Penal Code, 1860 – Ss. 302, 376(2)(i), 376(2)(m), 363, 366, 376A – Protection of Children from Sexual Offences Act, 2012 (POCSO) – ss. 5 (i), 5 (m), 6 – Evidence Act, 1872 – s. 106 – Code of Criminal Procedure, 1973 – ss. 304, 313 – Rape and sexual assault on the young child-victim – Appellant-accused along with one another accused person was convicted for death sentence and life imprisonment, respectively, by the trial court for the offences u/ss. 302, 376(2)(i), 376(2)(m), 363, 366 IPC r/w. s. 5(i) r/w. s. 6 and s.5(m) r/w. s. 6 of the POCSO Act – High Court, while dismissing the appeal, affirmed the order of conviction by trial court regarding the appellant herein but acquitted the other accused person – Appellant has, thus, preferred the present appeal – Whether the trial had been conducted in a fair manner by following the due procedure and the prosecution had proved the guilt of the accused beyond reasonable doubt since the case was based on circumstantial evidence- Whether the prosecution had adequately proved the circumstance with regard to the theory of “last seen together”– Whether the prosecution had sufficiently proved the “proximity of time” i.e. ‘the time gap between the victim being lastly seen with the appellant-accused and the time when she was found injured and unconscious in the field’ – Held: In the instant case, neither any explanation was offered by the appellant in his further statement under Section 313 of Cr.P.C. nor any concrete defence was taken during the course of the cross-examination of the witnesses – Conduct of the accused in absconding away also was a circumstance duly proved by the prosecution against him – Time gap between the victim being lastly seen with the appellant-accused and the time when she was found injured and unconscious in the field was hardly 12 hours– The said injuries had resulted into her death – Prosecution had proved the close proximity of time when the victim was last seen with the appellant and when the victim was found unconscious and in injured condition, which ultimately resulted into her death – Nothing on record to suggest that the due procedure was not followed or there was deprivation of the legal aid or legal assistance to accused –Views taken by the Courts below with regard to the conviction of the appellant for offences charged against him, deem it proper to commute, and accordingly commute the sentence of death for the sentence of imprisonment for life, for offence punishable u/s.302 IPC – While balancing the scales of retributive justice and restorative justice, appellant-accused, sentenced to imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under section 376A, IPC.
Sentencing - Restorative Justice- One of the basic principles of restorative justice is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual when he is released from the jail- maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender- Hence, while balancing the scales of retributive justice and restorative justice.
Partly allowing the appeal, the Court
HELD: The first and foremost circumstance regarding the visit of the appellant along with ‘R’ on the date and time as alleged was very crucial and that was admitted by the appellant. By such admission, even his identity had stood proved. There cannot be gainsaying that no conviction could be based on the statement of the accused recorded under section 313 of the Cr.P.C. and the prosecution has to prove the guilt of the accused by leading independent and cogent evidence, nonetheless it is equally settled proposition of law that when the accused makes inculpatory and exculpatory statements, the inculpatory part of the statement can be taken aid of to lend credence to the case of prosecution. In the instant case also, though the conviction of the appellant-accused could not be made merely on his admission of the circumstance of his visit to the house of the informant on the previous day evening of the fateful day, such admission could certainly be taken aid of to lend assurance to the evidence of the prosecution [Paras 23 & 24][188-E-G; 190-E]
1.2 The next and most important circumstance was with regard to the theory of “last seen together” propounded by the prosecution. In this regard, if the version of the witnesses examined by the prosecution are closely appreciated, there remains no shadow of doubt that it was duly proved that after ‘H’ refused ‘R’ to permit the appellant-accused to stay at their house, ‘R’ had left the house, but the appellant continued to sit in the courtyard of the house of the informant. It was also proved that at that time the victim along with her cousins was playing in the said courtyard, and after sometime the appellant-accused, victim and RK were not seen at the courtyard. According to the mother of the victim, when she was searching for her daughter, she saw that RK was coming with a polythene bag containing bananas, and RK told her that the said bananas were given by Bhaijaan i.e., the appellant, and that he (i.e. Bhaijaan) had taken the victim along with him. The said RK had fully corroborated the said version of RK, in his deposition before the Court and the fruit vendor had also stated that the appellant along with two children had come to his shop to purchase the bananas and that he had given three bananas to RK and asked him to leave home, and he had taken the victim with him. The evidence of these witnesses could not be disbelieved merely because they happened to be the relatives of the informant. Pertinently there was no concrete defence taken during the cross-examination of any of these witnesses examined by the prosecution. Some minor discrepancies in the evidence of the witnesses could not be said to be major contradictions to throw away the case of the prosecution overboard or disbelieve the prosecution. It was also duly proved that the appellant-accused had taken the victim with him from the shop of fruit vendor in the evening hours of the alleged incident, which was a very strong circumstance proved against the accused. [Para 25][190-F-H; 191-A-E]
1.3 Once the theory of “last seen together” was established, the accused was expected to offer some explanation as to under which circumstances he had parted the company of the victim. It hardly needs to be reiterated that in the criminal jurisprudence, the entire burden of proving the guilt of the accused rests on the prosecution, nonetheless if the accused does not throw any light upon the facts which are proved to be within his special knowledge in view of Section 106 of the Evidence Act, such failure on the part of the accused may also provide an additional link in the chain of circumstances required to be proved against him. Of course, Section 106 of the Evidence Act does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the victim. [Para 26][191-EH; 192-A]
1.4 In the instant case, though it was duly proved that the appellant-accused had taken the victim with him from the shop of fruit vendor, neither any explanation was offered by the appellant in his further statement under Section 313 of Cr.P.C. nor any concrete defence was taken during the course of the crossexamination of the witnesses. It is pertinent to note that after the alleged incident, he had run away to his native place at Bihar. Admittedly he was arrested therefrom and was brought back after obtaining the transit remand from the concerned court at Bhagalpur. The said conduct of the accused in absconding away also was a circumstance duly proved by the prosecution against him. [Para 30][194-F-H]
1.5 So far as the proximity of time is concerned, coupled with the other evidence, the prosecution had proved the close proximity of time when the victim was last seen with the appellant and when the victim was found unconscious and in injured condition, which ultimately resulted into her death. [Paras 31 & 32][195-E-F]
1.6 The next issue with regard to the trial having not been conducted in fair manner, there is nothing on record to suggest that the due procedure was not followed or that the appellantaccused had suffered on account of deprivation of the legal aid or legal assistance to him. The trial court did provide legal assistance to both the accused by appointing a lawyer at the expense of the State, who had thoroughly cross-examined all the witnesses examined by the prosecution, and had also examined two witnesses on behalf of accused R. Apart from the fact that no such contention was raised during the course of trial or even before the High Court in the two separate appeals filed by the accused represented by two separate lawyers, no such contention has been raised by the appellant-accused even in the memorandum of the present appeal. The oral submission made by the learned Senior Advocate appearing on behalf of the accused at the fag end of his arguments that there was no fair trial conducted, without substantiating the said submission, cannot be entertained. Even otherwise, it may noted that during the course of recording the further statement, the appellant-accused had responded to the incriminating circumstances brought to his notice, after fully understanding them as transpiring from the answers recorded by the court. It is possible that the incident in question would have created an anguish amongst the public at large as also amongst the media, nonetheless in absence of any material on record, no inference could be drawn that because of such media pressure, the trial was not conducted in fair manner. [Paras 33, 34][195-G; 196-E-G; 197-A-B]
1.7 Having regard to the proved circumstances on record, more particularly the circumstances that preceded and followed from the point the deceased-victim was seen last together with the appellant-accused, the court has no hesitation in holding that the prosecution had proved beyond reasonable doubt all the circumstances individually and also proved the circumstances forming a chain, so conclusive as to rule out the possibility of any other hypothesis except the guilt of the appellant-accused. It was duly proved that while committing the barbaric acts of rape and sexual assault on the young child-victim aged about 04 years, the appellant-accused had inflicted bodily injuries as mentioned in the post-mortem report which had caused her death. The trial court had rightly convicted the appellant-accused for the offences punishable under sections 302, 376(2)(i), 376(2)(m), 363, 366 of IPC and section 5(i) read with section 6 and section 5(m) read with section 6 of the POCSO Act. The said order of conviction was affirmed by the High Court; and is being further affirmed by this Court. [Para 36][197-F-H; 198-A]
1.8 The next question that falls for consideration is with regard to the sentence to be imposed on the appellant. While affirming the view taken by the courts below with regard to the conviction of the appellant for the offences charged against him, This Court deem it proper to commute, and accordingly commute the sentence of death for the sentence of imprisonment for life, for the offence punishable under Section 302 IPC. Since, Section 376A IPC is also applicable to the facts of the case, considering the gravity and seriousness of the offence, the sentence of imprisonment for the remainder of appellant’s natural life would have been an appropriate sentence, however, this Courtis reminded of what Oscar Wilde has said - “The only difference between the saint and the sinner is that every saint has a past and every sinner has a future”. One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence, while balancing the scales of retributive justice and restorative justice, this Courtdeems it appropriate to impose upon the appellant-accused, the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under section 376A, IPC. The conviction and sentence recorded by the courts below for the other offences under IPC and POCSO Act are affirmed. It is needless to say that all the punishments imposed shall run concurrently. [Paras 37 & 43][198-B; 200-DG; 201-A] Masalti vs. State of U. P. AIR 1965 SC 202 : [1964] SCR 133; Ajay Singh vs. State of Maharashtra (2007)
12 SCC 341 : [2007] 7 SCR 983; K. Anbazhagan vs. The superintendent of Police & Ors. (2004) 3 SCC 767 : [2003] 5 Suppl. SCR 610; Zahira Habibullah Sheikh & Anr. Vs. State of Gujarat & Ors. (2006) 3 SCC 374 : [2006] 2 SCR 1081 – referred to.
Sharad Birdhichand Sarda vs. State of Mahashtra 1984
(4) SCC 116 : [1985] 1 SCR 88; Mohan Singh vs. Prem Singh & Anr. (2002) 10 SCC 236 : [2002] 3 Suppl. SCR 5; Rajender vs. State (NCT of Delhi) (2019) 10 SCC 623; Satpal vs. State of Haryana (2018) 6 SCC 610; Surajdeo Mahto vs. The State of Bihar (2022) 11 SCC 800; Maneka Gandhi vs. UOI (1978) 1 SCC 248 : [1978] 2 SCR 621; Bachan Singh Vs. State of Punjab (1980) 2 SCC 684; Machhi Singh vs. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413; Shatrughna Baban Meshram Vs. State of Maharashtra (2021) 1 SCC
596 – 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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