PAPPU versus THE STATE OF UTTAR PRADESH
[2022] 2 S.C.R. 13, Supreme Court of India, 2022
Outcome: Case Partly allowed (Granted)
Segment: Facts
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[2022] 2 S.C.R. 13
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PAPPU
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal Nos. 1097-1098 of 2018)
FEBRUARY 09, 2022
[A. M. KHANWILKAR, DINESH MAHESHWARI AND
C. T. RAVIKUMAR, JJ]
Penal Code, 1860: ss. 376, 302, 201 – Protection of Children
From Sexual Offences Act 2012 – ss. 5, 6 – Circumstantial Evidence
– Prosecution case was that appellant enticed a seven year old girl
to accompany him on the pretext of picking lychee fruits – Thereafter
he committed rape on her and killed her and dumped the dead body
in bushes near the riverbank –Trial court and High Court
concurrently recorded the findings that the prosecution was able to
successfully establish the chain of circumstances leading to
unmistakable conclusion that the appellant was guilty of the offences
of rape and murder of the victim child as also of concealing her
dead body – The fundamental fact, as held proved against the
appellant was that the deceased was lastly seen in the company of
the appellant when he took the deceased along with himself while
shooing away other children– Burden was on the accused to
explain his whereabouts after he was last seen with the deceased
and to show if, and when, the deceased parted with his company as
also the reason for his knowledge about the location of the dead
body– Appellant undoubtedly failed to discharge the burden cast
upon him by s.106 of the Evidence Act – This circumstance is a
strong link in the chain of circumstances against him – In the given
set of
circumstances, it could safely be said that the presumption
contemplated by s.29 POCSO came into operation – The other
significant fact, as held proved, was that the dead body of the victim
child was recovered at a faraway place near the riverbank at the
instance of the appellant – Appellant failed to satisfactorily explain
his whereabouts since he was last seen in the company of the deceased
as also his knowledge of the location of the dead body – These
facts and factors, taken together with the medical and other scientific
evidence formed complete chain of circumstances, leading to the
conclusion on the guilt of the appellant – Conviction of the appellant
of offences under ss.376, 302, 201 IPC and ss.5/6 POCSO is upheld.
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Sentence/Sentencing: Rape and murder of seven year old girl
child – The heinous nature of crime like that of present one, in
brutal rape and murder of a seven-year-old girl child, definitely
discloses aggravating circumstances, particularly when the manner
of its commission shows depravity and shocks the conscience – But,
at the same time, considering that appellant had no criminal
antecedents, came from a very poor socio-economic background,
having a family comprising of wife, children and aged father, and
unblemished jail conduct, probability of reformation and
rehabilitation of the appellant is not ruled out – Therefore, case is
treated to not fall in ‘rarest of rare’ category – Yet, the impact of the
offences in question on the conscience of the society as a whole
cannot be ignored – Appellant was about 33-34 years of age at the
time of commission of crime in the year 2015 – Looking to the overall
facts and circumstances, it is held just and proper to award the
punishment of imprisonment for life to the appellant for the offence
under s.302 IPC while providing for actual imprisonment for a
minimum period of 30 years – Penal Code, 1860 – ss. 376, 302,
201 – Protection of Children From Sexual Offences Act 2012 – ss.
5, 6.
Evidence: Child witness – Rural background of witness –
Discrepancies in evidence – In the process of appreciation of
evidence, trial court and High Court looked at the crux of the matter
emerging
from her testimony that she was indeed a witness to the
fact that the deceased child was last seen in the company of the
appellant when he took her along towards lychee farm – The
testimony of child witness is categorical in regard to the facts and
there appears no reason to disbelieve her testimony, even if her
comprehension of time and hours appears to be wanting in maturity
– It would be rather unrealistic to expect such maturity from a ten-
year-old child coming from a rustic background.
Constitution of India: Art.134 and Art.136 – Concurrent
Finding – Interference – Scope – As against any judgment/final
order or sentence in a criminal proceeding of the High Court,
regular appeals to Supreme Court are envisaged in relation to the
eventualities specified in Art.134 of the Constitution of India and
s.2 of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 – The present matter is not covered thereunder
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– Present appeals are by special leave in terms of Art.136 of the
Constitution of India – In an appeal by special leave, where the
trial court and the High Court concurrently returns findings of fact
after appreciation of evidence, each and every finding of fact cannot
be contested nor such an appeal could be dealt with as if another
forum for reappreciation of evidence – Of course, if the assessment
by trial court and the High Court could be said to be vitiated by
any error of law or procedure or misreading of evidence or in
disregard to the norms of judicial process leading to serious
prejudice or injustice, Supreme Court may, and in appropriate cases
would, interfere in order to prevent grave or serious miscarriage of
justice but, such a course is adopted only in rare and exceptional
cases of manifest illegality.
Partly allowing the appeals, the Court
HELD: 1. It is but clear that as against any judgment/final
order or sentence in a criminal proceeding of the High Court,
regular appeals to this Court are envisaged in relation to the
eventualities specified in Article 134 of the Constitution of India
and Section 2 of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970. The present one is not a
matter covered thereunder and the present appeals are by
special leave in terms of Article 136 of the Constitution of India.
In such an appeal by special leave, where the Trial Court and
the High Court have concurrently returned the
findings of fact
after appreciation of evidence, each and every finding of fact
cannot be contested nor such an appeal could be dealt with as if
another forum for reappreciation of evidence. Of course, if the
assessment by the Trial Court and the High Court could be
said to be vitiated by any error of law or procedure or
misreading of evidence or in disregard to the norms of judicial
process leading to serious prejudice or injustice, this Court may,
and in appropriate cases would, interfere in order to prevent
grave or serious miscarriage of justice but, such a course is
adopted only in rare and exceptional cases of manifest illegality.
Tersely put, it is not a matter of regular appeal. This Court would
not interfere with the concurrent findings of fact based on pure
PAPPU v. THE STATE OF UTTAR PRADESH
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appreciation of evidence nor it is the scope of these appeals
that this Court would enter into reappreciation of evidence so
as to take a view different than that taken by the Trial Court
and approved by the High Court. [Para 20][65-F-H; 66-A-C]
Pritam Singh v. State: AIR 1950 SC 169: 1950 SCR
453; Ramaniklal Gokaldas and Ors. v. State of Gujarat:
(1976) 1 SCC 6; Mst. Dalbir Kaur and Ors. v. State of
Punjab: (1976) 4 SCC 158 : [1977] 1 SCR 280; Hari
& Anr. v. The State of Uttar Pradesh: Criminal Appeal
No. 186 of 2018 decided on 26.11.2021 – relied on.
2. The Trial Court and the High Court have concurrently
recorded the findings that the prosecution has been able to
successfully establish the chain of circumstances leading to
unmistakable conclusion that the appellant is guilty of the offences
of rape and murder of the victim child as also of concealing her
dead body. The facts and factors, taken together with the medical
and other scientific evidence, are said to be of a complete chain
of circumstances, leading to the conclusion on the guilt of the
appellant. [Para 21][66-C-D, F]
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Hanumant v.
State of Madhya Pradesh: AIR 1952 SC 343: [1952]
SCR 1091 – relied on.
3. It is true that the child-witness PW-3 stated as if she had
gone to the site and looked at the dead body at 10:00 a.m. in the
morning but then, the said child- witness was
about 10 years of
age at the time of her deposition and was coming from a rural
background. Her comprehension of timings had obviously been
crude or amateurish, which is borne out of the fact that in the
other part of statement, she stated that after 7 p.m., she and other
children kept on playing for 5 hours. Such a narrative about the
timing by her had obviously been lacking in the requisite maturity
and comprehension. In the process of appreciation of evidence,
the Trial Court and High Court have looked at the crux of the
matter emerging from her testimony that she was indeed a witness
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to the fact that the deceased child was last seen in the company
of the appellant when he took her along towards lychee farm.
[Para 24.2][75-D-F]
State of Rajasthan v. Kashi Ram: (2006) 12 SCC 254 :
[2006] 8 Suppl. SCR 501 – relied on.
D.K. Basu v. State of W.B.: (1997) 1 SCC 416 : [1996]
10 Suppl. SCR 284; Rammi Alias Rameshwar v. State
of M.P. (1999) 8 SCC 649 : [1999] 3 Suppl. SCR 1 –
held inapplicable.
4. The overt assertion made in the complaint by PW-1,
mother of the victim child, that as per her belief, the child was
raped and murdered and the dead body was concealed by the
appellant, is also required to be visualised with reference to
the backdrop that she had the knowledge about the appellant
having taken her daughter in the evening and had been searching
for her daughter for the whole night. This is coupled with the
fact that she was undoubtedly a rustic villager and even got the
complaint scribed from someone else. Again, in the process of
appreciation of evidence, the Trial Court and High Court have
looked at the substance and core of the matter emerging from
her testimony while consciously taking note of her background.
Yet further, as to who accompanied PW-1 to Police Station is not
a factor for which, the FIR could be taken as ante-timed. PW-1
and PW-2 had been consistent that both of them had gone to
the Police Station before the noon hours of 14.05.2015. It has,
of course, appeared in the statements of PW-7 that PW-4 had
accompanied PW-1
to Police Station but, such a minor
discrepancy occurring in the statement of the said police officer
posted at the Police Station concerned cannot override the entire
evidence on record. Moreover, he had been the person who
registered the FIR and there had not been any specific
suggestion to this witness that dead body had been seen by
anyone before lodging of FIR. Similarly, PW-8, the IO initially
stated in the cross-examination that he took the statement of
the complainant next day after taking over investigation but
thereafter, corrected himself to say that he took her statement
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at about 2.00 p.m. after registration of the case. This aspect has
also been duly taken note of by the Trial Court and the
contentions urged on behalf of the appellant have been rejected
with reference to the fact that the IO had deposed from memory
after one and a half year of the investigation; and PW-7 has
clarified that the statement of the complainant was taken by the
SHO at the date of registration of FIR and thereafter, he
proceeded to investigate. Further, even if the particulars
regarding date and time of dispatch of FIR to the Court were
not stated in the form, that could only be regarded as a procedural
fault on the part of the staff of the Police Station and that cannot
nullify all other material on record.[Paras 24.3, 24.4][75-F-H;
76-A-E]
5. There is no infirmity in the Trial Court and the High
Court concurrently finding the prosecution case proved that on
13.05.2015, at around half past six in the evening, while the
deceased was playing with PW-3 and other children of the village,
appellant gave Rs. 20 to PW-3, for buying sweets for the children.
After distributing these sweets amongst them, the deceased was
lured by appellant by suggesting that they go together and pluck
lychees from the farm. When the other children sought to follow
them, he sent them away by scolding them, picked and placed
the deceased on his back, and set off towards the farm. The
testimony of child witness PW-3 is categorical in
regard to these
facts and there appears no reason to disbelieve her testimony,
even if her comprehension of time and hours appears to be
wanting in maturity. It would be rather unrealistic to expect such
maturity from a ten-year-old child coming from a rustic background.
PW-2, the maternal aunt of the deceased, has also corroborated
PW-3 in regard to these crucial facts, establishing that the
deceased was last seen with the appellant. In fact, the evidence
has been categorical that it was the appellant alone who enticed
the deceased to go along with him and rather carried the deceased
child on his back. PW-2 has also testified to the fact that she saw
the appellant taking the deceased child from the window of the
house while standing and PW-1, mother of the deceased child
was sitting. This explains even the statement of PW-1 that she
had also seen the appellant taking the deceased child. The
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submission that why these women allowed the child to taken in
the evening by a man they described as alcoholic is, again, only
an attempt at hair-splitting exercise in the matter of appreciation
of evidence. In the rural background, where the appellant was a
neighbour and a person of the same community, there could not
have been any reason for the ladies to suspect the intent of the
appellant towards the child. The assertion that the ladies searched
for the child for the whole night cannot be a cooked-up story
because, if the seven-year-old girl child did not return home until
late hours, they were, obviously, expected to look for the child.
The fact that while searching, they indeed reached the house of
the appellant, where his wife stated about his having gone out
after quarrelling, has also been consistently stated by PW-1 and
PW-2. Of course, PW-2 stated about herself having met the
appellant past midnight but, also made it clear that PW-1 was not
with her at that time. It is also given out that the ladies could not
take steps for approaching the police because at the relevant
point of time i.e., during the night intervening, they were not
having any person of support with them. [Para 27][78-E-H; 79-
A-E]
6. So far as the factum of discovery of the dead body of the
victim child at the information of appellant is concerned, the same
stands proved by the evidence of relevant witnesses including
PW-4 and PW-8 IO. The IO of this case seems to have not
meticulously prepared the papers of investigation and even the
memorandum of discovery of dead body and arrest of the appellant
was prepared as one document (Ex. Ka-2). However, a perusal
of the said document Ex. Ka-2, duly proved by the relevant
witnesses including PW-4 and PW-8 IO, makes it clear that the
relevant facts stand established therefrom and cannot be ignored.
Mere irregularity in preparation of memos by the IO would not
falsify the factum of information by the accused- appellant leading
to the discovery of the dead body. [Para 28][79-F-H]
7. When ‘last seen’ evidence is cogent and trustworthy
which establishes that the deceased was lastly seen alive in the
company of the accused; and is coupled with the evidence of
discovery of the dead body of deceased at a far away and lonely
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place on the information furnished by the accused, the burden is
on the accused to explain his whereabouts after he was last seen
with the deceased and to show if, and when, the deceased parted
with his company as also the reason for his knowledge about the
location of the dead body. The appellant has undoubtedly failed
to discharge this burden. For the appellant having failed to do so,
it is inevitable to hold that he failed to discharge the burden cast
upon him by Section 106 of the Evidence Act. This circumstance,
therefore, provides another strong link in the chain of
circumstances against the appellant. In the given set of
circumstances, it could safely be said that the presumption
contemplated by Section 29 POCSO came into operation and the
burden came staying with the appellant; and it was for him to
rebut the presumption and to prove that he had not committed
the offence. The appellant has failed to discharge this burden.
[Paras 31, 32][80-D-G, H; 81-A]
Noor Aga v. State of Punjab and Anr.: (2008) 16 SCC
417 : [2008] 10 SCR 379; Justin v. Union of India and
Ors.: 2020 SCC OnLine Ker 4956; Raj Kumar Singh
Alias Raju Alias Batya v. State of Rajasthan: (2013) 5
SCC 722 : [2013] 8 SCR 599 – held inapplicable.
8. The Forensic Science Laboratory had reported that
traces of ‘spermatozoa and sperms’ were found on the underwear
of the deceased. Even if the said report was drawn on 10.08.2016,
its veracity cannot be
doubted and there is no reason to consider
the said report with suspicion. The relevant articles were indeed
sealed as proved in evidence and did reach the laboratory in the
same sealed condition. The alleged want of upgraded and
sophisticated facilities for sealing of the articles at the Police
Station cannot override and nullify the proceedings otherwise
lawfully conducted by the Police Station and the Investigating
Officer. In any case, it is also far-stretched to argue that the offence
under Section 376 IPC could not have been imputed in the charge-
sheet before receiving such report. The said report was only
corroborative scientific evidence but the other facts directly
available on record, more particularly as per the conditions of
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the dead body of the seven-year-old girl child, as seen at the site
and then the relevant aspects of gruesome injuries, including
those on private parts, as reported in the post-mortem report,
could not have been ignored. [Para 35][82-A-D]
Ramesh Chandra Agrawal v. Regency Hospital Limited
and Ors. (2009) 9 SCC 709:[2009] 14 SCR 424 – held
inapplicable.
9. A rather strange line of submission in this case has been
that as per post- mortem report, the death had occurred 2-3 days
before examination and that opinion would take the time of death
even much before the evidence of last seen or that the dead body
might have been seen by other persons much before its recovery
at the instance of the appellant. The approximate time of death
before examination, as indicated in the post-mortem report,
cannot be applied as something of mathematical precision. The
post-mortem examination was conducted in the afternoon of
15.05.2015; and approximation of two days before such
examination matches the proven time when the deceased was
last seen with the appellant i.e., around 6:30 p.m. on 13.05.2015.
In fact, the indications in the post-mortem report are only to the
effect that the appellant did not provide any time to the child and
rather carried out his misdeeds immediately after taking her along.
[Para 36][82-E-G]
10. It could readily be seen that while this Court has found
it justified to have capital punishment on the statute to serve as
deterrent as also in due response
to the society’s call for
appropriate punishment in appropriate cases but at the same time,
the principles of penology have evolved to balance the other
obligations of the society, i.e., of preserving the human life, be it
of accused, unless termination thereof is inevitable and is to serve
the other societal causes and collective conscience of society.
This has led to the evolution of ‘rarest of rare test’ and then, its
appropriate operation with reference to ‘crime test’ and ‘criminal
test’. The delicate balance expected of the judicial process has
also led to another mid-way approach, in curtailing the rights of
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remission or premature release while awarding imprisonment for
life, particularly when dealing with crimes of heinous nature like
the present one. [Para 41][98-C-E]
11. The heinous nature of crime like that of present one, in
brutal rape and murder of a seven-year-old girl child, definitely
discloses aggravating circumstances, particularly when the
manner of its commission shows depravity and shocks the
conscience. But, at the same time, it is noticeable that the
appellant has no criminal antecedents, comes from a very poor
socio-economic background, has a family comprising of wife,
children and aged father, and has unblemished jail conduct. When
all these factors are added together and it is also visualised that
there is nothing on record to rule out the probability of reformation
and rehabilitation of the appellant, it would be unsafe to treat this
case as falling in ‘rarest of rare’ category. Putting it differently,
when the appellant is not shown to be a person having criminal
antecedents and is not a hardened criminal, it cannot be said that
there is no probability of him being reformed and rehabilitated.
His unblemished jail conduct and having a family of wife, children
and aged father would also indicate towards the probability of his
reformation. However, and even when the present case is taken
to be not falling in the category of ‘rarest of rare’ so as to require
termination of the life of the appellant yet,
the impact of the
offences in question on the conscience of the society as a whole
cannot be ignored. Thus, it appears just and proper to apply the
course adopted in various cases involving the crimes of similar
nature where, even while commuting capital punishment, this
Court has provided for life imprisonment without application of
the provisions of premature release/remission before mandatory
actual imprisonment for a substantial length of time. The appellant
was about 33-34 years of age at the time of commission of crime
in the year 2015. Looking to the overall facts and circumstances,
it would be just and proper to award the punishment of
imprisonment for life to the appellant for the offence under Section
302 IPC while providing for actual imprisonment for a minimum
period of 30 years. [Paras 43.1, 44, 45][99-F-H; 100-A-B, E-H]
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12. The conviction of the appellant of offences under
Sections 376, 302, 201 IPC and Section 5/6 POCSO is upheld
and the sentences awarded to him are confirmed except the death
sentence for the offence under Section 302 IPC. The death
sentence awarded to the appellant for the offence under Section
302 IPC is commuted into that of imprisonment for life, with the
stipulation that the appellant shall not be entitled to premature
release or remission before undergoing actual imprisonment for
a period of 30 (thirty) years. [Para 46][101-A-C]
Union of India v. V. Sriharan Alias Murugan and Ors.:
(2016) 7 SCC 1: [2015] 14 SCR 613 -followed.
Kalu Khan v. State of Rajasthan: (2015) 16 SCC 492;
Bachan Singh v. State of Punjab: (1980) 2 SCC 684;
Mohd. Mannan Alias Abdul Mannan v. State of Bihar:
(2019) 16 SCC 584: [2019] 8 SCR 266; Rajendra
Pralhadrao Wasnik v. State of Maharashtra: (2019) 12
SCC 460: [2018] 14 SCR 585; Machhi Singh and Ors.
v. State of Punjab: (1983) 3 SCC 470 : [1983] 3 SCR
413 Dhananjoy Chatterjee Alias Dhana v. State of W.B.:
(1994) 2 SCC 220 : [1994] 1 SCR 37; M. A. Antony v.
State of Kerala: 2018 SCC OnLine SC 2800; Laxman
Naik v. State of Orissa: (1994) 3 SCC 381 : [1994] 2
SCR 94 Kamta Tiwari v. State of M.P.: (1996) 6 SCC 250
: [1996] 5 Suppl. SCR 507; Swamy Shraddananda (2)
v. State of Karnataka: (2008) 13 SCC 767 : [2008] 11
SCR 93; Jagmohan Singh v. State of U.P. (1973) 1 SCC
20 : [1973] 2 SCR 541; Rameshbhai Chandubhai Rathod
v. State of
Gujarat : (2009) 5 SCC 740 : [2009] SCR
1055 Rameshbhai Chandubhai Rathod (2) v. State of
Gujarat : (2011) 2 SCC 764 : [2011] 1 SCR 829; Ashok
Debbarma Alias Achak Debbarma v. State of Tripura:
(2014) 4 SCC 747 : [2014] 4 SCR 287; Shatrughna
Baban Meshram v. State of Maharashtra: (2021) 1 SCC
596; Ravishankar Alias Baba Vishwakarma v. State of
Madhya Pradesh: (2019) 9 SCC 689 : [2019] 14 SCR
285; Shankar Kisanrao Khade v. State of Maharashtra:
(2013) 5 SCC 546 : [2013] 6 SCR 949– relied on.
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Sudarshan and Anr. v. State of Maharashtra: (2014)
12 SCC 312 [2014] 6 SCR 437; Anjan Kumar Sarma
and Ors. v. State of Assam: (2017) 14 SCC 359 : [2017]
SCR 991; State (NCT of Delhi) v. Navjot Sandhu: (2005)
11 SCC 600 : [2005] 2 Suppl. SCR 79; Aghnoo Nagesia
v. State of Bihar: [1966] 1 SCR 134; Abdulwahab
Abdulmajid Baloch v. State of Gujarat: (2009) 11 SCC
625 : [2009] 4 SCR 956; Gudda Alias Dwarikendra v.
State of Madhya Pradesh (2013) 16 SCC 596 : [2013]
11 SCR 293; Inspector of Police, Tamil Nadu v. John
David: (2011) 5 SCC 509 : [2011] 7 SCR 354 – referred
to.
Case Law Reference
[2014] 6 SCR 437
referred to
Para 12.7
[1985] 1 SCR 88
relied on
Para 22.1
[2017] SCR 991
referred to
Para 12.7
[2005] 2 Suppl. SCR 79
referred to
Para 12.7
[1996] 10 Suppl. SCR 284
held inapplicable
Para 24.5
[1999] 3 Suppl. SCR 1
held inapplicable
Para 24.5
[2013] 8 SCR 599
held inapplicable
Para 33
[1966] 1 SCR 134
referred to
Para 12.7
[2009] 4 SCR 956
referred to
Para 12.7
[2009] 14 SCR 424
held inapplicable
Para 35
[2008] 10 SCR 379
held inapplicable
Para 32
(1980) 2 SCC 684
relied on
Para13.2
[2019] 8 SCR 266
relied on
Para 13.2
[2018] 14 SCR 585
relied on
Para 13.3
[2013] 11 SCR 293
referred to
Para 13.4.2
(2015) 16 SCC 492
relied on
Para 40.9
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(2021) 1 SCC 596
relied on
Para 13.4.4
[2019] 14 SCR 285
relied on
Para 13.4.4
[2015] 14 SCR 613
followed
Para 40.5
[2011] 7 SCR 354
referred to
Para 15.1
[2006] 8 Suppl. SCR 501
relied on
Para 22.13
[2013] 6 SCR 949
relied on
Para 16.1
[1983] 3 SCR 413
relied on
Para 16.2
[1994] 1 SCR 37
relied on
Para 16.2
[1996] 5 Suppl. SCR 507
relied on
Para 16.2
[2008] 11 SCR 93
relied on
Para 17
[1950] SCR 453
relied on
Para 19.2
(1976) 1 SCC 6
relied on
Para 19.3
[1977] 1 SCR 280
relied on
Para 19.4
[1952] SCR 1091
relied on
Para 22.1
[1973] 2 SCR 541
relied on
Para 40.1.1
[2009] SCR 1055
relied on
Para 40.4
[2011] 1 SCR 829
relied on
Para 40.4
[2014] 4 SCR 287
relied on
Para 40.7
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1097-1098 of 2018.
From the Judgment and Order dated 06.10.2017 of the High Court
of Judicature at Allahabad in Reference No.13 of 2016 and Capital Case
No.6601 of 2016.
Siddhartha Dave, Sr. Adv., Ms. Jemtiben AO, Vibhor Jain, Ms.
Sakshi Jain, Ms. Vidhi Thaker, Siddharth, Amit Kumar Agarwal, Advs.
for the Appellant.
Vinod Diwakar, AAG, Ms. Alka Sinha, B. N. Dubey, Anuvrat
Sharma, Advs. for the Respondent.
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The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Table of Contents*
Preliminary...................................................................................2
Relevant factual and background aspects....................................6
Prosecution Evidence..................................................................9
Defence Version and Evidence.................................................19
Trial Court found the appellant guilty and awarded death
sentence......................................................................................19
High Court confirmed the death sentence awarded to
the appellant.................................................................................24
Rival Submissions........................................................................28
The scope and width of these appeals...........................................46
Concurrent findings of fact: whether requiring interference
in these appeals..........................................................................52
Whether death sentence be maintained or substituted by
any other sentence....................................................................76
Conclusion.................................................................................96
Preliminary
1. These appeals by special leave are directed against the judgment
and order dated 06.10.2017 in Reference No. 13 of 2016 and Capital
Case No. 6601 of 2016 whereby, the High Court of Judicature at
Allahabad has affirmed the judgment and order dated 07/08.12.2016 in
Sessions Case No. 414 of 2015, as passed by the Additional Sessions
Judge, Court No. 2, Kushinagar; and, while upholding the conviction of
the appellant of offences punishable under Sections 376, 302, 201 of the
Indian Penal Code, 18601 and Section 5/6 of the Protection of Children
from Sexual Offences Act, 20122, has confirmed the death sentence
awarded to him for the offence under Section 302 IPC.
*The Table of Contents is as per the Original Judgment.
1 ‘IPC’, for short.
2 ‘POCSO’, for short.
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1.1. In addition to sentence of death for the offence under Section
302 IPC, the appellant has also been punished with fine of Rs. 20,000/-
for the offence under Section 302 IPC. This apart, he has been awarded
the punishments of rigorous imprisonment for a term of 10 years and
fine of Rs. 10,000/- for the offence under Section 376 IPC; rigorous
imprisonment for a term of 7 years and fine of Rs. 5,000/- for the offence
under Section 201 IPC; and rigorous imprisonment for a term of 10
years and fine of Rs. 10,000/- for the offence under Section 5/6 POCSO.
While providing for further imprisonment in case of non-payment of fine
amount, it has also been directed that half of the fine amount shall be
given to the mother of deceased girl as compensation.
2. In these appeals, the conviction of the appellant as also the
punishment awarded to him, particularly the capital punishment, are under
challenge. Before dealing with the matter in necessary details, we may
draw a brief sketch to indicate the contours of the forthcoming discussion.
2.1. The appellant has been accused of enticing a seven-year-old
girl to accompany him on the pretext of picking lychee fruits; having
thereafter committed rape upon the child; having caused her death; and
having dumped the dead body near a bridge on the riverbank, after having
dragged the dead body over a distance of one and one-quarter kilometres.
2.2. The prosecution case rested on circumstantial evidence to
the effect that the
victim was lastly seen in the company of the appellant;
that her dead body was recovered at the instance of the appellant; that
the appellant had failed to satisfactorily explain his whereabouts and his
knowledge of the location of dead body; and that the medical and other
scientific evidence was consistent with the accusation. Per contra, the
appellant alleged that he was falsely implicated due to enmity with the
families of the deceased and other witnesses because of a land dispute.
2.3. The Trial Court, after analysing the material placed on record,
came to the conclusion that the prosecution had been able to substantiate
the charges by proving beyond doubt that the appellant had taken the
deceased with himself by enticing her to pluck and eat lychee fruits,
committed rape and then murdered her, and concealed the dead body in
bushes near the riverbank. Thus, the appellant was convicted by the
judgment dated 07.12.2016. Next day, the learned Additional Sessions
Judge heard the accused and the prosecution on the question of sentence;
and looking to the heinous crime committed by the appellant, found it
unjustified to show any mercy in punishment and thus, awarded varying
PAPPU v. THE STATE OF UTTAR PRADESH
[DINESH MAHESHWARI, J.]
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punishments, including that of death sentence for the offence under
Section 302 IPC.
2.4. The sentence of death was submitted for confirmation to the
High Court in terms of Section 366 of the Code of Criminal Procedure,
19733. On the other hand, the accused-appellant preferred an appeal
against the judgment and order of the Trial Court. Both, the reference
case for confirmation of death sentence and the appeal preferred by the
appellant, were considered together, where the High Court found no
reason to disbelieve the evidence led by the prosecution; and while
rejecting the defence story of wrongful prosecution for enmity due to
land dispute, affirmed the findings on conviction of the appellant. The
High Court further dealt with the question of sentence and with reference
to the nature of offence, in brutal rape and murder of a seven-year-old
girl child, found the present one to be ‘rarest of rare case’, where the
sentence of death was considered ‘eminently desirable’. The High Court,
accordingly, dismissed the appeal filed by the appellant and confirmed
the punishment awarded to him, including the sentence of death.
2.5. In the present appeals, conviction of the appellant has been
questioned essentially with the contentions that the relevant factors are
indicative of ante-dating of the FIR; that the prosecution has not been
able to prove that the deceased was last seen with the appellant; that the
story of discovery of
dead body at the instance of the appellant was also
not established; and that the medical and forensic evidence was not
conclusive to connect the appellant with the crime. The sentence awarded
to the appellant has also been put to question, essentially with the
submissions that the Trial Court as also the High Court have not examined
the mitigating circumstances existing in this matter, including that it is a
case of weak chain of circumstances; and that the appellant is having no
criminal antecedent and comes from a poor socio-economic background
with family members, including wife and children, being dependent on
him. Per contra, it is contended on behalf of the respondent that
concurrent findings on the guilt of the appellant, based on proper
appreciation of facts, call for no interference. It is also submitted that
the abhorrent nature of the crime justifies the death sentence in the
present case where the appellant, a grown-up person of about 35 years
of age, enticed a seven-year-old girl child and committed brutal rape and
murder.
3 ‘CrPC’, for short.
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2.6. Thus, two major points would arise for determination in these
appeals: first, as to whether the conviction of the appellant calls for any
interference; and second, if the conviction of the appellant is maintained,
as to whether the sentence of death awarded to the appellant deserves
to be maintained or deserves to be substituted by any other sentence?
3. With the aforesaid outline, we may take note of the relevant
factual and background aspects in necessary details.
Relevant factual and background aspects
4. The prosecution in the present case had its foundation in a
complaint (Ex. Ka-1) submitted by PW-1 Nisha wife of Manoj Harijan,
at Police Station Kasya, District Kushinagar on 14.05.2015 at about
12:35 p.m., with the allegations that the previous evening, at around 06:30
p.m., her seven-year-old daughter, when playing with other kids of
neighbourhood, was taken by the appellant Pappu towards southern side
of the house on the pretext of plucking lychee,while shooing away other
children; and her sister PW-2 Anita and many neighbours had seen the
appellant Pappu taking her daughter. The complainant further stated
that after turning dark, she searched for her daughter who was not found
anywhere and the appellant Pappu was also not found. The complainant
also stated her strong apprehension that the appellant had committed
rape on her daughter, caused her death, and concealed the dead body.
On the basis of this complaint, FIR No. 840 of 2015 (Ex. Ka-13)
came
to be registered for offences under Sections 376, 302, 201 IPC and
Sections 3/4 POCSO. The complaint so made by PW-1 Nisha, on which
the said FIR was registered, has its own relevance on the questions
sought to be raised in this matter. Therefore, the translated version of
the same is reproduced for ready reference as under4-5: -
4 It may be indicated that the relevant documents and depositions in the original record
of this case are in Hindi language. The translated versions in English language, as placed
before us, carry several obvious errors where the words and even sentences are rather
incomprehensible. We have scanned through the record with the assistance of learned
counsel for the parties; and the extractions in this judgment are, as far as feasible, near
to the correct translation and meaning of the text in original.
5 Having regard to the nature of case, the name of victim has been omitted in the
extractions and at all other places in this judgment; and substituted by the expression
‘Am’.
PAPPU v. THE STATE OF UTTAR PRADESH
[DINESH MAHESHWARI, J.]
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“To,
The SHO,
PS-Kasya
Sir,
It is requested that complainant Nisha w/o Shri Manoj,
caste-Harijan is a r/o village- Sabaya Khas, PS- Kasya, District-
Kushinagar. Yesterday evening i.e. on 13.05.2015 my daughter
Am aged around 7 years was playing with neighbour Rajendra
Dhobi’s daughter Ashna, Mishri’s daughter Rinku and other kids
of neighbourhood near the home. At around 6:30 o’clock, native
of my village and of my caste Pappu s/o Shri Ram Preet took my
daughter Am with him towards the southern side of home on the
pretext of plucking lychee. He gave toffee to other children of
neighbourhood playing with her and shooed them off the spot. My
younger sister Anita and many neighbours had seen Pappu taking
away my daughter. After sometime when it turned dark, I started
to search my daughter. Children who were playing with her, my
sister Anita and neighbours told that Pappu had taken her in the
orchard of lychee towards the south. I went to the house of Pappu
where he could not be found. I kept searching my daughter but
nothing could be known. I am damn sure that Pappu had taken
my daughter Am with him on the pretext of plucking lychee and
he committed rape on her, caused her death and concealed her
corpse at some lonely place. It is requested that report be lodged
and appropriate action be taken.
Complainant
Sd/- Nisha
Name- Nisha w/o Manoj Harijan
Village- Sabya Khas
PS- Kasya
District- Kushinagar
Date- 14.05.2015"
5.
According to the prosecution, after registration of FIR, the
investigation was taken over by the Station House Officer6 of Police
6 ‘SHO’, for short.
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Station Kasya, Gyanendra Nath Shukla (PW-8)7; the statement of PW-
1 Nisha was recorded; and a search was mounted for the appellant. The
SHO obtained information on the whereabouts of the appellant and acting
upon such information, found the appellant near the Community Health
Centre. It has been the case of prosecution that on being questioned, the
appellant disclosed the place of incident as also the location where body
of the daughter of the complainant had been dumped near the bridge on
the banks of the river Hiranmati. On the basis of his disclosure, the
corpse was recovered along with clothes of the deceased. The
Investigating Officer prepared the necessary memos, plans and reports
and sent the dead body for post-mortem examination. A few aspects
related with preparation of such memos and reports have also been put
to question in this matter on behalf of the appellant, which we shall
examine hereafter later.
5.1. In the post-mortem conducted by PW-6 Dr. Himanshu Kumar,
eleven injuries were found on the dead body and it was opined that
death had occurred due to haemorrhage and shock, as a result of ante-
mortem injuries.
6. After other processes of investigation, charge-sheet was filed
against the appellant on 12.08.2015 and the case was committed to the
Court of Sessions where the appellant was charged of the offences
under Sections 376, 302, 201 IPC and Sections 3/4 POCSO (later on
rectified to Sections 5/6 POCSO). The appellant pleaded not guilty
and
claimed trial.
Prosecution Evidence
7. The case against the appellant was tried as Sessions Trial No.
414 of 2015 before the Additional Sessions Judge, Court No. 2,
Kushinagar, Padrauna. The prosecution examined 8 witnesses, and
produced 19 documents. In view of the contentions urged, we may take
note of the salient features of the relevant evidence adduced by the
prosecution.
7.1. PW-1 Nisha, mother of the deceased-child, deposed in her
examination-in-chief as under: -
“…Pappu Gautam had called and taken along my daughter namely
Amaged 7 years at about 6:30/7:00. First of all he fed toffee then
7 Hereinafter also referred to as ‘the Investigating Officer’ or ‘the IO’.
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took her southwards in the village on the pretext of plucking litchi.
My daughter was playing at the door along with other children.
When (he) called and took along my daughter, my sister and other
children who were playing with her and I had seen it. When the
girl did not return home, we had searched for her throughout the
night but in vain. When I did not find my daughter, I had given a
complaint at Police Station Kasya the next day after getting it
written on the basis of which the case was lodged. Pappu had
sexually assaulted my daughter and thereafter had thrown her at
the river bank on Deoria Road where cremation rites are
performed.
When I did not find my daughter, I enquired at Pappu’s
home then his wife said that she did not know where Pappu had
gone after quarrelling. Pappu used to consume liquor. I know it.
When police arrested Pappu and interrogated him, Pappu got the
dead body recovered. My Jija (brother-in-law) and my uncle
(bade papa) identified the dead body. When the case was lodged,
the S.I. had recorded my statements. I had also shown the place
to the S.I. from where the girl was taken along…”
7.1.1. The relevant part of her testimony in the cross-examination
would read as under: -
“…I had got written the complaint by an educated boy. I
was coming to the police station crying then this boy met me on
the way. I asked him to write it, he wrote. I had gone to the police
station at about 11-12 (during
day time). Sister and I had gone to
the police station and no one else had gone…..
Q: At what time and day your siter Anita had told you that
your daughter is missing?
A: Pappu had taken along the girl at 6.30, thereafter we
made a search for 1-1½ hours. Then (we) had gone to Pappu’s
house to inquire, his wife told that her husband is out of the hourse
since evening after quarrelling.
Anita and I had seen Pappu carrying the girl. Police/
Chowkidar/Pradhan had not been informed first- firstly the girl
was searched for. We had been searching for the girl throughout
the night. My Jija (brother-in-law) and father had informed about
the death of the girl. When police had arrested Pappu, only then I
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came to know that my daughter has died. I had not given the
complaint at the police station on my Jija’s advice. I did not have
mobile at the time of the incident. I can’t state as to from where
the police had arrested Pappu. At the time when Pappu was
arrested, I was at home. I had got the complaint written by a boy
on dictation. He had written so much as I had dictated. I was
satisfied with the thing that the same is written in my complaint
what I had dictated. I had also told the same thing to the S.I. what
I had got written in the complaint. We both (my sister and I) had
seen Pappu taking along the girl. If darogaji had not written such
point in my statement, I could not tell its reason. If darogaji had
written this point that my sister had seen Pappu taking along my
child, then it is correct. I had heard and seen at the door that
Pappu is taking along the girl on the pretext of toffee and litchi. I
had written in my complaint that I believe that it is Pappu who has
taken along my daughter- this point is true because Pappu had
taken along my daughter before me.
Q: When you saw Pappu taking along your daughter, despite
it you gave complaint on the next day with delay. Can you tell its
reason.
A: Firstly, I kept on searching for my daughter, when I did
not find her, I gave the complaint on the next day.
I kept on searching for my daughter in the entire village
throughout the night. I kept on searching door to door in the entire
village. Whose name do I
tell? I recognize the people of village. I
kept on searching throughout the night. Names of how may
persons do I tell? I can’t tell the names of the persons of entire
village. Pappu drinks liquor for many days. I don’t know whether
he falls inebriated condition at some place or not but he consumes
liquor. Pappu drinks liquor daily. Prior to this incident, we had
normal relation with Pappu’s house. I went to see the dead body.
Firstly I had gone to the bridge itself and thereafter had gone to
the Police Station. It was 5-6pm when Pappu was arrested. The
dead body was recovered on the next day of the incident. When
I saw the girl, one of her eyes had come out, vein was also coming
out below the eye, leg was also fractured. The animals had not
eaten the dead body. The neck of my daughter was also
twisted.…..
PAPPU v. THE STATE OF UTTAR PRADESH
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It is wrong to state that I had falsely implicated Pappu due
to village animosity.”
7.2. PW-2 Anita (maternal aunt of the deceased) largely
corroborated the testimony of PW-1. The relevant parts of her assertions
in the examination-in-chief would read as under: -
“The incident is of 13.05.2015 at 6:30 pm. My sister’s daughter
namely Amaged 7 years was playing along with other children
near Gokul Gupta’s house beside my house. There came Pappu
Gautam and gave a twenty rupee note to a girl called Aashna and
asked her to bring toffees. He distributed toffees to the children
and then made all the children go from there. Thereafter, he stopped
my sister’s daughter namely Amand took her along on his back on
the pretext of plucking litchi. I had seen all this through my window.
When my sister’s daughter did not return home till night, we started
search for her. But we could not find her in the night and my
sister gave complaint at the Police Station on the next day.
Police arrested Pappu Gautam. Accompanying the police,
Pappu had got recovered the dead body from the bush near the
bridge. Pappu Gautam had concealed the dead body of my sister’s
daughter Amin the bush after committing rape upon her and killing
her…”
7.2.1. In her cross-examination, this witness PW-2 Anita stated
as under:-
“…The distance from my window to the place where children
were playing is 4-5 steps…when I was watching the children
playing…my sister was
sitting at the place where I was
standing…I had told my sister about the missing of the child after
an hour. We had started to search for the girl child after one or
one and half (1-1½) hour. Pappu Gautam had taken the child
towards the south direction. We first went to the orchard of litchi
and thereafter, went to Pappu’s house. Pappu was not at home.
We met Pappu’s wife at home who told that she did not know
where Pappu had gone after quarrelling…When we reached
Pradhan’s house at about 12-1 at night, Pappu came home, his
feet and clothes were laced with mud. When we asked, Pappu
said that he had not taken the child.
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When we were interrogating Pappu at about 12 at night,
Pradhanji was not present there. We had met Pradhanji before
Pappu came to Pradhanji’s house then we proceeded to his house.
Jamaluddin Ansari was the then Pradhan. By the time when we
had gone to Pradhanji’s house, Pappu’s father had also arrived
and we said that we are going to complain at police station then
Pappu’s father counselled and forbad us from going to police station
by saying that if he would have gone somewhere, he would return.
At that time my sister Nisha was not with me…After coming to
know that Pappu had come to his house, we didn’t go to the police
station because only girls were present at our house and there
was no guardian so that we could leave for the police station. I
don’t remember the exact time but it was 10.00 to 10.30. Only
Nisha and I had gone to the Police Station for giving the
information. Pappu was not behind the bars when we reached
the Police Station.
How much time after giving the information, the dead body
was recovered we don’t remember. Later, when the policeman
apprehended Pappu and interrogated him then he told that the
dead body of the child was there. The people of the entire village
were shouting the dead body had been found there- when my
brother-in-law lifted the dead body, it was the dead body of my
sister’s daughter.…. No quarrel etc had taken place between my
house and the house of Pappu before the incident.…It is wrong
to say that Pappu has been
falsely implicated in this case due to
factionalism.”
7.3. PW-3 Aashna, said to be about 10 years of age at the time of
her deposition, was found to be a competent witness. She deposed that
the appellant gave her Rs. 20 to bring sweets and to distribute them
amongst other children. She brought sweets worth Rs. 4, returned the
remaining amount to the appellant, and distributed the toffees. While
corroborating PW-1 and PW-2, this child-witness further stated that the
appellant invited the deceased to accompany him to the farm to pluck
lychee. When the other children attempted to follow, they were scolded
by the appellant and shooed away. She further stated that in the morning,
it came to be known that Am had been murdered and thrown; and she
had stated this fact to Darogaji.
PAPPU v. THE STATE OF UTTAR PRADESH
[DINESH MAHESHWARI, J.]
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7.3.1. A few aspects emerging from the cross-examination of this
child-witness PW-3 Aashna have been underscored during submissions
on behalf of the appellant, particularly as regards the place where the
children were playing and as regards the time of her having seen the
dead body of the victim child. We may take note of the relevant facts
stated by this witness in the cross-examination as under: -
“…..was playing game at Rampravesh’s door. Am’s house falls
behind one house after the house of Rampravesh and the middle
one is Bablu’s. Pappu’s house is adjacent to Rampravesh’s house.
Pappu scolded us at 7 O’clock in the evening and thereafter we
started playing at the door of Ram Parvesh and kept playing for
almost 5 hours. Thereafter, we returned back home. At the time
when we were playing, Am was there. Myself, daughter of my
father’s elder brother, my mama’s daughter and my mausi’s
daughter were there; we all went back home. When met Pappu
at my house, at that time my mother, father, brother and myself
were present. My father did not talk to Pappu. (He) took away
Am which was witnessed by my mother and father. Thereafter, I
did not meet Am. After getting up in the morning, I got the
information that Am had died. The information about death of Am
was given by the sister and brother-in-law and when brother-in-
law (jija) told the said fact then at that time, his sister Sunita was
present.
 …...When Anita and Sunita
told that Am has died then I
along with them went to that place at about 10 O’clock where
dead body of Am was lying. Many persons had gathered there
and after that, I went to the police station. My brother-in-law
(jija) took me there, but I cannot tell the name of brother-in-
law(jija); he is husband of Neelam. I was interrogated at the
police station on the same day and had stated to the sub-inspector
that I have come after seeing the dead body…..”
7.4. PW-4 Ambedkar is the uncle of the deceased child and residing
at a place about 22 kms from the village of incident-Sabya. This witness
asserted to have reached Sabya after getting information from PW-1
that her daughter was missing. He also stated that the appellant Pappu
was interrogated by the IO before him whereupon the appellant agreed
to show the place where he had thrown the child after committing rape
and murder. The witness asserted that the dead body of victim and her
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clothing were recovered at the instance of the appellant before him. He
also deposed regarding preparation of inquest report, the memos of arrest
and recoveries, and identified his signatures on the memos Ex. Ka-2 and
Ex. Ka-3. In his cross-examination, this witness PW-4 Ambedkar pointed
out that he reached Sabya by bus but was unable to state the time of his
arrival. As regards the facts concerning arrest of the appellant and
recoveries, this witness stated in the cross-examination, inter alia, as
under: -
“…The police brought Pappu in afternoon. Perhaps, Pappu was
arrested two hours prior to my arrival, he was arrested by police
at Sabya-square. Thereafter, the sub-inspector brought Pappu from
police station before me and obtained signature of arrest at the
spot of arrest. I do not remember as to the signature of which
persons were obtained there besides me. When I affixed my
signature, there were no signatures of other persons. When
signature was obtained, about 40-50 persons had gathered there.
I had come to my relative’s place, therefore I cannot tell the names
but I am acquainted with the relatives. Recovered panty and T-
shirt are not before the court. Panty and T-shirt were sealed and
stamped at the police station and after seal and stamp proceedings,
signature was obtained. Panty was of black colour….. It is wrong
to state that I did not see the place of occurrence and put the
signature at the police station before the police.”
7.5. The
post-mortem was conducted by PW-6 Dr. Himanshu
Kumar on 15.05.2015, beginning at 3:05 p.m. and ending at 4:05 p.m.
The relevant extracts of the post-mortem examination report (Ex. Ka-
11) are as under: -
“External Examination-
Rigor mortis upper and lower limb present.
External General Appearance-
Tongue protruded mouth eye (L) closed, eye ( R ) protruded.
External Injuries-
(1) Contusion 5 cm X 3 cm on the ( R ) side of eye.
(2) Contusion 10 cm X 3 cm on the ( R ) side face.
(3) Contusion 7 cm X 3 cm on the posterior aspect of ( R ) arm.
PAPPU v. THE STATE OF UTTAR PRADESH
[DINESH MAHESHWARI, J.]
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(4) Contusion 12 cm X 5 cm on the front of chest.
(5) Lacerated wound 3 cm X 1 cm on the anus.
(6) Protruded trunk.
(7) Eye Protruded ( R ) side.
(8) Loss of hair (on the head).
(9) Germ found on the whole body.
(10) Contusion 5 cm X 3 cm on the ( R ) side parietal region.
(11) Contusion 3 cm X 2 cm on the (L) side parietal region.
xxx
xxx
xxx
Bones of Scalp and skull: Right and left Parietal region fractured
xxx
xxx
xxx
Genital Organs: Vagina found in tear position and clotting present.
Vaginal swab is taken and sealed and sent to lab.”
xxx
xxx
xxx
Opinion:
1. Time since death: about 2 and 3 days.
(i) Cause and manner of death: Death is due to haemorrhage
sand shock- result of Ante-Mortem Injury.”
7.5.1. It was opined in the post-mortem report that possible time
of death was about 2-3 days; and the cause of death was haemorrhage
and shock as a result of ante-mortem injuries. A few factors relating to
the probable time of death, as occurring in the statement of this witness
PW-6 Dr. Himanshu Kumar, would read as under: -
“The probable time of her death would be within 2 to 3 days….
The time of 2-3 days means that the probable time of death could
be between 48 hours and 72 hours before the post-mortem.”
7.6. PW-8, Gyanendra Nath Shukla, the Investigating Officer,
stated in his examination-in-chief that at the relevant time, he was posted
as the SHO of Police Station Kaysa, when Case Crime No. 840 of 2015
was registered
on the complaint submitted by PW-1. He immediately
started investigation and attempted to locate the appellant. This witness
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further stated that he received a tip-off about the location of the appellant
and acting on this information, he apprehended the appellant Pappu near
the Community Health Centre. PW-8 stated that Pappu Gautam was
then interrogated. The relevant part of his testimony as regards disclosures
by the appellant Pappu and preparation of memos would read as under: -
“…And when asked about the dead body, he said, I could get the
dead body recovered. On the pointing of the accused Pappu, the
dead body of Am was recovered in the presence of witnesses,
namely Siri s/o Jhagru, Ambedkar s/o Ram Nagine, Ishteyaq s/o
Jamaluddin, which was identified by the above persons. Asked
the lady constable Rinku Yadav and constable Om Prakash to
bring the jild panchayatnama from the Police Station and
instructed SI Rakesh Kumar Singh for the panchayatnama and
inspected the spot of occurrence. During the inspection of the
recovery spot, T-shirt and underwear of Am were recovered on
the pointing of the accused Pappu. It was placed in a piece of
cloth, sealed & stamped and recovery memo was prepared. …”
7.6.1. It has rightly been pointed out on behalf of the appellant
that a few parts of the testimony of this witness PW-8 in the cross-
examination, as available in the original record, have not appeared in the
English translation, particularly regarding the timing of his recording the
statement of the complainant. As per that part of the statement, this
witness stated that he commenced
investigation at about 2 p.m. on
14.05.2015; he started from the Police Station about half an hour after
commencing the investigation; and at that time, the person accompanying
the complainant was not present. This witness deposed that he recorded
the statement of complainant next day after entering into investigation
but then, stated that he recorded the statement on the day of incident
itself and then, further stated that he recorded the statement of the
complainant at about 2 p.m.; that it took about 20 minutes to record the
statement; and that he reached the site about 2-2½ hours thereafter.
This witness further deposed about the tip-off regarding the location of
the appellant and stated as under: -
“….Arrest of the accused took place at the road near CHC. I
prepared the arrest memo at the spot. I did not write the arrest
memo at the place where the accused Pappu was arrested. I,
immediately after the accused was arrested and he confessed his
crime, started preparing the arrest memo at the spot of arrest. I
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don’t remember it well as to how long did it take to prepare the
arrest memo. The memo was prepared after the proceeding was
completed. Body of the deceased was recovered on being pointed
out by the accused. Moreover, clothes of the deceased viz. Kachhi
and T-shirt of the deceased were recovered from the place of
occurrence. All these proceedings were recorded in the memo.
It is right to say that at the time of arresting, the accused
was apprised of the reason of his arrest. But the arrest memo
was prepared after the recovery memo was written. The accused
was not handed over the copy of the memo at the place where he
was arrested because the memo was not prepared completely
there. It is wrong to say that during the arrest, I did not abide by
the rules of 50 CrPC, of the Human Right Commission and of the
Hon’ble Supreme Court. The truth is that after arresting the
accused, the arrest memo was prepared after the body of the
deceased and her clothes were taken into custody. The accused
was orally informed of the reason of his arrest before he was
taken into police custody….”
7.6.2. This witness, the IO, further pointed out in his cross-
examination about preparation of memos, inter alia, in the following
terms: -
“….Memo of arrest and the memo of recovery are same and
one; they don’t have different witnesses. Arrest memo of the
accused, recovery memo of kachhi and T-shirt of deceased and
recovery of Kachhi are mentioned
in one. The witness again
stated that recovery memo of dead body and arrest of dead body
(sic) are in one and memo of recovery of kachhi of the deceased
is one and recovery of kachhi of accused is in different memo
which bear the signature of Siri and Ambedkar….”8
7.6.3. This witness, the IO, also admitted the fact that the report
of Forensic Science Laboratory had not been received while filing the
charge-sheet but according to him, the offence of rape was made out
from a perusal of the post-mortem report.
8 This part of the statement of PW-8 carries obvious overlapping of expressions even in
the original; and its translated version also carries several question marks (?) which
have been omitted herein, to make it read, as close as possible, to the original version.
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7.7. It may be noticed at this juncture that as per the report dated
10.08.2016 (Ex. Ka-19) prepared by the Forensic Science Laboratory,
U.P. Ramnagar, Varanasi, ‘spermatozoa and sperms were found’ on the
underwear of the deceased.
7.8. There had been two more witnesses in this case namely,
PW-5 SI Rakesh Kumar Singh and PW-7 HCP Nagendra Singh. PW-5
Rakesh Kumar Singh deposed in relation to the preparation of memos
and reports. PW-7 Nagendra Singh stated that the complainant had
arrived at the Police Station with her brother-in-law and with a hand-
written complaint, which was duly entered as G.D. No. 30 at 12:35 p.m.
and thereupon, FIR No. 840 of 2015 was registered. He indeed stated in
the cross-examination that no other person had accompanied the
complainant. He also stated that the SHO immediately left for
investigation and had recorded the statement of the complainant at the
Police Station; and that the statement of the brother-in-law of the
complainant was also recorded at the Police Station. The relevant aspects
of his testimony in the cross-examination would read as under: -
“….Complainant of the case had come to the Police Station along
with her Bahnoi (sister’s husband) namely Ambedkar. She had
given me the complainant. Other than her Bahnoi, no other person
was accompanying her. SHO was also present there. The case
was registered when the SHO directed the same. Had not issued
any order on the complaint and had asked it verbally. It was a
serious matter, when I told him, he verbally asked to register the
FIR. The SHO had said that he himself would investigate the
case. Then his name was written as the IO of the case. The copy
of the FIR was given to the SHO after registering the case. It
would have taken 10 minutes in making the entry in the GD and
FIR. The SHO immediately left for the investigation after the
case was registered. SHO had recorded the statement of
complainant at the police station. The statement of her bahnoi
(sister’s husband) was also recorded at the police station….”
Defence Version and Evidence
8. The appellant, in his examination under Section 313 CrPC stated,
inter alia, that he had been falsely implicated in the case under a
conspiracy; and that the investigation conducted by the IO was false, in
pursuance whereof, a false charge-sheet had been filed.
PAPPU v. THE STATE OF UTTAR PRADESH
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8.1. One witness, DW-1 Shameem, was examined by the defence.
DW-1 stated in his examination-in-chief that there was a commotion in
the village on the 13th and again the next day, when it was said that a
body was lying near the bridge. The villagers reached the site and the
body of the deceased was identified by the father of the child. This
witness stated that only after that did the police arrive and took the dead
body into custody. The witness further stated that there was some hubbub
about enmity of Ram Preet (father of the appellant) and Rajendra Dhobi
(father of PW-3) and Manoj (father of the deceased) as regards a piece
of land sold by Ram Preet to one Gokul; and Pappu was falsely implicated.
Trial Court found the appellant guilty and awarded death
sentence
9. After conclusion of the trial and after having heard the parties,
the Trial Court accepted the prosecution case; and while rejecting the
contentions urged on behalf of the appellant, held that the chain of
circumstances established by the prosecution was a complete and
continuing one, bringing home the guilt of the appellant, who had not
been able to rebut the presumption under Section 29 POCSO. The Trial
Court, accordingly, convicted him of the aforementioned offences of
rape and murder of the girl child and destroying evidence; and awarded
varying punishments, including that of death.
9.1. By relying on the testimonies of PW-1, PW-2 and PW-3, it
was held
by the Trial Court that the deceased child was playing with the
children of her village; the appellant gave money to PW-3 to buy toffees,
who distributed toffees amongst other children; and the appellant then
took the deceased child by enticing her on the pretence of picking lycheeand
shooed the other children away when they attempted to follow them.
9.2. The contentions regarding delay in lodging the FIR were
rejected by the Trial Court, while holding that the delay was duly explained
by PW-1 and PW-2, since the father of the appellant had met and assured
them that their daughter would be returned if she was taken by the
appellant; and since PW-2 had stated that no guardian was available at
home, so they could not go to the Police Station in the night. The Trial
Court observed as under: -
“…The reason for delay in lodging the FIR has been made
apparent by PW-2, the sister of the complainant and it has been
stated that ‘the guardian was not present at home. It was assured
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by Pappu’s father that he would come back, if he had taken (her)
somewhere.’ Because of it, as the deceased could not be found
on the second day, the First Information Report was lodged…”
9.3. The defence sought to question the story of prosecution by
submitting that due procedure had not been followed while arresting the
appellant, since it was not mentioned in the arrest memo and recovery
memo whether a copy thereof had been supplied to the appellant. This,
the defence argued, weakened the assertion about the discovery of dead
body and clothing of the deceased child at the instance of the appellant.
However, these submissions were rejected by the Trial Court after
perusing the testimonies of PW-4 Ambedkar, PW-5 Rakesh Kumar, PW-
7 Nagendra Singh and PW-8 Gyanendra Nath Shukla (IO); and while
observing that since the IO was deposing after one and a half year and
was reciting from memory, minor contradictions would not affect the
case of the prosecution. The Trial Court rejected the contentions
concerning the procedure followed by the Investigating Officer and held
proved that the dead body as also clothing of the daughter of the
complainant were recovered at the instance of the appellant. The relevant
findings of the Trial Court could be usefully reproduced as under: -
“Thus it is clear from the above mentioned evidence that T shirt
and panty belonging to deceased was recovered by the IO at the
instance of accused after his arrest and arrest memo of
accused
as well as recovery memo were prepared at that very spot in the
said order, copy of which is said to have been provided to accused
and statement regarding absence of this fact in memo has been
provided. Thus question raised by defence has been rebutted by
PW-8 by the evidence provided by him in his examination due to
which there is no weight in the defence argument. Thus it is amply
proved from the above mentioned scrutiny that body, panty and T
Shirt recovered at the instance of the accused belongs to the
daughter of complainant only.”
9.4. Further, with reference to the site plans Ex. Ka-14 and Ex.
Ka-15, in addition to the post-mortem report Ex. Ka-11 and the testimony
of PW-6 Dr. Himanshu Kumar, the Trial Court held that the site plans
and the medical evidence clearly proved that the deceased was dragged
after being killed due to which, wheat stacks were trampled and a line
was formed in the tilled field; and the deceased received numerous minor
as well as major injuries. The Trial Court, inter alia, held as under: -
PAPPU v. THE STATE OF UTTAR PRADESH
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“…Spot marked as A 1 on the sketch map is the place where
accused is shown to have committed rape of the deceased and
murdered her, Spot marked as A 2 is the place from where panty
of deceased was recovered, spot marked as A 3 is the place from
where T Shirt belonging to deceased was recovered. Mark ——
exhibits the line made on accused dragging the body of deceased.
Wheat stack was found trampled and a line due to dragging the
body was present in the tilled field…Thus the sketch map… is
corroborated by the evidence provided by medical witness PW-6
Dr. Himanshu Kumar…which clearly proves that deceased Am
was dragged after being killed till the chak road due to which
wheat stacks were trampled and a line was formed in the tilled
field. Deceased received numerous minor as well as major
contusion injuries on her head.”
9.5. The Trial Court also examined the contention urged on behalf
of the appellant that in the charge-sheet, he was charged of the offence
under Section 376 IPC even though there was no eye-witness to the
incident of rape and even before the IO had perused the report of the
Forensic Science Laboratory. The Trial Court rejected this contention
while holding that the nature of the injuries in the post-mortem report,
the report of the Forensic Science Laboratory, the recovery of the
underwear of the deceased child as also her T-Shirt at the instance of
the appellant corroborated the fact that she had been
subjected to
rape.
9.6. Another contention urged on behalf of the appellant was that
the complainant PW-1 mentioned in the written complaint about her
apprehension that the appellant had raped and murdered her daughter
and had concealed the dead body, though there was no reason for her to
state such apprehensions while filing the complaint. It was argued that
such assertions in the complaint demonstrated that the appellant had
been falsely implicated. This contention was, however, negatived by the
Trial Court while observing that PW-1 suspected from the beginning
that the appellant had raped and murdered her daughter and the suspicions
were confirmed by the post-mortem report as also the report of the
Forensic Science Laboratory.
9.7. The defence put forth by the appellant as regards enmity due
to land dispute was also rejected by the Trial Court after examining the
statement of DW-1 and with the observation that such a statement was
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of no assistance to the accused in the face of cogent evidence adduced
by the prosecution.
9.8. Thus, in the ultimate analysis, Trial Court found proved the
case of the prosecution beyond reasonable doubt and convicted the
appellant accordingly by its judgment and order dated 07.12.2016.
9.9. Next day i.e., on 08.12.2016, the Trial Court heard the parties
on the question of sentence where it was urged on behalf of the appellant
that he had no criminal antecedents; he was in the young age of 35
years; and there was none else to look after his children and old parents.
On the other hand, the prosecution referred to the heinous nature of
crime and urged that the present case was of ‘rarest of rare’ category
where the accused-appellant ought to be punished with death sentence.
The Trial Court observed that the appellant was around 33-34 years of
age at the time of the incident and was sensible enough to understand
the consequences of his actions, and yet committed such a heinous
offence, for which no leniency was called for. Consequently, the Trial
Court awarded the punishments as noticed at the outset, including the
death sentence.
High Court confirmed the death sentence awarded to the
appellant
10. As noticed, this case came up before the High Court of
Judicature at Allahabad on two counts, i.e., the death sentence submitted
for confirmation and the appeal against conviction and sentence preferred
by the appellant. The High Court reappreciated the material
placed on
record, including the testimony of witnesses and, in its judgment and
order dated 06.10.2017, upheld the decision of the Trial Court in convicting
the appellant of the aforementioned offences and sentencing him to death
for the offence under Section 302 IPC.
10.1. The counsel for the appellant attempted to highlight the
inconsistencies in the testimonies of PW-1, PW-2, PW-3, PW-4 and PW-
7 while arguing that the FIR was not filed immediately after it came to
be noticed that the deceased girl had been taken away by the appellant;
that it was a case of manipulated rediscovery because according to
PW-3, she had seen the body of the deceased at around 10.00 a.m. but
the FIR was lodged at about 12.35 p.m.; that PW-4 had incorrectly
stated the colour of the recovered underwear to be black; that PW-1
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had deposed that she came to the Police Station to file the FIR with PW-
2 whereas it was deposed by PW-7 that PW-1 was accompanied by
PW-4.
10.2. The High Court, however, held that the testimonies of PW-
1, PW-2 PW-3 and PW-4 were trustworthy and were natural, being not
a result of tutoring. Since the witnesses were deposing after a year and
were rustic villagers, minor inconsistencies in their testimonies would
not be of any adverse impact on the case of the prosecution. Additionally,
it was held by the High Court that merely because the witnesses were
related to the deceased, they could not be characterised as interested
witnesses once their testimonies were found to be natural.
10.3. The High Court reasoned that there was delay in lodging
the FIR because the deceased child was being searched for in the village;
and only when PW-1 and PW-2 failed in their search that they gave a
written complaint the next day. Furthermore, it was held by the High
Court that the delay would not be fatal to the case of the prosecution
since the cases involving sexual offences had to be considered with a
different yardstick, where the delay in lodging FIR was natural because
it involved the prestige and reputation of the family.
10.4. On reappreciating the medical evidence, being the post-
mortem report, the report of the Forensic Science Laboratory, and the
testimony of PW-6, the High Court noted that vagina of the deceased
was torn;
there was presence of blood clots; the time of death was 2-3
days before post-mortem; and human sperm and spermatozoa were found
on the underwear of the deceased. These corroborated the story of the
prosecution and confirmed that rape had been committed upon the
deceased child before her death.
10.5. The High Court also referred to the effect of discoveries
made on the information furnished by the appellant in terms of Section
27 of the Evidence Act, 18729 and observed, inter alia, that the appellant
himself having led the police to the place of recovery of the body, and
having failed to offer any explanation as to how it came to be concealed
there, the only inference would be that the appellant had murdered the
deceased girl and concealed the body. The High Court observed and
held thus: -
9 Hereafter referred to as ‘The Evidence Act’.
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“43. Learned trial Judge has legally and correctly interpreted the
ocular testimony of the witnesses. Here the accused took police
party and pointed out the place from where dead body of the
deceased was recovered, in absence of explanation by accused
as to how dead body was kept and concealed there, court can
draw inference that it was accused who murdered deceased and
concealed dead body and such interpretation is not inconsistent
with principle embodied in Section 27 of Evidence Act.
44. In the present case, the declarant accused person was in the
custody of the police and alleged information received from the
accused person was made in consequence of his statement which
resulted into the recovery of the dead body of the minor girl at the
pointing out of the accused person.
45. Only this component or a portion which was immediate cause
of the recovery of the corpse of minor girl would be legal evidence
and not the rest. This may therefore pro tanto (to that extent)
permits the derivative use of custodial statements in the ordinary
course of events.”
10.6. The High Court found the prosecution evidence reliable and
pointing towards guilt of the appellant while the appellant having failed
to discharge the burden placed upon him under Section 29 POCSO. The
High Court held the prosecution case established while observing as
under: -
“54. Thus, the ocular testimony of P.W. 1 Smt. Nisha, P.W. 2
Km. Anita and P.W. 3 Km. Ashana is wholly reliable and
trustworthy. We see no reason to disbelieve the testimony of P.W.
6 Dr. Himanshu Kumar. The oral evidence of P.W. 6 Dr. Himanshu
Kumar fully supports prosecution version. The medical evidence
of P.W. 6 Dr. Himanshu Kumar who conducted the autopsy found
that the death of Km. Am aged about 7 years minor girl had taken
place due to ante-mortem injuries and the time of death mentioned
in the post-mortem report (Exhibit Ka-11) corresponds to the time
mentioned in the F.I.R. (Exhibit Ka-1) as well as in the ocular
testimony of P.W. 1 Smt. Nisha, P.W. 2 Km. Anita and P.W.3
Km. Ashana.”
10.7. The High Court also rejected the defence story of false
implication due to prior enmity while observing that no cogent
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documentary evidence was produced as regards the alleged sale of land
by Rampreet to Gokul; and it was also not shown as to how the appellant
was concerned with the said land deal.
10.8. Having thus affirmed the conviction, High Court examined
the question of sentence and, while holding that cases of such nature
were crimes against humanity, upheld the death sentence awarded to
the appellant while observing as under: -
“61. In this case, the accused person-appellant Pappu who belonged
to the same caste, social strata and native place of the deceased
minor girl Am; allured her to provide her Lychee apparently as a
prelude to his sinister design which resulted in her kidnapping,
brutal rape and gruesome murder-as the numerous ante-mortem
injuries on her person testify; which culminated in concealing her
dead body near the banks of the river beside the bushes and
innocent helpless and hapless girl of 7 years was subjected to
such barbaric treatment by a person who was in a position to win
her trust. His culpability is of enormous proportion and arouses a
sense of revulsion in the mind of the common man.
62. In fine, the motivation of the perpetrator, the vulnerability of
the victim, the enormity of the crime, the execution thereof
persuade us to hold that this is a ‘rarest of rare cases’ where
the sentence of death is eminently desirable not only to deter others
from committing such atrocious crimes but also to give
emphatic
expression to society’s abhorrence of such crime.
63. Taking an overall view of all the facts and circumstances of
the instant case in the light of the above propositions we are of
the firm opinion that the sentence of death should be maintained.
In vain, we have searched for mitigating circumstances-but found
aggravating circumstances aplenty.”
Rival Submissions
11. Learned counsel for the appellant has assailed the judgment
and order aforesaid while raising questions against the findings leading
to the conviction of the appellant as also against the sentence awarded
to the appellant.
12. As regards conviction of the appellant, learned counsel has, in
the first place, strenuously argued that probability of ante-timing of the
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FIR cannot be ruled out; and in this regard, has referred to the facts
stated in the testimony of PW-3 that she, along with PW-2 and one
Sunita, had visited the spot where the dead body was found at 10:00
a.m. on 14.05.2015. It is submitted that until that time, FIR had not been
registered because the complaint was made only around 12:35 p.m. on
14.05.2015 and the dead body was allegedly recovered between 4:10-
5:15 p.m. Yet further, learned counsel has referred to the fact that
according to PW-1, she came to know about the killing of her daughter
only after the appellant was arrested but, in her complaint, she stated
with confidence that the appellant had raped and murdered her daughter
and concealed the dead body. According to the learned counsel, she
could not have known the factum of alleged offences at the time of
making the complaint. The learned counsel has also contended that the
dead body having been found prior to the prosecution’s claimed sequence
of events is also probabilised by the fact that in the post-mortem
conducted on 15.05.2015, the time of death was stated to be about 2-3
days and thus, the dead body was found in the afternoon of either
13.05.2015 or 12.05.2015. The contention has been that from the evidence
on the record, it cannot be ruled out that the body was found before
10:00 a.m. on 14.05.2015 and the FIR was registered subsequently, while
pinning the blame on the appellant due to prior enmity.
12.1. The inconsistencies in
regard to the facts as to who was
present at the Police Station at the time of registration of FIR as also the
timing of recording of the informant’s statement under Section 161 CrPC
have also been highlighted. It has also been submitted that no particulars
were mentioned in column 15 of the FIR as regards ‘date and time of
dispatch to the Court’. It is submitted that the inconsistencies, taken
together with the doubts concerning circumstantial evidence would entitle
the appellant to the benefit of doubt.
12.2. Learned counsel for the appellant has strongly assailed the
findings relating to the circumstantial evidence, taken as proved by the
Trial Court and the High Court. Taking up the circumstance that the
deceased was lastly seen alive in the company of the appellant, the
learned counsel has endeavoured to point out certain inconsistencies in
the evidence which, according to him, falsify the prosecution case.
12.2.1. It has been contended that there are inconsistencies in
testimonies of PW-1, PW-2 and PW-3 regarding the location where the
children and the deceased were playing before the appellant allegedly
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enticed the deceased. This apart, the conduct of PW-1 and PW-2 has
also been questioned, in that they allowed the deceased child to be taken
away in the evening by a man they would describe as an alcoholic,
without attempting to intervene. Various other features of inconsistencies
in the prosecution case are referred to, where PW-3 Aashna stated that
the children kept on playing for 5 hours and upon returning home, she
found the appellant being there; and it is submitted that either the
testimony may be seen as incoherent, or is required to be disregarded, or
it casts strong doubts on the testimonies of PW-1 and PW-2. According
to the learned counsel, the High Court has erroneously ignored the
material contradictions and inconsistencies with reference to the so-
called rustic background of witnesses, while ignoring that in any case,
benefit of doubt arising from such material contradictions should go to
the appellant.
12.2.2. It has also been contended that PW-1 and PW-2 were not
believable for they could not name a single villager whose house they
visited in search of the deceased; and in fact, PW-2 stated about meeting
the appellant at the house of village Pradhan between midnight and
1:00 a.m. on 14.05.2015 but such facts were not stated in the testimony
of PW-1 or PW-8.
12.2.3. Learned counsel would contend that burden of explanation
for the intervening period between the time of ‘last seen’ and ‘recovery
of the
dead body’ would not be shifted on the appellant because the
circumstance of last seen itself is not satisfactorily proven with
definiteness.
12.3. It has also been strongly argued that the prosecution has not
been able to prove that the body of the deceased was recovered at the
instance of the appellant, or that he had any knowledge of the location of
the dead body.
12.3.1. The learned counsel would contend that the discovery of
the dead body before registration of FIR is not ruled out and when the
appellant was arrested later, there could not have been any so-called
discovery pursuant to any statement made by the appellant. In this very
sequence, it has also been submitted that the appellant cannot be said to
have exclusive knowledge of the location of the dead body since such a
knowledge to many persons beforehand is not ruled out. Therefore, the
High Court has erred in drawing inference with reference to Section 27
of the Evidence Act.
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12.3.2. It has also been argued that even the fact relating to the
arrest of the appellant has itself not been proved in accordance with law
and in this regard, inconsistencies in the statement of PW-4 have been
indicated coupled with the fact that the arrest memo was not prepared
at the spot of arrest and was finished few hours later after making of
alleged recoveries. The learned counsel would contend that when the
circumstance of arrest is doubtful, the subsequent disclosure statement
and recovery cannot be taken as proved.
12.3.3. It has further been argued that the disclosure sought to be
relied upon in this matter had been non-specific and the alleged recovery
cannot be connected with the alleged disclosures. The submission is that
no aspect of disclosure pointing out or leading to recovery has been
proved and, in any case, such foisted recovery cannot be made the basis
of conviction. It has also been contended that the Trial Court had
erroneously taken into consideration the incriminating statements allegedly
made by the appellant in police custody, including the factum of dragging
of the deceased.
12.4. The learned counsel for the appellant has further contended
that the medical and forensic evidence in this case are neither proved
against the appellant nor are sufficient to connect the appellant to the
crime. As regards the presence of human sperm on the underwear of
the deceased, it is submitted that there has been no connecting evidence
qua the
appellant nor any sperm was found on the appellant’s underwear.
It is also submitted that the seizures were neither proved nor appeared
scientifically proper. The clothes of the deceased were sealed at the
Police Station and not at the spot. Even the storage and forwarding
were also unscientific in as much as PW-8 admitted that there was no
facility in the Police Station malkhana to store the seized clothes in a
scientific manner. Further, the FSL report was delivered on 10.08.2016
and it was improbable that spermatozoa could still be discovered on the
cloth one year and three months after the incident; and no expert was
examined to prove the scientific criteria and basis for the conclusion in
the report. It has thus been submitted that the offence of rape is not
established in the present case.
12.5. The learned counsel has also argued that the Courts below
have seriously erred in relying on Section 29 POCSO while failing to
consider that to shift the burden of proof on the appellant, foundational
facts must have been established by the prosecution which, in the context
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of offences under POCSO, include ‘proving the alleged offence beyond
reasonable doubt’. According to the learned counsel for the appellant,
the prosecution having failed to prove the alleged offences beyond
reasonable doubt, no presumption with reference to Section 29 POCSO
could have been drawn in the present case.
12.6. The learned counsel would also contend that the Courts
below have erred in not drawing adverse inferences in terms of Section
114 illustration (g) of the Evidence Act on account of non-examination
of material witnesses whose names had surfaced on the record; and in
failing to consider that the rules of prudence and circumspection were
required to be applied while appreciating the testimony of PW-1 to PW-
4, who were to be personally benefitted by securing a conviction of the
appellant because of prior enmity, thereby making them interested
witnesses.
12.7. The learned counsel for the appellant has also referred to
several decisions in support of his contentions, including those in
Sudarshan and Anr. v. State of Maharashtra:(2014) 12 SCC 312,
SharadBirdhichand Sarda v. State of Maharashtra: (1984) 4 SCC
116, Anjan Kumar Sarma and Ors. v. State of Assam:(2017) 14
SCC 359, State (NCT of Delhi) v. Navjot Sandhu:(2005) 11 SCC
600,D.K. Basu v. State of W.B.: (1997) 1 SCC 416,Rammi Alias
Rameshwar v. State of M.P.: (1999) 8 SCC 649,Raj Kumar Singh
Alias Raju Alias Batya v. State of Rajasthan:(2013) 5 SCC
722,Aghnoo Nagesia v. State of Bihar:(1966) 1 SCR
134,Abdulwahab Abdulmajid Baloch v. State of Gujarat:(2009) 11
SCC 625, RameshChandra Agrawal v. Regency Hospital Limited
and Ors.:(2009) 9 SCC 709,Noor Aga v. State of Punjab and Anr.:
(2008) 16 SCC 417 and Justin v. Union of India and Ors.: 2020
SCC OnLine Ker 4956.
13. In the second limb of submissions, learned counsel for the
appellant has contended, without prejudice to his arguments against
conviction, that the sentencing exercise by the Courts below has been in
violation of settled law and in any case, the sentence of death deserves
not to be confirmed.
13.1. With reference to the judgment of the Trial Court, the learned
counsel would contend that it had only considered the circumstances of
the crime but has failed to consider the elements relating to the probability
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of reform and rehabilitation of the appellant. The learned counsel would
contend that the respondent-State did not adduce any evidence to show
even a probability of the appellant committing criminal acts of violence,
posing a threat to the society. The mitigating circumstances like no criminal
antecedents, the family being dependent on the appellant and probability
of reform were not considered by the Trial Court and no case law was
discussed at all. The learned counsel would further submit that the High
Court also repeated the same errors of sentencing while only discussing
the seriousness of child rape offences and then recording a cursory
finding that no mitigating circumstances were found.
13.2. The learned counsel has argued that the sentencing exercise
by the Courts below in the present case had not been in conformity with
the ratio of this Court in various pronouncements including those in the
Constitution Bench decision in Bachan Singh v. State of Punjab: (1980)
2 SCC 684, and a 3-Judge Bench decision in Mohd. Mannan Alias
Abdul Mannan v. State of Bihar: (2019) 16 SCC 584.
13.3. The learned counsel for the appellant has emphasised on
the elements relating to ‘probability of reform’ and has submitted that in
taking a case in ‘the rarest of rare’ category, the principles are clear that
the sentence of life imprisonment cannot be said to be ‘unquestionably
foreclosed’ until there is scope or probability of reformation. The learned
counsel has referred
to the decision in Rajendra Pralhadrao Wasnik
v. State of Maharashtra: (2019) 12 SCC 460 to submit that the said
case also related to the rape and murder of a minor and therein, a 3-
Judge Bench of this Court held that the probability that a convict could
be reformed and rehabilitated in society must be ‘seriously and earnestly
considered’ by the Courts before awarding the death sentence, and such
an enquiry may require the period between date of conviction and
sentencing to be prolonged so as to enable the parties to gather and lead
evidence to assist the sentencing Court. The learned counsel would submit
that in the present case, the Trial Court convicted the appellant on
07.12.2016 and, on the very next day, i.e., on 08.12.2016, sentenced him
to death. Thus, the appellant was not given reasonable opportunity to
bring on record material or evidence in relation to the relevant mitigating
circumstances.
13.4. The learned counsel has further relied upon several factors
which, according to him, are indeed the mitigating circumstances and
for which, the sentence of death deserves not to be approved.
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13.4.1.It has been argued that the first mitigating circumstance is
of the good jail conduct of the appellant where he has also been assigned
the cleaning work of the jail office and the fact that he has pursued a
Certificate Course in Food and Nutrition, though he could not clear the
examination. It is submitted that the appellant is using all available
opportunities to reform himself.
13.4.2. According to the learned counsel, the second mitigating
circumstance is that the appellant has no criminal antecedents and he
had been a decent member of the society, which also shows strong
possibility of reformation. The learned counsel has referred to the case
of Gudda Alias Dwarikendra v. State of Madhya Pradesh: (2013)
16 SCC 596 and Kalu Khan v. State of Rajasthan: (2015) 16 SCC
492 to submit that therein, this Court has considered the absence of
criminal antecedents and the age (35 years) as mitigating factors.
13.4.3. The third mitigating circumstance relied upon in this case
is with reference to the family dependence and socio-economic
background of the appellant. It is submitted with reference to the affidavit
of the wife of the appellant that he had been a caring husband to her and
a good father to the children; he continues to call his family and ask
about their welfare; and even the people in the village are concerned
about his well-being. It is also submitted that the appellant comes from
an extremely poor dalit
family, had been working as daily wage labourer
and the family had hardly enough money to make both ends meet with
no direct electricity or water connections. Further, the house they live in
has been given to them as a part of the Pradhan Mantri Awas Yojana-
Gramin in 2016. It has also been pointed out that after the appellant’s
arrest in the present case, his brother drowned in a river and his mother
also passed away in the year 2018; that because of poverty, the eldest
son of the appellant was required to be sent to Gujarat to live with his
maternal uncle; that his father Rampreet, despite old age, has to exert
himself in order to feed the family and even the children are forced to
work but still, the entire income of the family is only about Rs.3000/- per
month; and that the appellant’s wife is fragile and weak and the imposition
of the death sentence on the appellant has caused her immense mental
agony and stress. With reference to various decisions of this Court
including that in M. A. Antony v. State of Kerala: 2018 SCC OnLine
SC 2800,it is submitted that such factors are also of mitigating
circumstance. It is also submitted that the appellant’s continuing
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connection with his family and the local community; and the financial
and emotional dependence of the family on him, are additional factors
suggesting a probability of reformation.
13.4.4. As a fourth mitigating circumstance, the learned counsel
for the appellant would submit that the present one being a case dependant
on circumstantial evidence, awarding of extreme punishment is not
warranted. The learned counsel has referred to various decisions of this
Court including those in the cases of Mohd. Mannan and Kalu Khan
(supra). The learned counsel would contend with reference to the decision
in Shatrughna Baban Meshram v. State of Maharashtra: (2021) 1
SCC 596 that while considering the imposition of death penalty in a
case of circumstantial evidence, the circumstantial evidence must be of
‘unimpeachable character’, or lead to an ‘exceptional case’, or be so
strong as to convince the Court that the option of a sentence lesser than
the death penalty is foreclosed. Further, it has been contended, with
reference to the decision in Ravishankar Alias Baba Vishwakarma v.
State of Madhya Pradesh: (2019) 9 SCC 689, that therein a 3-Judge
Bench of this Court has invoked ‘residual doubt’, which means that in
spite of being convinced of the guilt of the accused beyond reasonable
doubt, there might be lingering or residual doubts regarding such guilt
and, therefore, the Court would not consider it safe to impose the death
sentence. The learned counsel has submitted
that, there are several
inconsistencies and shortcomings in the prosecution case; and with
reference to the contentions urged in assailing the conviction, the learned
counsel would submit that the present one is clearly a case of lingering
residual doubts, which should act as another mitigating factor in favour
of the appellant.
13.4.5. The learned counsel has also placed before us a table of
comparable decisions where this Court has commuted the death sentence
into ‘simple life imprisonment’. Further, the learned counsel has referred
to the enunciations in the case of Union of India v. V. Sriharan Alias
Murugan and Ors.: (2016) 7 SCC 1, where this Court has approved
the special category of sentence in substitution of death sentence, (i.e.,
life sentence barring remission for specified term beyond 14 years, or
life sentence barring remission for remainder of natural life). The learned
counsel has also placed before us a table of comparable cases of rape
and murder of minors, where remission has been excluded while
commuting the death sentence into life imprisonment, either for a fixed
term or for the remainder of life.
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13.4.6. With reference to the aforesaid and while seeking to draw
strength even from the decisions cited on behalf of the respondent, the
learned counsel has argued that in the present case, the death sentence
awarded to the appellant deserves to be disapproved.
14. Per contra, learned counsel for the respondent-State has duly
supported the conviction and sentencing of the appellant with reference
to the material on record and several decisions of this Court.
15. As regards the conviction of the appellant, learned counsel for
the respondent-State has argued that the concurrent findings returned
by the Trial Court and High Court after thorough appreciation of the
evidence do not suffer from any infirmity and call for no interference.
15.1. The learned counsel has reiterated the chain of circumstances
held proved against the appellant and has submitted that the
inconsistencies sought to be referred on behalf of the appellant are of
minor nature and do not prejudice the case of the prosecution. With
reference to the decision of this Court in the case of Inspector of Police,
Tamil Nadu v. John David: (2011) 5 SCC 509, the learned counsel
has argued that minor loopholes and irregularities in the investigation
process cannot form the crux of the case when strong circumstantial
evidences are found in the investigation, which logically point towards
the guilt of the accused.
15.2. The learned counsel has submitted that the
entire chain of
events, from disappearance of the deceased to arrest of the appellant
occurred within 20 hours inasmuch as the victim disappeared at around
6:30 p.m. on 13.05.2015 and the appellant was arrested the next day at
around 3:30 p.m.; and the prosecution has established the entire chain of
significant circumstances which lead only to the conclusion of the guilt
of the appellant.
15.3. The learned counsel has submitted, with reference to the
depositions of PW-1, PW-2 and PW-3, that the victim was indeed lastly
seen with the appellant when the appellant cunningly dissociated her
from the company of her friends with whom she was playing, in a pre-
planned manner after luring her on the pretext of picking lychees; and
the guilt of the appellant could be deduced from the fact that he scolded
the friends of the victim when they tried to follow him while he was
taking the victim on his back. Thus, according to the learned counsel, the
deliberate dissociation of victim from her friends itself proves that it was
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a premeditated, pre-planned, cold-blooded case of brutal rape and murder
of a helpless child.
15.4. The learned counsel would further argue that since the
deceased was last seen with the appellant, the burden was upon him to
prove as to what happened thereafter, since those facts were within his
special knowledge. According to the learned counsel, in the face of
credible evidence to prove that the appellant took away the victim child
and thereafter the child went missing and then, was only found inhumanely
raped and murdered, heavy burden was on the appellant to explain as to
where he was between 6:30 p.m. of the day when he took the child and
3:30 p.m. of the next day when he was arrested; as to why did he not
take the responsibility of bringing back the minor girl since he was the
one taking her away; as to when did he part company with the deceased
if he did not commit the crime; and as to how he came to know about the
location of the dead body of the deceased? Since the appellant has failed
to provide any explanation to any of these pertinent questions, it could be
concluded without an iota of doubt that the appellant has failed to
discharge the burden cast upon him by Section 106 of the Evidence Act.
This, according to the learned counsel, provides a strong link in the chain
of circumstances which prove his guilt beyond reasonable doubt. The
learned counsel has referred to the decision of this Court in the case of
State of Rajasthan v. Kashi
Ram:(2006) 12 SCC 254. The learned
counsel has also emphasised on Section 29 POCSO.
15.5. The learned counsel for the respondent-State has also
referred to the evidence regarding discovery of the dead body of victim
child on the basis of the information of the appellant; and has submitted
that when the information furnished by the appellant was proximate to
the cause of discovery of material objects of the crime and there was no
evidence to signify any involvement or interference of third party in the
intervening period between the time when the victim was last seen alive
in the company of the appellant and when her dead body was recovered,
it provides another strong link in the chain of circumstances against the
appellant. It has also been argued that the seizures made by the IO have
neither been challenged nor their authenticity put in question during his
cross-examination. The learned counsel has again referred to the decision
in the case of John David (supra).
15.6. The learned counsel has also referred to the post-mortem
report indicating a large number of gruesome injuries on the dead body
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of the victim child including those on her private parts and has submitted
that those facts indicate heinous nature of inhuman crime committed by
the appellant on the helpless victim, who was only 7 years of age.
15.7. The learned counsel for the respondent-State has also
submitted that all the material facts in relation to the FIR have been duly
proved in the statement of PW-1 and there had not been any contradiction
in the cross-examination nor any question was put to her to discredit the
information given to the police. It is also submitted that nothing has
surfaced in the cross-examination to discredit the testimony of material
witnesses of the prosecution nor the story of false implication due to
enmity is established by the defence; rather the prosecution evidence
disproves any such alleged enmity between the parties or their families
for which, the appellant would be wrongly prosecuted by the family of
the victim.
15.8. Thus, learned counsel for the respondent would submit that
the prosecution case squarely falls within the principles relating to
circumstantial evidence, as enunciated by this Court in the case ofSharad
Birdhichand Sarda (supra) and the concurrent findings leading to the
conviction of the appellant call for no interference.
16. Learned counsel for the respondent-State has also countered
the submissions made on behalf of the appellant in relation to the question
of sentence and has submitted that
the present one is undoubtedly a
‘rarest of rare’ case where the sentence of death has rightly been
awarded and deserves to be affirmed.
16.1. The learned counsel has referred to the enunciations of this
Court in Bachan Singh (supra) and has submitted that within the norms
laid down and the principles explained by this Court, the punishment of
death is called for in the present case, where there are no mitigating
circumstances and on the contrary, the facts of the case disclose only
aggravating circumstances against the appellant. The learned counsel
has contended that the victim, who was about 7 years of age, must have
reposed complete confidence in the appellant since he was their next-
door neighbour; and on account of such faith and belief, she accompanied
him under the impression that she was being taken to pluck lychees,
completely oblivious to the pre-planned evil designs of the appellant.
The victim was a totally helpless child, and the appellant had the knowledge
of the fact that there was no one to protect her in the deserted area
where he took her by misusing her confidence to fulfil his lust. The
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appellant also had full knowledge of the fact that there was no male
member in the family and hence, he hatched the plan to commit the
crime by resorting to diabolical methods and with that object, took the
girl to a lonely place to execute his dastardly act. The learned counsel
has also referred to the decision of this Court in the case of Shankar
Kisanrao Khade v. State of Maharashtra: (2013) 5 SCC 546 and
has submitted that the triple tests laid down therein, i.e., ‘crime test’,
‘criminal test’ and ‘rarest of rare test’ stand satisfied against the appellant
for awarding capital punishment in this case.
16.2. In support of his submissions, learned counsel for the
respondent- State has also referred to the observations of this Court in
the cases ofMachhi Singh and Ors. v. State of Punjab:(1983) 3 SCC
470, Dhananjoy Chatterjee Alias Dhana v. State of W.B.: (1994) 2
SCC 220,Laxman Naik v. State of Orissa:(1994) 3 SCC 381
andKamta Tiwari v. State of M.P.: (1996) 6 SCC 250.
17. Learned counsel for the respondent-State has also submitted
that though the guilt of the appellant and the beastly manner in which the
crime was committed stand established beyond doubt but, if at all this
case is not considered falling within the ‘rarest of rare’ paradigm, the
appellant does not deserve to be released and even if his sentence is
commuted into life imprisonment, the same is required to be without
remission and for whole of the remainder of his natural life. The learned
counsel would submit that looking into the nature of crime committed by
the appellant, if he is released at any time in the future, the ends of
justice would fail and his release would have an adverse impact on the
society. The learned counsel has referred to such fixed term sentences
awarded by this Court in cases of Swamy Shraddananda (2) v. State
of Karnataka: (2008) 13 SCC 767, Mohd. Mannan and Rajendra
Pralhadrao Wasnik (supra).
18. We have given anxious consideration to the rival submissions
and have scanned through the material on record.
The scope and width of these appeals
19. As could be readily noticed, in the wide range of submissions
made on behalf of the appellant, the concurrent findings leading to his
conviction have been challenged as if it were a matter of regular appeal;
and are practically to the effect that the entire evidence led in the matter
be reappreciated on its contents as also its surrounding factors. However,
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while entering into the process of analysis, we cannot lose sight of the
fact that the present one is a matter of concurrent findings of fact by the
Trial Court and the High Court. Though the periphery of an appeal by
special leave under Article 136 of the Constitution of India and the
parameters of examining the matters in such appeals have been laid
down repeatedly by this Court in several of the decisions but, having
regard to the submissions made in this case, we feel rather impelled to
recapitulate the nuanced principles, particularly on the subtle but relevant
distinction in the scope of a regular appeal and an appeal by special
leave.
19.1. Before adverting to the relevant decisions, it would be
worthwhile to notice that the regular appellate jurisdiction of this Court
in regard to the criminal matters is specified in Article 134 of the
Constitution of India. For the present purpose, Article 134 and Article
136 of the Constitution of India could be reproduced as under: -
“134. Appellate jurisdiction of Supreme Court in regard to
criminal matters. -
An appeal shall lie to the Supreme Court from any judgment, final
order or sentence in a criminal proceeding of a High Court in the
territory of India if the High Court –
(a) has on appeal reversed an order of acquittal of an accused
person and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any
court subordinate to its authority and
has in such trial convicted
the accused person and sentenced him to death; or
(c) certifies under Article 134-A that the case is a fit one for
appeal to the Supreme Court:
Provided that an appeal under sub-clause (c) shall lie subject
to such provisions as may be made in that behalf under clause (1)
of Article 145 and to such conditions as the High Court may
establish or require.
Parliament may by law confer on the Supreme Court any further
powers to entertain and hear appeals from any judgment, final
order or sentence in a criminal proceeding of a High Court in the
territory of India subject to such conditions and limitations as may
be specified in such law.”
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“136. Special leave to appeal by the Supreme Court. - (1)
Notwithstanding anything in this Chapter, the Supreme Court
may, in its discretion, grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory
of India.
(2) Nothing in clause (1) shall apply to any judgment, determination,
sentence or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces.”
19.1.1.Further, the enlarged appellate jurisdiction of this Court in
regard to the criminal matters is provided in Section 2 of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 197010 that
reads as under: -
“2. Enlarged appellate jurisdiction of Supreme Court in
regard to criminal matters. – Without prejudice to the power
conferred on the Supreme Court by clause (1) of Article 134 of
the Constitution, an appeal shall lie to the Supreme Court from
any judgment, final order of sentence in a criminal proceeding of
a High Court in the territory of India if the High Court-
(a) has on appeal reversed an order of acquittal of an accused
person and sentenced him to imprisonment for life or to
imprisonment for a period of not less than ten years;
(b) has withdrawn for trial before itself any case from any
court subordinate to its authority and has in such trial convicted
the accused person and sentenced him to imprisonment for
life or to
imprisonment for a period of not less than ten years.”
19.2. As back as on 05.05.1950, i.e., at the very early stage of the
evolution of constitutional scheme and principles, this Court, in the case
of Pritam Singh v. State: AIR 1950 SC 169, made it clear that even
when leave is granted, the entire matter is not at large in such an appeal
by special leave. This Court said: -
“5. In arguing the appeal, Mr Sethi proceeded on the
assumption that once an appeal had been admitted by special leave,
the entire case was at large and the appellant was free to contest
10 ‘the Act of 1970’, for short.
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all the findings of fact and raise every point which could be raised
in the High Court or the trial court. This assumption is, in our
opinion, entirely unwarranted. The misconception involved in the
argument is not a new one and had to be dispelled by the Privy
Council in England in Ibrahim v. Rex [(1914) Ac 615] in these
words: “…the Board has repeatedly treated applications for leave
to appeal and the hearing of criminal appeals as being upon the
same footing: Riel Case; Ex-parte Deeming. The Board cannot
give leave to appeal where the grounds suggested could not sustain
the appeal itself; and, conversely, it cannot allow an appeal on
grounds that would not have sufficed for the grant of permission
to bring it.”
6. The rule laid down by the Privy Council is based on sound
principle, and, in our opinion, only those points can be urged at the
final hearing of the appeal which are fit to be urged at the
preliminary stage when leave to appeal is asked for, and it would
be illogical to adopt different standards at two different stages of
the same case.”
(emphasis supplied)
19.3. The scope of Article 136 in relation to the findings of facts
and appreciation of evidence came to be further exposited by a 3-Judge
Bench of this Court in the case of Ramaniklal Gokaldas and Ors. v.
State of Gujarat: (1976) 1 SCC 6 in the following terms: -
“3. It is a wholesome rule evolved by this Court, which has been
consistently followed,
that in a criminal case, while hearing an
appeal by special leave, this Court should not ordinarily embark
upon a reappreciation of the evidence, when both the Sessions
Court and the High Court have agreed in their appreciation of the
evidence and arrived at concurrent findings of fact. It must be
remembered that this Court is not a regular Court of appeal which
an accused may approach as of right in criminal cases. It is an
extraordinary jurisdiction which this Court exercises when it
entertains an appeal by special leave and this jurisdiction, by its
very nature, is exercisable only when this Court is satisfied that it
is necessary to interfere in order to prevent grave or serious
miscarriage of justice. Mere errors in appreciation of the evidence
are not enough to attract this invigilatory jurisdiction. Or else, this
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Court would be converted into a regular Court of appeal where
every judgment of the High Court in a criminal case would be
liable to be scrutinised for its correctness. That is not the function
of this Court.”
(emphasis supplied)
19.4. A few days after the aforesaid decision, a 2-Judge Bench of
this Court in the case of Mst. Dalbir Kaur and Ors. v. State of Punjab:
(1976) 4 SCC 158, with reference to several decided cases, summarised
the principles in the lead judgment as follows: -
“8. Thus the principles governing interference by this Court in a
criminal appeal by special leave may be summarised as follows:
“(1) that this Court would not interfere with the concurrent
finding of fact based on pure appreciation of evidence even if it
were to take a different view on the evidence;
(2) that the Court will not normally enter into a reappraisement
or review of the evidence, unless the assessment of the High
Court is vitiated by an error of law or procedure or is based on
error of record, misreading of evidence or is inconsistent with the
evidence, for instance, where the ocular evidence is totally
inconsistent with the medical evidence and so on;
(3) that the Court would not enter into credibility of the evidence
with a view to substitute its own opinion for that of the High Court;
(4) that the Court would interfere where the High Court has
arrived at a finding of fact in disregard of a judicial process,
principles of natural justice or a fair hearing or has
acted in violation
of a mandatory provision of law or procedure resulting in serious
prejudice or injustice to the accused;
(5) this Court might also interfere where on the proved facts
wrong inferences of law have been drawn or where the conclusions
of the High Court are manifestly perverse and based on no
evidence.”
It is very difficult to lay down a rule of universal application, but
the principles mentioned above and those adumbrated in the
authorities of this Court cited supra provide sufficient guidelines
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for this Court to decide criminal appeals by special leave. Thus in
a criminal appeal by special leave, this Court at the hearing
examines the evidence and the judgment of the High Court with
the limited purpose of determining whether or not the High Court
has followed the principles enunciated above. Where the Court
finds that the High Court has committed no violation of the various
principles laid down by this Court and has made a correct approach
and has not ignored or overlooked striking features in the evidence
which demolish the prosecution case, the findings of fact arrived
at by the High Court on an appreciation of the evidence in the
circumstances of the case would not be disturbed.”
(emphasis supplied)
 The aforesaid parameters were redefined in the concurring opinion
in the following terms: -
“30. The decisions of this Court referred to in the judgment of
my learned brother lay down that this Court does not interfere
with the findings of fact unless it is shown that “substantial and
grave injustice has been done”. But whether such injustice has
been done in a given case depends on the circumstances of the
case, and I do not think one could catalogue exhaustively all possible
circumstances in which it can be said that there has been grave
and substantial injustice done in any case. In the appeals before
us the findings recorded by the trial court and affirmed by the
High Court do not disclose any such
exceptional and special
circumstances as would justify the claim made on behalf of the
appellants whose appeals we propose to dismiss that there has
been a failure of justice in these cases.”
19.5. We need not multiply the case law on the point but may
usefully refer to one of the recent decisions of a 3-Judge Bench of this
Court in the case of Hari & Anr. v. The State of Uttar Pradesh:
Criminal Appeal No. 186 of 2018 decided on 26.11.2021. Therein,
after referring to the aforesaid enunciations in Mst. Dalbir Kaur (supra),
this Court has said: -
“19. In the said judgment, this Court observed that the evidence
and the judgment of the High Court is examined for the limited
purpose for determining whether or not the High Court has
followed the aforementioned principles. If the High Court has
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committed no error or violation of the said principles and has not
ignored or overlooked striking features of the evidence which
demolish the prosecution case, the findings of fact arrived at by
the High Court on an appreciation of the evidence in the
circumstances of the case would not be disturbed. Article 136 of
the Constitution of India is an extraordinary jurisdiction which this
Court exercises when it entertains an appeal by special leave and
this jurisdiction, by its very nature, is exercisable only when this
Court is satisfied that it is necessary to interfere in order to prevent
grave or serious miscarriage of justice. Mere errors in appreciation
of the evidence are not enough to attract this invigilatory jurisdiction.
It is not the practice of this Court to reappreciate the evidence for
the purpose of examining whether the finding of fact concurrently
arrived at by the High Court and the subordinate courts is correct
or not. It is only in rare and exceptional cases where there is
some manifest illegality or grave and serious miscarriage of justice
that this Court would interfere with such finding of fact.
20. Regarding the argument on behalf of the accused persons
with respect the contradictions and inconsistencies in the
evidence of the eye-witnesses, the High Court found that the
contradictions and inconsistencies indicated in the statements of
the four eye-witnesses were trivial in nature. Following the law
laid down by this Court in State of
MP v. Ramesh [(2011) 4
SCC 786], the High Court ignored the contradictions and
inconsistencies…..”
(emphasis supplied)
20. In summation of what has been noticed hereinabove, it is but
clear that as against any judgment/final order or sentence in a criminal
proceeding of the High Court, regular appeals to this Court are envisaged
in relation to the eventualities specified in Article 134 of the Constitution
of India and Section 2 of the Act of 1970. The present one is not a
matter covered thereunder and the present appeals are by special leave
in terms of Article 136 of the Constitution of India. In such an appeal by
special leave, where the Trial Court and the High Court have concurrently
returned the findings of fact after appreciation of evidence, each and
every finding of fact cannot be contested nor such an appeal could be
dealt with as if another forum for reappreciation of evidence. Of course,
if the assessment by the Trial Court and the High Court could be said to
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be vitiated by any error of law or procedure or misreading of evidence
or in disregard to the norms of judicial process leading to serious prejudice
or injustice, this Court may, and in appropriate cases would, interfere in
order to prevent grave or serious miscarriage of justice but, such a course
is adopted only in rare and exceptional cases of manifest illegality. Tersely
put, it is not a matter of regular appeal. This Court would not interfere
with the concurrent findings of fact based on pure appreciation of evidence
nor it is the scope of these appeals that this Court would enter into
reappreciation of evidence so as to take a view different than that taken
by the Trial Court and approved by the High Court.
Concurrent findings of fact: whether requiring interference
in these appeals
21. As noticed, the Trial Court and the High Court have
concurrently recorded the findings that the prosecution has been able to
successfully establish the chain of circumstances leading to unmistakable
conclusion that the appellant is guilty of the offences of rape and murder
of the victim child as also of concealing her dead body. The fundamental
fact, as held proved against the appellant is that the deceased was lastly
seen in the company of the appellant when he took the deceased along
with himself while shooing away other children. The other significant
fact, as held proved, is that the dead body of the victim child was recovered
at a faraway place near the riverbank at the instance of the appellant.
Coupled with the said two aspects is the factor that the appellant had
failed to satisfactorily explain his whereabouts since he was last seen in
the company of the deceased as also his knowledge of the location of
the dead body. These facts and factors, taken together with the medical
and other scientific evidence, are said to be of a complete chain of
circumstances, leading to the conclusion on the guilt of the appellant.
22. The concurrent findings returned by the Trial Court and the
High Court on conviction of the appellant have been questioned in these
appeals with a wide range of submissions directed towards the matters
of appreciation of evidence. As noticed, this Court would not be embarking
upon wholesome reappreciation of evidence but, of course, the matter
may be examined from the point of view that there ought not be any
misreading of evidence or disregard of any principle of law or procedure,
i.e., the findings ought not be suffering from manifest illegality. While
taking up this exercise, we may summarise the principles in the cited
decisions, so far relevant for the present purpose.
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22.1. The principles explained and enunciated in the case of
Sharad Birdhichand Sarda (supra), referred to and relied upon by
learned counsel for both the parties, remain a guiding-light for the Courts
in regard to the proof of a case based upon circumstantial evidence.
Therein, this Court referred to the locus classicus of Hanumant v.
State of Madhya Pradesh: AIR 1952 SC 343, deduced five golden
principles, and named them panchsheel of proving a case based upon
circumstantial evidence. This Court exposited as follows: -
“152. ...It may be useful to extract what Mahajan, J. has laid
down in Hanumant case:
“It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis
but the one proposed to be proved. In other words, there must
be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence
of the accused and it must be such as to show that within all
human probability the act must have been done by the accused.”
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] 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.”
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(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.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.
155. It may be interesting to note that as regards the mode of
proof in a criminal case depending on circumstantial evidence, in
the absence of a corpus delicti, the statement of law as to proof
of the same was laid down by Gresson, J. (and concurred by 3
more Judges) in King v. Horry [1952 NZLR 111] thus:
“Before he can be convicted, the fact of death should be
proved by such circumstances as render the commission of
the crime morally certain and leave no ground for reasonable
doubt: the circumstantial evidence should be so cogent and
compelling as to convince a jury that upon no rational
hypothesis other than murder can the facts be accounted
for.”
156. Lord Goddard slightly modified the
expression “morally
certain” by “such circumstances as render the commission of the
crime certain”.
157. This indicates the cardinal principle of criminal jurisprudence
that a case can be said to be proved only when there is certain
and explicit evidence and no person can be convicted on pure
moral conviction...”
22.1.1. Learned counsel for the appellant has particularly relied
upon paragraphs 159 to 161 of the said decision in Sharad Birdhichand
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Sarda. In that part of the judgment, this Court dealt with a contention
urged by the Additional Solicitor General that if the defence case is
false, it would constitute an additional link so as to fortify the prosecution
case. While not accepting such a contention, this Court said as follows: -
“159. It will be seen that this Court while taking into account the
absence of explanation or a false explanation did hold that it will
amount to be an additional link to complete the chain but these
observations must be read in the light of what this Court said
earlier viz. before a false explanation can be used as additional
link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution
have been satisfactorily proved,
(2) the said circumstance points to the guilt of the accused with
reasonable definiteness, and
(3) the circumstance is in proximity to the time and situation.
160. If these conditions are fulfilled only then a court can use a
false explanation or a false defence as an additional link to lend
an assurance to the court and not otherwise. On the facts and
circumstances of the present case, this does not appear to be
such a case. This aspect of the matter was examined
in Shankarlal case [(1981) 2 SCC 35, 39] where this Court
observed thus: [SCC para 30, p. 43]
“Besides, falsity of defence cannot take the place of proof
of facts which the prosecution has to establish in order to
succeed. A
false plea can at best be considered as an
additional circumstances, if other circumstances point
unfailingly to the guilt of the accused.”
161. This Court, therefore, has in no way departed from the five
conditions laid down in Hanumant case [AIR 1952 SC 343].
Unfortunately, however, the High Court also seems to have
misconstrued this decision and used the so-called false defence
put up by the appellant as one of the additional circumstances
connected with the chain. There is a vital difference between an
incomplete chain of circumstances and a circumstance which,
after the chain is complete, is added to it merely to reinforce the
conclusion of the court. Where the prosecution is unable to prove
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any of the essential principles laid down in Hanumant case [AIR
1952 SC 343], the High Court cannot supply the weakness or the
lacuna by taking aid of or recourse to a false defence or a false
plea. We are, therefore, unable to accept the argument of the
Additional Solicitor-General.”
22.2. In the case of Sudarshan (supra), this Court noted the unusual
behaviour on the part of complainant and his friends who, after the incident
of killing of two persons, approached a lawyer living 15 kms away, instead
of registering an FIR straightaway. Then, the FIR was not lodged in the
jurisdictional Police Station and there was no date and time marked on it.
It was also not shown as to who took, and how, the FIR to the Magistrate.
In the given set of facts, this Court found the FIR ante-timed.
22.3. The case of Anjan Kumar Sarma (supra) has been cited
on behalf of the appellant in support of the contention that when other
circumstances are not proved, solely the circumstances of last seen
cannot form the basis of conviction. In the said case, the prosecution
relied upon nine circumstances to prove the guilt of the accused but this
Court found that seven of them were to be disregarded as not proved.
This Court, thereafter, examined the two circumstances, that the deceased
was last seen with the accused and they had failed to offer the necessary
explanation and found that only those circumstances were not completing
the chain to
prove the guilt of the accused, while observing as under: -
“23. It is clear from the above that in a case where the other links
have been satisfactorily made out and the circumstances point to
the guilt of the accused, the circumstance of last seen together
and absence of explanation would provide an additional link which
completes the chain. In the absence of proof of other
circumstances, the only circumstance of last seen together and
absence of satisfactory explanation cannot be made the basis of
conviction.…”
22.4. The case of Navjot Sandhu (supra) has been cited in support
of the argument that a fact already known cannot be discovered pursuant
to the statement made by an accused in police custody. The relevant
part in the relied upon paragraph shows that Section 27 of the Evidence
Act was not found applicable in relation to a particular packet of silver
powder which carried the name of the shop and thus, it was found that
the name and address of the shop were already known to the police.
Even then, this Court said that the conduct of the accused in pointing out
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the shop and its proprietor would be relevant under Section 8 of the
Evidence Act.
22.5. The decision in D.K. Basu (supra) has been referred in
support of the submission that arrest memo is required to be prepared at
the time of arrest. In the case of Rammi Alias Rameshwar (supra),after
finding that there was material discrepancy as to the time of arrest of
the accused, this Court declined to place reliance on the evidence of the
IO as to the recovery of weapon on the information furnished by the
accused in police custody. In the said case, the conviction was maintained
with reference to the reliable testimony of eye-witnesses.
22.6. In the case of Raj Kumar Singh(supra), the requirement
of putting relevant circumstances to the accused have been reaffirmed
while also holding that the circumstances which are not put to the accused
in his examination under Section 313 CrPC, cannot be used against him
and have to be excluded from consideration.
22.7. The case of Aghnoo Nagesia (supra) has been cited to
submit that the incriminating portions of custodial disclosure are
inadmissible and therefore, the appellant’s alleged admission of dragging
the dead body would not be admissible.
22.8. The decision in Abdulwahab Abdulmajid Baloch (supra)
has been cited in support of the contention that sole circumstance of
recovery cannot be the basis of conviction. In the said case, this Court
held thus: -
“38. The learned trial Judge himself opined that the recovery
having
been made after nine months, the weapon might have
changed in many hands. In absence of any other evidence
connecting the accused with commission of crime of murder of
the deceased, in our opinion, it is not possible to hold that the
appellant on the basis of such slander evidence could have been
found guilty for commission of offence punishable under Section
302 of the Penal Code.”
22.9. The case of Ramesh Chandra Agrawal (supra) related to
the compensation claim for medical negligence and therein, the issues
involved had been concerning the relevance of the expert evidence where
it was alleged that the appellant was impaired because of the faults in
treatment by the respondent. As regards the principle concerning expert
evidence in terms of Section 45 of the Evidence Act, this Court said: -
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“20. An expert is not a witness of fact and his evidence is really
of an advisory character. The duty of an expert witness is to
furnish the Judge with the necessary scientific criteria for testing
the accuracy of the conclusions so as to enable the Judge to
form his independent judgment by the application of these criteria
to the facts proved by the evidence of the case. The scientific
opinion evidence, if intelligible, convincing and tested becomes
a factor and often an important factor for consideration along
with other evidence of the case. The credibility of such a witness
depends on the reasons stated in support of his conclusions and
the data and material furnished which form the basis of his
conclusions…..”
22.10. The principle relating to reverse burden of proof in special
enactments came up for consideration in the case of Noor Aga (supra)
wherein this Court dealt with the provisions of Sections 35 and 54 of the
Narcotic Drugs and Psychotropic Substances Act, 1985. This Court,
inter alia, observed as follows: -
“58. Sections 35 and 54 of the Act, no doubt, raise presumptions
with regard to the culpable mental state on the part of the accused
as also place the burden of proof in this behalf on the accused;
but a bare perusal of the said provision would clearly show that
presumption would operate in the trial of the accused only in the
event the circumstances contained therein are fully satisfied. An
initial
burden exists upon the prosecution and only when it stands
satisfied, would the legal burden shift. Even then, the standard of
proof required for the accused to prove his innocence is not as
high as that of the prosecution. Whereas the standard of proof
required to prove the guilt of the accused on the prosecution is
“beyond all reasonable doubt” but it is “preponderance of
probability” on the accused. If the prosecution fails to prove the
foundational facts so as to attract the rigours of Section 35 of the
Act, the actus reus which is possession of contraband by the
accused cannot be said to have been established.”
22.11. In the case of Justin(supra), the Kerala High Court, while
rejecting the challenge to the validity of Sections 29 and 30 of POCSO,
has underscored the requirement that the duty to rebut the presumption
arises only after the prosecution has established the foundational facts
of the offence alleged against the accused.
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22.12. In the case of John David (supra) relied upon by the learned
counsel for the respondent, this Court has reiterated the principle that
when there is a recovery of an object of crime on the basis of information
given by the accused which provides a link in the chain of circumstances,
such information leading to discovery is admissible. It has also been held
that minor loopholes and irregularities in investigating process cannot
form the crux of the case on which the accused can rely upon to prove
his innocence, when there is strong circumstantial evidence deduced
from the investigation which logically and rationally point towards the
guilt of the accused. This Court, inter alia, said as under: -
“72. It is well-settled proposition of law that the recovery of crime
objects on the basis of information given by the accused provides
a link in the chain of circumstances. Also failure to explain one of
the circumstances would not be fatal to the prosecution case and
cumulative effect of all the circumstances is to be seen in such
cases. At this juncture we feel it is apposite to mention that in State
of Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715] this
Court has held that: (SCC p. 720, para 19)
“19. … The court must have predominance and pre-
eminence in criminal trials over the action taken by [the]
investigating officers. Criminal justice should not be made
a casualty for the wrongs committed by the investigating
officers in the case. In other words,
if the court is convinced
that the testimony of a witness to the occurrence is true the
court is free to act on it….”
73. Hence, minor loopholes and irregularities in the investigation
process cannot form the crux of the case on which the respondent
can rely upon to prove his innocence when there are strong
circumstantial evidences deduced from the said investigation which
logically and rationally point towards the guilt of the accused.”
22.13. As regards the last seen theory and operation of Section
106 of the Evidence Act, in the case of Kashi Ram (supra) this Court
has explained and laid down as follows: -
“23. It is not necessary to multiply with authorities. The principle
is well settled. The provisions of Section 106 of the Evidence Act
itself are unambiguous and categoric in laying down that when
any fact is especially within the knowledge of a person, the burden
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of proving that fact is upon him. Thus, if a person is last seen with
the deceased, he must offer an explanation as to how and when
he parted company. He must furnish an explanation which appears
to the court to be probable and satisfactory. If he does so he must
be held to have discharged his burden. If he fails to offer an
explanation on the basis of facts within his special knowledge, he
fails to discharge the burden cast upon him by Section 106 of the
Evidence Act. In a case resting on circumstantial evidence if the
accused fails to offer a reasonable explanation in discharge of the
burden placed on him, that itself provides an additional link in the
chain of circumstances proved against him. Section 106 does not
shift the burden of proof in a criminal trial, which is always upon
the prosecution. It lays down the rule that when the accused does
not throw any light upon facts which are specially within his
knowledge and which could not support any theory or hypothesis
compatible with his innocence, the court can consider his failure
to adduce any explanation, as an additional link which completes
the chain. The principle has been succinctly stated in Naina Mohd.,
Re. [AIR 1960 Mad 218]
24. There is considerable force in the argument of counsel for
the State that in the facts of this case as well it should be held
that the respondent having been seen last with the deceased,
the burden was upon him to prove what
happened thereafter,
since those facts were within his special knowledge. Since, the
respondent failed to do so, it must be held that he failed to
discharge the burden cast upon him by Section 106 of the
Evidence Act. This circumstance, therefore, provides the missing
link in the chain of circumstances which prove his guilt beyond
reasonable doubt.”
23. Keeping the aforesaid principles in view, we may examine the
contentions urged in this matter as regards conviction of the appellant.
24. Learned counsel for the appellant, while seeking to challenge
the conviction, has put at the forefront the contentions that the probability
of ante-timing of FIR cannot be ruled out. In this regard, three major
factors have been highlighted: first, that according to the witness PW-3,
she had seen the dead body at 10:00 a.m. on 14.05.2015 though until that
time, FIR had not been registered; second, that in the FIR itself, mother
of the victim child stated with confidence that the deceased was raped
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and murdered and the dead body was concealed by the appellant though
there was no reason for her to make such assertions at the time of
lodging the FIR; and third, that there had been inconsistencies as regards
the presence of people at the time of lodging the FIR and as regards the
timing of recording the statement of mother of the victim child under
Section 161 CrPC as also that there had been opaqueness as regards
compliance of Section 157 CrPC in dispatching the FIR to the Court.
24.1. We are unable to persuade ourselves with this line of
submissions; rather, we are clearly of the view that these factors, whether
taken individually or taken collectively, cannot be decisive of the questions
calling for determination in this case. It is the overall view of the evidence
as regards the chain of circumstances that alone is decisive of the matter.
We may, however, indicate that the contentions urged with reference to
the factors aforesaid carry their own shortcomings.
24.2. It is true that the child-witness PW-3 Aashna stated as if
she had gone to the site and looked at the dead body at 10:00 a.m. in the
morning but then, the said child-witness was about 10 years of age at
the time of her deposition and was coming from a rural background. Her
comprehension of timings had obviously been crude or amateurish, which
is borne out of the fact that in the other part of statement, she stated that
after 7 p.m., she and other children kept on playing for 5 hours. Such
a
narrative about the timing by her had obviously been lacking in the
requisite maturity and comprehension. In the process of appreciation of
evidence, the Trial Court and High Court have looked at the crux of the
matter emerging from her testimony that she was indeed a witness to
the fact that the deceased child was last seen in the company of the
appellant when he took her along towards lychee farm.
24.3. Similarly, the overt assertion made in the complaint by PW-
1 Nisha, mother of the victim child, that as per her belief, the child was
raped and murdered and the dead body was concealed by the appellant,
is also required to be visualised with reference to the backdrop that she
had the knowledge about the appellant having taken her daughter in the
evening and had been searching for her daughter for the whole night.
This is coupled with the fact that she was undoubtedly a rustic villager
and even got the complaint scribed from someone else. Again, in the
process of appreciation of evidence, the Trial Court and High Court
have looked at the substance and core of the matter emerging from her
testimony while consciously taking note of her background.
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24.4. Yet further, as to who accompanied PW-1 Nisha to Police
Station is not a factor for which, the FIR could be taken as ante-timed.
PW-1 Nisha and PW-2 Anita had been consistent that both of them had
gone to the Police Station before the noon hours of 14.05.2015. It has, of
course, appeared in the statements of PW-7 Nagendra Singh that PW-4
Amebdkar had accompanied PW-1 Nisha to Police Station but, such a
minor discrepancy occurring in the statement of the said police officer
posted at the Police Station concerned cannot override the entire evidence
on record. Moreover, he had been the person who registered the FIR
and there had not been any specific suggestion to this witness that dead
body had been seen by anyone before lodging of FIR. Similarly, PW-8,
the IO initially stated in the cross-examination that he took the statement
of the complainant next day after taking over investigation but thereafter,
corrected himself to say that he took her statement at about 2.00 p.m.
after registration of the case. This aspect has also been duly taken note
of by the Trial Court and the contentions urged on behalf of the appellant
have been rejected with reference to the fact that the IO had deposed
from memory after one and a half year of the investigation; and PW-7
has clarified that the statement of the complainant was taken by the
SHO at the date of registration of FIR and thereafter, he proceeded to
investigate. Further,
even if the particulars regarding date and time of
dispatch of FIR to the Court were not stated in the form, that could only
be regarded as a procedural fault on the part of the staff of the Police
Station and that cannot nullify all other material on record. In the case of
Sudarshan (supra), the FIR was not lodged immediately and not even
in the jurisdictional Police Station. In the given set of facts, this Court
found that the FIR was recorded after due deliberation and was ante-
timed to give it a colour of promptly lodged FIR. The said decision is
hardly of any assistance to the appellant in the present case. Even
otherwise, every irregularity in maintaining the record pertaining to the
investigation cannot take away the crux and substance of the matter, if
there are strong substantial evidences deduced from the investigation,
which logically and rationally point towards the guilt of the accused, as
held by this Court in John David (supra).
24.5. It has been repeatedly argued in this matter that a fact already
known cannot be said to have been discovered pursuant to the statement
made by the accused-appellant in police custody. As noticed above, this
line of argument has been developed with reference to minor and
irrelevant inconsistencies in the deposition of witnesses, particularly the
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child witness PW-3 Aashna. Further, strength is sought to be taken with
reference to certain irregularities in maintaining the investigation record.
This line of submission is required to be rejected because minor
inconsistencies or irregularities cannot take away the substance of the
matter and the crucial facts proved in evidence. The decisions, like that
in the case of Navjot Sandhu (supra), about the facts already known to
the police, have no application to the facts of the present case. There is
no such material discrepancy as regards the time when the police took
the appellant into custody, as it has been consistently deposed by the
witnesses and found established by the Courts that the IO started from
the Police Station at about 2:00 p.m. on 14.05.2015 and apprehended the
appellant near the Community Health Centre in the afternoon hours.
Then, he started preparing the arrest memo and at the same time, also
took the appellant to the site after the appellant agreed to lead to the
location where he had dumped the dead body. Thus, the principles in
D.K. Basu and Rammi Alias Rameshwar (supra) also do not enure to
the benefit of the appellant.
25. For what has been discussed hereinabove, it is but clear that a
few discrepancies here or there do not establish that the FIR was ante-
timed or that the dead body had already been seen by anyone before
lodging of FIR. As noticed, while recording the findings against the
appellant, the so-called
discrepancies/inconsistencies have also been duly
taken note of by the Trial Court and the High Court before finding them
either of trivial nature or duly explained. We find no infirmity in such
appreciation of evidence by the Trial Court and the High Court.
26. Apart from above, learned counsel for the appellant has made
all endeavours to point out some more inconsistencies or shortcomings
in the prosecution case. For example, it is submitted that there has been
inconsistency as regards the location where other children and the
deceased were playing before the appellant allegedly enticed the
deceased; that the witness PW-2 had stated about meeting the appellant
between midnight and 1:00 a.m. on 14.05.2015 but such facts were not
stated by PW-1 or PW-8. These and other such minor factors cannot be
said to be of any relevant inconsistency so as to create a reasonable
doubt on the prosecution case; rather, such minor variations are more of
natural presentation of their versions by the witnesses. The learned
counsel would further submit that PW-1 and PW-2 could not name a
single villager whose house they visited in search of the deceased. We
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are unable to find even a logic in such an argument. It is too far-stretched
to suggest that even the factum of search of the missing child by her
mother and aunt is required to be corroborated by any other evidence.
The learned counsel has expanded on his submissions even to the extent
that adverse inference ought to be drawn for the prosecution not
examining the persons whose names had surfaced on the record. Such
a contention remains bereft of logic. All the necessary witnesses to prove
the relevant facts have been examined by the prosecution. The principles
of drawing adverse inference for non- production of a material evidence
available with the prosecution do not even remotely come into operation
in this case. To put it in a nutshell, the so-called inconsistencies do not
take away the substance of the matter where the prosecution has
established fundamental facts leading to the chain of circumstances
pointing towards the guilt of the appellant. In an overall view of the
evidence, the statements of PW-1, PW-2 and PW-3 appear to be genuine
and the discrepancies or inconsistencies therein appear to be rather of
natural character as are likely to arise from the persons of their
background. It gets, perforce, reiterated that in the present appeal against
concurrent findings of fact, the whole of the evidence on record is not to
be reappreciated as if it were a matter of regular appeal.
27. Having examined the matter
in its totality, we find no infirmity
in the Trial Court and the High Court concurrently finding the prosecution
case proved that on 13.05.2015, at around half past six in the evening,
while the deceased was playing with PW-3 Aashna and other children
of the village Sabaya Khas, Kushinagar, appellant gave Rs. 20 to PW-3,
for buying sweets for the children. After distributing these sweets amongst
them, the deceased was lured by appellant by suggesting that they go
together and pluck lychees from the farm. When the other children sought
to follow them, he sent them away by scolding them, picked and placed
the deceased on his back, and set off towards the farm. The testimony
of child witness PW-3 Aashna is categorical in regard to these facts and
there appears no reason to disbelieve her testimony, even if her
comprehension of time and hours appears to be wanting in maturity. It
would be rather unrealistic to expect such maturity from a ten-year-old
child coming from a rustic background. PW-2 Anita, the maternal aunt
of the deceased, has also corroborated PW-3 in regard to these crucial
facts, establishing that the deceased was last seen with the appellant. In
fact, the evidence has been categorical that it was the appellant alone
who enticed the deceased to go along with him and rather carried the
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deceased child on his back. PW-2 Anita has also testified to the fact that
she saw the appellant taking the deceased child from the window of the
house while standing and PW-1 Nisha, mother of the deceased child
was sitting. This explains even the statement of PW-1 Nisha that she
had also seen the appellant taking the deceased child. The submission
that why these women allowed the child to taken in the evening by a
man they described as alcoholic is, again, only an attempt at hair-splitting
exercise in the matter of appreciation of evidence. In the rural background,
where the appellant was a neighbour and a person of the same community,
there could not have been any reason for the ladies to suspect the intent
of the appellant towards the child. The assertion that the ladies searched
for the child for the whole night cannot be a cooked-up story because, if
the seven-year-old girl child did not return home until late hours, they
were, obviously, expected to look for the child. The fact that while
searching, they indeed reached the house of the appellant, where his
wife stated about his having gone out after quarrelling, has also been
consistently stated by PW-1 and PW-2. Of course, PW-2 stated about
herself having met the appellant past midnight but, also made it clear
that PW-1 was not with her at that time. It is also given out that the
ladies could not take steps for approaching the police because at the
relevant point of time i.e., during the night
intervening 13.05.2015 and
14.05.2015, they were not having any person of support with them.
27.1. The sum and substance of the matter is that we find no
infirmity in the finding that the deceased was lastly seen in the company
of the appellant. This finding remains a cogent finding based on proper
appreciation of evidence and calls for no interference.
28. So far as the factum of discovery of the dead body of the
victim child at the information of appellant is concerned, as indicated
hereinabove, the same stands proved by the evidence of relevant
witnesses including PW-4 Ambedkar and PW-8 IO. As noticed, the IO
of this case seems to have not meticulously prepared the papers of
investigation and even the memorandum of discovery of dead body and
arrest of the appellant was prepared as one document (Ex. Ka-2).
However, a perusal of the said document Ex. Ka-2, duly proved by the
relevant witnesses including PW-4 Ambedkar and PW-8 IO, makes it
clear that the relevant facts stand established therefrom and cannot be
ignored. As already observed, mere irregularity in preparation of memos
by the IO would not falsify the factum of information by the accused-
appellant leading to the discovery of the dead body.
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29. The submission that the incriminating part in the statement of
the appellant made to the police while in custody, like that of ‘dragging
the dead body’, has been relied upon by the Trial Court is also not correct.
The Trial Court essentially relied upon the site plan (Ex. Ka-15), where
it was indicated that a line over the tiled field with trampling of wheat
stack was clearly visible at the site (vide paragraph 9.4. hereinabove).
Thus, the decision in Aghnoo Nagesia (supra) is of no relevance to the
present case.
30. The principles in the case of Anjan Kumar Sarma (supra)
that solely the circumstance of last seen cannot form the basis of
conviction as also in Abdulwahab Abdulmajid Baloch (supra) that the
sole circumstance of recovery cannot be basis of conviction have no
relevance to the present case where both the circumstances of ‘last
seen’ as also ‘recovery pursuant to disclosure by appellant’, forming
strong links in the chain of circumstances, have been duly established on
record.
31. It is hardly a matter of doubt or debate that when ‘last seen’
evidence is cogent and trustworthy which establishes that the deceased
was lastly seen alive in the company of the accused; and is coupled with
the evidence of discovery of the dead body of deceased at a far away
and lonely place on the information furnished by the accused, the burden
is on the accused to explain his whereabouts after he was last seen with
the
deceased and to show if, and when, the deceased parted with his
company as also the reason for his knowledge about the location of the
dead body. The appellant has undoubtedly failed to discharge this burden.
Applying the principles enunciated in the case of Kashi Ram (supra),
we have no hesitation in endorsing the view of the High Court that the
appellant having been seen last with the deceased, the burden was upon
him to prove as to what happened thereafter, since those facts were
within his special knowledge. For the appellant having failed to do so, it
is inevitable to hold that he failed to discharge the burden cast upon him
by Section 106 of the Evidence Act. This circumstance, therefore,
provides another strong link in the chain of circumstances against the
appellant.
32. For what has been discussed hereinabove, it is also but clear
that the foundational facts of the offences alleged against the appellant
have been established. In the given set of circumstances, it could safely
be said that the presumption contemplated by Section 29 POCSO came
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into operation and the burden came staying with the appellant; and it
was for him to rebut the presumption and to prove that he had not
committed the offence. The appellant has failed to discharge this burden.
Viewed from this angle too, the decisions in Noor Agha and Justin
(supra) do not come to the rescue of the appellant; rather on the principles
stated therein and in terms of Section 29 POSCO, the presumption would
only lead to the finding of guilt against the appellant.
33. It has unnecessarily been argued with reference to the case
of Raj Kumar Singh (supra) that the circumstances not put to accused
in his examination under Section 313 CrPC cannot be used against him.
The said decision has no application to the present case, particularly
when we find that all the material and incriminating circumstances have
indeed been put to the appellant.
34. It has also unnecessarily been argued that even if the defence
case is taken to be false, it would not constitute an additional link to the
chain of circumstances. It is not of taking any additional link to the chain
of circumstances but, from the failed attempt of defence to suggest
enmity due to the land dispute, it is clear that there was not even a
remote reason for the mother of the victim to direct the imputations
against the appellant while allowing the real culprit, if there was any
other but the appellant, to escape. In fact, the haphazard suggestions in
relation to the alleged enmity had also been
of strange nature where it
was suggested to PW-1 that the appellant was implicated for ‘village
animosity’ whereas the suggestion to PW-2 was of ‘factionalism’. The
Trial Court and the High Court have also rightly indicated that nothing of
concrete evidence towards the alleged land dispute was available on
record. Even the basic fact is also not clear as to how the appellant or
his family were concerned with any sale made to one Gokul?
34.1. Having examined the baseless defence plea of enmity due
to land dispute and its consideration by the Trial Court and the High
Court, we are satisfied that this failed defence plea has not been used as
an additional link to the chain of circumstances required to be proved by
the prosecution. It has only been referred to as an additional assuring
circumstance, after finding that all other circumstances unfailingly point
towards the guilt of the appellant. The principles stated in paragraphs
159 to 161 of the decision in Sharad Birdhichand Sarda (supra), as
relied upon by the learned counsel for the appellant, do not make out a
case for interference in the present appeals.
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35. Yet another distended line of arguments, with reference to the
decision in Ramesh Chandra Agrawal (supra), is also of no assistance
to the appellant. The Forensic Science Laboratory had reported that
traces of ‘spermatozoa and sperms’ were found on the underwear of
the deceased. Even if the said report was drawn on 10.08.2016, its
veracity cannot be doubted and there is no reason to consider the said
report with suspicion. The relevant articles were indeed sealed as proved
in evidence and did reach the laboratory in the same sealed condition.
The alleged want of upgraded and sophisticated facilities for sealing of
the articles at the Police Station cannot override and nullify the
proceedings otherwise lawfully conducted by the Police Station and the
Investigating Officer. In any case, it is also far-stretched to argue that
the offence under Section 376 IPC could not have been imputed in the
charge-sheet before receiving such report. The said report was only
corroborative scientific evidence but the other facts directly available on
record, more particularly as per the conditions of the dead body of the
seven-year-old girl child, as seen at the site and then the relevant aspects
of gruesome injuries, including those on private parts, as reported in the
post-mortem report, could not have been ignored. The decision in Ramesh
Chandra Agrawal (supra) is of no support to the contentions urged in
this matter on behalf of
the appellant.
36. A rather strange line of submission in this case has been that
as per post-mortem report, the death had occurred 2-3 days before
examination and that opinion would take the time of death even much
before the evidence of last seen or that the dead body might have been
seen by other persons much before its recovery at the instance of the
appellant. The approximate time of death before examination, as indicated
in the post-mortem report, cannot be applied as something of mathematical
precision. The post-mortem examination was conducted in the afternoon
of 15.05.2015; and approximation of two days before such examination
matches the proven time when the deceased was last seen with the
appellant i.e., around 6:30 p.m. on 13.05.2015. In fact, the indications in
the post-mortem report are only to the effect that the appellant did not
provide any time to the child and rather carried out his misdeeds
immediately after taking her along.
37. Thus, even after examining the principal contentions urged on
behalf of the appellant against the concurrent findings returned by the
Trial Court and the High Court, we do not find any case of perversity or
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manifest illegality for which any interference in such concurrent findings
would be called for. In an overall view of the matter, it is proved beyond
doubt in this case that the hapless child, seven-year-old daughter of the
complainant, met with her gruesome end after having been treated
inhumanely and having been subjected to sexual assaults; that the victim
was lastly seen in the company of the appellant when he enticed and
took her along to pluck and eat lychee fruits while shooing away the
other children playing with her; that the dead body of the victim child
was recovered at the instance of the appellant; and that the appellant
failed to satisfactorily explain his whereabouts and his knowledge of the
location of dead body. The medical and other scientific evidence has
been consistent with the prosecution case and then, the defence version
of enmity due to land dispute turns out to be false. That being the position,
we have no hesitation in holding that the present case of circumstantial
evidence answers the panchsheel principles of Sharad Birdhichand
Sarda (supra). The appellant was rightly convicted by the Trial Court
and his conviction has rightly been maintained by the High Court. This
part of the submissions on behalf of the appellant stand rejected.
Whether death sentence be maintained or substituted by
any other sentence
38. Even when we find no reason to consider interference in the
concurrent findings of fact leading to conviction, the
question still remains
about correctness of the death sentence awarded to the appellant. The
sentence, when being of termination of a natural life, obviously requires
closer scrutiny with reference to the statutory requirements of Section
354(3) CrPC as also the principles enunciated by this Court.
39. The requirements of Section 354(3) CrPC are as under: -
“(3) When the conviction is for an offence punishable with death
or, in the alternative, with imprisonment for life or imprisonment
for a term of years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of death, the
special reasons for such sentence.”
40. We need not elongate this discussion with dilation on all the
cited decisions but, having regard to the issues raised and the
circumstances of the present case, we may usefully summarise the
evolution of legal position and norms for dealing with the question of
sentencing in such matters and the connotations of ‘special reasons’ for
awarding death sentence.
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40.1. In Bachan Singh (supra), this Court examined two broad
questions: One, as to whether death penalty provided for the offence of
murder under Section 302 IPC was unconstitutional; and if not, as to
whether the sentencing procedure in Section 354(3) CrPC was
unconstitutional on the ground that it invested the Court with unguided
and untrammelled discretion, which allowed death sentence to be
arbitrarily imposed in relation to the offences punishable with death or
life imprisonment.
40.1.1. A variety of features and factors including those pertaining
to Articles 19(1) and 21 of the Constitution of India were examined by
this Court while answering the first question in the negative, which are
not of bearing in the present case. The relevant part of enunciations in
Bachan Singh had been in relation to the second question, where, while
upholding the constitutionality of Section 354(3) CrPC, this Court noted
that the legislature had explicitly prioritised life imprisonment as the normal
punishment and death penalty as being of exception. For operation and
application of this legislative policy, this Court also examined several of
the past decisions, particularly the case of Jagmohan Singh v. State of
U.P.: (1973) 1 SCC 20 and modulated the propositions as follows: -
“164. Attuned to the legislative policy delineated in Sections 354(3)
and 235(2), propositions (iv)(a) and (v)(b) in Jagmohan [(1973)
1 SCC 20] shall have to
be recast and may be stated as below:
“(a) The normal rule is that the offence of murder shall be
punished with the sentence of life imprisonment. The court
can depart from that rule and impose the sentence of death
only if there are special reasons for doing so. Such reasons
must be recorded in writing before imposing the death
sentence.
(b) While considering the question of sentence to be
imposed for the offence of murder under Section 302 of
the Penal Code, the court must have regard to every relevant
circumstance relating to the crime as well as the criminal.
If the court finds, but not otherwise, that the offence is of
an exceptionally depraved and heinous character and
constitutes, on account of its design and the manner of its
execution, a source of grave danger to the society at large,
the court may impose the death sentence.”
(emphasis supplied)
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40.1.2. This Court also said that special reasons in the context of
Section 354(3) CrPC would obviously mean exceptional reasons, meaning
thereby, that the extreme penalty should be imposed only in extreme
cases. This Court said: -
“161. .…The expression “special reasons” in the context of this
provision, obviously means “exceptional reasons” founded on the
exceptionally grave circumstances of the particular case relating
to the crime as well as the criminal. Thus, the legislative policy
now writ large and clear on the face of Section 354(3) is that on
conviction for murder and other capital offences punishable in the
alternative with death under the Penal Code, the extreme penalty
should be imposed only in extreme cases.”
(emphasis supplied)
40.1.3. This Court further made it clear that standardisation of
sentencing would not be possible because no two criminal cases were
identical and standardisation would leave no room for judicial discretion
and additionally, standardisation of sentencing discretion was a policy
matter belonging to the sphere of legislation. This Court, of course, referred
to the suggested aggravating circumstances as also mitigating factors,
but reiterated that the Court would not fetter judicial discretion by
attempting to make an exhaustive enumeration one way or the
other11. Having said so, this Court ultimately laid down the ‘rarest of
rare case’ doctrine in the following terms:-
“209. There are numerous other circumstances
justifying the
passing of the lighter sentence; as there are countervailing
circumstances of aggravation. “We cannot obviously feed into a
judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating society.” Nonetheless,
it cannot be over-emphasised that the scope and concept of mitigating
factors in the area of death penalty must receive a liberal and
expansive construction by the courts in accord with the sentencing
policy writ large in Section 354(3). Judges should never be
bloodthirsty. Hanging of murderers has never been too good for
them. Facts and Figures, albeit incomplete, furnished by the Union
of India, show that in the past, courts have inflicted the extreme
penalty with extreme infrequency — a fact which attests to the
11 vide paragraphs 169-175, 202 and 206 of the decision in Bachan Singh (supra)
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caution and compassion which they have always brought to bear
on the exercise of their sentencing discretion in so grave a matter.
It is, therefore, imperative to voice the concern that courts, aided
by the broad illustrative guide-lines indicated by us, will discharge
the onerous function with evermore scrupulous care and humane
concern, directed along the highroad of legislative policy outlined in
Section 354(3) viz. that for persons convicted of murder, life
imprisonment is the rule and death sentence an exception. A real
and abiding concern for the dignity of human life postulates resistance
to taking a life through law’s instrumentality.That ought not to be
done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed.”
(emphasis supplied)
40.2. In Machhi Singh (supra), a 3-Judge Bench of this Court
was considering as to whether the case fell within the ‘rarest of rare’
category where the appellant was convicted of orchestrating a conspiracy
and then carrying it out, which resulted in the murder of 17 people due to
a family feud. This Court explained the philosophy pertaining to the death
sentence while observing, inter alia, as under: -
“32. …Every member of the community owes a debt to the
community for this protection. When ingratitude is shown instead
of gratitude by “killing” a member of the community which
protects the murderer himself from being killed, or when the
community
feels that for the sake of self-preservation the killer
has to be killed, the community may well withdraw the protection
by sanctioning the death penalty. But the community will not do
so in every case. It may do so “in rarest of rare cases” when its
collective conscience is so shocked that it will expect the holders
of the judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of
retaining death penalty. The community may entertain such a
sentiment when the crime is viewed from the platform of the
motive for, or the manner of commission of the crime.…”
40.2.1. This Court also explained the propositions of Bachan Singh
(supra) and the pertinent queries for applying those propositions in the
following passages: -
“38. In this background the guidelines indicated in Bachan Singh
case [(1980) 2 SCC 684] will have to be culled out and applied to
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the facts of each individual case where the question of imposing
of death sentence arises. The following propositions emerge
from Bachan Singh case [(1980) 2 SCC 684] :
(i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances
of the ‘offender’ also require to be taken into consideration
along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed
only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only provided,
the option to impose sentence of imprisonment for life cannot
be conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full weightage
and a just balance has to be struck between the aggravating
and the mitigating circumstances before the option is
exercised.
39. In order to apply these guidelines inter alia the following
questions may be asked and answered:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and
calls for a death sentence?
(b) Are the circumstances of the crime
such that there is
no alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances
in the light of the aforesaid proposition and taking into account the
answers to the questions posed hereinabove, the circumstances
of the case are such that death sentence is warranted, the court
would proceed to do so.”
(emphasis supplied)
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40.3. The decision in Swamy Shraddananda (2) (supra) was
rendered by a 3-Judge Bench of this Court in the backdrop that though
the 2-Judge Bench of this Court upheld the conviction of the appellant of
offences under Sections 302 and 201 IPC but, one of the learned Judges
felt that in the facts and circumstances of the case, punishment of
imprisonment till the end of the natural life of the convict would serve
the ends of justice, whereas the other learned Judge took the view that
the appellant deserved nothing but death penalty. In keeping with the
ever-progressing tenets of penology and the anxiety to evolve a just,
reasonable and proper course, the 3-Judge Bench adopted the course of
not awarding death penalty, but conditioning the life imprisonment sentence
with the rider of not releasing the convict from the prison for the rest of
his life. The Courtexplained the logic of such sentencing, which overrides
the availability of remission, in the following terms: -
“92. The matter may be looked at from a slightly different angle.
The issue of sentencing has two aspects. A sentence may be
excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to this
Court carrying a death sentence awarded by the trial court and
confirmed by the High Court, this Court may find, as in the present
appeal, that the case just falls short of the rarest of the rare
category and may feel somewhat
reluctant in endorsing the death
sentence. But at the same time, having regard to the nature of the
crime, the Court may strongly feel that a sentence of life
imprisonment subject to remission normally works out to a term
of 14 years would be grossly disproportionate and inadequate.
What then should the Court do? If the Court’s option is limited
only to two punishments, one a sentence of imprisonment, for all
intents and purposes, of not more than 14 years and the other
death, the Court may feel tempted and find itself nudged into
endorsing the death penalty. Such a course would indeed be
disastrous. A far more just, reasonable and proper course would
be to expand the options and to take over what, as a matter of
fact, lawfully belongs to the Court i.e. the vast hiatus between 14
years’ imprisonment and death. It needs to be emphasised that
the Court would take recourse to the expanded option primarily
because in the facts of the case, the sentence of 14 years’
imprisonment would amount to no punishment at all.
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93. Further, the formalisation of a special category of sentence,
though for an extremely few number of cases, shall have the
great advantage of having the death penalty on the statute book
but to actually use it as little as possible, really in the rarest of rare
cases. This would only be a reassertion of the Constitution Bench
decision in Bachan Singh besides being in accord with the modern
trends in penology.”
(emphasis supplied)
40.4. In Rameshbhai Chandubhai Rathod v. State of Gujarat
: (2009) 5 SCC 740, the Court was dealing with the case of rape and
murder of a young child by a young man. Herein too, the learned Judges
of a 2-Judge Bench of this Court differed on the question of sentence.
One learned Judge held that death sentence could also be awarded in
cases of circumstantial evidence, if those circumstances were of
unimpeachable character and it would have nothing to do with the
question of sentencing. If the circumstantial nature of evidence was
considered to be a mitigating circumstance, it would amount to
consideration of an irrelevant aspect, since the same material was
found cogent enough to convict the accused. It was reiterated that
what was to be considered for sentencing was the balance-sheet of
aggravating and mitigating circumstances. The other learned Judge,
however, observed that the Trial Court had not provided the accused
an opportunity to demonstrate that he could be reformed; and opined
that the Court must not be oblivious of
the right of an accused to a fair
sentencing policy. Consequently, this matter was also placed before a
3-Judge Bench leading to the decision in Rameshbhai Chandubhai
Rathod (2) v. State of Gujarat :(2011) 2 SCC 764. The 3-Judge
Bench agreed with the view that the Trial Court was obligated to render
a finding on whether the accused could be reformed and rehabilitated;
and that the young age of the accused (being only 27 years old), was a
mitigating factor operating in his favour. However, it was also observed
that the gravity of offence, the behaviour of accused, and the fear and
concern such incidents generate in society, were also the factors which
could not be ignored. In result, the 3-Judge Bench, following the course
adopted in a couple of other decisions, commuted the death sentence
into that of life imprisonment for the remainder of the natural life of
the appellant but subject to any remission or commutation at the instance
of the Government for good and sufficient reasons.
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40.5. Such propositions, whereby this Court had provided for
special category sentencing by way of life sentence sans remission in
substitution of death sentence gave rise to yet further debate in this
Court and led to the reference to the Constitutional Bench that came to
be answered in V. Sriharan (supra). There had been several questions
referred to the Constitutional Bench as regards the powers of remission,
but all those aspects need not be dilated herein. The relevant part of the
matter is concerning the first question, as stated in paragraph 52.1 of the
referral order. A majority of three Judges approved the ratio in Swamy
Shraddananda (2) (supra) providing for special category of life sentence
without remission. Though the minority opinion concurred on the point
that imprisonment for life in terms of Section 52 read with Section 45
IPC only meant imprisonment for the rest of the life of the convict,
where the right to claim remission, commutation etc. as provided under
Article 72 or 161 of the Constitution of India would always be available
but, did not concur with the other part of the majority opinion approving
the aforesaid special category sentence with the reasoning that such a
course of providing mandatory period of actual imprisonment would be
inconsistent with Section 433-A CrPC. The majority view, being the
declaration of law by this Court, reads as under: -
“Question 52.1: Whether imprisonment for
life in terms of
Section 53 read with Section 45 of the Penal Code meant
imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim remission
and whether as per the principles enunciated in paras 91 to
93 of Swamy Shraddananda (2), a special category of
sentence may be made for the very few cases where the death
penalty might be substituted by the punishment of
imprisonment for life or imprisonment for a term in excess of
fourteen years and to put that category beyond application of
remission?
Answer
177. Imprisonment for life in terms of Section 53 read with
Section 45 of the Penal Code only means imprisonment for the
rest of the life of the convict. The right to claim remission,
commutation, reprieve, etc. as provided under Article 72 or Article
161 of the Constitution will always be available being constitutional
remedies untouchable by the Court.
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178. We hold that the ratio laid down in Swamy
Shraddananda (2) that a special category of sentence; instead
of death can be substituted by the punishment of imprisonment
for life or for a term exceeding 14 years and put that category
beyond application of remission is well founded and we answer
the said question in the affirmative.”
(emphasis supplied)
40.6. In Ravishankar (supra), a 3-Judge Bench of this Court
re-affirmed the conviction of the appellant of the offences of kidnapping,
rape, and resultant death of a 13-year-old girl and destruction of evidence.
The case had been that of circumstantial evidence and on the question
of sentence, this Court examined as to whether death sentence was
justified. Though this Court made it clear that even in the case where
conviction is based on circumstantial evidence, capital punishment could
indeed be awarded but then, proceeded to observe that this Court had
been increasingly applying the theory of ‘residual doubt’, which
effectively create a higher standard of proof over and above the
“beyond reasonable doubt” standard used at the stage of
conviction, as a safeguard against routine capital sentencing,
keeping in mind the irreversibility of death. Applying this theory and
indicating certain ‘residual doubts’, it was held that the said case fell
short of ‘rarest of rare’ case. In that case too, the Court commuted the
death sentence into one of life for the remainder of the natural life.
40.7. In Shatrughna Baban
Meshram (supra), another 3-Judge
Bench of this Court considered an appeal against conviction and award
of death sentence for rape and murder of a 2½ year old girl by her
maternal uncle. On the question of sentencing, a table of 67 cases decided
by the Supreme Court over the past 40 years was perused and it was
observed that when the offences were of Sections 376 and 302 IPC,
and the age of the victim was under 16 years, death sentence was
confirmed in 15, but in 3, was later on commuted to life in review. Hence,
in only 12 of the 67 cases was the death sentence confirmed. As regards
the guiding factors in sentencing, it was held that death penalty was not
entirely impermissible to be awarded in circumstantial evidence cases
but the circumstantial evidence ought to be of unimpeachable character
with option of lesser sentence foreclosed. The Court also examined the
theory of ‘residual doubt’; and after a survey of the decisions of this
Court and those of the U.S. Supreme Court, observed as under: -
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“75.4. These features are only illustrative to say that the theory
of “residual doubt” that got developed was a result of peculiarity
in the process adopted. Even then, what is material to note is that
the theory has consistently been rejected by the US Supreme
Court and as stated by O’Connor, J.: “Nothing in our cases
mandated the imposition of this heightened burden of proof
at capital sentencing.”
Thereafter, this Court also referred to some of the decisions of
this Court where the said theory of ‘residual doubt’ was referred to,
including that in Ashok Debbarma Alias Achak Debbarma v. State of
Tripura: (2014) 4 SCC 747, and it was pointed out that those matters
were considered from the standpoint of individual fact situation
where, going by the higher or stricter standard for imposition of
death penalty, alternative to death sentence was found to be
appropriate.
40.8. In the case of Rajendra Pralhadrao Wasnik (supra), the
appellant was convicted of offences under Section 376(2)(f), 377 and
302 IPC for rape and murder of three-year-old girl on the basis of
circumstantial evidence and was sentenced to death. Though his appeal
to this Court was dismissed and review petition was also dismissed but,
his review petition was later on reopened and heard by a 3-Judge Bench.
This Court held that there was no hard and fast rule that death sentence
could not be awarded if conviction was based on circumstantial evidence,
but
proceeded to commute death sentence into life after finding that the
Trial Court and the High Court did not consider various factors including
the probability of the petitioner to be reformed. This Court, inter alia,
held as under: -
“47. Consideration of the reformation, rehabilitation and reintegration
of the convict into society cannot be overemphasised. Until Bachan
Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , the emphasis given by the courts was primarily
on the nature of the crime, its brutality and severity. Bachan
Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] placed the sentencing process into perspective
and introduced the necessity of considering the reformation or
rehabilitation of the convict. Despite the view expressed by the
Constitution Bench, there have been several instances, some of
which have been pointed out in Bariyar [Santosh Kumar
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Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC
498 : (2009) 2 SCC (Cri) 1150] and in Sangeet v. State of
Haryana [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013)
2 SCC (Cri) 611] where there is a tendency to give primacy to the
crime and consider the criminal in a somewhat secondary manner.
As observed in Sangeet [Sangeet v. State of Haryana, (2013) 2
SCC 452 : (2013) 2 SCC (Cri) 611] “In the sentencing process,
both the crime and the criminal are equally important.” Therefore,
we should not forget that the criminal, however ruthless he might
be, is nevertheless a human being and is entitled to a life of dignity
notwithstanding his crime. Therefore, it is for the prosecution and
the courts to determine whether such a person, notwithstanding his
crime, can be reformed and rehabilitated. To obtain and analyse
this information is certainly not an easy task but must nevertheless
be undertaken. The process of rehabilitation is also not a simple
one since it involves social reintegration of the convict into society.
Of course, notwithstanding any information made available and its
analysis by experts coupled with the evidence on record, there could
be instances where the social reintegration of the convict may not
be possible. If that should happen, the option of a long duration of
imprisonment is permissible.”
40.9. In the case of Kalu Khan (supra), while examining various
factors concerning the crime and the criminal and the abhorrent
circumstances reflected through the nature of crime, this Court also
took into consideration that there was no criminal antecedent of accused-
appellant and the circumstantial evidence included extra-judicial
confession. In the given set of facts, this Court commuted the sentence
of death into that of imprisonment for life.
40.10. In the case of M.A. Antony (supra), this Court underscored
that the socio-economic factors relating to a convict should also be taken
into consideration for the purpose of deciding whether to award life
sentence or death sentence.
40.11. In Mohd. Mannan (supra), this Court summarised the
proposition of law to be applied in the process of sentencing in such
cases in the following terms: -
“72. The proposition of law which emerges from the judgments
referred to above is itself death sentence cannot be imposed except
in the rarest of rare cases, for which special reasons have to be
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recorded, as mandated in Section 354(3) of the Criminal Procedure
Code. In deciding whether a case falls within the category of the
rarest of rare, the brutality, and/or the gruesome and/or heinous
nature of the crime is not the sole criterion. It is not just the crime
which the Court is to take into consideration, but also the criminal,
the state of his mind, his socio-economic background, etc. Awarding
death sentence is an exception, and life imprisonment is the rule.”
40.12. In Shankar Kisanrao Khade (supra), after survey of a
wide variety of cases and pointing out the requirement of applying ‘crime
test’, ‘criminal test’ and ‘rarest of rare test’, this Court recounted, with
reference to previous decisions, the aggravating circumstances (crime
test) and the mitigating circumstances (criminal test) as follows: -
“49. In Bachan Singh and Machhi Singh cases, this Court
laid down various principles for awarding sentence: (Rajendra
Pralhadrao case, SCC pp. 47-48, para 33)
“‘Aggravating circumstances — (Crime test)
(1) The offences relating to the commission of heinous crimes
like murder, rape, armed dacoity, kidnapping, etc. by the accused
with a prior record of conviction for capital felony or offences
committed by the person having a substantial history of serious
assaults and criminal convictions.
(2) The offence was committed while the offender was
engaged in the commission of another serious offence.
(3) The offence
was committed with the intention to create a
fear psychosis in the public at large and was committed in a public
place by a weapon or device which clearly could be hazardous to
the life of more than one person.
(4) The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful
custody.
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(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or custody in a
place of lawful confinement of himself or another. For instance,
murder is of a person who had acted in lawful discharge of his
duty under Section 43 of the Code of Criminal Procedure.
(9) When the crime is enormous in proportion like making an
attempt of murder of the entire family or members of a particular
community.
(10) When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a child, helpless
woman, a daughter or a niece staying with a father/uncle and is
inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences
total depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks
not only the judicial conscience but even the conscience of the
society.
Mitigating circumstances — (Criminal test)
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or emotional
disturbance or extreme provocation in contradistinction to all these
situations in normal course.
(2) The age of the accused is a relevant consideration but not
a determinative factor by itself.
(3) The chances of the accused of not indulging in commission
of the crime again and the probability of the accused being
reformed and
rehabilitated.
(4) The condition of the accused shows that he was mentally
defective and the defect impaired his capacity to appreciate the
circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would
render such a behaviour possible and could have the effect of
giving rise to mental imbalance in that given situation like persistent
harassment or, in fact, leading to such a peak of human behaviour
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that, in the facts and circumstances of the case, the accused
believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is
of the view that the crime was not committed in a preordained
manner and that the death resulted in the course of commission
of another crime and that there was a possibility of it being
construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of
a sole eyewitness though the prosecution has brought home the
guilt of the accused.’”
This Court further said: -
“52. Aggravating circumstances as pointed out above, of
course, are not exhaustive so also the mitigating circumstances.
In my considered view, the tests that we have to apply, while
awarding death sentence are “crime test”, “criminal test” and the
“R-R test” and not the “balancing test”. To award death sentence,
the “crime test” has to be fully satisfied, that is, 100% and “criminal
test” 0%, that is, no mitigating circumstance favouring the accused.
If there is any circumstance favouring the accused, like lack of
intention to commit the crime, possibility of reformation, young
age of the accused, not a menace to the society, no previous track
record, etc. the “criminal test” may favour the accused to avoid
the capital punishment. Even if both the tests are satisfied, that is,
the aggravating circumstances to
the fullest extent and no mitigating
circumstances favouring the accused, still we have to apply finally
the rarest of the rare case test (R-R test). R-R test depends upon
the perception of the society that is “society-centric” and not
“Judge-centric”, that is, whether the society will approve the
awarding of death sentence to certain types of crimes or not.
While applying that test, the court has to look into variety of factors
like society’s abhorrence, extreme indignation and antipathy to
certain types of crimes like sexual assault and murder of
intellectually challenged minor girls, suffering from physical
disability, old and infirm women with those disabilities, etc.
Examples are only illustrative and not exhaustive. The courts award
death sentence since situation demands so, due to constitutional
compulsion, reflected by the will of the people and not the will of
the Judges.”