Penal Code, 1860: ss.302, 363, 376 and 377 – Kidnapping, rape/unnatural intercourse and murder of two year old girl – Prosecution case was that on the fateful day, the victim child went missing around 4.00 p.m. – During the search operations by police and family members of the missing child, it surfaced that the appellant was seen distributing chocolates to children around the time the child went missing – Police reached the house of appellant and nabbed the appellant red handed under the bed with the victim child in naked condition – Trial court and High Court concurrently held him guilty and awarded death sentence – Appeal against conviction and sentence – Held: It stood conclusively established that the victim child was brutally assaulted and subjected to vaginal and unnatural intercourse – She was inflicted multiple injuries on face, head, neck, external genitalia as well as inside the uterus and urethra – Medical opinion was that death was due to throttling – There was overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proved that it was appellant and he alone, who committed the horrendous crime – Appellant had the special knowledge as to in what circumstances the victim child suffered multiple injuries – Burden to prove that those injuries were not caused by him was on the appellant alone in view of s.106 of the Evidence Act, which he miserably failed to discharge though the evidence on record proved beyond doubt that the victim child was in unlawful custody of the appellant from about 4.00 p.m. till she breathed her last breath due to the beastly attack on her – Conviction of appellant is upheld – Protection of Children from Sexual Offences Act, 2012 – Protection of Children from Sexual Offences Amendment Act, 2019.
Sentence/Sentencing: Death sentence – Rape and murder of two year old girl – Prayer for commutation of death sentence – Held: The victim in this case was barely a two-year old baby girl whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last – Appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger – He ruthlessly finished a life which was yet to bloom – He, instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust – It’s a case where trust was betrayed and social values were impaired – The unnatural sex with a two-year old toddler exhibits a dirty and perverted mind, showcasing a horrifying tale of brutality – The appellant meticulously executed his nefarious design by locking one door of his house from the outside and bolting the other one from the inside so as to deceive people into believing that nobody was inside – He was thus in his full senses while he indulged in this senseless act – He showed no remorse or repentance for the gory crime, rather he opted to remain silent in his 313 Cr.P.C. statement – His deliberate, well-designed silence with a standard defence of ‘false’ accusation revealed his lack of kindness or compassion and would lead to believe that he can never be reformed – That being so, case for interference with the death sentence is not made out – Protection of Children from Sexual Offences Act, 2012 – Penal Code, 1860 – ss.302, 363, 376 and 377.
Criminal Law: Evidence – Motive – Though the High Court observed that ‘satisfaction of lust’ and ‘removal of trace’ was the appellant’s motive but motive is not an explicit requirement under the Indian Penal Code, though ‘motive’ may be helpful in proving the case of the prosecution in a case of circumstantial evidence – The case in hand was not entirely based on circumstantial evidence as there were reliable eye-witness depositions who had seen the appellant committing the crime, may be in part – Such an unshakable evidence with dense support of DNA test did not require the definite determination of the motive of the appellant behind the gruesome crime.
Sentence/Sentencing: Death sentence – Doctrine of proportionality – The object and purpose of determining quantum of sentence has to be ‘society centric’ without being influenced by a ‘judge’s’ own views, for society is the biggest stake holder in the administration of criminal justice system – A civic society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements – The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterrent punishment that commensurates with the gravity of offence. Protection of Children from Sexual Offences Act, 2012: s.5 – Protection of Children from Sexual Offences Amendment Act, 2019 – Aggravated Penetrative Sexual Assault – Punishment – The unamended Act defines “Aggravated Penetrative Sexual Assault” in s.5, which included, “whoever commits aggravated penetrative sexual assault on a child below the age of 12 years” – Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10-years but which may extend for imprisonment for life with fine – The minimum sentence for an aggravated penetrative sexual assault has been increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for natural life of the person – Significantly, ‘death sentence’ has also been introduced as a penalty for the offence of aggravated penetrative sexual assault on a child below 12 years – The Legislature impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, ‘death penalty’ can also be imposed – In the Statement of Objects and Reasons of amendment, Parliament has shown its concern of the fact that “in recent past incidents of child sexual abuse cases administering the inhuman mindset of the accused, who have been barbaric in their approach to young victim, is rising in the country” – If the Parliament, armed with adequate facts and figures, has decided to introduce capital punishment for the offence of sexual abuse of a child, the Court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto – The judicial precedents rendered before the recent amendment came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised – Crime against children – Sentence/Sentencing.
Administration of Criminal Justice: Punishment to the rape accused – Sentencing Policy needs to strike a balance between the two sides and count upon the twin test of (i) deterrent effect, or (ii) complete reformation for integration of the offender in civil society – Where the Court is satisfied that there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent – Sentence/Sentencing.
Evidence: Medical evidence – DNA – Plea of appellantaccused that the prosecution relied on the DNA evidence despite the fact that the method of analysis used i.e. Y-Chromosome Short Tandem Repeat Polymorphism (Y-STR) has certain inherent limitations due to which accurate identification of accused cannot be established beyond reasonable doubt and that the said method did not accurately identify the accused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the same lineage – Held: Plea is rejected – The globally acknowledged medical literature coupled with the statement of the Assistant Director, Forensic Science Laboratory leaves no doubt that in cases of sexual assualt, DNA of the victim and the perpetrator are often mixed – Traditional DNA analysis techniques like “autosomal-STR” are not possible in such cases – Y-STR method provides a unique way of isolating only the male DNA by comparing the Y-Chromosome which is found only in males – It is no longer a matter of scientific debate that Y-STR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as exculpatory evidence and is extensively relied upon in various jurisdictions throughout the world – Science and Researches have emphatically established that chances of degradation of the ‘Loci’ in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis – Although Y-STR does not distinguish between the males of same lineage, it can, nevertheless, may be used as a strong circumstantial evidence to support the prosecution case – Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases – Medical jurisprudence.
Sentence/Sentencing: Death sentence – Commutation of – Aggravating and mitigating circumstances – Rape and murder of two year old girl child – Held: (Per R. Subhash Reddy, J. dissenting on sentencing part) – In a case of conviction based on circumstantial evidence, ordinarily the extreme punishment of death penalty should not be imposed – If in a given case, guilt of the accused is proved beyond reasonable doubt, by establishing chain of circumstances, resulting in conviction, in appropriate cases death penalty can be imposed only after considering balancing aspects of aggravating and mitigating circumstances – But, at the same time ordinarily, if no special reasons exist, in a case of conviction based on circumstantial evidence, death penalty should not be imposed – In the instant case, conviction of the appellant was mainly based on circumstantial evidence – The evidence onrecord showed that on the day of occurrence, the appellant was under influence of liquor and committed the offence and, therefore, it cannot be termed as a pre-planned one, to count the same as an aggravating circumstance, for balancing aggravating and mitigating circumstances – The socio-economic condition of the appellant, as a person below poverty line, can also be considered as one of the mitigating factors, while balancing the aggravating and mitigating factors – There was no evidence from the side of prosecution, to show that there was no possibility of reformation and rehabilitation of the appellant – Age of the appellant was 25 years at the relevant time – He also had no crime record – Thus, the mitigating circumstances of the appellant, dominated over the aggravating circumstances, to modify the death sentence to that of life imprisonment – In view of all these aspects, death penalty imposed on the appellant is modified to that of life imprisonment, for the offence under s.302 IPC – Penal Code, 1860 – s.302.
Disposing of the appeals, the Court
HELD: Per SURYA KANT, J. (for R.F. Nariman, J. and himself)
1. During search operations by the police and also the family members of the missing child, it surfaced that the appellant was distributing chocolates to allure children near Maroti Temple on that day and around that time the child went missing. The police-team, the father of the victim and his brother, genuinely apprehensive and smelling something foul, reached the house of the appellant and nabbed him red-handed under the bed with the victim in naked condition. It further stood established conclusively that deceased had been brutally assaulted and subjected to vaginal and unnatural intercourse. The victim had been inflicted multiple injuries on face, head, neck, external genetalia as well as inside the uterus and urethra. The appellant had the special knowledge as to in what circumstances the victim child suffered those multiple injuries. The burden to prove that those injuries were not caused by him was on the appellant alone in view of Section 106 of the Evidence Act, which he has miserably failed to discharge though the evidence on record proves beyond doubt that the victim child was in unlawful custody of the appellant from about 4.00 p.m. till she breathed her last breath due to the beastly attack on her. [Para 30] [738-C-G]
Scientific Evidence connecting the appellant with the Crime:
2.1 P.W.11 Assistant Director in Forensic Science Laboratory (FSL), Mumbai testified that they conducted the DNA test as per the guidelines issued by the Director of Forensic Science, Ministry of Home Affairs, New Delhi. P.W.11 accordingly prepared the DNA report which was duly attested by the Assistant Chemical Analyser also. On seeing the contents of his report, P.W.11 has pertinently deposed that there were sexual intercourse and unnatural intercourse on the victim by the accused. The unshakable scientific evidence which nailed the appellant from all sides, was sought to be impeached on the premise that the method of DNA analysis “Y-STR” followed in the instant case was unreliable. It was suggested that the said method does not accurately identify the accused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the same lineage. [Paras 32-34] [739-D; 740-H; 741-A-B]
2.2 The globally acknowledged medical literature coupled with the statement of P.W.11 – Assistant Director, FSL leaves nothing mootable that in cases of sexual assualt, DNA of the victim and the perpetrator are often mixed. Traditional DNA analysis techniques like “autosomal-STR” are not possible in such cases. Y-STR method provides a unique way of isolating only the male DNA by comparing the Y-Chromosome which is found only in males. It is no longer a matter of scientific debate that Y-STR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as exculpatory evidence and is extensively relied upon in various jurisdictions throughout the world. Science and Researches have emphatically established that chances of degradation of the `Loci’ in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis. Although Y-STR does not distinguish between the males of same lineage, it can, nevertheless, may be used as a strong circumstantial evidence to support the prosecution case. Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases. Considering the perfect match of the samples and there being nothing to discredit the DNA analysis process, the probative value of the forensic report as well as the statement of P.W.11 are very high. Still further, it is not the case of the appellant that crime was committed by some other close relative of him. Importantly, no other person was found present in the house except the appellant. There was thus overwhelming eyewitness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proved that it is the appellant and he alone, who is guilty of committing the horrendous crime in this case. [Paras 35, 36] [741-C-G; 742-AB]
3. Though the High Court has observed that ‘satisfaction of lust’ and ‘removal of trace’ was the appellant’s motive but motive is not an explicit requirement under the Indian Penal Code, though ‘motive’ may be helpful in proving the case of the prosecution in a case of circumstantial evidence. The case in hand is not entirely based on circumstantial evidence as there are reliable eye-witness depositions who have seen the appellant committing the crime, may be in part. Such an unshakable evidence with dense support of DNA test does not require the definite determination of the motive of the appellant behind the gruesome crime. [Para 37] [742-C-E]
SENTENCING:
4.1 The object and purpose of determining quantum of sentence has to be ‘society centric’ without being influenced by a ‘judge’s’ own views, for society is the biggest stake holder in the administration of criminal justice system. A civic society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of antisocial elements. The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterent punishment that commensurate(s) with the gravity of offence. Equally important is the stand-point of a `victim’ which includes his/her guardian or legal heirs as defined in Section 2(wa), Cr.P.C. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The `victim’-the de facto sufferer of a crime had no say in the adjudicatory process and was made to sit outside the court as a mute spectator. The ethos of criminal justice dispensation to prevent and punish `crime’ would surreptitiously turn its back on the `victim’ of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including to participate in the trial have now been bestowed on a `victim’ in India by the Act No. 5 of 2009 whereby some pragmatic changes in Cr.P.C. have been made. The Sentencing Policy, therefore, needs to strike a balance between the two sides and count upon the twin test of (i) deterrent effect, or (ii) complete reformation for integration of the offender in civil society. Where the Court is satisfied that there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent. There is no gainsaying that the punishment is a reflection of societal morals. The subsistence of capital punishment proves that there are certain acts which the society so essentially abhores that they justify the taking of most crucial of the rights – the right to life. [Paras 50-52] [748-D-H; 749-A-B]
Ashok Debbarma v. State of Tripura (2014) 4 SCC 747 : [2014] 4 SCR 287 ; Vasanta Sampat Dupare v. State of Maharashtra (2017) 6 SCC 631 : [2017] 3 SCR
850 – Distinguished
4.2 Recent amendments carried out by Parliament in the Protection of Children from Sexual Offences Act, 2012 by way of The Protection of Children from Sexual Offences (Amendment) Act, 2019 as notified on 6 th August, 2019. The unamended Act defines “Aggravated Penetrative Sexual Assault” in Section 5, which included, “whoever commits aggravated penetrative sexual assault on a child below the age of 12 years.” Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10years but which may extend for imprisonment for life with fine. The minimum sentence for an aggravated penetrative sexual assault has been increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for natural life of the person. Significantly, `death sentence’ has also been introduced as a penalty for the offence of aggravated penetrative sexualt assault on a child below 12 years. [Paras 57, 59] [752-B-C-F-G]
Khushwinder Singh v. State of Punjab, (2019) 4 SCC
415 : [2019] 3 SCR 446 ; Manoharan v. State by Inspector of Police, Variety Hall Police Station, Coimbatore, (2019) SCC Online 951 – relied on
4.3 The Legislature has impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, ‘death penalty’ can also be imposed. In the Statement of Objects and Reasons of amendment, Parliament has shown its concern of the fact that “in recent past incidents of child sexual abuse cases administering the inhuman mindset of the accused, who have been barbaric in their approach to young victim, is rising in the country.” If the Parliament, armed with adequate facts and figures, has decided to introduce capital punishment for the offence of sexual abuse of a child, the Court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto. The judicial precedents rendered before the recent amendment came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised. [Para 60] [752-GH; 753-A-B]
4.4 The victim was barely a two-year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last. The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. He ruthlessly finished a life which was yet to bloom. The appellant instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust. It’s a case where trust has been betrayed and social values are impaired. The unnatural sex with a two-year old toddler exhibits a dirty and perverted mind, showcasing a horrifying tale of brutality. The appellant meticulously executed his nefarious design by locking one door of his house from the outside and bolting the other one from the inside so as to deceive people into believing that nobody was inside. The appellant was thus in his full senses while he indulged in this senseless act. Appellant has not shown any remorse or repentance for the gory crime, rather he opted to remain silent in his 313 Cr.P.C. statement. His deliberate, welldesigned silence with a standard defence of ‘false’ accusation reveals his lack of kindness or compassion and leads to believe that he can never be reformed. That being so, this Court cannot write off the capital punishment so long as it is inscribed in the statute book. [Para 61] [753-D-H]
Machhi Singh v. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413 ; Bachan Singh v. State of Punjab (1980) 2 SCC 684 – followed.
Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 ; Sunil v. State of Madhya Pradesh (2017) 4 SCC 393 ; Rajindra Pralhadrao Wasnik v. State of Maharashtra in Review Petition(Crl.) Nos. 306-307/2013 Parsuram v. State of Madhya Pradesh (2019) 8 SCC 382 ; Dhanjoy Chaterjee v. State of West Bengal (1994) 2 SCC 220 ; [1994] 1 SCR 37 ; Shankar Kishanrao Khade v. State of Maharashtra (2013) 5 SCC 546 : [2013] 6 SCR 949 ; Shivaji v. State of Maharashtra (2008) 3 SCC 26 ; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ; Swamy Shraddananda @ Murli
Manohar Mishra v. State of Karnataka (2008) 13 SCC
767 : [2008] 11 SCR 93 ; Union of India v. V. Sriharan @ Murugan & Ors. (2016) 7 SCC 1 : [2015] 14 SCR
613 – referred to.
California v. Ramos 463 U.S.992 – referred to. Per R. SUBHASH REDDY, J. (Partly dissenting)
1. The deposition of PW-9 (father of the victim child) showed that he was a fruit vendor, residing in Nutan Vasahat area, Jalna and the appellant also resided in the same lane. Further, it is also clear from his deposition that accused was under influence of liquor, on the day of occurrence of crime. Where it is clear from the evidence on-record that the appellant was under influence of liquor and committed the offence, cannot be termed as a pre-planned one, to count the same as an aggravating circumstance, for balancing aggravating and mitigating circumstances. Further, this case on hand rested solely on the circumstantial evidence. In a case of conviction based on circumstantial evidence, ordinarily the extreme punishment of death penalty should not be imposed. In a given case, guilt of the accused is proved beyond reasonable doubt, by establishing chain of circumstances, resulting in conviction, such cases, by considering balancing aspects of aggravating and mitigating circumstances, in appropriate cases, death penalty can be imposed. But, at the same time ordinarily, if no special reasons exist, in a case of conviction based on circumstantial evidence, death penalty should not be imposed. In this case on hand, the conviction of the appellant is mainly based on circumstantial evidence. On this ground also, the death sentence, imposed on him, is to be modified. From such evidence on-record, it is easy to assess the socio-economic condition of the appellant and it can certainly be said that he is a person below poverty line and this can also be considered as one of the mitigating factors, while balancing the aggravating and mitigating factors. [Paras 18, 19, 24, 28, 29, 31] [763-E; 764-B; 766-B; 767-E-G; 768-B-G]
Lehna v. State of Haryana (2002) 3 SCC 76 : [2002]
1 SCR 377 ; Sunil v. State of Madhya Pradesh (2017)
4 SCC 393 ; Rajendra Pralhaderao Wasnik v. State of Maharashtra Review Petition (Criminal) Nos. 306307 of 2013 ; Sandesh v. State of Maharashtra (2013)
2 SCC 479 : [2012] 13 SCR 1049 ; Mohinder Singh v. State of Punjab (2013) 3 SCC 294: [2013] 3 SCR
90 ; Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC 317 : [2013] 16 SCR 616 ; Amit v. State of Maharashtra (2003) 8 SCC 93 : [2003] 2 Suppl. SCR
285 ; Surendra Pal Shivbalakpal v. State of Gujarat (2005) 3 SCC 127 : [2004] 4 Suppl. SCR 464 ; Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC 467 : [2007] 1 SCR 916 ; Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC 230 ; Swamy Shraddananda v. State of Karnataka (2007) 12 SCC 287 ; Sunil Damodar Gaikwad v. State of Maharashtra (2014) 1 SCC 129 : [2013] 9 SCR 295 – relied on
2. Recent amendments are carried out to the Protection of Children from Sexual Offences Act, 2012 by way of Protection of Children from Sexual Offences Amendment Act, 2019. By virtue of the said amendments, taking note of increasing trend of crimes against the children, minimum sentence is increased for various offences and for offence under Section 6 of the Act i.e aggravated penetrative sexual assault, minimum imprisonment, which shall not be less than 20 years, which may extend to natural life or penalty of death. Prior to the amendments made by recent amending Act of 2019, for offence under POCSO, death penalty was not provided. By virtue of the amendments made in appropriate cases, for offences falling under provisions of the POCSO Act alone, a penalty of death sentence can be imposed. In the case on hand, the offence was committed prior to coming into force, of the Act. Even then, the legislative intent which resulted in amendments to POCSO should not be forgotten, while dealing with the offences against the children. At the same time, even for imposing the death sentence, for cases arising out of the provisions under POCSO Act, 2012, it is the duty of the courts to balance the aggravating and mitigating circumstances. To balance such aspects, the guidelines in Bachan Singh, Machhi Singh and Sushil Murmu will continue to apply. Further, the aggravating and mitigating factors are to be considered with reference to the facts of each case and there cannot be any hard and fast rule for balancing such aspects. [Para 32, 33] [768-H; 769-A-E]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 ; Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413 ; Sushil Murmu v. State of Jharkhand (2004) 2 SCC 338 : [2003] 6 Suppl. SCR 702 – relied on.
3. In this case on hand, the mitigating circumstances of the appellant, dominate over the aggravating circumstances, to modify the death sentence to that of life imprisonment. Even as per the case of prosecution, the appellant was under influence of liquor at the time of committing the offence, and there is no evidence on record from the side of prosecution, to show that there is no possibility of reformation and rehabilitation of the appellant. Further, age of the appellant was 25 years at the relevant time and conviction is solely based on circumstantial evidence. Taking all such aspects into consideration, the death penalty imposed on the appellant is to be modified to that of life imprisonment, for the offence under Section 302 IPC. [Para 34] [769-F-G]
Nand Kishore v. State of Madhya Pradesh [2019] 1 SCR 260 ; Raju Jagdish Paswan v State of
Maharashtra Criminal Appeal No. 88-89 of 2019 ; Vijay Raikwar v. State of Madhya Pradesh (2019) 4 SCC 210 – relied on.
Jagmohan Singh v. State of Uttar Pradesh (1973) 1 SCC 20 : [1973] 2 SCR 541 ; Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 – 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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