Infraction of – Plea of appellant-accused that by passing a common order on conviction and sentencing, the High Court contravened by not hearing the petitioner separately on sentencing – Held: Adequate and sufficient opportunity has been afforded to the appellant to place all the relevant materials on record.
Disposing of the appeals, the Court
HELD: 1.1 On an overall view of the evidence and witness statements adduced by the prosecution, the chain of circumstances affirmatively establishes the guilt of the appellant. Though the counsel for the appellant has painstakingly sought to highlight contradictions and inconsistencies in the prosecution’s case, it is believed that the same do not create a reasonable doubt in the mind of this Court. The five-fold test prescribed in Sharad Birdhichand Sarda’s case are satisfied as the circumstances relied upon are fully established; they are conclusive in nature and tendency; the chain of evidence is so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the appellant; the facts established are consistent only with the hypothesis of the guilt of the accused and exclude every hypothesis except the one proved. The decision of the High Court as well as the District and Sessions Court convicting the appellant for rape and murder of R etc., thus, is upheld. [Para 21][67-G-H; 68-A-B]
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 – relied on.
1.2 The defence is entitled to rely upon contradictions in ocular evidence furnished by the eye-witnesses and highlight any incongruity between their versions and the prosecution’s case. It is not a universally affirmed position that the witnesses must be confronted by the defence to seek advantage of the contradictions. [Para 12][64-D]
1.3 On the aspect that PW-7, PW-8, PW-9 and PW-10 are planted witnesses, at first the site map is taken note of which indicates the place/location where PW-7 resides and also the pathway from the village to the stream, which is about a kilometre long. PW-15 has deposed that there being waste shrubs next to his field on the banks of the stream, it was difficult to go to the stream through the shrubs. Next to his land, lie the fields belonging to others, beyond which there was a graveyard where people did not usually visit at odd hours. Secondly, there are good and sound reasons to believe that the date 30th December 2010 deposed to by PW- 8, PW-9 and PW-10 is on account of failure to recollect the exact date when they had seen the appellant with a gunny bag and the girl on his shoulder, and not on account of false deposition on the factum that the appellant was seen carrying the child at about 8:30 p.m. The witnesses are village residents and as their evidence was recorded nearly a year after the occurrence, they may not have possibly remembered the date of sighting, for the reason that dates, especially those in the Gregorian calendar, may not be of much relevance or consequence in the rural areas. [Para 13, 14][64-E-H; 65-A-B]
1.4 On 29th December 2010, PW-4 had filed a missing person report at about 5:00 p.m. On 30th December 2010, the parents of R, PW-1 and PW-19 had also reached the village. In case PW-8, PW-9 and PW-10 had seen the appellant carrying the girl child on his shoulder on 30th December 2010, they would have immediately accosted him and questioned him about the girl, for by then the disappearance of R had become common knowledge for all villagers. Therefore, the date on which PW-8, PW-9 and PW-10 saw the appellant with the small girl on his shoulder was not 30th December 2010. Rather, 30th December 2010 was the date on which these witnesses had informed other villagers that they had seen the appellant carrying a small girl on his shoulder about two days earlier. On a careful scrutiny of the statements made by PW-8, PW-9 and PW-10, it becomes apparent that they had met PW-1 on 30th December 2010 and informed him about their sighting. The inconsistency of dates, thus, can be explained as inadvertence or strained memory due to passage of time, not resulting in displacing the case against the appellant that the prosecution has made out. [Para 15][65-B-F]
1.5 There is no room left for doubt that recovery of the dead body of R was based on the appellant’s statement. The dead body was concealed in a gunny bag with two stones and immersed in the stream which had about midriff-high water. The fact that PW-9 and PW-10 had deposed on almost identical lines does not, in any way, reflect a discrepancy, but rather a possible lapse on the part of the court recording their evidence. [Para 16][65-G-H; 66-A]
2.1 The impugned judgment reveals extensive study of case-law on part of the High Court in considering the death sentence imposed by the trial court. On an overall view of the facts and circumstances of the matter, the High Court was of the opinion that the sentence of death should be confirmed, that there were no mitigating circumstances to be found, and that there were many aggravating circumstances as the appellant was known to R, who reposed complete trust and faith in him and willingly allowed him to take her along, but she was raped and murdered in the most gruesome manner and her body was dumped into the stream. The motivation of the appellant, the vulnerability of the deceased R, the enormity of the crime and the execution thereof, the Court considered the case as falling in the “rarest of the rare” category, and warranting the sentence of death to deter others from committing atrocious crimes, and to give emphatic expression to society’s abhorrence of such crimes. [Para 23][68D-G]
2.2 The statement of objection filed by the respondent State seeks to draw force from the observations of the High Court. In addition, the respondent State has defended the death sentence on the grounds that the actions of the appellant constitute a grave and uncommon crime endangering the moral fabric of the society. The submission is that the matter falls in the category of ‘rarest of the rare’ cases as the appellant, under the pretext of giving biscuits, committed rape and murder of a five-year old girl, and threw her dead body into the stream. The deceased R could not have provided resistance, much less provocation for the crime. Relying on the data compiled by the National Crime Records Bureau which shows that an average of 77 acts of rape were committed daily in India in the year 2020, the counsel has sought a deterrent penalty for the actions of the appellant. [Para 25][70C-E]
2.3 As regards the plea that there has been violation of s. 235(2) of the Code of Criminal Procedure, which mandates that the accused must be heard, in light of the principle laid down in Dagdu’s case, adequate and sufficient opportunity has been afforded to the appellant to place all the relevant materials on record. [Para 26][70-F-G; 71-D]
2.4 The trial court recorded that the death sentence was awarded on the ground that “the crime was committed in an extremely diabolical manner and that it was cruel, barbaric and revolting.” It has been rightly pointed out that the trial court merely noticed that the appellant was of young age (23 / 25 years) belonging to a very poor family, but did not consider these as mitigating factors. The High Court noted that there are no mitigating circumstances at all. This observation is incorrect. To begin with, it is clear that the appellant had no criminal antecedents, nor was any evidence presented to prove that the commission of the offence was pre- planned. There is no material shown by the State to indicate that the appellant cannot be reformed and is a continuing threat to the society. On the contrary, it can be seen from the Death Sentence Prisoner Nominal Roll issued by the Chief Superintendent, Central Prison, that the conduct of the appellant in jail has been ‘satisfactory’. The appellant’s conduct in prison would be considered as expiation for his past deeds, also reflecting his desire to reform and take a humane turn. Furthermore, the young age of the appellant at the time of commission of the offence (23/25 years), his weak socioeconomic background, absence of any criminal antecedents, non pre-meditated nature of the crime, and the fact that he has spent nearly 10 years 10 months in prison have weighed with as other extenuating factors, which add up against imposition of death penalty which is to be inflicted only in rarest of the rare cases. The respondent State has not shown anything to prove the likelihood that the appellant would commit acts of violence as a continuing threat to society; per contra, his conduct in the prison has been described as satisfactory. There is no doubt that the appellant has committed an abhorrent crime, and for this it is believed that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life would also ward off any such threat. It is believed that there is hope for reformation, rehabilitation, and thus the option of imprisonment for life is certainly not foreclosed and therefore acceptable. [Para 28][72-D-G; 73-A-D]
2.5 There are sufficient mitigating factors to commute the sentence of death imposed by the Sessions Court and confirmed by the High Court into imprisonment for life, with the direction that the appellant would not be entitled to premature release/remission for the offence under Section 302 of the Penal Code until he has undergone actual imprisonment for at least thirty
(30) years. While maintaining other sentences, it is directed that the sentences shall run concurrently and not consecutively, as the appellant has been sentenced to imprisonment for life for the offence under section 376 of the Code, which sentence is also imposed for the offence under section 302 of the Code. [Para 29] [73-D-F]
2.6 The conviction of the appellant for the offences under Sections 302, 376, 364, 366A and 201 of the Code and the sentences awarded for the offences under Sections 376, 364, 366A and 201 of the Code is upheld. The death sentence is commuted to that of life imprisonment with the stipulation that the appellant would not be entitled to premature release/remission before undergoing actual imprisonment of 30 years for the offence under Section 302 of the Code and further the sentences awarded would run concurrently and not consecutively. [Para 30][73-F-G; 74-A] Shanti Devi v. State of Rajasthan (2012) 12 SCC 158 : [2012] 9 SCR 226; Ranjit Kumar Haldar v. State of Sikkim (2019) 7 SCC 684 : [2019] 9 SCR 754; 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; Shatrughna Baban Meshram v. State of Maharashtra (2021) 1 SCC 596; Bantu alias Naresh Giri v. State of Madhya Pradesh (2001) 9 SCC 615 : [2001] 4 Suppl. SCR 298;
Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652 : [2015] 5 SCR 1112; Mulla v. State of U.P. (2010) 3 SCC 508 : [2010] 2 SCR 633; Mohan v. State of T.N. (1998) 5 SCC 336 : [1998] 3 SCR 317; Akhtar v. State of UP (1999) 6 SCC 60; Union of India v. V. Sriharan alias Murugan and Others (2016) 7 SCC
1 : [2015] 14 SCR 613.
Modi’s Textbook of Medical Jurisprudence and
Toxicology, 25th edition (2016), Chapter XV – ‘Post Mortem Changes and Time of Death’. pg 352 – 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.
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