Manoharan vs State by Inspector of Police, Variety Hall Police Station, Coimbatore

(g) & 201, IPC and death sentence by trial court and High Court – Present three-Judge Bench unanimously affirmed the conviction and by majority upheld the death sentence – Majority judgment upholding conviction and death penalty delivered by Surya Kant, J. (for Rohinton F. Nariman, J. and himself) – Minority judgment upholding conviction but awarding life sentence (till natural death) without remission / commutation delivered by Sanjiv Khanna, J. – Review Petitions – Held: Liable to be dismissed – Per Surya Kant, J. (for R.F. Nariman, J. and himself), held: Prosecution case was established through numerous evidences in addition to a clear confession proving petitioner’s guilt beyond any residual doubt – Conflicting versions were deposed by petitioner and defence witnesses, and no explanation to discharge onus u/s.106 of the Evidence Act was provided – Hence, it was not a case fit for application of theory of “residual doubt” – Just because the now deceased co-accused was the mastermind whose offence was comparatively more egregious, one cannot commute the otherwise barbarically shocking offences of the petitioner – Also, attempted retraction of confession by the petitioner showed how he was in fact remorseless – It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist – Offences of petitioner were so grave as to shock the conscience of the Court and of society and amounted to the rarest of the rare – No grounds to review judgment upholding his conviction and death penalty – Per Sanjiv Khanna, J., held: Reasons given by Surya Kant, J. in dismissing the review petition and upholding the conviction of petitioner are entirely agreed upon and concurred with – On the question of sentence, no good ground and reasons to review the observations and findings in the minority judgment – Penal Code, 1860 – ss. 302, 376(2)(f),

(g) & 201 – CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – ss.24 and 106.

Review – Scope of – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Scope of a review is more constrained than that of an appeal – A party cannot be allowed to re-urge the case on merits to effectively seek re-appreciation of evidence when the matter has already been decided earlier, even if on different grounds – Interference in the earlier judgement assailed in a Review is permissible only on the basis of an error apparent on the face of record or discovery of important new evidence which has a direct bearing on the ultimate outcome of the case and if not well appreciated, would cause manifest injustice.

Precedents – Verdicts with multiple opinions – Interpretation of – Dissenting opinions – Precedential value of – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Dissenting opinions have little precedential value and there is no difference in operation between decisions rendered unanimously or those tendered by majority, albeit with minority dissenting views – Jurisprudence. Confession – Validity – Voluntariness of a confession – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Cornerstone of a valid confession in India is only whether such a statement was made in compliance with statutory provisions which mandate that the same must be before the Magistrate after compliance with certain safeguards meant to ensure voluntariness and lack of coercion by the police – On facts, the Magistrate (PW-28) duly complied with all procedural requirements for recording of a confessional statement and affirmatively satisfied himself of the voluntariness of the petitioner’s confession – CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – s.24.

Confession – Retracted confession – Effect of – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]:: Even in the absence of an express provision for retracting a confessionary statement once made, the Courts have preferred a rule of prudence whereby in case of retraction, the Court reduces the probative value of such confessionary statements and seeks corroborating evidence – CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – s. 24.

Confession – Objective and use of – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Provisions permitting use of confessionary statements in criminal trials were statutorily included as an acknowledgement of the possibility that in certain circumstances an accused may voluntarily confess to his offence(s).

Sentence / Sentencing – Death penalty – Plea that death ought not to be awarded in cases of circumstantial evidence – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Not tenable – There can be no hard rule of not awarding death in cases based on circumstantial evidence – Criminal Law.

Sentence / Sentencing – Death penalty cases – Opportunity for oral arguments on the question of sentence – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: In cases of death penalty, since the punishment is irreversible and right to life u/Art.21 of the convict is violated, it is necessary to provide at least one opportunity for oral arguments on the question of sentence – Constitution of India, 1950 – Art. 21.

Sentence / Sentencing – Death penalty – Grounds for commutation – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Even observed devoid of any aggravating circumstances, mere young age and presence of aged parents cannot be grounds for commutation – One may view that such young age poses a continuous burden on the State and presents a longer risk to society, hence warranting more serious intervention by Courts. Code of Criminal Procedure, 1973 – s.164 – Defence plea regarding absence of a counsel during proceedings before the Magistrate u/s.164, CrPC resulting into prejudice – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: The plea is misconceived – s.164 CrPC does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s), except, when such confessional statement is recorded with audiovideo electronic means.

Dismissing the review petitions, the Court

HELD : [per Surya Kant, J. (for R.F. Nariman, J. and himself)]:

1. Scope of Review: The scope of Review even in death penalty cases is narrow and in various earlier decisions of the Supreme Court restrictive principles were applied and re-affirmed while considering the scope of review in death penalty cases. The scope of a Review is more constrained than that of an appeal. A party cannot be allowed to reurge the case on merits to effectively seek re-appreciation of evidence when the matter has already been decided earlier, even if on different grounds. Interference in the earlier judgement assailed in a Review is permissible only on the basis of an error apparent on the face of record or discovery of important new evidence which has a direct bearing on the ultimate outcome of the case and if not well appreciated, would cause manifest injustice. [Paras 18, 19, 20][1096-C; 1097-A-G; 1098-A-B]

Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India (2014) 9 SCC 737 : [2014] 11 SCR 1009 – followed.

Vikram Singh v. State of Punjab (2017) 8 SCC 518 : [2017] 8 SCR 177; Mukesh v. State of (NCT of Delhi) (2018) 8 SCC 149 : [2018] 7 SCR 898; Kamlesh Verma v. Mayawati (2013) 8 SCC 320 : [2013] 11 SCR 25 – relied on.

Manoharan v. State by Inspector of Police (2019) 7 SCC 716 – affirmed.

2. Voluntariness of Confession & Effect of Retraction

2.1. On a conjoint reading of the confessional scheme comprising of Sections 163, 164 CrPC and Section 24 Indian Evidence Act, it is obvious that even in the absence of an express provision for retracting a confessionary statement once made, the Courts have preferred a rule of prudence whereby in case of retraction, the Court reduces the probative value of such confessionary statements and seeks corroborating evidence. Hence, the cornerstone of a valid confession in India is only whether such a statement was made in compliance with statutory provisions which mandate that the same must be before the Magistrate after compliance with certain safeguards meant to ensure voluntariness and lack of coercion by the police. In the instant case, from a chronological analysis of the confessional statement of Petitioner dated 20.11.2010 (Ex.P.18) as well as the preliminary examination held on 19.11.2010, it is apparent that the Magistrate (PW-28) duly complied with all procedural requirements for recording of a confessional statement and affirmatively satisfied himself of the voluntariness of the petitioner’s confession. [Paras 23, 26][1099-B-D] Bharat v. State of U.P. (1971) 3 SCC 950 and Abdul Razak Murlaza Dafadar v. State of Maharashtra AIR 1970 SC 283 : [1970] 1 SCR 551 – relied on.

Shivappa v. State of Karnataka (1995) 2 SCC 76 : [1994] 6 Suppl. SCR 171; State of Assam v. Rabindra Nath Guha 1982Cri LJ 216 – referred to.

2.2. The confession, in the present case, was not challenged during stage of framing of charge or over the course of examination of forty-seven prosecution witnesses, but instead only partly disputed through a letter written in secret just before petitioner’s examination under Section 313 CrPC. Such retraction at the fag-end of the trial, was not natural but rather meticulously formulated, perhaps as a part of defence strategy. Hence, there remains no doubt about the voluntariness of the confession of 20.11.2010 or it being unaffected by subsequent retraction. That apart, even if the confession dated 20.11.2010 were to be treated as being retracted vide letter dated 25.07.2012 (as adopted during examination under Section 313 CrPC), still the original confession can be relied upon. Coupled with corroborating evidence, conviction can also be secured on the strength of such confession. Still further, it is clear that even in the retraction statement, the petitioner has made substantial admissions which read together with prosecution evidence, are sufficient to convict him. Through the letter dated 25.07.2012, the Petitioner merely restates his confession with certain omissions and a few denials as compared to his earlier statement. A comparison of the retraction with the confession dated 20.11.2010 further shows that it is merely an improvement. The Petitioner has admitted to all the general circumstances of the incident, i.e. having been present at the scene of all crimes, being friend of the co-accused and of the offences as claimed by the prosecution to have occurred. However, he merely contends that the crimes were committed by the co-accused and not by the Petitioner himself. Regardless thereto, there are sufficient inculpatory admissions in the letter dated 25.07.2012 to place a strong burden of proof on the Petitioner under Section 106 of the IEA. Moreover, the petitioner has not been convicted by the Courts below or this Court, solely on the basis of his confession made under Section 164 CrPC. The confession has been corroborated by enough evidence and it would not be a stretch to state that even independent of such confessional statement, this Court would nevertheless have reached a firm conclusion of guilt. [Paras 28, 29, 31 and 32][1102D-F; 1103-C-D; F-H]

Shankaria v. State of Rajasthan (1978) 3 SCC 435; Subramania Goundan v. State of Madras AIR 1958 SC

66 : [1958] SCR 428; Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094 : [1963] Suppl. SCR

689 – relied on.

3. Independent Re-appreciation of Evidence: The contention raised that this Court decided the appeal without independently re-appreciating all the material on record, cannot be accepted. This Court critically analysed all the material witnesses and documents exhibited on record which were referred to during the course of arguments. A careful examination of such evidence lead to a unanimous finding of guilt against the Petitioner. [Para 33][1104-A-B]

4. Plea of inadequacy of Legal Representation

4.1. Although it is correct that seven counsels refused to defend the Petitioner and there was a resolution by the bar to not take up his brief, but the Trial Court ensured the services of a legal aid counsel who ably conducted petitioner’s defence during the trial. In the present facts no prejudice has been caused to the petitioner for want of adequate or proper legal assistance. Not only did the High Court re-appreciate the entire evidence, but it also conducted another examination of the Petitioner under Section 313, CrPC. Furthermore, the High Court appointed a Senior Advocate, in addition to an Advocate, to provide the best legal services to the Petitioner. Similarly, in appeal, this Court both re-appreciated the evidence and ensured due legal representation. Even in the present Review, the petitioner’s interests are protected by a Senior Counsel and as a matter of abundant caution, this Court has also conducted an elaborate analysis. It is thus not found to be a case of deficient legal assistance, affecting the Petitioner’s rights under Article 21 of the Constitution. [Para 38, 39][1105-D, F-G; 1106-A]

4.2. The plea regarding absence of a counsel during proceedings before the Magistrate under section 164, CrPC resulting into any prejudice, are misconceived. What mandatorily is needed, is that the Magistrate must satisfy himself of the voluntariness of the statement and all the statutory safeguards which includes bringing the repercussions and the voluntariness of making confessions to the knowledge of the accused, must be meticulously complied with. Section 164 CrPC does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s), except, when such confessional statement is recorded with audio-video electronic means. [Paras 40, 41][1106-B-D]

Hussainara Khatoon v. State of Bihar (1980) 1 SCC

98 : [1979] 3 SCR 532; State v. Navjot Sandhu (2005)

11 SCC 600 : [2005] 2 Suppl. SCR 79 – referred to. Strickland v. Washington 466 U.S. 668 (1984) – referred to.

5. Allegations of discrepancies in arrest & recovery of evidence

The dispute re: the date of arrest is not only immaterial for determination of petitioner’s guilt in the present case, but otherwise also there is no substance therein. Analysis of the depositions prove that the underwear of the deceased girl (MO1) was recovered and sent for forensic examination without any tampering. The seal on the parcel containing the underwear was still intact when PW-49 received it for forensic examination. Furthermore, casting a doubt on the identification of MO-1 by the father of deceased (PW-1) is also baseless and holds no ground. Merely because PW-1 did not dress his daughter on the date of the incident does not imply that he would not recognize a piece of clothing of his daughter. PW-1 has clearly deposed that MO-1 belongs to his daughter. [Paras 43, 48 and 49][1106-G; 1108-G-H; 1109-A-B]

6. Plea of erroneous conviction under Section 376 IPC Considering the final opinion of PW-46 (who conducted autopsy on the body of the girl) that the girl was subjected to sexual assault; injury on the penis of petitioner; recovery of dead body of X without underwear; recovery of underwear from the Maruti Van; father of X recognising the underwear; finding hair on the recovered underwear and matching of DNA of hair with that of the petitioner, even in absence of the confessional statement of the petitioner, it is established the petitioner committed offence under Section 376 IPC. The petitioner is justly convicted for offence under Section 376 IPC. [Para 55] [1110-F-H]

7. Plea of erroneous reliance on POCSO

It was urged that this Court ought not to have relied on a recent amendment to the Protection of Children from Sexual Offences (POCSO) Act, 2012 to justify death penalty, as the new law was non-existent on the date of occurrence and hence cannot be applied retrospectively in derogation to Article 20 of the Constitution. Although the plea is attractive at first glance, it must be noted that the Petitioner has not been convicted or sentenced under the POCSO Act. Instead, only a passing reference was made to pinpoint whether the present case was rarest of the rare and whether it would shock the conscience of the society. [Paras 56, 57][1111-A-C]

Macchi Singh v. State of Punjab AIR 1983 SC 957 : [1983] 3 SCR 413; Suthenraraja v. State, (1999) 9 SCC

323 : [1999] 3 Suppl. SCR 540; Ravishankar v. State of Madhya Pradesh 2019 SCC OnLine SC 1290 –

referred to.

8. Sentencing

8.1.The contention that death ought not to be awarded in case of a single dissent, notwithstanding the opinion of the majority is unsupported in view of more than one decisions of this Court. Dissenting opinions have little precedential value and there is no difference in operation between decisions rendered unanimously or those tendered by majority, albeit with minority dissenting views. Nevertheless, this Court has re-visited the mitigating circumstances against aggravating circumstances, as well as a report commissioned by this Court during the course of appeal and submitted by the jail superintendent which reveals that the conduct of the Petitioner is merely satisfactory and he has not undertaken any study or anything else to show any signs of reformation. The prosecution case has been established through numerous evidences in addition to there being a clear confession, which proves the Petitioner’s guilt beyond any residual doubt. Conflicting versions have been deposed by the Petitioner and the defence witnesses, and no explanation to discharge the onus under Section 106 of the Evidence Act has been provided. Hence, it is not a case fit for application of the theory of “residual doubt”. Accordingly, even the contention that death ought not to be awarded considering that the present case is one involving circumstantial evidence is unfounded. There can be no hard rule of not awarding death in cases based on circumstantial evidence owing to recent developments in medical science and the possibility of abuse by seasoned criminals. [Paras 59-62][1112-C; 1113-A-F]

Devender Pal Singh v. State of NCT of Delhi (2003) 2 SCC 501 : [2002] 5 Suppl. SCR 332; Krishna Mochi v. State of Bihar (2002) 6 SCC 81 : [2002] 3 SCR 1 – relied on.

8.2. Furthermore, there is nothing to support the characterisation of the accused as being a helpless, illiterate young adult who is a victim of his socio-economic circumstances. Far from being so, it is clear through the version of events that the accused had the presence of mind to craft his own defence and attempt to retract his confession through an elaborately written eleven page letter addressed to the Magistrate and had further received adequate legal representation. [Para 63][1113-G]

8.3. The retraction was extremely belated and only a defence to shield himself. Further, medical evidence has proved that rape was committed on the deceased girl. It is hence factually incorrect to state that the Petitioner prevented the co-accused from raping the girl and is nothing more than a belated lie at the end of the trial. Hence, the exculpatory parts ought to be excluded. [Para 64][1114-A-B]

8.4. Even observed devoid of any aggravating

circumstances, mere young age and presence of aged parents cannot be grounds for commutation. One may view that such young age poses a continuous burden on the State and presents a longer risk to society, hence warranting more serious intervention by Courts. Similarly, just because the now deceased co-accused was the mastermind whose offence was comparatively more egregious, one cannot commute the otherwise barbarically shocking offences of the petitioner. The current crime was not just one offence, but comprised of multiple offences over the series of many hours. [Para 65][1114-C-D]

8.5. Even if the cases involving confession merit some leniency and compassion, however, as was earlier noted in the majority opinion, the attempted retraction of the statement shows how the petitioner was in fact remorseless. Such belated retractions further lay rise to the fear that any remorse or repentance being shown by the petitioner now may be temporary and that he can relapse to his old ways. Irrespective of the underlying reasons behind such retraction, whether it be the fear of death or feeling that he was not getting any benefit of his earlier confession, but the possibility of recidivism has only been heightened and one can no longer look at the initial confession in a vacuum. [Para 66][1114-E-F]

8.6. Rather, the present case is essentially one where two accused misused societal trust to hold as captive two innocent school-going children, one of whom was brutally raped and sodomised, and thereupon administered poison and finally, drowned by throwing them into a canal. It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist. The present offence(s) of the Petitioner are so grave as to shock the conscience of this Court and of society and would without doubt amount to rarest of the rare. There exist no grounds to review the judgment upholding conviction and death penalty. [Paras 67, 68][1114-G-H; 1115-A-B]

Nishi Kant Jha v. State of Bihar (1969) 1 SCC 347 : [1969] 1 SCR 1033 – relied on.

HELD : (Per Sanjiv Khanna, J.)

The reasons given by Surya Kant, J. in dismissing the review petitions upholding the conviction of the petitioner under Sections 302, 376(2)(f) and (g) and 201 of the Indian Penal Code are entirely agreed upon and concurred with. On the question of sentence, no good ground and reasons are seen to review the observations and findings in the minority judgment. [Para 1] [1115-C, D]