Case: RAVI Vs. THE STATE OF MAHARASHTRA

3. The informant Iliyas Mohinuddin (P .W.9) had been a fruit- seller based in Jalna. On 06.03.2012 at about 5.00 p.m. while he was as usual busy in selling fruits, his wife informed him that their daughter (in short, `the victim child?) who was 2 years old, was missing. He along with his relatives started looking for the child. During their search, the informant came to know from Azbar (P .W.2) that the appellant had been spotted drunk and was distributing chocolates to small children in the lane near the Maroti T emple. The appellant was also a resident of the same lane. The informant went to the appellant?s house which was found locked. As the whereabouts of the missing child were still not known, the informant lodged a formal missing report to the police. He also passed on the information to the police as received from Azbar (P .W.2) regarding the distribution of chocolates amongst small children by the appellant. The police, therefore, came to the appellant?s house which had two doors. One was found locked from outside while the other was locked from inside. Police broke open the door and entered the house along with the informant, his brother and a few other persons. They found the appellant in the house; deceased-victim was lying under the bed in a naked and unconscious condition. Blood was oozing out from her private parts and had multiple injuries on her body. She was covered in a blanket and taken to the hospital where the doctor declared her brought dead. Inquest panchnama was prepared and the body was sent for post mortem. A panel of doctors, including Dr. B.L. Survase and Dr. Bedarkar (P .W. 7 and P .W.8 respectively) performed the post mortem and found multiple injuries on the person of the victim. They opined that the death was caused due to throttling. The informant – father of the victim lodged the report at 12.30 a.m. on 07.03.2012 on the basis of which Crime No. 56 of 2012 was registered. The appellant was arrested at about 1.00 a.m. on the same day by the Investigating Officer Rajinder Singh Gaur (P .W.12). The clothes worn by the appellant were seized and the seizure panchnama was drawn in the presence of panchnama witnesses – Sheikh Arshad and Sheikh Nayeem.Iliyas (P .W.9), the father of the deceased-victim also produced the clothes worn by her which too were duly seized in the presence of Syed Muzeeb (P .W.1) and Mohd. Akbar Khan. The scene of crime panchnama was drawn and articles found on the spot were also seized. The appellant was referred for medical examination to Ghati Hospital, Aurangabad. The appellant?s blood samples were taken on 11.3.2012 and sent to Mumbai for DNA examination along with the seized muddemal. The blood samples of the appellant were taken again on 13.03.2012 and were sent for the DNA test.On filing of the chargesheet, charges under Sections 363, 376 and 302, IPC were framed to which the appellant did not plead guilty and claimed trial. Thereafter, prosecution moved an application for framing an additional charge under Section 377, IPC. The said application was allowed and charge under Section 377 was framed to which also the appellant did not plead guilty. His defence was of total denial and that he was falsely implicated.The prosecution examined 12 witnesses in all. The following points thus arose for consideration of the TrialWhether the prosecution proves that accused on 6.3.2012 at about 16.00 Hrs. in the vicinity of Indira Nagar, old Jalna, T aluka and District : Jalna, kidnapped xxx.. d/o Iliyas Pathan a minor girl under 16 years of age from her lawful guardianship & without his consent, and thereby committed an offence punishable u/s 363 of I.P .C.Whether the prosecution further proves that accused on above date, time and place of offence, committed rape on xxx.. and thereby committed an offence punishable u/s 376 ofWhether the prosecution further proves that accused on above date, time and place of offence, committed carnal intercourse against the order of nature with minor girl xxx.. and thereby committed an offence punishable u/s 377 ofWhether the prosecution further proves that accused on above date, time and place of offence, committed murder intentionally or knowingly causing death of xxx.., and thereby committed an offence punishable u/s 302 ofThe Trial Court discussed the evidence at length in the context of each point and answered them in the affirmative. It held the appellant guilty of the offences referred to above. The Trial Court thereafter compared the `aggravating circumstances? vis-a-vis the `mitigating circumstances? and having found that the crime was committed in a most brutal, diabolical and revolting manner which shook the collective conscience of the society, it found that the R.R. T est (rarest of the rare cases) is fully attracted, hence capital punishment was imposed on the appellant under Section 302, IPC.The High Court considered the death reference as well as the appeal preferred by the appellant against the trial Court judgment and after scrutinising the prosecution evidence, reached the following factualAccused was found with victim girl in a house one door of which was locked from outside and another door closed fromMultiple injuries found on the person ofMedical evidence showing that the girl was forcibly raped and done toRecovery of blood stained jeans pant and full bush shirt (torn) from theF . Failure of accused to offer plausible explanation to the incriminating circumstances against him.The High Court held that the circumstances conclusively prove that all the pieces of the puzzle fit so perfectly that they leave no reasonable ground for a conclusion consistent with the hypothesis of the innocence of the appellant, rather the same leads to the irrefutable conclusion that it is the appellant who took away the victim child to his house, sexually assaulted her, committed unnatural intercourse and throttled her to death. Consequently, the conviction of the appellant under Sections 302, 376, 377 and 363 of the IPC. was upheld.The High Court thereafter engaged itself on the question of quantum of sentence and as to whether the R.R. T est was attracted to the facts and circumstances of this case. The High Court drew up the balance sheet of the `aggravating? and `mitigating? circumstances and after their comparative analysis, it concurred with the extreme penalty awarded by the trial Court and confirmed the death sentence.The appellant was tried for committing the rape and murder on the minor girl child ?Zoyabano? and he was charged for offence punishable under Sections 363, 376, 377 and 302 IPC. After the trial, learned Additional Sessions Judge at Jalna, by judgment dated 16.09.2015, has held that appellant is guilty for the charges framed against him.By order dated 18.09.2015, the trial court, by recording a finding that crime committed by the appellant is heinous, brutal and inhuman, convicted and sentenced the appellant to death for the offence punishable under Section 302 IPC and ordered that he shall be hanged by neck till he is dead, subject to confirmation by the High Court as per Section 366 of Code of Criminal Procedure and also imposed a fine of Rs.500/- (Rupees Five Hundred Only). Similarly, learned Additional Sessions Judge has convicted the appellant for offence punishable under Section 376 of IPC and ordered sentence to suffer life imprisonment and a fine of Rs. 500/-(Rupees Five Hundred Only) and a sentence of rigorous imprisonment for 10 years for the offence punishable under Section 377 IPC with a fine of Rs.500/-(Rupees Five Hundred Only) and a sentence of R.I. for one year for the offence punishable under Section 363 with a fine of Rs.500/- (Rupees Five Hundred Only). Further, it was ordered that all the sentences of imprisonment shall run concurrently.The reference which was made to the High Court under Section 366 was numbered as Confirmation Case No.1 of 2015 and the appeal preferred by the appellant was numbered as criminal appeal No. 783 of 2015. The High Court by the Common Judgment and Order dated 20.01.2016, while dismissing the criminal appeal preferred by the appellant, has confirmed the death sentence imposed under Section 302 IPC. Hence, these appeals.

Reasoning: 19. The victim was not even 2-year old when she died an unnatural death. The post mortem was conducted on 07.03.2012 by a panel of doctors, which included Dr. B.L. Survesh (P .W.7) and Dr. Bedarkar (P .W.8). According to Dr. B.L. Survesh, the external injuries corresponded to the internal injuries and were sufficient in the ordinary course of nature to cause death. All the injuries were ante-mortem and the cause of death was throttling.On the vaginal examination of the victim, evidence of tear at posterior vaginal wall and triangular shape tear 2x1x½ cm. was noticed and hymen was found ruptured. Dr.Survase (P .W.7) has deposed that?on perusal of report as to examination of anal swab in DNA report, and, considering observation in clause 15 of the post mortem report, I opine that there was unnatural sex.?Similarly, Dr.Bedarkar (P .W.8) after perusing the same DNA report and post mortem report has stated that, ? I opine that vaginal and anal intercourse was performed.It, therefore, stands established beyond any pale of doubt that the victim child was subjected to forcible vaginal and anal/unnatural intercourse and she died of asphyxia due tobetween the appellant and theAfter a tenacious analysis of the testimonies of the witnesses with respect to the facts seen by each one of them, there remains no room to doubt that on 06.03.2012 the appellant after taking liquor was seen distributing chocolates to children sometime around 3.30/4.00 p.m. The victim child went missing around 4.00 p.m. as was informed to Ilias (P .W.9) by his wife at about 5.00 p.m. The information of her missing was immediately circulated amongst the family members/relatives and all of them desparately started searching for her. Meanwhile, the missing report was lodged with police as well. During such 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 T emple on that day and around that time the child went missing. The police-team, Iliyas – 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 stands 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. We may in this regard refer to, in particular, the deposition of Dilip Pralhadrai T ejan (P .W.3), who after making forceful entry inside the appellant?s house, found him outraging the modesty of the child. The appellant had the special knowlege 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 onEvidence connecting the appellant with theThe unshakable scientific evidence which nails the appellant from all sides, is sought to be impeached on the premise that the method of DNA analysis ?Y-STR? followed in the instant case is unreliable. It is 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.We are, however, not swayed by the submission. The globally acknowledged medical literature coupled with the statement of P .W.11 – Assistant Director, Forensic Science Laboratory 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 excalpatory 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 is thus overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proves that it is the appellant and he alone, who is guilty of committing the horrendous crime in this case. We, therefore, unhesitatingly uphold the conviction of the appellant.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. This Court has held in a catena of decisions that lack of motive would not be fatal to the case of prosecution as sometimes human beings act irrationally and at the spur of the moment. 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.It thus spells out from Machhi Singh (supra) that extreme penalty of death sentence need not be inflicted except in gravest cases of extreme culpability and where the victim of a murder is ... (a) an innocent child who could not have or has not provided even an excuse, much less a provocation for murder...?, such abhorent nature of the crime will certainly fall in the exceptional category of gravest cases of extreme culpability.This Court in Machhi Singh?s case confirmed the death sentence awarded to Kashmir Singh - one of the appellants as he was found guilty of causing death to a poor defenceless child (Balbir Singh) aged 6 years. The appellant Kashmir Singh was categorised as a person of depraved mind with grave propensity to commit murder.Bachan Singh and Machhi Singh, the Constitution Bench and the Three-Judge Bench decisions respectively, continue to serve as the foundation-stone of contemporary sentencing jurisprudence though they have been expounded or distinguished for the purpose of commuting death sentence, mostly in the cases of (i) conviction based on circumstantial evidence alone; (ii) failure of the prosecution to discharge its onus re: reformation; (iii) a case of residual doubts; and (iv) where the other peculiar `mitigating? circumstances outweighed the `aggravating? circumstances.It is noteworthy that 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 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.In the light of above discussion, we are of the considered opinion that sentencing in this case has to be judged keeping in view the parameters originating from Bachan Singh and Machhi Singh cases and which have since been strengthened, explained, distinguished or followed in a catena of subsequent decisions, some of which have been cited above. Having said that, it may be seen that 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, well-designed 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.All that is needed to be followed by us is what O? Conner J. very aptly observed in California v. Ramos, 463 U.S. 992 that the?qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination?and in order to ensure that the death penalty is not meted out arbitrarily or capriciously, the Court?s principal concern has to be with the procedure by which the death sentence is imposed than with the substantive factors laid before. The minimum sentence for an aggravated penetrative sexual assault has been thus 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.The Legislature has impliedly distanced itself from the propounders of ?No-Death Setence? 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 thethe 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.It is equally apt at this stage to refer the 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 10-years but which may extend for imprisonment for life with fine.