Sentence/Sentencing – Death sentence – Award of – On facts, rape and murder of a minor girl by appellant aged 50 years – Conviction of the appellant u/ss.302, 363, 366 and 376(2)(i) and award of death sentence on basis of the circumstantial evidence – Upheld by the courts below – On appeal, held: By applying the ‘last seen’ theory to the facts of the case and considering the forensic and medical evidence on record, courts below rightly convicted the appellant – As regards imposition of death sentence, it is the appellant’s case that he was denied the proper legal assistance in the matter and is a manhole worker – It cannot be said that there is no possibility of reformation of the appellant – Reasons assigned by the courts below, do not constitute special reasons within the meaning of s.354(3) Cr.P.C to impose death penalty – Instant case does not fall within the ‘rarest of rare’ cases – In view thereof, the death sentence imposed by the trial court, as upheld by the High Court, is modified to that of life imprisonment with actual period of
25 years, without any benefit of remission – Sentences imposed for all offences to run concurrently – Penal Code, 1860 – ss. 302, 363,
366 and 376(2)(i) – Code of Criminal Procedure, 1973 – s.354(3). Partly allowing the appeal, the Court
HELD: 1.1 So far as the conviction is concerned, the findings recorded by the trial court which are based on the appreciation of oral and documentary evidence on record, are satisfactory. Though the case totally rests on circumstantial evidence, it is to be noticed that PW-4, brother of the deceased had accompanied the deceased to ‘Mela’ on the fateful day. He has identified the accused in the Test Identification Parade and further he has categorically stated that the appellant took away the deceased from the ‘Mela’. Further, PW-1, has deposed that when he was coming from his shop to the residence, he saw a dog running away with a leg of a child in its mouth and on being chased it dropped the leg. Further investigation revealed detection of headless body of the deceased in the bushes. Further, PW-7, has also stated that he had seen the appellant on the fateful day at 9:00 p.m. with a girl wearing yellow frock. By applying the ‘last seen’ theory to the facts of the case and further considering the forensic and medical evidence on record, trial court has rightly recorded guilt of the accused for the offences alleged. Even the High Court, referring to the relevant evidence on record, rightly confirmed the conviction of the appellant for the charges levelled against him. [Para 10-11][265-C-G]
1.2 The instant case solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. The reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section 354(3) Cr.P.C to impose death penalty on the accused. Taking into account the evidence on record and the totality of the circumstances of the case, and by applying the test on the touchstone of case law, the case on hand will not fall within the ‘rarest of rare’ cases. In that view of the matter, the death sentence imposed by the trial court, as confirmed by the High Court, requires modification. While confirming the conviction, recorded by the trial court, as confirmed by the appellate court, the sentence is modified to that of life imprisonment with actual period of 25 years, without any benefit of remission. The sentences imposed for all offences shall run concurrently. [Para 14][269-CF] Mukesh & Anr. v. State (NCT of Delhi) & Ors.
(2017) 6 SCC 1 – distinguished.
Bachan Singh v. State of Punjab (1980) 2 SCC 684; Swamy Shradhananda(2) v. State of Karnataka (2008)
13 SCC 767; Neel Kumar v. State of Haryana (2012) 5 SCC 766; Selvam v. State (2014) 12 SCC 274; Tattu Lodhi v. State of Madhya Pradesh (2016) 9 SCC 675; Raj Kumar v. State of Madhya Pradesh (2014) 5 SCC 353; Anil v. State of Maharashtra (2014) 4 SCC 69 – 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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