Pappu vs The State of Uttar Pradesh

201 – Protection of Children From Sexual Offences Act 2012 – ss. 5, 6.

Evidence: Child witness – Rural background of witness – Discrepancies in evidence – In the process of appreciation of evidence, trial court and High Court looked at the crux of the matter emerging from her testimony that she was indeed a witness to the fact that the deceased child was last seen in the company of the appellant when he took her along towards lychee farm – The testimony of child witness is categorical in regard to the facts and there appears no reason to disbelieve her testimony, even if her comprehension of time and hours appears to be wanting in maturity – It would be rather unrealistic to expect such maturity from a tenyear-old child coming from a rustic background. Constitution of India: Art.134 and Art.136 – Concurrent Finding – Interference – Scope – As against any judgment/final order or sentence in a criminal proceeding of the High Court, regular appeals to Supreme Court are envisaged in relation to the eventualities specified in Art.134 of the Constitution of India and s.2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 – The present matter is not covered thereunder – Present appeals are by special leave in terms of Art.136 of the Constitution of India – In an appeal by special leave, where the trial court and the High Court concurrently returns findings of fact after appreciation of evidence, each and every finding of fact cannot be contested nor such an appeal could be dealt with as if another forum for reappreciation of evidence – Of course, if the assessment by trial court and the High Court could be said to be vitiated by any error of law or procedure or misreading of evidence or in disregard to the norms of judicial process leading to serious prejudice or injustice, Supreme Court may, and in appropriate cases would, interfere in order to prevent grave or serious miscarriage of justice but, such a course is adopted only in rare and exceptional cases of manifest illegality.

Partly allowing the appeals, the Court

HELD: 1. It is but clear that as against any judgment/final order or sentence in a criminal proceeding of the High Court, regular appeals to this Court are envisaged in relation to the eventualities specified in Article 134 of the Constitution of India and Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The present one is not a matter covered thereunder and the present appeals are by special leave in terms of Article 136 of the Constitution of India. In such an appeal by special leave, where the Trial Court and the High Court have concurrently returned the findings of fact after appreciation of evidence, each and every finding of fact cannot be contested nor such an appeal could be dealt with as if another forum for reappreciation of evidence. Of course, if the assessment by the Trial Court and the High Court could be said to be vitiated by any error of law or procedure or misreading of evidence or in disregard to the norms of judicial process leading to serious prejudice or injustice, this Court may, and in appropriate cases would, interfere in order to prevent grave or serious miscarriage of justice but, such a course is adopted only in rare and exceptional cases of manifest illegality. Tersely put, it is not a matter of regular appeal. This Court would not interfere with the concurrent findings of fact based on pure appreciation of evidence nor it is the scope of these appeals that this Court would enter into reappreciation of evidence so as to take a view different than that taken by the Trial Court and approved by the High Court. [Para 20][65-F-H; 66-A-C] Pritam Singh v. State: AIR 1950 SC 169: 1950 SCR 453; Ramaniklal Gokaldas and Ors. v. State of Gujarat: (1976) 1 SCC 6; Mst. Dalbir Kaur and Ors. v. State of Punjab: (1976) 4 SCC 158 : [1977] 1 SCR 280; Hari & Anr. v. The State of Uttar Pradesh: Criminal Appeal No. 186 of 2018 decided on 26.11.2021 – relied on.

2. The Trial Court and the High Court have concurrently recorded the findings that the prosecution has been able to successfully establish the chain of circumstances leading to unmistakable conclusion that the appellant is guilty of the offences of rape and murder of the victim child as also of concealing her dead body. The facts and factors, taken together with the medical and other scientific evidence, are said to be of a complete chain of circumstances, leading to the conclusion on the guilt of the appellant. [Para 21][66-C-D, F]

Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Hanumant v. State of Madhya Pradesh: AIR 1952 SC 343: [1952] SCR 1091 – relied on.

3. It is true that the child-witness PW-3 stated as if she had gone to the site and looked at the dead body at 10:00 a.m. in the morning but then, the said child- witness was about 10 years of age at the time of her deposition and was coming from a rural background. Her comprehension of timings had obviously been crude or amateurish, which is borne out of the fact that in the other part of statement, she stated that after 7 p.m., she and other children kept on playing for 5 hours. Such a narrative about the timing by her had obviously been lacking in the requisite maturity and comprehension. In the process of appreciation of evidence, the Trial Court and High Court have looked at the crux of the matter emerging from her testimony that she was indeed a witness to the fact that the deceased child was last seen in the company of the appellant when he took her along towards lychee farm. [Para 24.2][75-D-F]

State of Rajasthan v. Kashi Ram: (2006) 12 SCC 254 : [2006] 8 Suppl. SCR 501 – relied on.

D.K. Basu v. State of W.B.: (1997) 1 SCC 416 : [1996]

10 Suppl. SCR 284; Rammi Alias Rameshwar v. State of M.P. (1999) 8 SCC 649 : [1999] 3 Suppl. SCR 1 – held inapplicable.

4. The overt assertion made in the complaint by PW-1, mother of the victim child, that as per her belief, the child was raped and murdered and the dead body was concealed by the appellant, is also required to be visualised with reference to the backdrop that she had the knowledge about the appellant having taken her daughter in the evening and had been searching for her daughter for the whole night. This is coupled with the fact that she was undoubtedly a rustic villager and even got the complaint scribed from someone else. Again, in the process of appreciation of evidence, the Trial Court and High Court have looked at the substance and core of the matter emerging from her testimony while consciously taking note of her background. Yet further, as to who accompanied PW-1 to Police Station is not a factor for which, the FIR could be taken as ante-timed. PW-1 and PW-2 had been consistent that both of them had gone to the Police Station before the noon hours of 14.05.2015. It has, of course, appeared in the statements of PW-7 that PW-4 had accompanied PW-1 to Police Station but, such a minor discrepancy occurring in the statement of the said police officer posted at the Police Station concerned cannot override the entire evidence on record. Moreover, he had been the person who registered the FIR and there had not been any specif ic suggestion to this witness that dead body had been seen by anyone before lodging of FIR. Similarly, PW-8, the IO initially stated in the cross-examination that he took the statement of the complainant next day after taking over investigation but thereafter, corrected himself to say that he took her statement at about 2.00 p.m. after registration of the case. This aspect has also been duly taken note of by the Trial Court and the contentions urged on behalf of the appellant have been rejected with reference to the fact that the IO had deposed from memory after one and a half year of the investigation; and PW-7 has clarified that the statement of the complainant was taken by the SHO at the date of registration of FIR and thereafter, he proceeded to investigate. Further, even if the particulars regarding date and time of dispatch of FIR to the Court were not stated in the form, that could only be regarded as a procedural fault on the part of the staff of the Police Station and that cannot nullify all other material on record.[Paras 24.3, 24.4][75-F-H; 76-A-E]

5. There is no infirmity in the Trial Court and the High Court concurrently finding the prosecution case proved that on 13.05.2015, at around half past six in the evening, while the deceased was playing with PW-3 and other children of the village, appellant gave Rs. 20 to PW-3, for buying sweets for the children. After distributing these sweets amongst them, the deceased was lured by appellant by suggesting that they go together and pluck lychees from the farm. When the other children sought to follow them, he sent them away by scolding them, picked and placed the deceased on his back, and set off towards the farm. The testimony of child witness PW-3 is categorical in regard to these facts and there appears no reason to disbelieve her testimony, even if her comprehension of time and hours appears to be wanting in maturity. It would be rather unrealistic to expect such maturity from a ten-year-old child coming from a rustic background. PW-2, the maternal aunt of the deceased, has also corroborated PW-3 in regard to these crucial facts, establishing that the deceased was last seen with the appellant. In fact, the evidence has been categorical that it was the appellant alone who enticed the deceased to go along with him and rather carried the deceased child on his back. PW-2 has also testified to the fact that she saw the appellant taking the deceased child from the window of the house while standing and PW-1, mother of the deceased child was sitting. This explains even the statement of PW-1 that she had also seen the appellant taking the deceased child. The submission that why these women allowed the child to taken in the evening by a man they described as alcoholic is, again, only an attempt at hair-splitting exercise in the matter of appreciation of evidence. In the rural background, where the appellant was a neighbour and a person of the same community, there could not have been any reason for the ladies to suspect the intent of the appellant towards the child. The assertion that the ladies searched for the child for the whole night cannot be a cooked-up story because, if the seven-year-old girl child did not return home until late hours, they were, obviously, expected to look for the child. The fact that while searching, they indeed reached the house of the appellant, where his wife stated about his having gone out after quarrelling, has also been consistently stated by PW-1 and PW-2. Of course, PW-2 stated about herself having met the appellant past midnight but, also made it clear that PW-1 was not with her at that time. It is also given out that the ladies could not take steps for approaching the police because at the relevant point of time i.e., during the night intervening, they were not having any person of support with them. [Para 27][78-E-H; 79A-E]

6. So far as the factum of discovery of the dead body of the victim child at the information of appellant is concerned, the same stands proved by the evidence of relevant witnesses including PW-4 and PW-8 IO. The IO of this case seems to have not meticulously prepared the papers of investigation and even the memorandum of discovery of dead body and arrest of the appellant was prepared as one document (Ex. Ka-2). However, a perusal of the said document Ex. Ka-2, duly proved by the relevant witnesses including PW-4 and PW-8 IO, makes it clear that the relevant facts stand established therefrom and cannot be ignored. Mere irregularity in preparation of memos by the IO would not falsify the factum of information by the accused- appellant leading to the discovery of the dead body. [Para 28][79-F-H]

7. When ‘last seen’ evidence is cogent and trustworthy which establishes that the deceased was lastly seen alive in the company of the accused; and is coupled with the evidence of discovery of the dead body of deceased at a far away and lonely place on the information furnished by the accused, the burden is on the accused to explain his whereabouts after he was last seen with the deceased and to show if, and when, the deceased parted with his company as also the reason for his knowledge about the location of the dead body. The appellant has undoubtedly failed to discharge this burden. For the appellant having failed to do so, it is inevitable to hold that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides another strong link in the chain of circumstances against the appellant. In the given set of circumstances, it could safely be said that the presumption contemplated by Section 29 POCSO came into operation and the burden came staying with the appellant; and it was for him to rebut the presumption and to prove that he had not committed the offence. The appellant has failed to discharge this burden. [Paras 31, 32][80-D-G, H; 81-A]

Noor Aga v. State of Punjab and Anr.: (2008) 16 SCC

417 : [2008] 10 SCR 379; Justin v. Union of India and Ors.: 2020 SCC OnLine Ker 4956; Raj Kumar Singh Alias Raju Alias Batya v. State of Rajasthan: (2013) 5 SCC 722 : [2013] 8 SCR 599 – held inapplicable.

8. The Forensic Science Laboratory had reported that traces of ‘spermatozoa and sperms’ were found on the underwear of the deceased. Even if the said report was drawn on 10.08.2016, its veracity cannot be doubted and there is no reason to consider the said report with suspicion. The relevant articles were indeed sealed as proved in evidence and did reach the laboratory in the same sealed condition. The alleged want of upgraded and sophisticated facilities for sealing of the articles at the Police Station cannot override and nullify the proceedings otherwise lawfully conducted by the Police Station and the Investigating Officer. In any case, it is also far-stretched to argue that the offence under Section 376 IPC could not have been imputed in the chargesheet before receiving such report. The said report was only corroborative scientific evidence but the other facts directly available on record, more particularly as per the conditions of the dead body of the seven-year-old girl child, as seen at the site and then the relevant aspects of gruesome injuries, including those on private parts, as reported in the post-mortem report, could not have been ignored. [Para 35][82-A-D]

Ramesh Chandra Agrawal v. Regency Hospital Limited and Ors. (2009) 9 SCC 709:[2009] 14 SCR 424 – held inapplicable.

9. A rather strange line of submission in this case has been that as per post- mortem report, the death had occurred 2-3 days before examination and that opinion would take the time of death even much before the evidence of last seen or that the dead body might have been seen by other persons much before its recovery at the instance of the appellant. The approximate time of death before examination, as indicated in the post-mortem report, cannot be applied as something of mathematical precision. The post-mortem examination was conducted in the afternoon of 15.05.2015; and approximation of two days before such examination matches the proven time when the deceased was last seen with the appellant i.e., around 6:30 p.m. on 13.05.2015. In fact, the indications in the post-mortem report are only to the effect that the appellant did not provide any time to the child and rather carried out his misdeeds immediately after taking her along. [Para 36][82-E-G]

10. It could readily be seen that while this Court has found it justified to have capital punishment on the statute to serve as deterrent as also in due response to the society’s call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused, unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society. This has led to the evolution of ‘rarest of rare test’ and then, its appropriate operation with reference to ‘crime test’ and ‘criminal test’. The delicate balance expected of the judicial process has also led to another mid-way approach, in curtailing the rights of remission or premature release while awarding imprisonment for life, particularly when dealing with crimes of heinous nature like the present one. [Para 41][98-C-E]

11. The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But, at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct. When all these factors are added together and it is also visualised that there is nothing on record to rule out the probability of reformation and rehabilitation of the appellant, it would be unsafe to treat this case as falling in ‘rarest of rare’ category. Putting it differently, when the appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated. His unblemished jail conduct and having a family of wife, children and aged father would also indicate towards the probability of his reformation. However, and even when the present case is taken to be not falling in the category of ‘rarest of rare’ so as to require termination of the life of the appellant yet, the impact of the offences in question on the conscience of the society as a whole cannot be ignored. Thus, it appears just and proper to apply the course adopted in various cases involving the crimes of similar nature where, even while commuting capital punishment, this Court has provided for life imprisonment without application of the provisions of premature release/remission before mandatory actual imprisonment for a substantial length of time. The appellant was about 33-34 years of age at the time of commission of crime in the year 2015. Looking to the overall facts and circumstances, it would be just and proper to award the punishment of imprisonment for life to the appellant for the offence under Section

302 IPC while providing for actual imprisonment for a minimum period of 30 years. [Paras 43.1, 44, 45][99-F-H; 100-A-B, E-H]

12. The conviction of the appellant of offences under Sections 376, 302, 201 IPC and Section 5/6 POCSO is upheld and the sentences awarded to him are confirmed except the death sentence for the offence under Section 302 IPC. The death sentence awarded to the appellant for the offence under Section

302 IPC is commuted into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 (thirty) years. [Para 46][101-A-C]

Union of India v. V. Sriharan Alias Murugan and Ors.: (2016) 7 SCC 1: [2015] 14 SCR 613 -followed.

Kalu Khan v. State of Rajasthan: (2015) 16 SCC 492; Bachan Singh v. State of Punjab: (1980) 2 SCC 684; Mohd. Mannan Alias Abdul Mannan v. State of Bihar: (2019) 16 SCC 584: [2019] 8 SCR 266; Rajendra Pralhadrao Wasnik v. State of Maharashtra: (2019) 12 SCC 460: [2018] 14 SCR 585; Machhi Singh and Ors. v. State of Punjab: (1983) 3 SCC 470 : [1983] 3 SCR

413 Dhananjoy Chatterjee Alias Dhana v. State of W.B.: (1994) 2 SCC 220 : [1994] 1 SCR 37; M. A. Antony v. State of Kerala: 2018 SCC OnLine SC 2800; Laxman Naik v. State of Orissa: (1994) 3 SCC 381 : [1994] 2 SCR 94 Kamta Tiwari v. State of M.P.: (1996) 6 SCC 250 : [1996] 5 Suppl. SCR 507; Swamy Shraddananda (2) v. State of Karnataka: (2008) 13 SCC 767 : [2008] 11 SCR 93; Jagmohan Singh v. State of U.P. (1973) 1 SCC

20 : [1973] 2 SCR 541; Rameshbhai Chandubhai Rathod v. State of Gujarat : (2009) 5 SCC 740 : [2009] SCR 1055 Rameshbhai Chandubhai Rathod (2) v. State of Gujarat : (2011) 2 SCC 764 : [2011] 1 SCR 829; Ashok Debbarma Alias Achak Debbarma v. State of Tripura: (2014) 4 SCC 747 : [2014] 4 SCR 287; Shatrughna Baban Meshram v. State of Maharashtra: (2021) 1 SCC 596; Ravishankar Alias Baba Vishwakarma v. State of Madhya Pradesh: (2019) 9 SCC 689 : [2019] 14 SCR 285; Shankar Kisanrao Khade v. State of Maharashtra: (2013) 5 SCC 546 : [2013] 6 SCR 949– relied on. Sudarshan and Anr. v. State of Maharashtra: (2014)

12 SCC 312 [2014] 6 SCR 437; Anjan Kumar Sarma and Ors. v. State of Assam: (2017) 14 SCC 359 : [2017] SCR 991; State (NCT of Delhi) v. Navjot Sandhu: (2005)

11 SCC 600 : [2005] 2 Suppl. SCR 79; Aghnoo Nagesia v. State of Bihar: [1966] 1 SCR 134; Abdulwahab Abdulmajid Baloch v. State of Gujarat: (2009) 11 SCC

625 : [2009] 4 SCR 956; Gudda Alias Dwarikendra v. State of Madhya Pradesh (2013) 16 SCC 596 : [2013]

11 SCR 293; Inspector of Police, Tamil Nadu v. John David: (2011) 5 SCC 509 : [2011] 7 SCR 354 – referred to.