Penal Code, 1860 – ss. 376A, 376 (2)(i), 302 – POCSO Act – s. 6 – Rape and murder of a minor girl – Prosecution case that appellant-accused had raped and throttled to cause death of victim, who was daughter of appellant’s cousin sister – While in custody during interrogation, the appellant made disclosure statement and thereafter, at his instance, the victim’s corpse concealed underneath gunny bags, was recovered – The post-mortem and the forensic science laboratory (FSL) reports revealed commission of rape in a diabolically and gruesome manner and causing of death by throttling – Trial Court convicted him for offence punishable u/s 302, 376A, 376(2)(i) of IPC and sec. 6 of POCSO Act and awarded him death sentence – High Court set aside the conviction u/s 376A of IPC and the rest of the sentences passed by trial Court were confirmed including death sentence recorded for the offence u/s
302 of IPC – On appeal, held: The recovery of the dead body, which was in a concealed condition from an unused and dilapidated building based on the disclosure statement of an accused is a crucial incriminating circumstance – Another incriminating circumstance considered against the appellant is the presence of nail marks on his face and neck and also his failure to offer explanation - The deceased was lastly seen with the appellant on that fateful day – It is evident that an additional link is available in this case owing to the failure on the part of the appellant to explain all the incriminating circumstances in the personal examination conducted u/s 313 of CrPC – The cumulative effect of all incriminating circumstances, would definitely justify the finding of the High Court as to the guilt of the appellant – The trial Court and also the High Court rightly concluded that the death of the victim is homicidal – The Courts have also rightly found that victim was raped – Thus, on a careful examination of the matter in its entirety, there is no perversity or manifest illegality with respect to the concurrent finding of the trial Court and the High Court that the appellant had committed the offences.
Code of Criminal Procedure, 1973 – s. 354(3) – Death sentence – This penalty is awardable to a culprit only the category of the case falls under ‘rarest of rare cases’, the culprit has become a threat to the society at large and beyond reformation and his elimination is the only way for eradication of the threat – The present case cannot be considered as one falling in the category of ‘rarest of rare cases’ in which there is no alternative but to impose death sentence – While commuting capital punishment, the appellant was awarded life imprisonment without application of the provisions of premature release/remission for a substantial length of period. Penal Code, 1860 – ss. 302, 304 – Culpable homicide and murder – The right approach in cases of culpable homicide is to first find out whether the offence falls under any of the four clauses viz., clauses firstly to fourthly u/s. 300 IPC - If it is so found, then the Court has to see whether the case is covered by any one of the five exceptions to section 300 IPC, which would make a culpable homicide ‘not amounting to murder’ – The offence, if proved, to fall under one of the said exceptions would be punishable u/s. 304, either under Part 1 or Part 2 as the case may be, or otherwise it would be murder punishable u/s. 302 IPC.
Criminal Procedure Code, 1973 – s.53A – Examination of accused by medical practitioner – Non-conduct of – DNA Profiling - There can be no doubt with respect to the position that a fair investigation is necessary for a fair trial – However, solely on account of defects or shortcomings in investigation an accused is not entitled to get acquitted – The lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. Evidence Act, 1872 – Circumstantial Evidence – Last Seen Theory – In the instant case, the convic tion by the trial Court was not solely based on “last seen theory” – The confirmation of the con viction and sentence in the stated manner by the High Court is also not solely based on the “last seen theory” – Both the trial Court and High Court relied on the testimonies of the oral witnesses and other material evidences – Also, disclosure statement of the accused, which was resulted in recovery of the dead body.
Partly allowing the appeal, the Court
HELD: 1. In view of the nature of the provision under Section 53A Cr.P.C and the decisions referred, this Court is also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances forms a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour. [Para 28][251-G-H; 252-A-C]
2. In the light of the above referred decisions, the contentions of the appellant founded on the factum of non-holding of DNA profiling and the provision under Section 53A, is only to be repelled. As held in Sunil’s case, a positive result of DNA test would constitute clinching evidence against the accused. But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case. So much so, even in such circumstances, the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the appellant herein and that exactly what was done by the trial Court and then by the High Court, in the instant case. [Para 30][253-BD]
3. The High Court had interfered with the conviction of the appellant under Section 376A IPC the question whether the rest of the incriminating circumstances formed a complete chain leading solely to the guilt of only appellant in exclusion of all hypothesis in favor of his innocence, as held by the High Court. Considering in detail all the incriminating circumstances and materials available to support them that weighed with the High Court. Suffice it to say that they would go to show that despite what are eschewed a continuous and complete chain of circumstances and materials supporting them, is available and they are wholly inconsistent with the innocence of the appellant and consistent only with his guilt. Above all, it is evident that an additional link is available in this case owing to the failure on the part of the appellant to explain all the aforesaid incriminating circumstances. While being examined under Section 318, Cr.P.C. in respect of all questions his answers were either ‘it is false’ or ‘I do not know’. There is absolutely no case for the appellant that all the incriminating circumstances were not put to him. In view of Pattu Rajan’s case and other decisions such as, Trimukh Maroti Kirkan Vs. State of Maharashtra offering no explanation on incriminating circumstances mentioned above would become an additional link in the chain of circumstances. The cumulative effect of all the aforesaid circumstances, referred to in detail hereinbefore, would definitely justify the finding of the High Court as to the guilt of the appellant. [Para 47][265-D-H]
4. The trial Court and also the High Court had concurrently concluded that the death of the victim is homicidal in nature. This Court has found, based on the evidence on record, that the Courts have rightly found that the victim was raped. The diabolic and gruesome manner in which the appellant had ravished the hapless girl is evident from the grave injuries on her pudenda. There occurred perennial tear of grade fourth extending up to anus and that her uterus was torn and was coming out from the vagina. As noticed above, the vaginal swab on examination revealed the presence of blood and semen. Hence, the finding that the deceased was subjected to rape warrants no interference. [Para 48][266-A-C]
5. The question, now to be considered is whether the homicidal death of the victim amounts to murder or whether it falls either under Section 304(1) or 304(2) as contended by the appellant. The impugned judgment would reveal that the High Court concurred with the finding of the trial Court that the homicidal death of the victim amounts to murder. The right approach in cases of culpable homicide is to first find out whether the offence falls under any of the four clauses viz., clauses firstly to fourthly under Section 300 IPC. If it is so found, then the Court has to see whether the case is covered by any one of the five exceptions to section 300 IPC, which would make a culpable homicide ‘not amounting to murder’. The offence, if proved, to fall under one of the said exceptions would be punishable under Section 304, either under Part 1 or Part 2 as the case may be, or otherwise it would be murder punishable under Section 302 IPC. In the case on hand both the trial Court and the High Court, had analysed evidence on record and found that the appellant had pressed the neck of the victim so hard unmindful of the fact that she was aged only 8 years and caused internal hemorrhage. The cause of death was asphyxia due to throttling. The nature of the injuries found on the neck of the deceased would reveal the pressure exerted by the appellant on the neck. The fact that the victim was a hapless girl aged only 8 years has to be taken into account while considering the question. Intention is a subjective element and every sane person must be presumed to intend the result that his action normally produces. Hence, constriction of the neck of a girl child aged about 8 years by fingers or palm by a young man aged 25 years, with such force to cause the injuries mentioned hereinbefore cannot be said to be sans intention to take her life. If the said act was subsequent to commission of rape in the diabolic and gruesome manner revealed from the grave injuries sustained on her private parts, causing death alone can be inferred from the circumstances. If the act of constricting the neck with such force resulting in the stated injuries preceded the offence of rape, then, the manner by which she was ravished should be taken only as an act done knowingly that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Thus, viewing in any angle the homicidal death would fall either Clause 1 or Clause
4 of Section 300 IPC. A feeble attempt was made by the appellant to contend that the Courts had erred in finding the appellant guilty under Section 300 IPC, punishable under 302 IPC and that if at all he has to be convicted for causing death of the victim it ought to have been under Section 304 IPC. It is to be noted, once it is found that the act falls under any one of the 4 clauses under Section
300 IPC, to bring it out of its purview it must be proved that it falls under any one of the five exceptions to Section 300 IPC. There is nothing on record and no contention was also raised by the appellant, with support of material, to show that any one of the said five exceptions attracts in this case. In fact, the only contention urged and also taken in the written submission by the appellant is that the deceased had died due to an injury on her neck which had occurred quite naturally during the commission of the rape. This Court has no hesitation to hold that the said contention is palpably untenable and at any rate, not at all sufficient to bring the offence under any one of the five exceptions to Section 300 IPC. The long and short of the discussion is there is no reason to interfere with the finding of the Trial Court, which was confirmed by the High Court, that the appellant is guilty of committing murder punishable under Section 302 IPC. Thus, on a careful examination of the matter in its entirety, we do not find any perversity or manifest illegality with respect to the concurrent finding of the trial Court and the High Court that the appellant herein had committed offences punishable under Section 302 IPC, 376(2)(i) IPC and Section 6 of the POCSO Act. [Para 50][267-AH; 268-A-D]
6. The next question is whether death sentence awarded by the trial Court and confirmed by the High Court for the conviction of the offence of murder be maintained or substituted? This penalty is awardable to a culprit only the category of the case falls under ‘rarest of rare cases’, the culprit has become a threat to the society at large and beyond reformation and his elimination is the only way for eradication of the threat. For deciding the said question various aspects have to be considered. On a careful scanning of the consideration made by the trial Court as also the High Court for awarding the sentence for the conviction under Section 300 IPC, punishable under section 302 IPC, this Court is of the view that the question regarding the correctness of the death sentence awarded to the appellant requires further consideration, taking into account the statutory requirements under Section 354(3) Cr.P.C. For awarding termination of natural life, a careful scrutiny is required. [Para 52][268-F-H; 269-A]
7. It is true that all murders are inhuman. For imposing capital sentence, the crime must be uncommon in nature where even after taking into account the mitigating circumstances the Court must be of the opinion that the sentence of imprisonment for life is inadequate and there is no alternative but to impose death sentence. The heinous and brutal nature of the commission of crime, viz., brutal rape and murder of an eight-year old girl child who is none other than the daughter of his own cousin, that too in a hapless situation, is definitely an aggravating circumstance. The nature of the injuries caused on the private parts of the victim as is evident from the evidence of PW10 with Ext.P17 report would definitely shock the conscience. At the same time, the principles enunciated by this Court in the matter of awarding of death sentence and in such circumstances, the undisputed and indisputable fact that the appellant had no criminal antecedents and he hails from a poor socio-economic background and also his unblemished conduct inside the jail cannot go unnoticed. So also, it is a fact that at the time of commission of the offence the appellant was aged 25 years. Hence, viewing the issue taking into account the aforesaid aspects, this Court does not find any reason to rule out the possibility and the probability of the reformation and rehabilitation of the appellant. The long and short of the discussion is that the present case cannot be considered as one falling in the category of ‘rarest of rare cases’ in which there is no alternative but to impose death sentence. [Para 56][273-C-F]
8. Thus, taking into account the fact that in the case on hand a hapless 8 year old girl child, who is none other than the daughter of appellant’s cousin sister raped and murdered and that too, in an extremely brutal manner revealed from the evidence on record, we are of the considered view that course adopted in the decision in Swamy Shraddananda’s case and reiterated in Sriharan’s case has to be adopted in this case. In other words, even while commuting capital punishment, the appellant has to be awarded life imprisonment without application of the provisions of premature release/remission for a substantial length of period. On such consideration we are of the view that it would be just and proper to award punishment of imprisonment for life to the appellant for the offence punishable under Section
302 IPC, by providing for an actual imprisonment for a period of
30 (thirty) years without application of the provisions of premature release/remission. [Para 58][274-C-E]
9. In the circumstances, these appeals are partly allowed as hereunder: (i) The conviction of the appellant for the offences punishable under Section 302 and 376(2)(i), IPC and conviction for the offence punishable under Section 6 of POCSO Act is upheld and the sentences awarded to him for the conviction therefor, are confirmed, for the offence under Section 302 IPC; (ii) However, the death sentence awarded to the appellant for the offence under Section 300, IPC punishable under Section 302, IPC is commuted to that of imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of thirty (30) years;
(iii) The other terms of sentences awarded to the appellant including fine amount and default stipulations also stand confirmed. All the substantive sentences awarded to the appellant shall run concurrently. [Para 59][274-F-H; 275-A] State of WB v. Mir Mohammed Omar and Ors. (2000) 8 SCC 382 : [2000] 2 Suppl. SCR 712; Sunil v. State of Madhya Pradesh (2017) 4 SCC 393; State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 : [2006] 8 Suppl. SCR 501; Pattu Rajan v. State of Tamil Nadu (2019) 4 SCC 771 : [2019] 5 SCR 535; Dalip Singh and Ors. v. State of Punjab reported in AIR 1953 SC 364 : [1954] SCR 145; State of West Bengal v. Dipak Haldar & Anr. (2009) 7 SCC 288 : [2009] 8 SCR 530; R. Shaji v. State of Kerala (2013) 14 SCC 266 : [2013] 3 SCR 1172; Shankar Kishanrao Khade v. State of Maharashtra (2013) 5 SCC 546; Pappu v. State of Uttar Pradesh (Crl.A.No. 1097-1098 of 2018 decided by the Supreme Court); Union of India v. Sriharan (2016) 7 SCC 1 : [2015] 14 SCR 613 – relied on.
Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 460 : [2018] 14 SCR 585; Tahsildar Singh & Anr. v. State of UP AIR 1959 SC 1012 : [1959] Suppl. SCR 875; Pudhu Raja & Anr. v. State (2012) 11 SCC 196 : [2012] 8 SCR 740; State of Haryana v. Bhagirath (1999) 5 SCC 96 : [1999] 3 SCR 529; Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737 : [2014] 11 SCR 1009; Nizam and Anr. v. State of Rajasthan (2016) 1 SCC 550 : [2015] 10 SCR 786; Arabindra Mukherjee v. State of West Bengal (2011)
14 SCC 352; Khurshid Ahmed v. State of Jammu & Kashmir (2018) 7 SCC 429 : [2018] 6 SCR 1121;
Sukhar v. State of UP (1999) 9 SCC 507 : [1999] 3 Suppl. SCR 314; Chanakya Dhibar v. State of West Bengal (2004) 1 Crimes 196; Govindaraju @ Govinda v. State (2012) 4 SCC 722 : [2012] 5 SCR 67; Jaharlal Das v. State of Orissa AIR 1991 SC 1388 : [1991] 2 SCR 298; Mohd. Mannan @ Abdul Mannan v. State of Bihar (2011) 5 SCC 317 : [2011] 5 SCR 518; Kansa Behera v. State of Orrisa AIR 1987 SC 1507 : [1987] 2 SCR 1096; Trimukh Maroti Kirkan v. State of
Maharashtra (2006) AIR SCW 5300; Swamy
Shraddananda v. State of Karnataka (2008) 13 SCC
767 : [2008] 11 SCR 93; Union of India v. Sriharan (2016) 7 SCC 1 : [2015] 14 SCR 613 - 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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