Sentence/Sentencing: Rape/murder of minor – Conviction based on circumstantial evidence – Imposition of death sentence – Held: There is no absolute principle of law that no death sentence can be awarded in a case where conviction is based on circumstantial evidence – Such a standard would be ripe for abuse by seasoned criminals who always make sure to destroy direct evidence – Further, in many cases of rape and murder of children, the victims owing to their tender age can put up no resistance – In such cases, it is extremely likely that there would be no ocular evidence – It cannot, therefore, be said that in every such case notwithstanding that the prosecution has proved the case beyond reasonable doubt, the Court must not award capital punishment for the mere reason that the offender has not been seen committing the crime by an eye-witness – Such a reasoning, if applied uniformly and mechanically will have devastating effects on the society which is a dominant stakeholder in the administration of our criminal justice system. Sentence/Sentencing: Death sentence – Residual doubt – This Court has increasingly become cognizant of ‘residual doubt’ in many recent cases which effectively create a higher standard of proof over and above the ‘beyond reasonable doubt’ standard used at the stage of conviction, as a safeguard against routine capital sentencing, keeping in mind the irreversibility of death. Penal Code, 1860: ss.363, 366, 376(2)(m), 376(2)(n), 376A, 302 and 201 – Rape and murder of minor girl – Trial court held appellant guilty of kidnapping a 13 years old girl committing rape on her and killing her by throttling and thereafter destroying evidence by throwing her half naked body in dry well – Trial court as well as High Court awarded death sentence – On appeal, held: This is a case of circumstantial evidence which is supported by ocular and medico-scientific evidence – DNA evidence using the established STR technique proved that appellant committed sexual intercourse with the deceased – Various injuries on her body along with signs of struggle proved that such crime was committed in a barbaric manner – A slipper was recovered through the appellant which was later identified as belonging to the deceased, giving finality to the circumstantial chain – The findings of kidnapping, rape, resultant death and destruction of evidence were proved beyond reasonable doubt, as evidenced by concurrent findings of the Courts below – As regards the sentencing, there were some residual doubts – A crucial witness for constructing the last seen theory, was partly inconsistent in cross-examination and quickly jumped from one statement to the other – Two other prosecution witnesses had seen the appellant feeding biscuits to the deceased one year before the incident and their long delay in reporting the same failed to inspire confidence – The mother of the deceased deposed that the wife and daughter of the appellant came to her house and demanded the return of the money which she had borrowed from them but failed to mention that she suspected the appellant of committing the crime initially – Ligature marks on the neck evidencing throttling were noted by doctors and in the postmortem report, but find no mention in the panchnama prepared by the police – Viscera samples sent for chemical testing were spoiled and hence remained unexamined – Although nails’ scrappings of the accused were collected, no report was produced to show that DNA of the deceased was present – All these factors of course have no impact in formation of the chain of evidence and are wholly insufficient to create reasonable doubt to earn acquittal – However, ‘residual doubt’ as a mitigating factor would effectively raise the standard of proof for imposing the death sentence – This case falls short of the ‘rarest of rare’ cases where the death sentence alone deserves to be awarded to the appellant – Death penalty is set aside and is substituted with the life imprisonment. Penal Code, 1860: s. 376A – Conviction under – High Court while confirming death sentence observed that the girl was found bleeding due to forcible sexual intercourse - which fact, however, is not supported by medical evidence – Held: Such erroneous finding has no impact on conviction under s.376A for a bare perusal of the section shows that only the factum of death of the victim during the offence of rape is required, and such death need not be with any guilty intention or be a natural consequence of the act of rape only – It is worded broadly enough to include death by any act committed by the accused if done contemporaneously with the crime of rape – Any other interpretation would defeat the object of ensuring safety of women.
Partly allowing the appeals, the Court
HELD: 1. The prosecution effectively proved that deceased was ‘last seen’ with the appellant and on earlier occasions too was seen being enticed by the appellant. DNA evidence using the established STR technique proved that appellant committed sexual intercourse with the deceased. Deceased was proved to be a minor using school records. Various injuries on her body along with signs of struggle proved that such crime was committed in a barbaric manner. A slipper was recovered through the appellant which was later identified as belonging to the deceased, giving finality to the circumstantial chain. No effective challenge was made against any medical or DNA reports. There can thus be no second opinion against the guilt of the appellant and his consequential conviction. [Para 37][301-D-G]
Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh (2009) 14 SCC 607 : [2009] 11 SCR 636; Dharam Deo Yadav v. State of Uttar Pradesh (2014) 5 SCC 509 : [2014] 8 SCR 650 – relied on.
2. The Trial Court awarded death sentence after drawing a balance-sheet weighing ‘mitigating’ circumstances against `aggravating’ circumstances. The High Court noted that there was bleeding due to sexual intercourse and that there was no possibility of reform owing to the appellant’s denial of his crimes. Accordingly, it held that awarding death penalty was justified. The High Court while confirming death observed that the girl was found bleeding due to forcible sexual intercourse - which fact, however, is not supported by medical evidence. However, such erroneous finding has no impact on conviction under Section 376A of the I.P.C. for a bare perusal of the section shows that only the factum of death of the victim during the offence of rape is required, and such death need not be with any guilty intention or be a natural consequence of the act of rape only. It is worded broadly enough to include death by any act committed by the accused if done contemporaneously with the crime of rape. [Paras 39, 60][302C-D; 309-C-E] Bachan Singh v State of Punjab (1980) 2 SCC 684 – followed
Rameshbhai Chandubhai Rathod v. State of Gujarat (2011) 2 SCC 764 : [2011] 1 SCR 829; Ashok
Debbarma v. State of Tripura (2014) 4 SCC 747 : [2014]
4 SCR 287; Krishnan v. State (2003) 7 SCC 56 : [2003]
1 Suppl. SCR 771 – relied on.
3. In the instant case, there are some residual doubts. A crucial witness for constructing the last seen theory, P.W.5 is partly inconsistent in cross-examination and quickly jumps from one statement to the other. Two other witnesses, P.W.6 and P.W.7 had seen the appellant feeding biscuits to the deceased one year before the incident and their long delay in reporting the same fails to inspire confidence. The mother of the deceased deposed that the wife and daughter of the appellant came to her house and demanded the return of the money which she had borrowed from them but failed to mention that she suspected the appellant of committing the crime initially. Ligature marks on the neck evidencing throttling were noted by P.W.20 and P.W.12 and in the postmortem report, but find no mention in the panchnama prepared by the police. Viscera samples sent for chemical testing were spoiled and hence remained unexamined. Although nails’ scrapings of the accused were collected, no report has been produced to show that DNA of the deceased was present. Another initial suspect, ‘B’ absconded during investigation, hence, gave rise to the possibility of involvement of more than one person. All these factors of course have no impact in formation of the chain of evidence and are wholly insufficient to create reasonable doubt to earn acquittal. Use of such ‘residual doubt’ as a mitigating factor would effectively raise the standard of proof for imposing the death sentence, the benefit of which would be availed of not by the innocent only. However, it would be a misconception to make a cost-benefit comparison between cost to society owing to acquittal of one guilty versus loss of life of a perceived innocent. This is because the alternative to death does not necessarily imply setting the convict free. Thus this case falls short of the ‘rarest of rare’ cases where the death sentence alone deserves to be awarded to the appellant. In the light of all the cumulative circumstances that the cause of justice will be effectively served by invoking the concept of special sentencing theory. The death penalty as awarded by the courts below is set aside and is substituted with the imprisonment for life. [Paras 61, 62, 64, 65][310-E-H; 311-A-B, D-F]
Swamy Shraddananda @ Murali Manohar Mishra v.
State of Karnataka (2008) 13 SCC 767 : [2008] 11 SCR 93; Union of India v. Sriharan alias Murugan and others (2016) 7 SCC 1 : [2015] 14 SCR 613 – relied on.
Bhupinder Sharma v. State of Himachal Pradesh (2003)
8 SCC 551 : [2003] 4 Suppl. SCR 792; Machhi Singh and others v. State of Punjab (1983) 3 SCC 470 : [1983]
3 SCR 413; Mukesh and another v. State (NCT of Delhi) and others (2017) 6 SCC 1 : [2017] 6 SCR 1; Vasanta Sampat Dupare v. State of Maharashtra (2017) 6 SCC
631 : [2017] 3 SCR 850; Khushwinder Singh v. State of Punjab (2019) 4 SCC 415[2019] 3 SCR 446;
Manoharan v. Inspector of Police (2019) SCC online SC 951; Rajindra Pralhadrao Wasnik v. State of Maharashtra in Review Petition (Crl.) Nos. 306-307/2013 – referred to.
State v. McKinney 74 S.W.3d 291 (Tenn. 2002); Herrera v. Collins, 506 U.S. 390 (1993) – referred to.
Report of the Committee on Amendments to Criminal Law, headed by Justice J.S. Verma, former Chief Justice of India – 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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