LOCHAN SHRIVAS versus THE STATE OF CHHATTISGARH
[2021] 14 S.C.R. 809, Supreme Court of India, 2021
Outcome: Case Partly allowed (Granted)
Segment: Facts
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LOCHAN SHRIVAS
v.
THE STATE OF CHHATTISGARH
(Criminal Appeal Nos. 499-500 of 2018)
DECEMBER 14, 2021
[L. NAGESWARA RAO, B.R. GAVAI AND
B. V. NAGARATHNA, JJ.]
Penal Code 1860: ss.363, 366, 376(2)(i), 377, 201, 302 and
376A – Prosecution case was that on the fateful day, the minor daughter
of complainant was found missing – They went in search for her but
she was not found anywhere – When they came back home, PW-3 told
them that appellant who was neighbour had said that if they would
allow him to conduct worship, he could find the child in an hour –
They agreed and after the worship, appellant informed them that the
child was tied and kept inside the sack in the bushes – PW-1 informed
police and on suspicion, appellant was interrogated and he confessed
his crime before police – Thereafter, sack was recovered from bushes
containing the blood soaked body of the victim girl – Trial court
convicted appellantfor offences punishable u/s363, 366, 376(2)(i), 377,
201, 302 and 376A and s.6 of Protection of Children from Sexual
Offences Act, 2012 and passed death sentence for the offence
punishable u/s.302 – High Court affirmed the conviction and sentence
– On appeal, held: For resting a conviction in the case of circumstantial
evidence, the circumstances from which the conclusion of guilt is to be
drawn, should be fully established, and all the facts so established
should be consistent only with the hypothesis of the guilt of the accused
–
In the instant case, proven circumstances established a chain of
circumstances, which lead to no other conclusion than the guilt of the
appellant – In the statement recorded under s.313 Cr.P.C., though all
these incriminating circumstances were put to the appellant, he did not
offer any explanation except saying that it was wrong and false –
Conviction u/ss.363, 366, 376(2)(i), 377, 201, 302 r/ws.376A and s.6
of the POCSO Act is maintained – However, taking into consideration
the state of mind of appellant, his socio-economic background, etc., it
cannot be said that there is no possibility of the appellant being
reformed and rehabilitated – Death penalty commuted to life
imprisonment.
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Partly allowing the appeals, the court
HELD: 1. For resting a conviction in the case of
circumstantial evidence, the circumstances from which the
conclusion of guilt is to be drawn, should be fully established,
and all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. 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. There must be a chain of evidence so 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 probabilities, the act must have been done by
the accused. [Para 14][817-C-D]
2. The circumstances establish a chain of circumstances,
which lead to no other conclusion than the guilt of the appellant.
Apart from that, in the statement recorded under Section 313
Cr.P.C., though all these incriminating circumstances have been
put to the appellant, he has not offered any explanation except
saying that it is wrong and false. It is trite law that though the
false explanation cannot be taken to complete a missing link in
the chain of circumstances, it can surely be taken to fortify the
conclusion of conviction recorded on the basis of the proven
incriminating circumstances. The non-explanation of the
circumstances would fortify the finding, which is based on
the
chain of incriminating circumstances that leads to no
other conclusion than the guilt of the appellant. [Paras 44, 45]
[829-G-H; 830-D]
Hanumant, son of Govind Nargundkar v. State of
Madhya Pradesh [1952] 0 SCR 1091; Sharad
Birdhichand Sarda v. State of Maharashtra (1984) 4
SCC 116 : [1985] 1 SCR 88; Prakash Chand v. State
(Delhi Administration) (1979) 3 SCC 90 : [1979] 2 SCR
330; Himachal Pradesh Administration v. Shri Om
Prakash (1972) 1 SCC 249 : [1972] 2 SCR 765; A.N.
Venkatesh and Another v. State of Karnataka (2005) 7
SCC 714; State of Himachal Pradesh v. Jeet Singh
(1999) 4 SCC 370; John Pandian v. State represented
by Inspector of Police, Tamil Nadu (2010) 14 SCC 129:
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[2010] 15 SCR 1012; Krishan Mohar Singh Dugal v.
State of Goa (1999) 8 SCC 552; Nilesh Dinkar
Paradkar v. State of Maharashtra (2011) 4 SCC 143 :
[2011] 3 SCR 792 – referred to.
3. The trial court as well as the High Court has only taken
into consideration the crime but they have not taken into
consideration the criminal, his state of mind, his socio-economic
background, etc. The appellant is a young person, who was 23
years old at the time of commission of the offence. He comes
from a rural background. The State has not placed any evidence
to show that there is no possibility with respect to reformation
and the rehabilitation of the accused. The High Court as well as
the trial court also has not taken into consideration this aspect of
the matter. The conduct of the appellant in the prison has been
found to be satisfactory. There are no criminal antecedents. It is
the first offence committed by the appellant. No doubt, a heinous
one. The appellant is not a hardened criminal. It therefore cannot
be said that there is no possibility of the appellant being reformed
and rehabilitated foreclosing the alternative option of a lesser
sentence and making imposition of death sentence imperative.
The judgment and order of conviction for the offences punishable
under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section
376A of the IPC and Section 6 of the POCSO Act is maintained.
However, the death penalty imposed on the appellant under
Section 302 IPC is
commuted to life imprisonment. The sentences
awarded for the rest of the offences by the trial court as affirmed
by the High Court, are maintained. [Paras 50, 52, 54][832-E-F;
833-G; 835-B-C]
R. Shaji v. State of Kerala (2013) 14 SCC 266 : [2013]
3 SCR 1172; Mohd. Mannan alias Abdul Mannan v.
State of Bihar (2019) 16 SCC 584 : [2019] 8 SCR 266;
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Machhi Singh and Others v. State of Punjab (1983) 3
SCC 470 : [1983] 3 SCR 413; Mofil Khan and Another
v. The State of Jharkhand 2021 (14) SCALE 249;
Rajendra Pralhadrao Wasnik v. State of Maharashtra
(2019) 12 SCC 460 : [2018] 14 SCR 585; Sunil v. State
of Madhya Pradesh (2017) 4 SCC 393 – relied on.
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
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Case Law Reference
[1952] 0 SCR 1091
referred to
Para 13
[1985] 1 SCR 88
referred to
Para 15
[1979] 2 SCR 330 
referred to
Para 27
[1972] 2 SCR 765
referred to
Para 27
(2005) 7 SCC 714
referred to
Para 27
(1999) 4 SCC 370
referred to
Para 32
[2010] 15 SCR 1012 
referred to
Para 33
(1999) 8 SCC 552
referred to
Para 36
[2011] 3 SCR 792
referred to
Para 37
[2013] 3 SCR 1172 
relied on
Para 40
[2019] 8 SCR 266 
relied on
Para 48
(1980) 2 SCC 684
relied on
Para 48
[1983] 3 SCR 413 
relied on
Para 48
2021 (14) SCALE 249
relied on
Para 49
[2018] 14 SCR 585 
relied on
Para 50
(2017) 4 SCC 393
relied on
Para 53
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.499-500 of 2018
From the Judgment and Order dated 17.11.2017 of the High Court
of Judicature of Chhattisgarh at Bilaspur in Reference (CRREF1 of
2016) and Criminal Appeal No.888 of 2016.
Anand Grover, Sr. Adv., Amartya Kanjilal, Ms. Priyashree Sharma,
Ms. Harini Raghupathy, Ms. Rushali Agarwal, Ms. Prerna Priyadarshini,
Advs. for the Appellant.
Nishanth Patil, Ms. Shubhika Saluja, Ms. Malvika Kala, Advs. for
the Respondent.
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The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. The appellant has approached this Court being aggrieved by
the judgment and order passed by the High Court of Chhattisgarh,
Bilaspur dated 17th November 2017, thereby dismissing the appeal
preferred by the appellant challenging the judgment and order dated 17th
June 2016, passed by the Additional Sessions Judge, Fast Track Court,
Raigarh (hereinafter referred to as the “trial judge”) vide which the trial
judge convicted the appellant for the offences punishable under Sections
363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the Indian
Penal Code, 1860 (hereinafter referred to as the “IPC”) and Section 6
of the Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as the “POCSO Act”). Vide the same judgment and order,
the appellant was sentenced to death for the offence punishable under
Section 302 of the IPC. For the other offences for which the appellant
was found guilty, sentences of rigorous imprisonment of 3 years, 5 years,
7 years and life imprisonment have been awarded to the appellant. The
trial judge has also made a reference being Cr. Ref. No. 1 of 2016 to the
High Court under Section 366 of the Code of Criminal Procedure, 1973
(hereinafter referred to as “Cr.P.C.”) for confirmation of death penalty.
Vide the impugned judgment and order, the High Court while dismissing
the appeal of the appellant, has confirmed the death penalty.
2. The prosecution
case in brief is thus:
Complainant-PW-1 Gudiya Parveen w/o PW-2-Mohd. Armaan
resided at D-29, 4th Floor, Bajrangdheepa Colony with her husband and
her minor victim daughter aged 3 years. At about 10.00 am, on 24th
February 2016, she had gone downstairs to wash clothes. At that time,
she called her husband for bathing the victim. Her husband told her that
the victim had gone downstairs to play. PW-1 then went upstairs and
told her husband that the victim was not downstairs. Thereafter, her
husband (PW-2) and she started looking for the victim, but the victim
was not found anywhere. Since the victim could not be found, PW-1
went to Jutemill Police Station and lodged a report of the victim going
missing. They continued the search and ultimately returned to their house
at around 03.00-04.00 am in the morning. PW-3-Mohd. Sahid alias Raju
Khan told her that appellant-Lochan Shrivas, a resident of D-15 in the
same building had said that if they would allow him to conduct a worship,
he could find their child in an hour. Therefore, they agreed to conduct
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
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the worship. After the worship, the appellant informed them that the
child was tied and kept inside a sack in the bushes near a pole beside the
road in Amlibhauna. On this, PW-1 and other prosecution witnesses
developed a suspicion, and as such, PW-3 informed the police. The police
interrogated the appellant, who confessed his crime before them.
Thereafter, on a memorandum under Section 27 of the Indian Evidence
Act, 1872 (hereinafter referred to as the “Evidence Act”), a sack from
the bushes was recovered, wherein the dead body of the deceased soaked
in blood was found (Ex.-P.12). On the basis of the oral report (Ex.-P.1)
of PW-1, a First Information Report (hereinafter referred to as “FIR”)
(Ex.-P.36) came to be registered for the offence punishable under Section
363 of the IPC. After completion of investigation, a charge-sheet came
to be filed before the trial judge for the offences punishable under Sections
363, 376, 377, 302, 201 of the IPC and Section 6 of the POCSO Act.
3. Charges came to be framed for the offences punishable under
Sections 363, 376(2)(i), 377, 201, 302 read with Section 376A of the IPC
and Section 6 of the POCSO Act. The accused pleaded to be not guilty
and claimed to be tried. At the conclusion of the trial, the trial judge recorded
the aforesaid order of conviction and sentence. Being aggrieved thereby,
an appeal was preferred by the appellant and also a reference was made
by the trial
judge under Section 366 of the Cr.P.C. By the impugned
judgment and order, the High Court dismissed the appeal filed by the appellant
and confirmed the death sentence. Hence, the present appeals.
4. We have heard Shri Anand Grover, learned Senior Counsel
appearing on behalf of the appellant and Shri Nishanth Patil, learned
counsel appearing on behalf of the respondent-State.
5. Shri Anand Grover, learned Senior Counsel appearing on behalf
of the appellant submitted that the present case is a case based on
circumstantial evidence. He submitted that the prosecution has utterly
failed to establish the incriminating circumstances and in any case, failed
to establish the chain of events, which leads to no other conclusion than
the guilt of the accused. He submitted that there are many missing links
in the prosecution case, and as such, the judgment and order of conviction
as recorded by the trial judge and confirmed by the High Court is not
sustainable in law. The learned Senior Counsel submitted that the main
incriminating circumstance, on which the prosecution relies, is the
recovery of the dead body of the victim. He submitted that the recovery
is from an open place accessible to one and all. He therefore submitted
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that the said recovery is of no assistance to the prosecution case. He
further submitted that the alleged recovery of black jeans half pant (Ex.-
P.15) of the deceased and the white gamchha (Ex.-P.16) is from a
place accessible to one and all. He submitted that in any case, the Forensic
Science Laboratory (hereinafter referred to as the “FSL”) reports are
inconclusive, and therefore, the prosecution has failed to establish the
link between the recovered materials and the crime.
6. Shri Grover submitted that the evidence of PW-9-Chameli Sarthi,
Constable would reveal that she had gone to the spot from where the
body of the victim was alleged to have been recovered at around 06.00
am. It is thus clear that the police were already aware about the place
from where the body was alleged to have been recovered on a
memorandum under Section 27 of the Evidence Act.
7. He further submitted that the finger nails of the appellant were
cut by a barber PW-8-Kishore Shrivas and not by any forensic expert.
He therefore submitted that the circumstance of finding human blood on
the said nails is of no use to the prosecution case. This is particularly so
in view of the long delay in seizure of the nail samples and sending them
to the FSL. The learned Senior Counsel further submitted that it is
improbable that the prosecution could have called the photographer at
such a short notice. He submitted that the alleged recovery is at around
08.00 am which are not the business
hours, and as such, the very evidence
regarding photography and videography becomes doubtful.
8. The learned Senior Counsel for the appellant further submitted
that the entire record would reveal that the appellant was not given an
opportunity of meaningfully defending the case. He submitted that since
the Raigarh District Bar Association had taken a resolution that no lawyer
from the Bar would appear for the appellant, it was difficult for him to
engage a lawyer. The lawyer appointed by the court from a list of panel
lawyers, also was not given sufficient opportunity to defend the case of
the appellant. He submitted that the evidence of PWs 1 and 2, the mother
and the father of the victim, were recorded on the very same day on
which the lawyer was appointed for the appellant. He further submitted
that the trial court recorded the judgment and order of conviction, and
the sentence on the very same day without giving an appropriate
opportunity to the appellant. The learned Senior Counsel therefore
submitted that the prosecution has failed to prove the case beyond
reasonable doubt and the appeals deserve to be allowed.
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
[B. R. GAVAI, J.]
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9. The learned Senior Counsel, in the alternative, would submit
that in any case, the death penalty would not be warranted in the facts
of the present case. He submitted that the trial court as well as the High
Court has taken into consideration only the aspect of crime and they
have not dealt with the aspect regarding the criminal. It is submitted that
the trial court as well as the High Court has not taken into consideration
the socio-economic background of the appellant so also the possibility of
the appellant being reformed or rehabilitated. It is therefore submitted
that the imposition of death penalty in the facts of the present case is not
at all warranted.
10. Shri Nishanth Patil, learned counsel appearing on behalf of
the respondent-State, on the contrary, submitted that the prosecution
has established the case beyond reasonable doubt. It is submitted that
the prosecution has proved all the incriminating circumstances beyond
reasonable doubt. He further submitted that the prosecution has also
established the link of proved circumstances, which leads to no other
conclusion than the guilt of the accused.
11. Shri Patil further submitted that the appellant has committed a
heinous act of rape on a minor girl and then brutally killed her, and as
such, the case warrants for no other penalty than the death penalty.
12. With the assistance of the learned counsel for the parties, we
have scrutinized the entire
evidence on record in depth. Normally, this
Court while exercising its jurisdiction under Article 136 of the Constitution
of India, would not go into detailed analysis of the evidence. However,
since in the present case, the trial court has imposed death penalty, which
is confirmed by the High Court, we have scrutinized the evidence
minutely.
13. The law with regard to conviction in cases based on
circumstantial evidence has been very well crystalised in the celebrated
case of Hanumant, son of Govind Nargundkar v. State of Madhya
Pradesh1. A three-Judge Bench of this Court, speaking through Mehr
Chand Mahajan, J., observed thus:
“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,
1 1952 SCR 1091
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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 much have
been done by the accused.”
14. It is thus clear that for resting a conviction in the case of
circumstantial evidence, the circumstances from which the conclusion
of guilt is to be drawn, should be fully established, and all the facts so
established should be consistent only with the hypothesis of the guilt of
the accused. 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. There must be a chain of evidence so
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 probabilities, the act must have been done by the
accused.
15. Subsequently, this Court in the case of Sharad Birdhichand
Sarda v. State of Maharashtra2, observed thus:
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case
against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
between “may be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973
Crl LJ 1783] where the observations were made : [SCC para 19,
p. 807 : SCC (Cri) p. 1047]
2 (1984) 4 SCC 116
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
[B. R. GAVAI, J.]
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“Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human
probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.”
16. As has been held by this Court, in a case of circumstantial
evidence, before the case can be said to be fully established against an
accused, it is necessary that the circumstances from which the conclusion
of guilt is to be drawn, should be fully established, and all the facts so
established should be consistent only with the hypothesis of the guilt of
the accused. They should not be explainable on any other hypothesis
except that the accused is guilty.
The circumstances should be of a
conclusive nature and tendency. They should exclude every hypothesis
except the one to be proved. 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 probabilities, the act must have been done by the accused.
17. The aforesaid view has been consistently followed by this
Court in a catena of decisions.
18. The circumstances, which the trial court has culled out in its
judgment while holding that the prosecution has proved its case beyond
reasonable doubt, are thus:
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“1.
The accused telling PW5 Munni that he can tell the location
of the missing victim in an hour if he does Pooja.
2.
PW5 Munni telling PW3; Mo Sahid alias Raju Khan what
the accused had told her as above.
3.
PW3 Mo Sahid alias Raju Khan telling the victim’s parents
of the above conversation.
4.
The deceased’s parents PW1 Gudiya Parveen and PW2
Mo Armaan asking the accused to perform the Pooja.
5.
The accused saying that the victim’s body was in a gunny
sack near an electricity pole on the side of the road in
Amlibhauna.
6.
PW3 Mo Sahid alias Raju Khan telling the police of the
aforesaid claims by the accused.
7.
Police questioning the accused and the accused going along
with the police to locate the victim’s dead body in a gunny
sack in Amlibhauna.
8.
The accused leading the police to recover the pillow and
the towel from his home-
9.
The accused leading the police to the rubbish dump where
he had thrown the victim’s pants.
10.
Material used in a Pooja being recovered from the home of
the victim
11.
According to Ex P 46, the fact that blood was found under
the accused’s nails and that the victim’s vaginal slide had
traces of human sperm.”
19. The High Court also by giving an elaborate reasoning has held
that the prosecution has proved the chain of incriminating circumstances,
which leads to no other conclusion than the guilt of the appellant.
20. We will now consider the evidence led on behalf of the
prosecution to establish the incriminating
circumstances against the
appellant.
21. PW-1-Gudiya Parveen, mother of the victim has deposed that
she lived in D-29, 4th Floor, Bajrangdheepa Colony. The appellant lived
downstairs in D-15 in the same building. On 24th February 2016 at about
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
[B. R. GAVAI, J.]
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10.00 am, she had gone downstairs to wash clothes. She had called her
husband for bathing the victim. However, her husband told her that the
victim had gone downstairs to play. Thereafter, they searched for the
victim but she was not found, and therefore, they went to Jutemill Police
Station and lodged the report of the victim going missing. On the basis of
the oral report (Ex.-P.1), an FIR (Ex.-P.36) came to be registered. The
oral report (Ex.-P.1) is duly proved in the evidence of PW-1 whereas,
the FIR (Ex.-P.36) has been proved in the evidence of PW-16-Dinesh
Bahidar, Assistant Sub-Inspector.
22. It could thus be seen that the first circumstance that the
prosecution has proved, is that the victim went missing at around 10.00
am, and thereafter, they started searching for her. When the victim was
not found anywhere, an oral report (Ex.-P.1) came to be lodged at around
22.00 hours on 24th February 2016 on the basis of which, an FIR (Ex.-
P.36) came to be registered.
23. PW-1, in her testimony, has further stated that she and her
husband PW-2-Mohd. Armaan tried to search for the child. Since she
could not be found, they returned at around 03.00-04.00 am. When they
returned home, Raju Khan (PW-3) informed them that appellant-Lochan
Shrivas, a resident of D-15, has stated that if they would allow him to
conduct a worship, he could find the child in an hour. Then, PW-1 agreed
for conducting the worship. She arranged for
the things required for
worship – vermilion, lemons, earthen lamps, incense sticks and coal.
After these things had been brought, the appellant performed the worship
in the room of PW-1. He had asked them to cover all the pictures of
Allah by a cloth. After performing the worship, the appellant told them
that the child was inside a sack in the bushes near a pole beside the road
in Amlibhauna.
24. Similar is the evidence of PW-2-Mohd. Armaan, the husband
of PW-1 and father of the victim. PW-3-Raju Khan, who is a neighbour,
had stated in his evidence that when they could not find the victim, they
returned at around 03.00-03.30 am. He stated that when they returned,
Munni alias Sarbari (PW-5) told them that appellant-Lochan Shrivas,
who lived in D-15 was telling her that the child could be traced by worship.
Accordingly, the worship was performed, and after that, appellant-Lochan
said that the victim was inside a sack in the bushes near a pole beside
Amlibhauna road.
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25. PW-5-Munni alias Sarbari, who is also a resident of
Bajrangdheepa colony, stated that she had also joined for searching the
victim. However, since the victim was not found, they returned. At about
03.00-03.30 am on 25th February 2016, the appellant met her and said,
“If you conduct worship, your child will be found.” She told the same to
Raju Khan (PW-3). Then, the appellant conducted worship and said that
the deceased was inside a sack in the bushes near a pole beside the road
in Amlibhauna.
26. It could thus be seen that the prosecution has proved beyond
reasonable doubt that the appellant, on his own, told PW-5-Munni alias
Sarbari that if a worship was performed, the whereabouts of the victim
could be found. PW-5-Munni alias Sarbari informed this fact to PW-3-
Raju Khan, who in turn, informed the same to PWs 1 and 2. Accordingly,
a worship came to be performed. After the worship was performed, the
appellant told them that the victim could be found in a sack in the bushes
near a pole beside the road in Amlibhauna.
27. PW-19-Amit Patley, Sub-Inspector, Investigating Officer
(hereinafter referred to as the “IO”), has also seized the materials which
were used for performing the worship (Ex.-P.18). The said panchnama
is witnessed by Raju Khan (PW-3). The said seizure panchnama
therefore corroborates the ocular version of PWs 1, 2, 3 and 5.
It is thus clear that when PWs 1, 2, 3 and 5 returned to their place
of residence, the appellant informed PW-5 that
if they perform a worship,
the deceased could be found. Accordingly, a worship was performed
and after performing the said worship, the appellant said that the deceased
could be found in a sack in the bushes near a pole beside the road in
Amlibhauna. This circumstance could be an important circumstance for
considering the conduct of the appellant under Section 8 of the Evidence
Act. Reliance in this respect could be placed on the judgments of this
Court in the cases of Prakash Chand v. State (Delhi Administration)3,
Himachal Pradesh Administration v. Shri Om Prakash4 and A.N.
Venkatesh and Another v. State of Karnataka5.
28. The next and the most important circumstance on which the
prosecution relies, is the recovery of dead body of the victim on a
3 (1979) 3 SCC 90
4 (1972) 1 SCC 249
5 (2005) 7 SCC 714
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
[B. R. GAVAI, J.]
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memorandum of the appellant under Section 27 of the Evidence Act.
The evidence of PWs 1, 2, 3 and 5 would reveal that immediately after
the appellant performing worship and telling them that the victim was
inside a sack in the bushes near a pole beside the road in Amlibhauna, a
suspicion arose and Raju Khan (PW-3) immediately informed the police
and the police arrived. The evidence of all the four witnesses is consistent
in that regard. Amit Patley, IO(PW-19) also corroborated this fact with
regard to the police receiving the said information. In his evidence, PW-
19 stated that he registered the said information in Rojnamcha No.2
dated 25th February 2016 at 06.10 am. The said Rojnamcha entry has
been exhibited at Ex.-P.38 and its attested copy is at Ex.-P.38-C.
29. PW-19, in his evidence, stated that after receiving the
information, he immediately went to the spot and took the appellant into
his custody and interrogated him. He stated that the appellant, on being
interrogated, stated thus:
“The previous day on 24.02.2016, at about 10:00, he had been
alone in his room. The deceased who lived in D-29 on the floor
above his house was coming downstairs whom she persuaded
and took into his room and closed his room from inside and got the
pants worn by the deceased removed and forcibly made physical
relation with her. Meanwhile, the deceased started crying loudly
so he pressed the mouth and nose of the deceased with a
pillow.
By making physical relation, excessive bleeding started, seeing
which he got nervous and thinking that the secret should not be
revealed, he murdered the deceased by strangulating her and wipe
the blood and the ejaculated sperm smeared on his penis with a
towel kept in the room. He filled the dead body of the deceased in
a plastic sack of lentil by twisting her hands and legs. He tied the
bag with a plastic rope. He wore his clothes. He filled the pants
worn by the deceased in a polythene and threw it from the balcony
to the place where garbage is disposed and entering the room
placed the dead body of the deceased that he had filled in a plastic
sack, in a yellow bag. He locked the room, carried the bag in
hands and went on foot to hide the dead body in a bush near
electric pole at Amlibhouna road and stated of keeping the bag in
his home on returning and of keeping the pillow with which he
had pressed the nose and mouth of the deceased and the towel
with which he had wiped the blood and semen on his penis, in his
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room and stated of getting the dead body of the deceased, her
pants, pillow and towel recovered.”
30. The memorandum statement under Section 27 of the Evidence
Act was duly executed and the same was marked as Ex.-P.11. The
prosecution has examined PW-3-Raju Khan, who is a witness to the
said memorandum statement.
31. PW-19 further stated that thereafter, in the presence of the
witnesses, he recovered a blue plastic bag bearing a map of India and
the text “No.1 Dal Best Quality Dal”, which had been tied with a plastic
rope. He got the bag cut open by Raju Khan (PW-3) in the presence of
the father of the deceased (PW-2) and other witnesses. In the said
sack, the dead body of the victim soaked in blood and in a naked condition
was found. The body was identified by PW-2, who is the father of the
deceased. The recovery panchnama is duly executed under Ex.-P.12.
The prosecution has relied on the evidence of PW-3, who was a panch
witness to the said panchnama.
32. The said recovery on the memorandum of the appellant under
Section 27 of the Evidence Act, has been attacked by the defence on
the ground that the same is from an open place, accessible to one and
all. In this respect, it is apposite to rely on the following observations of
this Court in the case of State of Himachal Pradesh v. Jeet Singh6:
“26. There is nothing in Section 27 of the Evidence Act which
renders the statement of the accused inadmissible if recovery of
the articles was made from any place
which is “open or accessible
to others”. It is a fallacious notion that when recovery of any
incriminating article was made from a place which is open or
accessible to others, it would vitiate the evidence under Section
27 of the Evidence Act. Any object can be concealed in places
which are open or accessible to others. For example, if the article
is buried in the main roadside or if it is concealed beneath dry
leaves lying on public places or kept hidden in a public office, the
article would remain out of the visibility of others in normal
circumstances. Until such article is disinterred, its hidden state
would remain unhampered. The person who hid it alone knows
where it is until he discloses that fact to any other person. Hence,
the crucial question is not whether the place was accessible to
6 (1999) 4 SCC 370
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
[B. R. GAVAI, J.]
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others or not but whether it was ordinarily visible to others. If it is
not, then it is immaterial that the concealed place is accessible to
others.”
It could thus be seen that this Court has held that what is relevant
is not whether the place was accessible to others or not, but whether it
was ordinarily visible to others. If the place at which the article hidden is
such where only the person hiding it knows until he discloses that fact to
any other person, then it will be immaterial whether the concealed place
is accessible to others.
33. It will also be relevant to refer to the following observations of
this Court in the case of John Pandian v. State represented by
Inspector of Police, Tamil Nadu7:
“57. It was then urged by the learned counsel that this was an
open place and anybody could have planted veechu aruval. That
appears to be a very remote possibility. Nobody can simply
produce a veechu aruval planted under the thorny bush. The
discovery appears to be credible. It has been accepted by both
the courts below and we find no reason to discard it. This is
apart from the fact that this weapon was sent to the forensic
science laboratory (FSL) and it has been found stained with
human blood. Though the blood group could not be ascertained,
as the results were inconclusive, the accused had to give some
explanation as to how the human blood came on this weapon.
He gave none. This discovery would very positively
further the
prosecution case.”
34. A perusal of the material placed on record would reveal that
the dead body of the deceased was recovered on the basis of the
information supplied by the appellant that he had concealed the body in
a sack in the bushes near a pole beside the road in Amlibhauna. The
evidence of PW-7-Krishna Kumar Jaiswal, Photographer would reveal
that after he received the notice, he went to the spot and clicked the
photographs (Ex.-P.23). He has further stated that he has also made the
videography of the entire procedure.
35. It will also be relevant to refer to the following observations
made by the High Court in para (35) of the impugned judgment:
7 (2010) 14 SCC 129
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“35. We have gone through the video movie prepared and after
watching the video, we are of the view that the recovery of dead
body was made from a place which cannot be said to be accessible
to an ordinary person without prior knowledge as the body
recovered was kept concealed in a gunny bag inside the shrubs
situated at sufficient distance from the main road. In the statement
under Section 313 CrPC, the accused/appellant failed to explain
how he came to know that the deceased had been murdered and
thrown in the shrubs after wrapping her in a gunny bag……..”
It could thus be seen that the High Court had itself viewed the
video and on seeing the same, it was of the view that the recovery of the
dead body was made from a place, which cannot be said to be accessible
to an ordinary person without prior knowledge since the body recovered
was kept concealed in a gunny bag inside the shrubs situated at sufficient
distance from the main road.
36. Insofar as the reliance placed by the appellant on the judgment
of this Court in the case of Krishan Mohar Singh Dugal v. State of
Goa8 is concerned, in the said case, the accused was convicted for the
offence punishable under Section 20(b)(ii) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, solely on the basis of recovery at
the instance of the accused on the basis of memorandum statement
under Section 27 of the Evidence Act. In the said case, the recovery
was from a place under the coconut tree, which was
accessible to one
and all. It was not a case of concealment in a place, which was only
within the knowledge of the person concealing it. In any event, in the
said case, the conviction was solely on the basis of the said recovery
and as such, was found to be untenable.
37. Insofar as the reliance placed by the appellant on the judgment
of this Court in the case of Nilesh Dinkar Paradkar v. State of
Maharashtra9 is concerned, in the said case, the conviction was solely
on the basis of identification by voice and as such, was not found to be
tenable. As such, these cases would not be of any assistance to the case
of the appellant.
38. It has been sought to be urged on behalf of the appellant that
from the evidence of PW-9-Chameli Sarthi, it is clear that the police
8 (1999) 8 SCC 552
9 (2011) 4 SCC 143
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
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already knew about the place where the dead body was concealed. PW-
9 had taken the dead body of the deceased to District Hospital, Raigarh. It
will be apposite to refer to the relevant portion of the deposition of PW-9:
“We went to the place of incident Amlibhowna at 6 a.m. from the
outpost. From there, we directly went to the hospital with all.
Today, I cannot state at what time we left the place of incident
Amlibhowna. The witness now says, “Perhaps we left at 8-9 O’
clock. Along with Prakash Tiwari, Sub-Inspector Amit Patle was
also present with me and policemen from other police station were
also present. Two person were going ahead taking the dead body
in an auto-rickshaw, we were following by our bikes.”
PW-9 stated that she went to the place of incident Amlibhauna at
06.00 am from the outpost. It is to be noted that according to the evidence
of PWs 1, 2, 3 and 19, PW-3 informed PW-19 about the incident at
around 06.00 am. The said information was registered in the Rojnamcha
at around 06.10 am. What is stated by this witness is that she went to
Amlibhauna which is a locality. However, that by itself would not be
sufficient to come to a conclusion that the police already knew about the
place from where the dead body was recovered. She stated that she
had left for the hospital at around 08.00-09.00 o’clock. The evidence of
a witness cannot be read in piecemeal. The evidence has to be read as
a whole. If the
evidence of this witness is read as a whole, the attack on
her evidence is not justified. In any case, the recovery of the body on the
information given by the appellant, is duly proved by the memorandum
of the appellant under Section 27 of the Evidence Act (Ex.-P.11) and the
recovery panchnama (Ex.-P.12). That apart, the oral testimony of PWs
1, 2, 3, 5 and 19 corroborates the same.
39. We are therefore of the considered view that the prosecution
has proved beyond reasonable doubt that the recovery of the dead body
of the deceased on the memorandum of the appellant under Section 27
of the Evidence Act, was from a place distinctly within the knowledge
of the appellant.
40. Another circumstance against the appellant is the recovery of
the black jeans half pant of the deceased (Ex.-P.15) from the dumping
area and the gamchha and pillow (Ex.-P.16) from the house of the
appellant. PW-3 is a panch witness to the recovery of black jeans half
pant (Ex.-P.15). He is also a witness to the spot panchnama (Ex.-P.17)
where the worship was conducted. It is further noted that on the
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gamchha seized from the house of the appellant, blood-stains were found.
Much attack has been made by the defence on the ground that the FSL
Report does not connect the appellant with the said blood found on
gamchha. To consider this submission, we may gainfully refer to the
following observations of this Court in the case of R. Shaji v. State of
Kerala10:
“30. It has been argued by the learned counsel for the appellant
that as the blood group of the bloodstains found on the chopper
could not be ascertained, the recovery of the said chopper cannot
be relied upon.
31. A failure by the serologist to detect the origin of the blood
due to disintegration of the serum does not mean that the
blood stuck on the axe could not have been human blood at
all. Sometimes it is possible, either because the stain is insufficient
in itself, or due to haematological changes and plasmatic
coagulation, that a serologist may fail to detect the origin of the
blood in question. However, in such a case, unless the doubt is of
a reasonable dimension, which a judicially conscientious mind may
entertain with some objectivity, no benefit can be claimed by the
accused in this regard. Once the recovery is made in pursuance
of a disclosure statement made by the accused, the matching or
non-matching of blood group(s) loses significance. (Vide Prabhu
Babaji Navle v. State of Bombay [AIR 1956 SC 51 : 1956 Cri
LJ 147] , Raghav Prapanna Tripathi v. State of U.P. [AIR 1963
SC 74 : (1963) 1
Cri LJ 70] , State of Rajasthan v. Teja
Ram [(1999) 3 SCC 507 : 1999 SCC (Cri) 436] , Gura
Singh v. State of Rajasthan [(2001) 2 SCC 205 : 2001 SCC (Cri)
323 : AIR 2001 SC 330] , John Pandian v. State [(2010) 14 SCC
129 : (2011) 3 SCC (Cri) 550] and Sunil Clifford Daniel v. State
of Punjab [(2012) 11 SCC 205 : (2013) 1 SCC (Cri) 438] .)
32. In view of the above, the Court finds that it is not possible to
accept the submission that in the absence of a report regarding
the origin of the blood, the accused cannot be convicted, for it is
only because of the lapse of time that the blood could not be
classified successfully. Therefore, no advantage can be conferred
upon the accused to enable him to claim any benefit, and the
10 (2013) 14 SCC 266
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
[B. R. GAVAI, J.]
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report of disintegration of blood, etc. cannot be termed as a missing
link, on the basis of which the chain of circumstances may be
presumed to be broken.”
41. The next circumstance is the finding of the blood-stains on the
nail clipping of the appellant. PW-8-Kishore Shrivas is a barber. He has
stated that on being called by the police, he cut the nails of both the
hands of the appellant. The said nails were cut under the panchnama
Ex.-P.19, which is signed by the said barber as well as PW-3. The said
circumstance is attacked on the ground that the IO had not called the
forensic team for seizure of the said nails. However, even if this
circumstance is excluded, we find that the other circumstances, which
have been discussed in detail by us in the foregoing paragraphs,
conclusively bring home the guilt of the appellant.
42. The panchnamas are sought to be attacked on the ground that
PW-3 is the only panch witness to all these panchnamas. We are of the
view that this contention deserves no merit in the light of the following
observations of this Court in the case of Himachal Pradesh
Administration (supra):
“10. Further having held this it nonetheless said that there was no
injunction against the same set of witnesses being present at the
successive enquiries if nothing could be urged against them. In
our view the evidence relating to recoveries is not similar to that
contemplated under Section 103 of the Criminal
Procedure Code
where searches are required to be made in the presence of two
or more inhabitants of the locality in which the place to be searched
is situate. In an investigation under Section 157 the recoveries
could be proved even by the solitary evidence of the Investigating
Officer if his evidence could otherwise be believed. We cannot
as a matter of law or practice lay down that where recoveries
have to be effected from different places on the information
furnished by the accused different sets of persons should be called
in to witness them. In this case PW 2 and PW 8 who worked with
the deceased were the proper persons to witness the recoveries
as they could identify some of the things that were missing and
also they could both speak to the information and the recovery
made in consequence thereof as a continuous process. At any
rate PW 2 who is alleged to be the most interested was not present
at the time of the recovery of the dagger.”
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43. We are therefore of the considered view that the prosecution
has established the following circumstances beyond reasonable doubt:
(i)
The victim was reported missing and an FIR was lodged in
this regard;
(ii)
The appellant had claimed that he could disclose the
whereabouts of the victim by performing a worship;
(iii)
The said worship came to be conducted by the appellant in
the early hours of 25th February 2016 in the presence of
PWs 1, 2, 3 and 5 and the appellant disclosed to them that
the dead body of the victim was inside a sack in the bushes
near a pole beside the road in Amlibhauna;
(iv)
A suspicion arose in the minds of PWs 1, 2, 3 and 5 and
they immediately informed the police. The said information
is recorded in Rojnamcha No. 2 under Ex.-P.38;
(v)
Police immediately reached the spot and interrogated the
appellant. On interrogation, a memorandum under Section
27 of the Evidence Act came to be recorded;
(vi)
On the basis of memorandum of the appellant under Section
27 of the Evidence Act, the dead body of the victim (Ex.-
P.12) was recovered from a sack which was concealed by
the appellant under the bushes from a place distinctly within
his knowledge; and
(vii)
On a memorandum of the appellant under Section 27 of the
Evidence Act, a black jeans half pant of the victim (Ex.-
P.15) and a gamchha of the appellant (Ex.-P.16), were
recovered from the dumping area behind D Block in Nagar
Nigam Colony and the house of the appellant respectively.
44.
We are of the considered view that the aforesaid proven
circumstances establish a chain of circumstances, which leads to no
other conclusion than the guilt of the appellant. Apart from that, in the
statement recorded under Section 313 Cr.P.C., though all these
incriminating circumstances have been put to the appellant, he has not
offered any explanation except saying that it is wrong and false. In this
respect, we may refer to the following observations of this Court in the
case of Sharad Birdhichand Sarda (supra):
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
[B. R. GAVAI, J.]
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“151. It is well settled that the prosecution must stand or fall on
its own legs and it cannot derive any strength from the weakness
of the defence. This is trite law and no decision has taken a contrary
view. What some cases have held is only this : where various
links in a chain are in themselves complete, then a false plea or a
false defence may be called into aid only to lend assurance to the
court. In other words, before using the additional link it must be
proved that all the links in the chain are complete and do not
suffer from any infirmity. It is not the law that where there is any
infirmity or lacuna in the prosecution case, the same could be
cured or supplied by a false defence or a plea which is not accepted
by a court.
45. It is trite law that though the false explanation cannot be taken
to complete a missing link in the chain of circumstances, it can surely be
taken to fortify the conclusion of conviction recorded on the basis of the
proven incriminating circumstances. We find that the non-explanation of
the circumstances would fortify the finding, which is based on the chain
of incriminating circumstances that leads to no other conclusion than the
guilt of the appellant.
46. An important aspect arises for consideration in the present
appeals so also in the various other appeals where the accused is not
given an appropriate opportunity of defending the case. In the present
case, we find that the
charges were framed on 6th May 2016. On 6th
June 2016, the accused appeared before the court and submitted that he
was not competent to engage a lawyer at his own cost. As such, the trial
judge appointed Shri Kamlesh Saraf from the Panel as the lawyer to
represent the accused. Immediately on the next day, the evidence of
PWs 3 to 7 were recorded. The trial judge passed the judgment and
order of conviction on 17th June 2016 and also awarded death penalty on
the same day. We find that though a speedy trial is desirable, however,
sufficient time ought to have been given to the counsel for the accused
to prepare for the case after he was appointed. Even insofar as the
award of sentence is concerned, some period ought to have been given
between the date of conviction and the award of sentence, specifically
when a death penalty was awarded. However, from the evidence which
we have scrutinized in depth, we do not find that any prejudice was
caused to the accused inasmuch as the witnesses have been cross-
examined in detail by the lawyer appointed by the court.
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47. That leaves us with the question of sentence. We will have to
consider as to whether the capital punishment in the present case is
warranted or not.
48. Recently, this Court in the case of Mohd. Mannan alias
Abdul Mannan v. State of Bihar11, after considering earlier judgments
of this Court on the present issue in the cases of Bachan Singh v. State
of Punjab12 and Machhi Singh and Others v. State of Punjab13,
observed thus:
“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
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.”
49. This Bench, recently, in the case of Mofil Khan and Another
v. The State of Jharkhand14, has observed thus:
“8. One of the mitigating circumstances is the probability of the
accused being reformed and rehabilitated. The State is under a
duty to procure evidence to establish that there is no possibility of
reformation and rehabilitation of the accused. Death sentence
ought not to be imposed, save in the rarest of the rare cases when
the alternative option of a lesser punishment is unquestionably
foreclosed (See: Bachan Singh v. State of Punjab (1980) 2 SCC
684). To satisfy that the sentencing aim of reformation is
unachievable, rendering life imprisonment completely futile, the
Court will have to highlight clear evidence as to why the convict
is not fit for any kind of reformatory and rehabilitation scheme.
This analysis can only be done with rigour when the Court focuses
on the circumstances relating to the criminal, along with other
11 (2019) 16 SCC 584
12 (1980) 2 SCC 684
13 (1983) 3 SCC 470
14 RP(Criminal) No. 641/2015 in Criminal Appeal No.1795/2009 dated 26.11.2021
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
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circumstances (See: Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra (2009) 6 SCC 498). In Rajendra
Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC
460, this Court dealt with the review of a judgment of this Court
confirming death sentence and observed as under:
“45. The law laid down by various decisions of this Court clearly
and unequivocally mandates that the probability (not possibility
or improbability or impossibility) that a convict can be reformed
and rehabilitated in society must be seriously and earnestly
considered by the courts before awarding the death sentence.
This is one of the mandates of the “special reasons”
requirement of Section 354(3) CrPC and ought not to be taken
lightly since it involves snuffing out the life of a person. To
effectuate this mandate, it is the obligation on the prosecution
to prove to the court, through evidence, that the probability is
that the convict cannot be reformed or rehabilitated. This can
be achieved by bringing on record, inter alia, material about his
conduct in jail, his conduct outside jail if he has been on bail for
some time, medical evidence about his mental make-up, contact
with his family and so on. Similarly, the convict can produce
evidence on these issues as well.””
50. In the present case, it is to be noted that the trial court had
convicted the appellant and imposed death penalty on the very same
day. The trial court as well as the
High Court has only taken into
consideration the crime but they have not taken into consideration the
criminal, his state of mind, his socio-economic background, etc. At this
juncture, it will be relevant to refer to the following observations of this
Court in the case of Rajendra Pralhadrao Wasnik v. State of
Maharashtra15:
“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
15 (2019) 12 SCC 460
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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 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.”
51. In view of the settled legal position, it is our bounden duty to
take into consideration the probability of the accused being reformed
and rehabilitated. It is also our duty to take into consideration not only
the crime but also the criminal, his state of mind and his socio-economic
conditions.
52. The appellant is a young person, who was 23 years old at the
time of commission of the offence. He comes from a rural background.
The State has not placed any evidence to show that there is no possibility
with respect to reformation and the rehabilitation of the accused. The
High Court as well as the trial court also has not taken into consideration
this aspect of the matter. The appellant has placed on record the affidavits
of Leeladhar Shrivas, younger brother of the appellant as well as
Ghasanin Shrivas, elder sister of the appellant. A perusal of the affidavits
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
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[2021] 14 S.C.R.
would reveal that the appellant comes from a small village called Pusalda
in Raigarh district of Chhattisgarh. His father was earning his livelihood
as a barber. The appellant was studious and hard-working. He did really
well at school and made consistent efforts to bring the family out of
poverty. The conduct of the appellant in the prison has been found to be
satisfactory. There are no criminal antecedents. It is the first offence
committed by the appellant. No doubt, a heinous one. The appellant is
not a hardened criminal. It therefore cannot be said that there is no
possibility of the appellant being reformed and rehabilitated foreclosing
the alternative option of a lesser sentence and making imposition of death
sentence imperative.
53. A bench consisting of three Judges of this Court had an occasion
to consider similar facts in the case of Sunil v. State of Madhya
Pradesh16. In the said case too, the appellant-accused was around 25
years of age who had taken away a minor girl. The accused had
committed rape on the said minor and caused her death due to asphyxia
caused by strangulation. The trial court had sentenced the accused for
the offences punishable under Sections 363, 367, 376(2)(f) and 302 of
the IPC and awarded him death penalty. The same was upheld by the
High Court. In appeal, this Court held thus:
“12. In the present case, we do not find that the requirements
spelt out in Bachan Singh [Bachan Singh v.
State of Punjab,
(1980) 2 SCC 684 : 1980 SCC (Cri) 580] and the pronouncements
thereafter had engaged the attention of either of the courts. In the
present case, one of the compelling/mitigating circumstances that
must be acknowledged in favour of the appellant-accused is the
young age at which he had committed the crime. The fact that
the accused can be reformed and rehabilitated; the probability
that the accused would not commit similar criminal acts; that the
accused would not be a continuing threat to the society, are the
other circumstances which could not but have been ignored by
the learned trial court and the High Court.
13. We have considered the matter in the light of the above. On
such consideration, we are of the view that in the present case,
the ends of justice would be met if we commute the sentence of
death into one of life imprisonment. We order accordingly. The
16 (2017) 4 SCC 393
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punishments awarded for the offences under Sections 363, 367
and 376(2)(f) IPC by the learned trial court and affirmed by the
High Court are maintained.”
54. We are also inclined to adopt the same reasoning and follow
the same course as adopted by this Court in the case of Sunil (supra).
The appeals are therefore partly allowed. The judgment and order of
conviction for the offences punishable under Sections 363, 366, 376(2)(i),
377, 201, 302 read with Section 376A of the IPC and Section 6 of the
POCSO Act is maintained. However, the death penalty imposed on the
appellant under Section 302 IPC is commuted to life imprisonment. The
sentences awarded for the rest of the offences by the trial court as
affirmed by the High Court, are maintained.
55. Before we part with the judgment, we must appreciate the
valuable assistance rendered by Shri Anand Grover, learned Senior
Counsel appearing on behalf of the appellant and Shri Nishanth Patil,
learned counsel appearing on behalf of the respondent-State.
Devika Gujral
Appeals partly allowed.
LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH
[B. R. GAVAI, J.]