Shatrughna Baban Meshram vs State of Maharashtra

Penal Code, 1860 – ss.299, 300 and s.302 – Rape and murder of a minor child – A two-and-a-half-year-old girl was subjected to sexual assault – Her death was caused due to injuries received during that assault – Whether such an act on part of the appellant comes within the parameters of ss.299 and 300 of IPC and whether he is guilty of having committed culpable homicide amounting to murder – Held: Considering the age of the victim in the present case, the accused must have known the consequence that his sexual assault on a child of two-and-a-half-year-old would cause death or such bodily injury as was likely to cause her death – The instant matter thus comes within the parameters of clause fourthly to s.300 IPC and the question posed on this issue must be answered against the appellant – The appellant is therefore guilty of having committed the offence of culpable homicide amounting to murder.

Sentence/Sentencing – Rape and murder of a minor girl – A two-and-a-half-year-old girl was subjected to sexual assault by her maternal uncle – Her death was caused due to multiple injuries she received during such assault – The Trial Court found that circumstantial evidence established the guilt of the accused – The Trial Court by its order awarded death sentence to the appellant on two counts, i.e. u/s.302 of IPC and u/s.376-A of the IPC; rigorous imprisonment for life under two counts, i.e. s.376(1)(2)(f), (i) and

(m) of IPC and u/s. 6 of POCSO Act – The death sentence was confirmed by the High Court – On appeal, held: Merely because the instant case is based on circumstantial evidence there is no reason to commute the death sentence – The matter must be considered to see whether the circumstantial evidence is of unimpeachable character in establishing guilt of the accused or leads to an exceptional case and also whether the evidence on record is so strong and convincing that option of a sentence lesser than a death penalty is foreclosed – In the instant case, the circumstances proved on record are clear, consistent and conclusive in nature and are of unimpeachable character in establishing the guilt of the appellant – The evidence on record also depicts an exceptional case where two and half year old girl was subjected to sexual assault – However, it cannot be said that the option of a sentence lesser than death penalty is completely foreclosed – A definite pointer in favour of the appellant is the fact that he did not consciously cause any injury with the intent to extinguish the life of the victim – In matters where the conviction is recorded with the aid of clause fourthly u/s. 300 of IPC, it is very rare that the death sentence is awarded – In various Supreme Court decisions, where the victims were below 16 years of age and had died during the course of sexual assault on them, the maximum sentence awarded was life sentence – This aspect is very important – Therefore, the appellant is guilty of the offence punishable u/s. 302 IPC, since there was no requisite intent as would bring the case under any of the first three clauses of s.300 IPC, the offence in the present case does not deserve death penalty – Appellant is sentenced to life imprisonment for offence punishable u/s.302 IPC – The second count on which death sentence has been imposed is u/s. 376A of IPC – In view of the fact that s.376A IPC was brought on the statute book just a few days before the commission of the offence, the appellant does not deserve death penalty for said offence – However, the appropriate punishment for the offence u/s. 376A IPC must be rigorous imprisonment for a term of 25 years – The conviction and sentence recorded by the Courts below for the offences punishable u/s. 376(1), (2)(f), (i) and

(m) of IPC, and u/s.6 of the POCSO Act are affirmed. Code of Criminal Procedure, 1973 – s.235(2) – Penal Code, 1860 – s.376(1), (2)(f), (i), (m), s.376-A and s.302 – Protection of Children from Sexual Offences Act, 2012 – s.6 – Rape and murder of a minor girl – Trial Court found appellant-accused guilty – The Trial Court, by its order passed on the same day awarded death sentence to the appellant on two counts, i.e. u/s.302 of IPC and u/s.376-A of the IPC; rigorous imprisonment for life under two counts, i.e. s.376(1)(2)(f), (i) and (m) of IPC and u/s. 6 of POCSO Act – The death sentence was confirmed by the High Court – Before the Supreme Court, the appellant contended that the sentence of death was passed on the same day when the conviction order was pronounced, there was non-compliance of s.235(2) of the Code, the infraction on that count was sufficient to consider commutation of the sentence of death to that of life imprisonment – Held: Merely on account of infraction of s.235(2) of the Code, the death sentence ought not to be commuted to life imprisonment – Adequate and sufficient opportunity afforded to the appellant to place all the relevant materials on record in the light of principle laid down in Dagdu v. State of Maharashtra.

Penal Code, 1860 – s.376(1)(2) and s.376A – Criminal Law (Amendment) Ordinance, 2013 – Criminal Law (Amendment) Act, 2013 – Rape and murder of a minor girl – The Trial Court, by its order awarded death sentence to the appellant on two counts, i.e. u/s.302 of IPC and u/s.376-A of the IPC; rigorous imprisonment for life under two counts, i.e. u/s.376(1)(2)(f), (i) and (m) of IPC and u/s. 6 of POCSO Act – The Criminal Law (Amendment) Ordinance, 2013 (promulgated by the President of India on 03.02.2013), u/s.376(2) prescribed punishment as “shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life” – The sentence prescribed by s.376(2) as amended by the Amendment Act, has for the first time provided that the imprisonment for life “shall mean imprisonment for the remainder of that person’s natural life” – Whether imposition of life sentence in the instant case for the offence under u/s.376(2) could “mean imprisonment for the remainder of that person’s natural life” – Whether such ex-post facto prescription would be consistent with the provisions of subArticle (1) of Article 20 of the Constitution – Held: In the instant case, the offence was committed on 11.02.2013 when the provisions of the Ordinance were in force – However, the Amendment Act having been given retrospective effect from 03.02.2013 – Since it was the Ordinance which was holding the field, going by the provisions of the Ordinance, Clauses (f), (h) and (l) of s.376(2) would get attracted – As far as consistency of ex-post facto prescription with Art.20(1) is concerned – An imposition of life sentence simpliciter does not put any restraints on the power of the executive to grant remission and commutation in exercise of its statutory power, subject of course to s.433A of the Code – But, a statutory prescription that it “shall mean the remainder of that person’s life” will certainly restrain the executive from exercising any such statutory power and to that extent the concerned provision definitely prescribes a higher punishment ex-post facto – In the process, the protection afforded by Art.20(1) of the Constitution would stand negated – Therefore, it is must to declare that the punishment u/s.376(2) of the IPC in the present case cannot come with stipulation that the life imprisonment “shall mean the remainder of that person’s life”.

Penal Code, 1860 – s.299 and s.300 – Interplay between – discussed.

Words and Phrases – Theory of “Residual Doubt” – discussed.

Partly allowing the appeals, the Court

HELD: 1. The Trial Court found eight circumstances establishing guilt of the appellant-accused. According to the prosecution, on the day in question at about 7:30 p.m. when the victim was with her grandfather, on the pretext that the father of the victim had asked the Appellant to bring the victim, the appellant, who was maternal uncle of the victim, took her away. This part of the evidence is conclusively established through the testimony of PW2, the grandfather. This version finds mention in the FIR which was recorded within few hours of the incident and in the statement of PW2 recorded under Section 164 of the Code. There is nothing on record to doubt the veracity of said version. It is true that some other witnesses were not examined by the prosecution but the strength of the testimony of PW2 does not get diminished on any count nor can it be said that his testimony loses its weight because the witness was the grandfather of the victim. The version coming through this witness is cogent, consistent and also figured in prompt reporting of the FIR. This Court has, therefore, no hesitation in accepting that the first circumstance as noted by the Trial Court stands conclusively established. [Para 18.1][48-F-H; 49-A-B]

2. As deposed by PWs 1 and 2, the Appellant was found by the side of the victim at the spot i.e. in the premises of Anganwadi. The victim was having various injuries whereafter she was taken for medical attention. Soon after the incident, the Appellant was also medically examined and Report Exbt. 46 showed injury on his body. Even if PW9 had turned hostile and some other witnesses were not examined, the fact that the victim was always in the custody of Appellant till she was found at the spot alongside the Appellant is quite clear. The proximity in terms of time and the promptitude in reporting are crucial factors and the evidence in that behalf is completely trustworthy. Thus, in view of this Court, the second and third circumstances are also fully established. [Para 18.2][49-C-D]

3. Soon after his arrest, the Appellant was produced for medical examination before PW 7-Dr., who found injury on private parts of the Appellant. The approximate time of said injury as given in the opinion Exh. 46 is consistent with the case of prosecution. No explanation, not even a suggestion came from the Appellant how there could be an injury on his body as noticed in Report Exh.46. Thus, the 4th circumstance also stands fully established. [Para 18.3][49-E-F]

4. While considering the 5th circumstance, it must be stated that as per record, the chappals were not proved to be that of the Appellant and the pieces of flesh found at the spot of incident were also not proved to be that of a human being. To that extent, 5th circumstance was not proved at all. However, the fact that the pant of the victim was found at the spot of incident is well established on record, and the 5th circumstance must be taken to be proved only with respect to the recovery of the pant of the victim. [Para 18.4][49-G-H; 50-A]

5. There is nothing on record to show that the stains of semen found on clothing referred to in 6th circumstance, were medically proved to be that of, or could be associated with the Appellant. The 6th circumstance cannot therefore be taken to be pointing against the Appellant. [Para 18.5][50-B]

6. In terms of Chemical Analyser’s Report Ext. 54, the blood found on the trousers of the Appellant was that of the victim. This fact is completely established. Given the quick succession of steps in investigation, including the medical examination and seizure of the clothes of the Appellant, this Court does not find any infirmity. This Court, therefore, accept that the 7th circumstance stands fully established.[Para 18.6][50-B-C;50G]

7. It is a matter of record that as per post-mortem report and medical opinion, there was forceful sexual assault on the victim and her death was caused due to injury No.17 which was in the nature of multiple lacerations over vaginal and anal region; and merging of vaginal and anal orifices. The 8th circumstance must therefore be taken to be proved fully except to the extent that said circumstance makes reference to pieces of flesh found at the spot of incident. [Para 18.7][50-H; 51-A-B]

8. Do the circumstances established on record satisfy the requirements spelt out in the decision of this Court in Sharad Birdhichand Sarda is the question for consideration.

The established circumstances show:(a)

The victim was in the custody of the Appellant, from the time she was taken from her grandfather till she was found lying in the premises of Anganwadi; where the Appellant was also found lying next to her.

(b)

The victim, who was hale and hearty when she was taken by the Appellant, had number of injuries on her body when she was found next to the Appellant.

(c)

The injuries on the body of the victim show that she was abused and sexually exploited.

(d)

The sexual assault was so forceful that the victim, a two-and-a-half-year-old girl suffered, among other injuries, Injury No.17 i.e. Multiple lacerations over vaginal and anal region merging vaginal and anal orifice, margins irregular, blood infiltrated, reddish.

(e)

Injury No.17, as described above, was so severe that there was merging of vaginal and anal orifices.

(f)

The victim died because of Injury No. 17.

(g)

The Appellant had an injury on his private parts corresponding to the period when the victim was in his custody.

(h)

The Appellant was found to be capable of having sexual intercourse.

(I)

The trousers of the Appellant had blood stains, the DNA profiles of which, matched with that of the blood of the victim.

These circumstances at serial numbers (a) to (i) stand proved beyond any doubt and by themselves constitute a conclusive and consistent chain excluding every other hypothesis except the guilt of the appellant. [Para 19][51-B-H; 52-A]

9. The appellant is thus guilty of having committed offences punishable under clauses (f), (i) and (m) of sub-section (2) of Section 376 of IPC; and also, under clauses (j) and (m) of Section

5 read with Section 6 of the POCSO Act, (as it stood before it was amended by Act 25 of 2019). Since according to medical opinion, the death was because of injury No. 17, the Appellant is also guilty of having committed offence punishable under Section 376A of IPC. [Para 22][52-F-G]

10. The injuries suffered by the victim were directly as a result of sexual assault inflicted upon her. But the medical evidence does not disclose that either before or after the commission of sexual assault, any other injury was consciously caused with the intention to extinguish the life of the victim. Injury No. 17 which was the cause of death was suffered by the victim during the course of commission of sexual assault upon her. The questions that arise, therefore, are whether such an act on part of the Appellant comes within the parameters of Sections 299 and 300 of IPC and whether he is guilty of having committed culpable homicide amounting to murder. [Para 23][52-G-H; 53A-B]

11. Considering the age of the victim in the present case, the accused must have known the consequence that his sexual assault on a child of 2 ½ years would cause death or such bodily injury as was likely to cause her death. The instant matter thus comes within the parameters of clause fourthly to Section 300 IPC and the question posed at the beginning of the discussion on this issue must be answered against the Appellant. The Appellant is therefore guilty of having committed the offence of culpable homicide amounting to murder. [Para 28][66-D-F]

12. As far as the sentence is concerned, after considering various decisions of this Court, the Court summed up: (a) it is not as if imposition of death penalty is impermissible to be awarded in circumstantial evidence cases; and (b) if the circumstantial evidence is of an unimpeachable character in establishing the guilt of the accused and leads to an exceptional case or the evidence sufficiently convinces the judicial mind that the option of a sentence lesser than death penalty is foreclosed, the death penalty can be imposed. [Para 41][97-E-G]

13. If the present case is so considered, the discussion must broadly be classified under following two heads:-(A) Whether the circumstantial evidence in the present case is of unimpeachable character in establishing the guilt of the Appellant or leads to an exceptional case; (B) Whether the evidence on record is so strong and convincing that the option of a sentence lesser than a death penalty is foreclosed. [Para 53][126-G-H; 127-A-B]

14. Going by the circumstances proved on record and, more particularly the facets detailed earlier as well as the law laid down by this Court in series of decisions, the circumstances on record rule out any hypothesis of innocence of the Appellant. The circumstances are clear, consistent and conclusive in nature and are of unimpeachable character in establishing the guilt of the Appellant. The evidence on record also depicts an exceptional case where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one. [Para 53][127-B-D]

15. However, if the case is considered against the second head, we do not find that the option of a sentence lesser than death penalty is completely foreclosed. It is true that the sexual assault was very severe and the conduct of the Appellant could be termed as perverse and barbaric. However, a definite pointer in favour of the Appellant is the fact that he did not consciously cause any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him and it was injury No.17 which was the cause of death, his conviction under Section

302 IPC is not under any of the first three clauses of Section 300 IPC. In matters where the conviction is recorded with the aid of clause fourthly under Section 300 of IPC, it is very rare that the death sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24, 40, 45 and 64 of the Chart tabulated in paragraph 30 hereinabove, where the victims were below 16 years of age and had died during the course of sexual assault on them, the maximum sentence awarded was life sentence. This aspect is of crucial importance while considering whether the option of a sentence lesser than death penalty is foreclosed or not. [Para 53][127-D-G]

16. This Court, therefore, finds that though the Appellant is guilty of the offence punishable under Section 302 IPC, since there was no requisite intent as would bring the case under any of the first three clauses of Section 300 IPC, the offence in the present case does not deserve death penalty. [Para 54][127-GH; 128A]

17. The second count on which death sentence has been imposed is under Section 376A of IPC. As noted earlier, the offence was committed on 11.02.2013 and just few days before such commission, Section 376A was inserted in IPC by the Ordinance. As concluded by this Court, the ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution. The Appellant is thus definitely guilty of the offence punishable under Section 376A IPC. But the question remains whether punishment lesser than death sentence gets ruled out or not. As against Section 302 IPC while dealing with cases under Section 376A IPC, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed with this Court while considering the appropriate punishment for the offence under Section 302 IPC, in view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty for said offence. At the same time, considering the nature and enormity of the offence, it must be observed that the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years. [Para 55][128-AE] Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; State of Andhra Pradesh v. Rayavarapu Punnayya and Another (1976)

4 SCC 382 : [1977] 1 SCR 601; State of Madhya Pradesh v. Ram Prasad [1968] 2 SCR 522; Santosh S/o Shankar Pawar v. State of Maharashtra (2015) 7 SCC 641 : [2015] 4 SCR 962; Suraj Jagannath Jadhav v. State of Maharashtra (2020) 2 SCC 693 : [2019]

15 SCR 84; State of Orissa v. Dibakar Naik and Others (2002) 5 SCC 323 : [ 2002] 3 SCR 307; State, Govt of NCT of Delhi v. Sunil and Another (2001) 1 SCC 652 : [2000] 5 Suppl. SCR 144; Amrit Singh v. State of Punjab (2006) 12 SCC 79: [2006] 8 Suppl. SCR 889; Dattatraya Ambo Rokade v. The State of Maharashtra (2019) 13 SCALE 187; Dagdu v. State of Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636; B. A. Umesh vs. Registrar General, High Court of Karnataka (2017) 4 SCC 124 : [2016] 5 SCR 438;Vasanta Sampat Dupare v. State of Maharashtra (2017) 6 SCC 631 : [2017]

3 SCR 850 ; Manoj Suryavanshi v. State of

Chhattisgarh (2020) 4 SCC 451 ; Hanumant v. State of Madhya Pradesh [1952] SCR 1091; Vadivelu Thevar v. State of Madras [1957] SCR 981; Jumman Khan v. State of U.P. and Another (1991) 1 SCC 752 :[1990]

3 Suppl. SCR 398; Amrutlal Someshwar Joshi v. State of Maharashtra (1994) 6 SCC 186: [1994] 2 Suppl. SCR 510; Shivaji alias Dadya Shankar Alhat v. State of Maharashtra; (2008) 15 SCC 269:[2008]

13 SCR 81; Vasanta Sampat Dupare v.State of

Maharashtra (2015) 1 SCC 253; Manoharan v. State (2019) 7 SCC 716; Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC 230 :[2006] 10 Suppl.

SCR 662; Swamy Shraddananda (2) v. State of

Karnataka (2008) 13 SCC 767:[ 2008] 11 SCR 93; Mohan and Ors. v. State of Tamil Nadu (1998) 5 SCC 336:[1998] 3 SCR 317; Nand Kishore v. State of Madhya Pradesh (2019) 16 SCC 278; State of Haryana v. Krishan and Another (2017) 8 SCC 204 : [2017]

7 SCR 251; Md. Mannan v. State of Bihar (2019) 16 SCC 584 : [2019] 8 SCR 266; Dileep Bankar v.

State of M.P. MANU/SC/1125/2019 ; Rameshbhai

Chandubhai Rathod v. State of Gujarat (2009) 5 SCC 740; Dhananjoy Chatterjee v. State of W.B. (1994) 2 SCC 220 : [1994] 1 SCR 37; Ashok Debabarma @

Achak Debbarma v. State of Tripura (2014) 4 SCC

747 : [2014] 4 SCR 287; Sudam v. State of Maharashtra (2019) 9 SCC 388 : [2019] 14 SCR 943; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90; Kalu Khan v. State of Rajasthan (2015) 16 SCC 492; Ravishankar alias Baba Vishwakarma vs. State of Madhya Pradesh (2019) 9 SCC 689 : [2019] 14 SCR 285 – relied on. Allauddin Mian v. State of Bihar (1989) 3 SCC 5 : [1989] 2 SCR 498 ; Malkiat Singh and others v. State of Punjab (1991) 4 SCC 341 : [1991] 2 SCR 256; Ajay Pandit v. State of Maharashtra (2012) 8 SCC 43 : [2012] 10 SCR 70; Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC 467 :[ 2007] 1 SCR 916;

Sebastian @ Chevithiyan v. State of Kerala (2010) 1 SCC 58; Purna Chandra Kusal v. State of Orissa (2011)

15 SCC 352; State of AP v. T. Prasanna Kumar (2003)

1 ACR 627 (SC); Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC 28; Ramesh Harijan v. State of Uttar Pradesh (2012) 5 SCC 777 : [2012] 6 SCR 688; Ram Deo Prasad v. State of Bihar (2013) 7 SCC 725 : [2013]

6 SCR 108; Ramesh v. State through Inspector of Police (2014) 9 SCC 392 : [2014] 7 SCR 956; Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India (2014)

9 SCC 737:[2014] 11 SCR 1009; Santa Singh v. State of Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229; Kamta Tiwari v. State of M.P. (1996) 6 SCC 250 : [1996]

5 Suppl. SCR 507; Molai and Another v. State of M.P. (1999) 9 SCC 581 : [1999] 4 Suppl. SCR 104; Neel Kumar v. The State of Haryana (2012) 5 SCC 766 : [2012] 5 SCR 696; Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC 317 : [2013] 16 SCR 616;

Mahesh Dhanaji Shinde v. State of Maharashtra (2014)

4 SCC 292 : [2014] 3 SCR 406; Rajesh Kumar v. State through Government of NCT of Delhi (2011) 13 SCC 706; Mohinder Singh v. State of Punjab,(2013) 3 SCC

294 : [2013] 3 SCR 90 ; Rameshbhai Chandubhai Rathod (2) v. State of Gujarat (2011) 2 SCC 764 : [2011]

1 SCR 829; Amit v. State of U.P. (2012) 4 SCC 107 : [2012] 1 SCR 1009 Sunil v. State of M.P. (2017) 4 SCC 393; Sunil Damodar Gaikwad v. State of Maharashtra (2014) 1 SCC 129 : [2013] 9 SCR 295; Surendra Pal Shivbalak Pal v. State of Gujarat (2005) 3 SCC 127 : [2004] 4 Suppl. SCR 464 ; Mahesh Dhanaji Shinde v. State of Maharashtra (2014) 4 SCC 292:[2014] 3 SCR 406, Santosh Kumar Singh v. State of M.P. (2014)

12 SCC 650 : [2014] 7 SCR 928; Shyam Singh @

Bhima v. State of Madhya Pradesh (2017) 11 SCC 265; Mukesh and Another v. State ( NCT of Delhi) and Others (2017) 6 SCC 1 : [2017] 6 SCR 1 – referred to.

California v. Brown 93 L Ed 2d 934 : 479 US 538 (1987); Franklin v. Lynaugh 101 L Ed 2d155 : 487 US

164 (1988); Herrera v. Collins (1993) SCC Online US SC 10; Oregon v. Guzek 546 US 517 (2006); Abdul Kabir v. Quarterman 550 US 233 (2007); State v. McKinney 74 SW 3d 291 – referred to.