SAMBHUBHAI RAISANGBHAI PADHIYAR versus STATE OF GUJARAT
[2024] 12 S.C.R. 1072, Supreme Court of India, 2024
Outcome: Case Partly allowed (Granted)
Segment: Issues
[2024] 12 S.C.R. 1072 : 2024 INSC 987
Sambhubhai Raisangbhai Padhiyar
v.
State of Gujarat
(Criminal Appeal No(s). 5412-5413 of 2024)
17 December 2024
[B.R. Gavai, Aravind Kumar and K.V. Viswanathan,* JJ.]
Issue for Consideration
Issue arose as regards the correctness of the order of conviction 
and death sentence to the appellant for offences punishable 
u/ss.302, 364 and 377 IPC and ss. 4 and 6 of the POCSO, 
for committing murder and brutal sexual assault of the 4 year old 
boy.
Headnotes†
Penal Code – ss.302, 364, 377 – Protection of Children from 
Sexual offences Act, 2012 – ss.4, 5, 6, 29 – Murder, kidnapping 
and sexual assault – Case of brutal sexual assault and murder 
of four year old boy – Trial court convicted and sentenced the 
appellant to death for offences punishable u/ss.302, 364 and 
377 IPC and ss.4 and 6 of the POCSO – High Court confirmed 
the conviction and sentence of death – Correctness:
Held: Time lag between the accused being last seen with the 
deceased and the sighting of the dead body lying was extremely 
short and accused was to offer a plausible explanation as to how 
he parted company with the deceased and the explanation offered 
must be satisfactory, which he failed to do so, that itself provides 
an additional link in the chain of circumstances – Presence of the 
accused at the scene of crime in the background of the evidence 
of last seen, is clear link in the chain of circumstances which point 
to the guilt of the accused – Injury on the
private parts of the 
accused for which no other explanation offered, conduct of the 
appellant in pointing out where the apparel of the deceased was 
hidden, matching of blood group considered, all  considered as an 
additional link in the chain of circumstances – Thus, circumstantial 
evidence pointing to the guilt of the appellant exist – Injury on the 
* Author
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Sambhubhai Raisangbhai Padhiyar v. State of Gujarat
prepuce of the penis of the accused along with the matching of 
the blood group coupled with other circumstantial evidence clearly 
constitute foundational facts for raising presumption u/s. 29 and 
30 of the POCSO Act – Appellant did not rebut the presumption 
by adducing proof to the contrary – Thus, the circumstances 
fully established, the circumstances so established   consistent 
only with the hypothesis of the guilt of the accused and are 
not explainable by any other hypothesis; the circumstances 
are conclusive in nature and the chain of circumstance is so 
complete as to point to the conclusion that the appellant is guilty 
of the offences charged – Conviction as imposed by the courts 
below upheld – Instant case is not a case where possibility of 
reformation is completely ruled out – Even though the case 
falls short of the rarest of rare category, in view of the nature 
of the crime, a sentence of life imprisonment which normally 
works out for 14 years would be grossly disproportionate and 
inadequate – Sentence of imprisonment for a prescribed period 
without remission would alone be proportionate to the crime and 
also not jeopardize the public confidence in the efficacy of the 
legal system – Sentence of imprisonment for a period of twenty-
five years without remission would be ‘a just desert’ – Thus, the 
sentence of death for the offence u/s.302 set aside, substituting 
the same
with that of rigorous imprisonment for a period of 25 
years without remission – Sentence imposed for offences u/ss. 
364 and 6 of the POCSO Act to run concurrently – Considering 
the socio-economic condition of the accused, the fine imposed 
set aside – Evidence Act, 1872 – Sentencing – Death sentence – 
Remission. [Paras 13-37, 39-42]
Case Law Cited
Swami Shraddananda v. State of Karnataka [2008] 11 SCR 
93  : (2008) 13 SCC 767; Sharad Birdhichand Sarda v. State 
of Maharashtra [1985] 1 SCR 88 : (1984) 4 SCC 116; State of 
Rajasthan v. Kashiram [2006] Supp. 8 SCR 501 : (2006) 12 SCC 
254; Pappu v. State of UP [2022] 2 SCR 13 : (2022) 10 SCC 
321 – relied on.
A.N. Venkatesh and another v. State of Karnataka (2005) 7 SCC 
22 714; Prakash Chand v. State (Delhi Admn.) [1979] 2 SCR 330 : 
(1979) 3 SCC 90; Prakash v. State of Karnataka [2014] 5 SCR
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242 : (2014) 12 SCC 133; Veerendra v. State of Madhya Pradesh 
[2022] 4 SCR 225 : (2022) 8 SCC 668; Nawas Alias Mulanavas 
v. State of Kerala [2024] 3 SCR 913 : (2024) SCC OnLine SC 
315 – referred to.
List of Acts
Penal Code, 1860; Protection of Children from Sexual Offences 
Act, 2012.
List of Keywords
Murder; Kidnapping; Sexual assault; Brutal sexual assault; Death 
sentence; Rejection of parole; Golden principles of circumstantial 
evidence; Facts consistent with hypothesis of guilt; Complete 
chain of evidence; Last seen; Time lag between accused last 
seen and sighting of dead body; Additional link in the chain of 
circumstances; Presence of accused; Chain of circumstances; 
Matching of blood group;  Injury on prepuce of penis of accused; 
Presumption; Rebutting the presumption by adducing proof; 
Possibility of reformation; Rarest of rare category; Sentence of 
life imprisonment; Disproportionate and inadequate sentence; 
Remission; Just desert; Socio-economic condition.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 
5412-5413 of 2024
From the Judgment and Order dated 03.04.2019 of the High 
Court of Gujarat at Ahmedabad in CRLCC No. 2 and CRLA 
No. 1207 of 2018
With
Special Leave Petition (Crl.) No. 9162 of 2021
Appearances for Parties
Ms. Uttara Babbar, Sr. Adv., Ms. Manasa Ramakrishna, Bhavesh 
Seth, Manan Bansal, Ms. Rayana Mukherjee, Ms. Maitreyi Misra, 
Ms. Veera Mahuli, Nisarg P. Khatri,
Arunava Mukherjee, Ramesh 
Kumar Sahu, Dr. Nirmal Chopra, Advs. for the Appellant.
Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Ms. Neha Singh, Rishi 
Yadav, Advs. for the Respondent.
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Sambhubhai Raisangbhai Padhiyar v. State of Gujarat
Judgment / Order of the Supreme Court
Judgment
K.V. Viswanathan, J.
1.	
Leave granted.
2.	
Wednesday, 13th April 2016 dawned normally for the family of 
Pravingiri Gosai (PW-9), a farmer, who also alternated as the temple 
priest at Piludara village under the Vedaj Police Station, Bharuch 
District in the State of Gujarat. However, by dusk the situation had 
turned macabre for them, when their four-year old child was found 
murdered in the village outskirts. 	
3.	
The appellant herein stood trial for the offences of kidnapping, 
sexual assault and murder of the said child and was convicted and 
sentenced to death by the Trial Court. The High Court of Gujarat 
at Ahmedabad, by the judgment dated 03.04.2019 in R/Criminal 
Confirmation Case No. 2 of 2018 with R/Criminal Appeal No. 1207 
of 2018, confirmed the conviction and sentence of death imposed 
on him for the offences punishable under Sections 302, 364, and 
377 of the Indian Penal Code (for short ‘IPC’) and Sections 4 and 
6 of the Protection of Children from Sexual offences Act, 2012 (for 
short ‘POCSO Act’). The appellant is before us in appeal by way of 
special leave.
Brief Facts:
4.	
Pravingiri Gosai (PW-9) and his wife Artiben (PW-13.2) left their 
house at 06:00 a.m. in the morning of 13.04.2016 to get fodder for 
their cattle leaving their two small children Rohit @ Shital, aged 
about four years, the deceased and Rajeshwari, aged three
months, 
along with PW-9’s mother at home. When they returned at 11.00 
a.m., PW-9’s mother and children were at home. PW-9 left again 
to install a Dish TV in the village and returned at around 1 O’clock. 
He noticed that Rohit was not at home and when he inquired from 
his wife Arti, she replied that Rohit was playing near the temple 
and had not been seen since long. The desperate father continued 
his inquiries when PW-10 Jyotsnaben, his sister-in-law, who lived 
in the neighborhood told him that when Rohit was playing near the 
temple about 12:30 PM, the appellant who belonged to their village
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took the deceased and when she inquired from the appellant as to 
where he was taking the deceased, the appellant in spite of being 
dissuaded from doing so, told her that he will buy the child ice-cream 
and return in a while.
5.	
Since Rohit had not returned, PW-9 continued his search in the 
village when he met the appellant under a jamun tree behind the 
Pir Dargah at the bank of the lake at about 2 O’clock. When PW-9 
inquired about his son with the appellant, the appellant told him that 
he gave the deceased ice-cream to eat and sent him home.  PW-9 
went home and when Rohit was not there, he came back to the lake, 
the appellant was not found.  PW-13.2 Artiben, the mother of the 
deceased also carried out the search carried out and after receiving 
information from PW-11 Manoj Kumar Parmar that the deceased was 
taken by the appellant, she along with her sister-in-law PW-10, and 
daughter went to the appellant’s house. The appellant’s mother was 
there and the appellant was not there. They left a message with the 
appellant’s mother that the appellant may be told to send their son 
(deceased) back home. 
6.	
PW-9 continued his inquiries and search when he received a call 
from Manoj Kumar Parmar (PW-11) who asked PW-9 to come to the 
bank of the lake behind the Pir Dargah. When   PW-9 reached the 
spot, he found the dead body of his son lying naked near the bushes. 
7.	
PW-9 lodged a complaint around 06:45 at the Vedaj
Police Station 
which resulted in registration of an FIR and the subsequent 
proceedings. After the inquest, the body of the deceased was sent 
for postmortem to BKS Medical College Vadodara. The postmortem 
report reveals that death was due to asphyxia due to throttling. A 
number of injuries were found on the body of the deceased which 
are as follows:
“The following injuries were observed during the external 
examination of the dead body.
(1) Multiple scratch abrasions of size varying from 0.1 cm 
x 0.5 cm to 1.5 cm x 0.1 cm with underlying contusions of 
size varying from 1 cm x 1 cm to 2.5 cm x 2 cm present 
over perianal region. Perianal skin swollen, reddish in 
colour. Anal orifice dilated, roomy diameter of anal orifice 
is 2.5 cm. Part of rectum protruded out through anal orifice.
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(2) A bite mark in form of pressure abrasion of size 4 cm 
x 3.5 cm present over right cheek, 3 cm above right angle 
of mandible and 4 cm right to midline. 
(3) Multiple laceration of size varying from 0.5 cm x 0.2 cm 
to 1 cm x 0.2 cm x tissue deep with underlying contusions 
of size varying from 1 cm x 0.5 cm to 1.5 cm x 1 cm 
present over inner aspects of both lips. 
(4) Multiple crescentic shaped abrasions of size varying 
from 0.5 cm x 0.1 cm to 1.2 cm x 0.1 cm in an area of 5 
cm x 3 cm present over left side of neck, 3.5 cm left to 
midline and 2 cm below chin. 
(5) Two abrasions of size 1.5 cm x 0.5 cm and 0.5 cm x 
0.2 cm present over right side of the neck, 1.5 cm below 
chin and 2 cm, 3 cm right to midline respectively. 
(6) Multiple scratch abrasions of size varying from 8.5 cm 
x 0.5 cm to 2.5 cm x 0.5 cm present in an area of 20 cm 
x 9 cm, over back of right thigh.
Note: All abrasions and contusions are reddish in colour. 
Margins of all lacerated wounds are irregular and contused 
with red clotted blood over it.
All of the above mentioned injuries were antemortem in 
origin.” 
It will be clear from the above that the deceased was also subjected 
to penetrative sexual assault through the anus. PW-8 Dr. Kalpesh 
Kumar who led the postmortem team has categorically opined that 
the cause of death was asphyxia due to throttling. In view of this, 
there is no iota of doubt that the
deceased had a homicidal death. 
The only question that arises is as to whether there is any evidence 
against the appellant to convict him for the offences charged. 
8.	
The appellant was arrested (at about 20:45 hrs. to 21:26 hrs.) on 
14.04.2016 and his medical examination revealed that there were 
injury marks on his genitals as spoken to by PW-7 Dr. Kamlesh Kumar. 
9.	
The prosecution attempts to rely on the discovery panchnama 
(Exh.18) to reinforce their case that it was pursuant to the appellant’s 
statement that the place of occurrence was discovered. PW-4
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Bharat Kumar and PW-5 Arjun Sinh were examined in support of 
the said purported discovery panchnama. This document, however, 
is seriously disputed by the defence.  According to the defence, 
the panchnama (Exh.9) of the place of the occurrence was already 
drawn on 14.04.2016 between 16:00 hrs and 18:30 hrs and by the 
time the discovery panchnama (Exh.18) was drawn at around 09:00 
a.m. on 15.04.2016, the place of occurrence was already known to 
the prosecution. 
10.	 It is also the case of the prosecution that as part of the same 
transaction when the place of occurrence was discovered and after 
the said panchnama was drawn at around 09:00 a.m. on 15.04.2016, 
the accused voluntarily expressed willingness to show the place where 
he had thrown the clothes of the victim and in pursuance thereof the 
recovery panchnama (Exh.21) was drawn up between 09:15 hours 
and 09:45 hrs on 15.04.2016 and a light pink coloured Tshirt and a 
red coloured leggings were recovered The prosecution has examined 
PW-6 Maheshbhai in support of the recoveries. The defence has 
strongly objected to the admissibility of the recoveries on the ground 
that no statement of the accused was recorded on this aspect and 
that what is available is merely a purported recovery carried out. We 
have considered this aspect in the later part of the judgment coupled 
with the applicability of Section 8 of the Evidence Act to see if the 
conduct of the accused in
leading to the place where the clothes of 
the deceased were found would be admissible in evidence. 
11.	 We have heard Ms. Uttara Babbar, learned senior counsel for 
the appellant, appearing pro bono, who presented the case 
comprehensively and filed detailed written submissions. We have also 
heard Ms. Swati Ghildiyal, learned counsel for the State who in ably 
advancing the State’s case, left no stone unturned in countering the 
submissions of the learned senior counsel for the appellant. Detailed 
written submissions were also filed by her. We have perused the 
records including the records of the trial court. 
12.	 The case rests on circumstantial evidence. We are conscious of the 
five golden principles repeatedly reiterated by this Court which are 
to be borne in mind in cases involved with circumstantial evidence. 
In the leading case of Sharad Birdhichand Sarda vs State of 
Maharashtra, (1984) 4 SCC 116, it was held as under:-
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Sambhubhai Raisangbhai Padhiyar v. State of Gujarat
“153. A close analysis of this decision would show that 
the following conditions must be fulfilled before a case 
against an accused can be said to be fully established:
“(1) the circumstances from which the conclusion of guilt 
is to be drawn should be fully established.
It may be noted here that this Court indicated that the 
circumstances concerned “must or should” and not “may 
be” established. There is not only a grammatical but a 
legal distinction between “may be proved” and “must be 
or should be proved” as was held by this Court in Shivaji 
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 
793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the 
observations were made: 
“Certainly, it is a primary principle that the accused must 
be and not merely may be guilty before a court can convict 
and the mental distance between ‘may be’ and ‘must be’ is 
long and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with 
the hypothesis of the guilt of the accused, that is to say, 
they should not be explainable on any other hypothesis 
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature 
and tendency,
(4) they should exclude every possible hypothesis except 
the one to be proved, and
(5) there must be a chain of evidence so complete as 
not to leave any reasonable ground for the conclusion 
consistent
with the innocence of the accused and must 
show that in all human probability the act must have been 
done by the accused.”
Approaching the case at hand with the above principles in mind, we 
find the following. 
Circumstance No. 1: The appellant last seen with the deceased
13.	 It is the consistent case of the prosecution that the deceased child 
Rohit @ Shital was barely four years old and was playing near his
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house when the accused took him from there under the pretext of 
getting him ice-cream. PW-10 Jyotsnaben, who was the aunt of the 
deceased and who lived nearby, clearly deposed that on the day 
of the incident when she was cooking near the front side of the 
house, the appellant came to her and asked for water. Thereafter, 
while leaving, the accused took the victim. When she asked the 
appellant where he was taking the victim, the appellant replied that 
he was taking the victim to get ice-cream and he will send him after 
that. When PW-10 told him not to do so, the appellant stated that 
he would send him back after getting the child ice-cream, and so 
saying took the child with him.
14.	 It is undisputed that the family of the deceased knew the appellant 
and his family. PW-10 further deposed that when after a long time 
the deceased did not return, she informed the same to her sister-in-
law PW-13.2 Artiben. PW-10 maintained her narration in the cross 
where it also emerges that she searched for child at the ice-cream 
shop of Kabo and Yogesh in the village and was told that the victim 
had not been there.
15.	 The deposition of PW-10 Jyotsnaben is fully corroborated by the 
evidence given by PW-11 Manoj Kumar. PW-11 states that he was 
running a garment shop at Piludara village; that on the day of the 
incident, the appellant Shambhu passed by his shop at about 12 
O’clock; that Pravingiri’s son was with the appellant; that
on being 
asked the appellant informed that he was going to the shop of 
Kaliya to get ice-cream. PW-11 also stated that when the appellant 
was passing by the shop along with victim, PW-12 Somabhai 
Ranchhodbhai, Ranjitbhai Fatesang and Raysangbhai Manorbhai 
were also present. The defence contends that PW-12 did not support 
the case of the prosecution and was declared hostile. This aspect 
of the matter does not detract from the clinching evidence of the 
evidence of aunt of the deceased - PW-10 Jyotsnaben which we 
find very natural or the evidence of PW-11 Manoj Kumar who had 
no reason to falsely depose to the said fact. The only suggestion 
given to PW-11 is that he was deposing because he was friend of 
the father of the deceased. We are not persuaded to discredit the 
testimony of PW-11 on this score. 
16.	 Apart from PW-10 and PW-11, PW-13.1 Sursangbhai also speaks 
about the appellant taking the deceased and the appellant stating
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that he was going to get the child ice-cream. PW-13.1 states that 
thereafter he went inside the house and left for the farm. It was 
strongly contended by the defence that in the cross-examination, 
he had deposed that he had not seen the appellant passing by the 
shop along with the deceased. The portion of the cross-examination 
has to be read in the context of the earlier statements occurring 
therein. They are as follows: 
“It is not true that Manojbhai’s shop is located at the 
distance of half kilometer from my house. It is true that 
Manojbhai’s shop is in the market it is true that Manojbhai 
runs business of ice cream and other goods. Kaliya’s shop 
is located in the other market. I had reached Manojbhai’s 
shop at about 1 o’clock. It is true that the market was 
open and there was movement of people. It is true that I 
had not seen Shambhu passing by the shop along with 
the son of Pravin. Pravin bhai Maharaj is my friend. I do 
not know his family members.”
It will be seen that PW-13.1 states that he reached Manojbhai’s 
shop at about 1 O’clock and that market was open and there was 
movement of people and thereafter the statement occurs that he 
had not seen appellant passing by along with the son of Pravingiri. 
Mrs. Swati Ghildiyal, learned counsel for the State, in her written 
submissions, has furnished the portion as in Gujarati which was also 
read to us and translated at the time
of the oral hearing. According to 
the learned counsel for the State, the particular sentence only meant 
that PW-13.1, did not see the appellant leaving or going away from 
the shop and that this was only because he had gone into his house 
prior to that. We are inclined to accept the meaning as it comes 
out from the Gujarati version. The small discrepancies insofar as 
the timings are concerned are only natural as the witnesses were 
deposing nearly two years after the incident. They are not material 
discrepancies.
17.	 Hence, it is undisputed that between 12:00 and 01:00 PM, the 
appellant went to the neighborhood of the house of the deceased 
and partook water from the aunt PW-10, engaged in a conversation 
with her and in spite of being dissuaded, took the deceased child 
under the pretext of buying him ice-cream. The time lag between 
the accused being last seen and the sighting of the dead body lying
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is also extremely short. PW-11 Manoj Kumar states that at about 
5 O’clock in the evening when they were searching for the victim 
and when they were near the boundary wall of the lake near the 
Dargah, some persons informed them that a dead body was lying 
in the acacia bushes behind the Dargah.
18.	 The incident has clearly occurred between 12:00 noon and 05:00 
PM on 13.04.2016. The timing is also corroborated by the doctor 
PW-8 who did the postmortem on 14.04.2016 between 03:35 PM and 
04:45 PM and he further deposed that death would have occurred 
24 to 36 hours before the postmortem. There are some important 
aspects which require to be noticed here and that is what brings out 
the clinching nature of the case against the appellant. 
19.	 The deceased, aged between three and a half and four years, was 
a small child, just out of toddlerhood and at the pre-school stage. 
This is very significant because when the appellant has from the 
neighborhood of the house of the deceased taken the deceased 
one would expect that the small child would be brought back and 
dropped at the house. The appellant offered no explanation as to 
what happened after the time he spent with the child and has no 
case that he handed over the child to any other person or that he 
dropped the child home. Unlike in the case of grownups, where an 
explanation about the manner of parting company could in a given 
case be acceptable in the case of a small
child who has been picked 
up from neighborhood of his house, it would be normal to expect that 
the small child would be dropped back home or an explanation about 
entrusting of the child to another person to be safely taken home is 
given. The appellant’s lack of explanation is to say the least baffling. 
20.	 According to PW-9 the father of the deceased, when he went in search 
of the child for the second time to the area where PW-11 had told 
him about the appellant having proceeded with child, PW-9 actually 
met with the appellant and asked about the deceased. The appellant 
on asking told PW-9 that he gave ice-cream to the deceased and 
sent him. This statement in the deposition is also mentioned at the 
earliest point in the First Information Report lodged on 13.04.2016 
at about 07:30 PM in the evening.
21.	 It is well settled that if the accused is last seen with the deceased and 
particularly in a case of this nature when the time gap between the 
last seen stage and occurrence of death is so short, the accused must
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offer a plausible explanation as to how he parted company with the 
deceased and the explanation offered must be satisfactory. Section 
106 of the Evidence Act mandates that when any fact is especially 
within the knowledge of any person, the burden of proving that fact 
is upon him. It is on this principle that this Court has repeatedly held 
that if an accused fails to offer an explanation, he fails to discharge 
the burden cast upon him under Section 106 and if he fails to offer 
a reasonable explanation that itself provides an additional link in 
the chain of circumstances [See State of Rajasthan Vs. Kashiram 
(2006) 12 SCC 254  and Pappu Vs. State of UP (2022) 10 SCC 321].
Circumstance No. 2: Found in the vicinity of the scene of crime 
at about the time of crime:
22.	 Both in the First Information Report and in the evidence, PW-9 speaks 
about his going to the lake. It is not in dispute that it was this place, 
viz, near the boundary wall of the lake behind the Dargah of Pir in 
the acacia bushes, the body of the deceased was found naked at 
around 5 O’clock on 13.04.2016. The presence of the accused at the 
scene of crime in the afternoon at about 2 O’clock in the background 
of the evidence of last seen of PW-10, 11 and 13.2, is a clear link in 
the chain of circumstances which point to the guilt of the accused. If 
one couples this fact with the fact that he was not at home around 
the time
when PW-10 Jyotsnaben and PW13.2 Artiben, the mother 
visited the house of the appellant, it reinforces the evidence of PW-9 
that in the afternoon, on the date of crime, the appellant was at the 
place of the crime and the deceased who was taken from the house 
was not with him at that moment.
Circumstance No. 3: Injury on the private parts of the accused
23.	 PW-7, Dr. Kamlesh Kumar who examined the accused on 15.04.2016 
deposed that there was injury on the genitals of the accused. 
Exh.P-27 certificate also reveals that there were abrasions on 
the prepuce of the accused. It will be seen from the injuries on 
the deceased as reflected in the evidence of PW-8 Dr. Kalpesh 
and the postmortem report Exh. P.28 that the perianal region of 
the deceased had multiple scratch abrasions with the underlying 
contusions; that the perianal skin was swollen and reddish in colour; 
the anal orifice dilated, roomy and that part of the rectum protruded 
out through the anal orifice. The doctor has also opined that these
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injuries were antemortem in origin. The abrasions in the prepuce of 
the accused were there even two days after the incident. The only 
suggestion in the cross-examination to the doctor raised that if a 
person scratches the genitals a lot, signs of contusions could be 
observed. No other explanation is offered. Considering the overall 
facts, we are inclined to accept this circumstance as an additional 
link in the chain of circumstances. 
Circumstance No. 4: Conduct under Section 8 of the Evidence 
Act: 
24.	 Irrespective of the admissibility of the discovery, panchnama (Exh.18) 
and the recovery panchnama Exh. 21 and irrespective of the 
admissibility of the recovery of the clothes of the deceased on the 
statement of the accused, we find that the conduct of the appellant 
in leading the investigation team and the panchas and pointing out 
where the apparel of the deceased was hidden would be admissible. 
In this case PW-17, the Investigating Officer has clearly deposed 
that the accused showed willingness to show the place where he 
had thrown the clothes. PW-17, his team and the panchas reached 
by walking to the place as indicated by the accused. This Court in 
A.N. Venkatesh and another v. State of Karnataka (2005) 7 SCC 
714 relying on Prakash Chand v. State (Delhi Admn.), (1949) 3 
SCC 90 held as under:
“9. By virtue of Section 8 of the Evidence Act, the conduct 
of the accused person is relevant, if such conduct
influences 
or is influenced by any fact in issue or relevant fact. The 
evidence of the circumstance, simpliciter, that the accused 
pointed out to the police officer, the place where the 
dead body of the kidnapped boy was found and on their 
pointing out the body was exhumed, would be admissible 
as conduct under Section 8 irrespective of the fact whether 
the statement made by the accused contemporaneously 
with or antecedent to such conduct falls within the purview 
of Section 27 or not as held by this Court in  Prakash 
Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 
SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that 
the disclosure statement made by the accused-appellants 
(Exts. P-15 and P-16) is not admissible under Section 27 
of the Evidence Act, still it is relevant under Section 8.
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The evidence of the investigating officer and PWs 1, 2, 7 
and PW 4 the spot mahazar witness that the accused had 
taken them to the spot and pointed out the place where the 
dead body was buried, is an admissible piece of evidence 
under Section 8 as the conduct of the accused. Presence 
of A-1 and A-2 at a place where ransom demand was to 
be fulfilled and their action of fleeing on spotting the police 
party is a relevant circumstance and are admissible under 
Section 8 of the Evidence Act.” 
We take this as an additional link in the chain of circumstances.
Circumstance No. 5: Matching of Blood Group 
25.	 Blood group on the clothes of the deceased tallied with the blood 
group of the accused as per Exh.50, the Serological Analysis 
Report. PW-9 the father of the deceased identified the clothes 
worn by the deceased on the fateful day. PW-17 the Investigating 
Officer Gajendra Kumar has clearly deposed that the apparel of 
the deceased was recovered near the situs of the crime. PW-7 Dr. 
Kamlesh Kumar who medically examined the appellant deposed 
that samples of pubic hair, blood, saliva, semen and nails were 
obtained of the accused and he further deposed that the samples 
were sealed and the Muddamal was sent for further investigation 
through police constable to FSL, Surat. Coming back to PW-17, 
he deposed about receiving the sealed samples and keeping it in 
safe custody. Thereafter, he
deposed that a forwarding note was 
prepared for analysis of the aforementioned Muddamal and the 
sealed samples to FSL, Surat and that a constable was deputed to 
submit the same to FSL, Surat. The receipt obtained was duly filed. 
The Biological and Serological Reports received from FSL, Surat 
were marked as Exh.49 and Exh.50 respectively. The Serological 
analysis clearly showed that the small trouser (leggings), the anal 
swab (semen) and the perianal swab (semen) had blood of group 
O. The accused had also blood group O. We are satisfied with 
the chain of custody as emerging from the evidence. The defence 
has a case that sample mark H mentioned in Exh.47 which is the 
forwarding letter to the forensic science laboratory has neither been 
analyzed in the biological analysis Exh.49 or in the serological 
analysis Exh.50 and hence tampering cannot be ruled out. The 
State has countered the submission by contending that sample
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mark ‘H’ in Exh.47 is a Khaki cover and is not an item recovered 
from the accused and as such the State counsel contends that in 
all likelihood sample mark H was a cover in which all other samples 
were put. The matching of the blood group has occurred in sample 
F1 which is the anal swab (semen) and F2 perianal swab (semen). 
The blood group of the aforesaid semen was found to be O. It 
should be noted that the sample of semen of appellant along with 
blood and saliva in sample no. G1 to G4 also had blood group 
O. The judgment in Prakash Vs. State of Karnataka (2014) 12 
SCC 133 cited by the appellant also does not advance the case 
of the defence. It is clear from the facts of the case, that the blood 
sample therein was decomposed and its original grouping could 
not be determined. In any event, coupled with other circumstances 
indicated hereinabove, we are inclined to consider the matching of 
blood group as an additional link in the chain as far as the facts 
of this case is concerned.
26.	 The argument of Ms. Uttara Babbar, learned senior counsel is that 
no DNA test was carried out. No doubt, the DNA test was not carried 
out and it would have been better for the prosecution to have done 
the same. However, keeping the overall conspectus of the case 
in mind, we do not think that not conducting DNA test was fatal to 
the prosecution. We draw support from the judgment of this Court 
in Veerendra v. State of Madhya
Pradesh, (2022) 8 SCC 668, 
wherein it was held as under:
“53. In view of the nature of the provision under Section 
53-ACrPC and the decisions referred to, we are 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, are enough and cogent to 
prove the case of the prosecution. In a case which rests 
on circumstantial evidence, the Court has to consider
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Sambhubhai Raisangbhai Padhiyar v. State of Gujarat
whether, despite such a lapse, the various links in the 
chain of circumstances form a complete chain pointing to 
the guilt of the accused alone in exclusion of all hypothesis 
of innocence in his favour.”
27.	 In view of the circumstances elucidated above, we do not feel the 
need to comment upon the admissibility of the discovery panchnama 
Exh.P.18 and the recovery panchnama Exh.P.21. Even eschewing 
the aspect of discovery under Section 27, we have found that 
other circumstantial evidence does exist pointing to the guilt of the 
appellant. 
Presumption under the POCSO Act
28.	 It is clearly established in evidence that the deceased was subjected 
to a brutal sexual assault. The injuries as evidenced in the postmortem 
report Exh.P.28 particularly injury no. 1 clearly indicate that the 
deceased was subjected to aggressive penetrative sexual assault. 
The injury on the prepuce of the penis of the accused along with 
the matching of the blood group coupled with other circumstantial 
evidence clearly constitute foundational facts for raising presumption 
under Sections 29 and 30 of the POCSO Act. Sections 29 and 30 
of the POCSO Act reads as under: 
“29. Presumption as to certain offences.—Where 
a person is prosecuted for committing or abetting or 
attempting to commit any offence under Sections 3, 5, 7 
and Section 9 of this Act, the Special Court shall presume, 
that such person has committed
or abetted or attempted 
to commit the offence, as the case may be unless the 
contrary is proved.
30. Presumption of culpable mental state:- (1) In any 
prosecution for any offence under this Act which requires 
a culpable mental state on the part of the accused, the 
Special Court shall presume the existence of such mental 
state but it shall be a defence for the accused to prove 
the fact that he had no such mental state with respect to 
the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to 
be proved only when the Special Court believes it to
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exist beyond reasonable doubt and not merely when 
its existence is established by a preponderance of 
probability.”
29.	 It will be seen that presumption under Section 29 is available 
where the foundational facts exist for commission of offence under 
Section 5 of the POCSO Act. Section 5 of the POCSO Act deals 
with aggravated penetrative sexual assault and Section 6 speaks 
of punishment for aggravated penetrative sexual assault. Section 3 
of the POCSO Act defines what penetrative sexual assault is. The 
relevant Sections are extracted hereinbelow. 
“3. Penetrative sexual assault. - A person is said to 
commit “penetrative sexual assault” if-
(a) he penetrates his penis, to any extent, into the vagina, 
mouth, urethra or anus of a child or makes the child to do 
so with him or any other person; or
5. Aggravated penetrative sexual assault.— (i) whoever 
commits penetrative sexual assault causing grievous hurt 
or causing bodily harm and injury or injury to the sexual 
organs of the child; or
(m) whoever commits penetrative sexual assault on a child 
below twelve years; or
6. Punishment for aggravated penetrative sexual 
assault.—(1) Whoever commits aggravated penetrative 
sexual assault shall be punished with rigorous imprisonment 
for a term which shall not be less than twenty years, but 
which may extend to imprisonment for life, which shall 
mean imprisonment for the remainder of natural life of 
that person, and shall also
be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just 
and reasonable and paid to the victim to meet the medical 
expenses and rehabilitation of such victim.]
30.	 The manner in which the appellant enticed the deceased child under 
the pretext of buying ice-cream in spite of being dissuaded by the 
aunt (PW-10) and without the consent of the lawful guardians also 
makes out an offence under Section 364 of IPC. The aggravated
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Sambhubhai Raisangbhai Padhiyar v. State of Gujarat
penetrative sexual assault clearly establishes offence under Section 
377 of IPC and Sections 4 and 6 of the POCSO Act. The appellant 
has not rebutted the presumption by adducing proof to the contrary. 
31.	 For the reasons stated above, we are satisfied that the circumstances 
enumerated hereinabove are fully established; that the circumstances 
so established are consistent only with the hypothesis of the guilt 
of the accused and are not explainable by any other hypothesis; 
that the circumstances are conclusive in nature and further that the 
chain of circumstance is so complete as to point to the conclusion 
that the appellant is guilty of the offences charged. In view of the 
same, we uphold the conviction as imposed by the Trial Court and 
confirmed by the High Court.
Sentence:
32.	 The Trial Court has imposed the sentence of death and the High 
Court has confirmed the same. It is time for us to draw up a balance 
sheet of the aggravating and mitigating circumstances to decide 
whether the case falls in the category of rarest of rare case. We 
also need to examine whether the sentence of life imprisonment is 
foreclosed and the possibility of reformation is completely ruled out. 
33.	 Without doubt, the crime committed by the appellant was diabolic 
in character. He enticed the innocent child by tempting him with 
ice-cream and brutally sodomized and murdered the four-year old. 
The appellant
also mercilessly strangulated the deceased. The post-
mortem report clearly indicated that death was due to asphyxia by 
throttling.
34.	 On the mitigating side, the appellant was 24 years of age when the 
incident happened; he had no criminal antecedents; the appellant hails 
from a low socio-economic household as the Mitigation Investigation 
Report filed by Ms. Komal of Project 39A, pursuant to the order of 
this Court dated 05.10.2023 indicates. The mitigation report further 
indicates that experts have opined that the appellant is diagnosed with 
moderate intensity psychotic features and intellectual disability and 
that the appellant had in his early childhood contacted Tuberculosis 
Meningitis (TBM). The appellant, according to the report, maintains 
family ties with his 64-year-old mother who takes care of his 10 year 
old daughter. The appellant’s wife has deserted him.
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35.	 By an order of 05.10.2023, we also called for the conduct and 
behaviour of the appellant from the Superintendent of Vadodara 
Central Jail as well as a report on his mental health. The report from 
the Superintendent of Vadoara Jail indicates, that the behaviour of 
the appellant in prison is completely normal and that his conduct in 
jail is good. The report from the Hospital for Mental Health indicates 
that the appellant has no psychiatric problem at present. The report 
does indicate a feeling of remorse in the appellant. The appellant 
has contended that the projective test adopted by the Hospital for 
Mental Health has its limitations for reliability. Be that as it may.
36.	 Considering the overall facts and circumstances, we hold that the 
present is not a case where it can be said that the possibility of 
reformation is completely ruled out. The option of life imprisonment 
is also not foreclosed. The case does not fall in the category of rarest 
of rare case. We are of the opinion that ends of justice would be 
met if we adopt the path carved out in Swami Shraddananda Vs. 
State of Karnataka (2008) 13 SCC 767.
37.	 Even though the case of the appellant falls short of the rarest of rare 
category, considering the nature of the crime, we are strongly of the 
view that a sentence of life imprisonment which normally works out for 
14 years would be grossly disproportionate and inadequate. Having 
regard to the nature of
the offence, a sentence of imprisonment for 
a prescribed period without remission would alone be proportionate 
to the crime and also not jeopardize the public confidence in the 
efficacy of the legal system. 
38.	 This Court recently in Nawas Alias Mulanavas Vs. State of Kerala 
(2024) SCC OnLine SC 315, adverting to this aspect had the following 
to say :-
“29. How much is too much and how much is too little? 
This is the difficult area we have tried to address here. 
As rightly observed, there can be no straitjacket formulae. 
Pegging the point up to which remission powers cannot be 
invoked is an exercise that has to be carefully undertaken 
and the discretion should be exercised on reasonable 
grounds. The spectrum is very large. The principle in 
Swamy Shraddananda (supra) as affirmed in V. Sriharan 
(supra) was evolved as the normally accepted norm of 14 
years was found to be grossly disproportionate on the lower
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Sambhubhai Raisangbhai Padhiyar v. State of Gujarat
side. At the same time, since it is a matter concerning the 
liberty of the individual, courts should also guard against 
any disproportion in the imposition, on the higher side too. 
A delicate balance has to be struck. While undue leniency, 
which will affect the public confidence and the efficacy 
of the legal system, should not be shown, at the same 
time, since a good part of the convict’s life with freedom 
is being sliced away (except in cases where the Court 
decides to impose imprisonment till rest of the full life), in 
view of his incarceration, care should be taken that the 
period fixed is also not harsh and excessive. While by 
the very nature of the task mathematical exactitude is an 
impossibility, that will not deter the Court from imposing 
a period of sentence which will constitute “a just dessert” 
for the convict…..”
39.	 Applying this principle, we hold that a sentence of imprisonment 
for a period of 25 (twenty-five) years without remission would be ‘a 
just desert’. 
40.	 The trial Court had sentenced the appellant to death under Section 
302 IPC, to simple imprisonment of 10 (ten) years and a fine of 
Rs.10,000/- for offence under Section 364 and to life imprisonment 
and a fine of Rs.10,000/- for offence under Section 6 of the POCSO 
Act.  No separate sentences were awarded for offences punishable 
under Section 4 of the POCSO Act and Section 377 of IPC.  The 
trial Court
had directed that the accused should suffer all the above 
ordered punishments together. The High Court had confirmed the 
death sentence and dismissed the appeal of the appellant.  
41.	 In view of what we have held hereinabove, while maintaining the 
conviction under Sections 302, 364, 377 of IPC and Sections 4 
and 6 of the POCSO Act, we set aside the sentence of death for 
the offence under Section 302 and substitute the same with that of 
rigorous imprisonment for a period of 25 (twenty-five) years without 
remission.  We also order that the sentence imposed for offences 
under Section 364 IPC (10 years S.I. and Rs. 10,000/- fine) and 
Section 6 of the POCSO Act (life imprisonment and Rs.10,000/- fine) 
shall run concurrently with the sentence of rigorous imprisonment 
for a period of 25 years without remission, which we have presently 
ordered.
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42.	 The appeals shall stand partly allowed in the above terms. Considering 
the socio-economic condition of the accused on the facts of the 
present case, we set aside the fine amounts imposed. 
Special Leave Petition (Crl.) No. 9162 of 2021:
43.	 This Special Leave Petition arises out of an order of the High Court 
of Gujarat at Ahmedabad in R/Special Criminal Application No.18906 
of 2021 whereby the High Court denied parole to the petitioner.
44.	 In view of the judgment passed in Criminal Appeal (Arising out of 
SLP (Crl.) No. 9015-9016 of 2019, no orders are required to be 
passed in this Special Leave Petition. The Special Leave Petition is, 
accordingly, dismissed.  However, the dismissal of the Special Leave 
Petition will not debar the petitioner from availing such remedies 
as are available under law and in accordance with our judgment 
rendered hereinabove.
Result of the case: Appeals partly allowed.
Special Leave Petition dismissed.
†Headnotes prepared by: Nidhi Jain