Sentence / Sentencing – Death Sentence – Rarest of Rare case – Kidnapping, rape and murder of a seven-and-a-half-year old mentally and physically challenged girl – Case of circumstantial evidence – Trial Court found appellant-accused guilty and imposed death sentence u/s. 302 IPC – High Court found it to be a ‘rarest of rare case’ and upheld the conviction and death sentence – Appeal before the Supreme Court on two issues – First, whether concurrent findings of fact required interference – Second, whether death sentence be maintained or substituted by any other sentence – Held: On facts, the chain is so complete in itself that no stretch of imagination could take the court to any other hypothesis except the guilt of the appellant in relation to the offences charged – Hence, the concurrent findings of the trial court and the High Court holding appellant guilty are imminently just and proper; and call for no interference whatsoever – Insofar as sentence is concerned, in the present case, the crime had been of extreme depravity, which shocks the conscience, particularly looking to the target (a seven-and-ahalf-year old mentally and physically challenged girl) and then, looking to the manner of committing murder, where the hapless victim’s head was literally smashed, resulting in multiple injuries including fracture of frontal bone – This is apart from the facts that the innocent victim was kidnapped on a stolen motorcycle by misusing the trust gained by offer of confectionary items and also, apart from the fact that she was brutally and inhumanly raped – Taking up the test parameters pertaining to the criminal (i.e., the appellant), of course, he has a family with wife and minor daughter and aged father and the crime was committed when he was only 28 years of age – However, these mitigating factors are pitted against several other factors pertaining to the appellant himself – One, being of his activities and actions before the present crime where he was found involved in at least four cases with offences ranging from s.3 of Prevention of Damage to Public Property Act, 1984, s.379 IPC and even s.307 IPC – Second, being the fact that the present crime itself was carried out with the aid of a stolen motorcycle – Third, and crucial one being his conduct post-conviction where he not only earned 7 days’ punishment in jail for quarrelling with a coinmate but he has also been convicted of the offence of murder of another jail inmate – A fortiori, there appears no probability of his reformation and rehabilitation – This possibility of the appellant relapsing in the same crime over again and nil probability of his reformation/rehabilitation is a direct challenge as also danger to the maintenance of order in the society – Consequently, it is a case of no other option but to confirm the death sentence awarded to the appellant – Penal Code 1860 – ss. 302, 363, 365 and 376(2)(f). Sentence / Sentencing – Death Sentence – Evolution of principles and norms – Discussed – Code of Criminal Procedure, 1973 – ss.235 and 354.
Sentence / Sentencing – Death Sentence – Rarest of rare doctrine – Effect, if any, of death sentence being awarded and maintained only in extreme cases – Held: Even though rarest of rare doctrine and its accompanying principles, as enunciated and explained in Bachan Singh and Machhi Singh cases, have been almost uniformly applied by Courts in the country while dealing with the question of sentencing when the statute provides for death penalty; and over the time, even the proposition of larger/longer term of actual imprisonment with no remission or curtailed remission has also evolved but, it has never been the effort of the Courts to somehow make the punishment of death sentence redundant and non-existent for all practical purposes – The quest for justice in such cases, with death sentence being awarded and maintained only in extreme cases, does not mean that the matter would be approached and examined in the manner that death sentence has be avoided, even if the matter indeed calls for such a punishment – The judicial process would be compromising on its objectivity if the approach is to nullify the statutory provision carrying death sentence as an alternative punishment for major offences (like that of s.302 IPC), even after it has passed muster of judicial scrutiny and has been held not unconstitutional – The pursuit in collecting mitigating circumstances could also not be taken up with any notion or idea that somehow, some factor be found; or if not found, be deduced anyhow so that the sentence of death be forsaken – Such an approach would be unrealistic, unwarranted and rather not upholding the rule of law – Rule of law.
Sentence / Sentencing – Death Sentence – Post-conviction conduct – Relevance – Held: Courts have refrained from awarding or approving death sentence even in cases of gruesome killings, essentially on the premise that even a semblance of probability of reformation of the convict ought to be given a chance, rather than awarding capital punishment, which is of irretrievable nature – In this regard, the jail conduct of the convict carries its own bearing and relevance in the overall consideration; and the Supreme Court has leaned in favour of commuting the sentence of death to that of imprisonment for life in case of unblemished jail conduct, even if the crime itself had been of gruesome or abhorrent nature.
Sentence / Sentencing – Psychological evaluation report – Report on likelihood of reformation and rehabilitation – When may be called for – Held: In appropriate cases, after conviction, the Court may call for report to determine whether the accused could be reformed or rehabilitated; and it would depend on the facts and circumstances of each case – There cannot be any universal formula for calling for such a report – In the present case, where the appellant-convict was incessantly indulged in criminal activities before the crime in question; carried out gruesome deeds of the present crime; was further involved in questionable jail conduct, including quarrelling with a fellow inmate and earning 7 days’ punishment; and then also involved in murder of another jail inmate, calling for any further report of the likelihood of reformation and rehabilitation of the appellant could be proposed only if the judicial process is determined to annul the death sentence altogether, by finding one way or the other to avoid the same in every case – Such an approach would be counter-productive to the entire system of maintenance of order in the society and would strike at the roots of the rule of law – In the circumstances of the present case, the suggestions about calling for any so-called psychological evaluation report could only be termed as impractical and unrealistic and could only be rejected.
Sentence / Sentencing – Sentencing principles – Crime and criminal tests – Aggravating and Mitigating circumstances – Discussed.
Criminal jurisprudence – Case of circumstantial evidence – Theory of residual doubt – If available for the purpose of sentencing – Held: In a case based on circumstantial evidence, the conclusion of guilt is recorded only after the circumstances are found to be forming an unbreakable chain, so consistent as to rule out any other hypothesis except the guilt of the accused – These being stringent norms, as followed consistently by the Courts based on the panchsheel principles expounded in Sharad Birdhichand Sarda, and requirement being of the proof of the case beyond reasonable doubt, theoretically there is no scope for any ‘residual doubt’ operating even in the cases of circumstantial evidence – The cases in which theory of residual doubt has at all been referred, had been standing on their own facts, where alternative to death sentence was considered appropriate – However, while taking up the matter for sentencing, it is not expected to reopen the chain of circumstantial evidence to find any weak link which may fall in the category of residual doubt – If at all any such doubt is reasonably existing, the very basis of conviction would be in question – After the final conclusion on the guilt and after pronouncing conviction, no concept of residual doubt as such is available for the purpose of sentencing – Sentence / Sentencing.
Dismissing the appeals, the Court
HELD: 1. Having examined the post-mortem report and the testimonies of the doctors conducting post-mortem, it is clear that even by distortion of language occurring in their testimonies, it cannot be deduced that there was any doubt or difference of opinion in the Medical Board about the cause of death. In other words, the doctors had been clear, categorical and consistent that the victim girl died due to the injuries caused on her head. [Para 37.2.2][810-G-H]
2. The facts and factors established beyond doubt on record forming the complete chain of circumstances are that: a) the deceased was seven-and-a-half-years old mentally and physically challenged girl; b) the deceased was last seen with the appellant when he kidnapped her from the lawful guardianship of her parents; c) the appellant was arrested within about 7½ hours of kidnap; d) the clothes worn by the appellant were bloodstained, which were seized and sealed; e) after about 1½ hours of his arrest, the dead body of the victim girl was recovered at a faraway place on the disclosure and information of the appellant; f) the motorcycle used by the appellant and the frock worn by the victim girl were also recovered at a faraway place at the disclosure and information of the appellant; g) the appellant failed to account for his own whereabouts as also the whereabouts of the victim girl since after the time of kidnap; h) the appellant also failed to show the reason of his knowledge about the place/places where the dead body, the motorcycle and the frock were recovered; i) as per the evidence on record, it had been a case of brutal rape (with gruesome injuries on and around private parts) and merciless killing (with horrific injuries on head) of the victim girl; j) the victim died due to the injuries on her head; k) the DNA profile of blood collected from the person and clothing of the victim girl matched with the DNA profile of blood found on the coat, pant and shirt of the appellant and on the motorcycle. This chain is so complete in itself that no stretch of imagination could take this Court to any other hypothesis except the guilt of the appellant in relation to the offences charged. Hence, the concurrent findings of the Trial Court and the High Court holding the appellant guilty are imminently just and proper; and call for no interference whatsoever. [Para 39][812-B-F; 813-A]
3. The present case of circumstantial evidence answers to the panchsheel principles of Sharad Birdhichand Sarda of proving a case based on circumstantial evidence. The appellant was rightly convicted by the Trial Court and his conviction has rightly been maintained by the High Court. The prosecution has been able to prove its case beyond reasonable doubt, rather beyond any doubt whatsoever. The chain of circumstances projected by the prosecution is complete in its entirety and leads only to the result that the appellant had been the person who kidnapped, raped and murdered the victim, seven-and-a-half-years old mentally and physically challenged girl. Hence, the concurrent findings leading to conviction of the appellant deserve to be confirmed. [Para 40][813-F-H]
4. The Trial Court had scrupulously carried out its duty in terms of Section 235(2) CrPC. The judgment of conviction was pronounced on 28.09.2013 and the question of sentence was taken up 3 clear days later, i.e., on 01.10.2013; and the death sentence was awarded only after duly hearing the accused-appellant, after duly taking into consideration the aggravating and mitigating factors, and while duly recording special reasons. [Para 50.1][848A-B]
5. The heinous nature of the crime, like that of the present one, in brutal rape and killing of a mentally and physically challenged girl, who was only about seven-and-a-half-year-old, definitely carries excessively aggravating circumstances, particularly when the manner of commission of both the major offences of rape and murder shows depravity of highest order and would ex facie shock anyone’s conscience. The horrific manner of killing the victim, by causing ghastly head injuries had been nothing less than beastly conduct of the appellant. However, gruesome nature of the action and the crime, by itself, may not be decisive, particularly as regards the question of capital punishment. Thus, the other relevant factors need to be cautiously examined, particularly those of the tests pertaining to the criminal himself. [Para 50.2][848-C-D]
6. The appellant was 28 years of age at the time of commission of crime and was having family comprising of his wife, an eight-year-old daughter and parents. He is not shown to be coming from any affluent background but, at the same time, it is also not shown if he comes from a very poor socio-economic background. Taken as a whole, these factors of the age, family and socio-economic background of the appellant are not so clinching as to overwhelm and override the aggravating factors. Then, the pertinent question is as to whether there exists a reasonable probability of reformation and rehabilitation of the appellant? If the answer to this material question is in the affirmative, it may have bearing upon the test to find if the case falls in rarest of rare category. But, if there are factors which operate against affirmative answer to this question on the probability of reformation and rehabilitation, the aggravating circumstances would assuredly outweigh the mitigating circumstances warranting capital punishment. [Paras 50.3 and 50.3.1][848-E-G]
7. The present case had been of extreme inhumane acts and actions of the appellant where, amongst other offending acts and actions, he (1) kidnapped the victim girl, who was only 7½ years of age, who was even otherwise a mentally and physically challenged child, with betrayal of trust when the victim girl got lured with confectionary items given by him; (2) brutally raped the victim girl, as noticeable from the gruesome injuries on and around her private parts and as established by the medical officers who conducted post-mortem; and (3) mercilessly killed the victim girl by causing horrid injuries on her head, as established not only by the doctors but also by the surrounding facts, including bloodstains on the scene of crime, on the motorcycle, and on the clothing of the appellant at the time of his arrest. On the personal score, even though the appellant was about 28 years of age and was having the family of wife, a daughter who was also about 8 years of age and aged parents, he was continuously involved in criminal activities. Even if the other past cases are left aside, he committed the crimes in question by using a stolen motorcycle. The tremors thrown by the appellant to shock anyone’s conscience with his beastly conduct have not stopped even with this inhumane crime and even after his conviction. [Paras 51 & 51.1][850-A-E]
8. In the present case, the further shocking and disturbing factor is that even while in jail, the appellant’s conduct has not been free from blemish where, apart from quarrelling with other inmate on 17.04.2015 and earning 7 days’ punishment, the appellant had been accused and convicted of the offence of yet another murder, this time of a co-inmate of the jail, while joining hands with three other inmates. A perusal of the material placed on record makes it clear that the appellant, with three other jail inmates, has been convicted by the Trial Court of the offence under Section 302/34 IPC for murder of another jail inmate, who was a Pakistani national in the high security cell of the prison; and that the appellant has been awarded the sentence of imprisonment for life. Though it has been pointed out that an appeal against the said decision is pending and no comments on the merits of that case is made at all but, the appellant’s culpable conduct in jail compels the Court to ponder over the question as to whether it would be realistic to believe on the probability of his reformation and rehabilitation yet. [Paras 52 and 53][851-AF]
9. In the present case, where all the elements surrounding the offence as also all the elements surrounding the offender cut across the balance sheet of aggravating and mitigating circumstances, there is absolutely no reason to commute the sentence of death to any other sentence of lesser degree. Even the alternative of awarding the sentence of imprisonment for whole of the natural life with no remission does not appear justified in view of the nature of crimes committed by the appellant and looking to his incorrigible conduct. The facts of the present case, taken as a whole, make it clear that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again. Consequently, The Court find it to be a case of no other option but to confirm the death sentence awarded to the appellant, for that being inevitable in this particular case. These appeals are dismissed; conviction of the appellant of offences under Sections 363, 365, 376(2)(f), 302 of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 is confirmed; and the sentences awarded to the appellant, including the death sentence for the offence under Section 302 of the Indian Penal Code, 1860, are also confirmed. [Paras 57 and 60][853-E-F; 854-G]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 – followed.
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116: [1985] 1 SCR 88 – relied on.
Viran Gyanlal Rajput v. State of Maharashtra (2019) 2 SCC 311; Babasaheb Maruti Kamble v. State of
Maharashtra (2019) 13 SCC 640; Nand Kishore v. State of Madhya Pradesh (2019) 16 SCC 278 : [ 2019]
1 SCR 260 ; Central Bureau of Investigation v. Sakru Mahagu Binjewar & Ors. (2019) 20 SCC 102; Machhi Singh & Ors. 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; Shatrughna Baban Meshram v. State of Maharashtra (2021) 1 SCC 596 ; Kamta Tiwari v. State of M.P. (1996) 6 SCC 250 : [1996] Suppl. SCR 507 ; Vasanta Sampat Dupare v. State of Maharashtra (2015) 1 SCC 253 : [2014] 14 SCR 961 ; Swamy
Shraddananda (2) v. State of Karnataka (2008) 13 SCC
767 : [2008] 11 SCR 93 ; Pappu v. The State of Uttar Pradesh Criminal Appeal Nos. 1097-1098 of 2018 decided on 09.02.2022 2022 (3) SCALE 45; Rajendra Prasad v. State of Uttar Pradesh (1979) 3 SCC 646: [1979] 3 SCR 78 ; Mithu v. State of Punjab (1983) 2 SCC 277 : [1983] 2 SCR 690; Shankar Kisanrao
Khade v. State of Maharashtra (2013) 5 SCC 546 : [2013] 6 SCR 949 ; Union of India v. V. Sriharan Alias Muruganand Ors. (2016) 7 SCC 1 : [2015] 14 SCR 613 ; Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 460 : [2018] 14 SCR 585; Jagmohan Singh v. The State of U.P [1973] 2 SCR 541;
Ravishankar Alias Baba Vishwakarma v. State of Madhya Pradesh (2019) 9 SCC 689 : [2019]
14 SCR 285; Shatrughna Baban Meshram v. State of Maharashtra (2021) 1 SCC 596 ; Ashok Debbarma
Alias Achak Debbarma v. State of Tripura (2014) 4 SCC 747: [2014] 4 SCR 287 and Anil @ Anthony Arikswamy Joseph v. State of Maharashtra 2014 (4) SCC 69 : [2014] 3 SCR 34 – 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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