Uttarakhand High Court

Unknown vs State Of Uttarakhand on 21 May, 2024

Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE MR. JUSTICE ALOK KUMAR VERMA

Reserved on : 14.05.2024
Delivered on : 21.05.2024

CRIMINAL REFERENCE NO. 01 OF 2021

In the matter of capital punishment
awarded to Harswroop ...... Appellant

Versus

State of Uttarakhand ...... Respondent

WITH

CRIMINAL JAIL APPEAL NO. 17 OF 2021

Harswaroop ...... Appellant

Versus

State of Uttarakhand ...... Respondent

WITH

CRIMINAL JAIL APPEAL NO. 21 OF 2021

Pappu ...... Appellant

Versus

State of Uttarakhand ...... Respondent

WITH

CRIMINAL JAIL APPEAL NO. 22 OF 2021

Roopwati ...... Appellant

Versus

State of Uttarakhand ...... Respondent
Presence:-

Mr. J.S. Virk, learned Deputy Advocate General with Mr. Rakesh
Kumar Joshi, learned Brief Holder for the State of Uttarakhand.

Mr. Arvind Vashistha, learned Amicus Curiae assisted by Mr. Vivek
Pathak and Ms. Disha Vashistha, learned counsel for accused
Harswroop in criminal reference No. 01 of 2021, as well as in
Criminal Jail Appeal No. 17 of 2021.

Ms. Pushpa Joshi, learned Senior Counsel assisted by Mr. S.R.S. Gill,
learned counsel for accused / appellants Pappu and Roopwati in
Criminal Jail Appeal No. 21 of 2021 & CRJA No. 22 of 2021.

The Court made the following:

JUDGMENT:
(per Hon'ble the Chief Justice Ms. Ritu Bahri)

The present Reference has been sent by

the Court of Additional Sessions Judge / FTC / Special

Judge (POCSO), Udham Singh Nagar, under
Section 366

of the Code of Criminal Procedure, 1973, for affirmation

of the sentence of death awarded by said court against

the convict Harswroop under
Section 302
IPC. Aforesaid

convict has been further convicted under
Section 364

IPC and sentenced to rigorous imprisonment for a period

of seven years and also directed to pay fine of Rs.

5,000/-. He was also convicted under
Section 201
IPC,

and sentenced to rigorous imprisonment for a period of

six years and directed to pay fine of Rs. 5,000/-. The

convict was further sentenced under Section 6 of the

POCO Act, and sentenced to imprisonment for life along

with a fine of Rs.10,000/-. Convicts Pappu and Roopwati
were, however, acquitted of the charge of offence

punishable under
Section 16
/
POCSO Act. Convict

Pappu and Roopwati were both convicted under
Section
IPC, and sentenced to rigorous imprisonment for a

period of four years and three years, respectively, along

with a fine of Rs. 5,000/- each, vide judgment and order

dated 06.03.2021, passed by Additional Sessions Judge /

FTC / Special Judge (POCSO), Udham Singh Nagar, in

Special Sessions Trial No. 104 of 2019. Against said

order, criminal jail appeals have also been filed by all the

three convicts.

2) Prosecution story, in brief, is that a complaint

(Ext. A-1) was made on 21.02.2019, at 1.20 hours, by

the father of the victim to the In-charge Police Station,

Transit Camp, District Udham Singh Nagar, stating

therein that on 19.02.2019, at about 05:00 hours, his

son was playing on the roof. After sometime, when his

wife went to bring him he was not there. Victim was

searched at all probable places but could not be located.

Thereafter, an FIR (Ext. A-10) to this effect was

registered against unknown person in the police station

under
Section 365
IPC.
3) Investigation was given to S.I. Jitender

Kumar, and during investigation an application (Ext. A-

2) was given to the In-charge Police Station, Transit

Camp by father of the victim stating therein that he and

his family members were searching their missing child

whose missing report is lodged in the police station.

Father of the victim, his relatives and the neighbours

were searching, but their neighbour Harswroop, Pappu,

Pawan and Roopwati were not cooperating in the search.

In the night there was a noise on the roof and when he

and his relatives went there they found Harswroop near

the water tank and trying to open the tank. When they

tried to catch Harswroop, he pushed them and ran into

his house. When they called him and tried to get his

door open, he did not come out and his family started

hurling abuses. It is further stated in the application

that if strict inquiry be conducted against them, then

information about his missing son could be received.

4) During investigation the dead body of the

missing child was found from the house of accused

Harswroop, and the three accused persons namely,

Harswroop, Pappu and Roopwati were arrested and

arrest memos (Ext. A-15, Ext. A-16 and Ext. A-17) were

prepared. The recovery of the body of victim was made
and recovery memo of dead body (Ext. A-14) was also

prepared. The clothes of the child were also recovered

and recovery memo (Ext. A-18) thereof was prepared.

Panchayatnama (Ext. A-5), photo lash (Ext. A-6) were

prepared and the body was sent for postmortem

examination, and police form No. 13 (Ext. A-7) was

prepared thereof. Sample of seal (Ext. A-8) was

prepared, and samples prepared and handed over by the

Medical Officer were sent to F.S.L. Dehradun. The

postmortem report (Ext. A-3) was collected and the

body of the deceased victim was handed over to his

parents. The police also collected other evidences, and

prepared site plan (Ext. A-26), recorded the statements

of the father of deceased victim and other witnesses.

5) During investigation, statement of accused

Harswroop was recorded under
Section 161
Cr.P.C., in

which the accused stated that he is a mason and

addicted to drug. He is the son of his father's first wife.

He further stated that on 19.02.2019, the son of his

neighbour was playing on the roof. The child was dumb.

After seeing him he had bad intention so he enticed and

took the child to his room where he did kukarm

(unnatural act) with the child. When the child cried, the

accused closed his mouth to keep him quite. After two
hours, he again did unnatural act with the child, when

the child insisted to go out accused pressed his mouth,

and as a result of suffocation the child died, and stool

came out in his payjama. Being frightened, the accused

hid the body in his room. He kept the body in a jute bag

and in an attempt to dispose it in the water tank on the

roof top, a brick fell down, and hearing such noise family

members of the deceased victim wake up. When the

accused brought the body in the room his family

members noticed it, then he disclosed everything to

them. His family members also helped him in hiding the

body. The other accused namely, Pappu and Roopwati

also stated that on noticing Harswroop carrying the body

of the deceased victim, they got frightened and helped

him in hiding the body. Before the Magistrate, accused

Harswroop made his confessional statement under

Section 164
Cr.P.C. He was informed by the Magistrate

that he is not bound to make the confessional

statement. As per the Magistrate, the entire statement

was given voluntarily.

6) During investigation P.W.10 Vidhya Dutt

Joshi, I.O. of the case, recorded the statements of the

informant and other witnesses, inspected the place of

occurrence, prepared site plan, arrested all the accused,
prepared panchayatnama, and sent the dead body of the

deceased victim for postmortem examination. After

completion of investigation, P.W.10 submitted charge

sheet (Ext. A-27) against accused Harswroop before the

court under
Section 364
,
,
,
IPC and under

Section 5
/
of POCSO Act; and against accused persons

Pappu and Roopwati under
Section 201
IPC and
Section
/
of POCSO Act. Charge sheet was also filed

against co-accused Pawan, who was later declared to be

juvenile by the court on 29.07.2019, and further trial

was to be conducted by the Juvenile Justice Board. All

the accused were heard on point of charge. The Court

after hearing the prosecution as well as the defence,

framed charges under
Section 364
,
,
,
of

IPC, and
Section 5
/
POCSO Act against the accused

Harswroop, while against accused person Pappu and

Roopwati charges under
Section 201
IPC and
Section
/
POCSO Act were framed. All of them pleaded not

guilty and claimed to be tried.

7) As many as 11 prosecution witnesses were

examined. P.W.1 (father of deceased victim /

complainant); P.W.2 (maternal uncle of deceased);

P.W.3 (mother of deceased victim); P.W.4 (cousin

brother of complainant); P.W.5 Dr. Nagender Singh,
Medical Officer (who conducted the postmortem

examination); P.W.6 S.I. Harvinder Kumar; P.W.7

Constable Hemraj Singh, P.W.8 S.I. Jitender Kumar,

P.W.9 Rashid Ahmed (Govt. officer who proved the age

of the deceased victim), P.W.10 Vidhya Dutt Joshi (I.O.

of the case) and P.W.11 Dr. Rajeev Kumar (Medical

Officer who conducted medical examination of accused

Harswroop).

8) The prosecution also submitted documentary

evidence viz. Tahrir (Ext. A-1), Application dated

21.02.2019 (Ext. A-2), postmortem report (Ext. A-3),

letter to CMO by the SI (Ext. A-4), Panchayatnama

(Ext. A-5), photo lash (Ext. A-6), challan of dead body

(Ext. A-7), specimen seal (Ext. A-8), ravangi of

panchayatnama (Ext. A-9), copy of FIR (Ext. A-10),

copy of G.D. (Ext. A-11), memo of recovery of body

(Ext. A-14), arrest memos of accused persons (Ext. A-

15, Ext. A-16, Ext. A-17), site plan (Ext. A-26), memo

taking into possession the clothes (Ext. A-18), and

medical examination report of accused Harswroop (Ext.

A-29).

9) Statements of the accused persons were

recorded under
Section 313
Cr.P.C. Accused
Harswroop retracted from his confessional statement

made before the learned Magistrate and stated that it

was made under police pressure. Accused Pappu and

Roopwati also stated that the evidence adduced by

prosecution against them was false.

10) P.W.9 Rashid Ahmed, Asstt. Development

Officer, Panchayat, Vikas Khand Amariya, District

Pilibhit (U.P.) was summoned by the Court for proving

the age of the deceased victim. The birth certificate

issued by the A.D.O., Block Amariya, District Pilibhit,

U.P. was released on 08.05.2019, in which the date of

birth of the deceased was entered as 11.06.2012, along

with the names of father and mother. This birth

certificate of the deceased was issued online by the Jan

Sewa Kendra, Amariya, Pilibhit, U.P. P.W.9 also

produced the online application form in original bearing

signatures of A.D.O. Amariya, which was marked as

Ext. A-25. Hence, keeping in view the date of birth

11.06.2012, the age of the deceased victim was 07

years on the date of incident, i.e., 19.02.2019, and no

objection was raised with respect to the age of the

deceased victim. The trial court thereafter proceeded

to examine the oral and documentary evidence.
11) The material fact witnesses are P.W.1, P.W.2,

P.W.3 and P.W.4, who are all family members of the

deceased victim, i.e., father, maternal uncle, mother

and cousin of the complainant / P.W.1.

12) As per the consistent evidences given by all

these witnesses the deceased victim was not able to

speak, and his age was 7 years. On 19.02.2019, the

victim disappeared while playing in the evening on the

roof. P.W.2 is the maternal uncle of the victim, and he

was given this information by P.W.1, father of the

victim. P.W.2 came to his sister's house at Rudrapur.

The victim was searched everywhere after he went

missing. Harswroop, Pappu, Pawan and Roopwati used

to live in the neighbourhood of P.W.1. Accused

Harswroop was a drug addict. The family of Harswroop

was stealing eyes from them and did not cooperate in

the search of the child. In the night of 21.02.2019,

P.W.1 and his family members heard some noise on the

roof top. When all of them went to the roof, they saw

accused Harswroop opening the lid of the water tank

kept on the roof top. When Harswroop was called by

them, he ran away to his house, and started hurling

abusing. This raised a doubt in the minds of above said

witnesses, and this information was given to the Police
Station, Transit Camp. On 21.02.2019, the police took

them along with the accused. Police told them that

accused Harswroop wanted to give some information

about the missing child. After this P.W.1, P.W.2 and

the accused Harswroop proceeded with the police to

the house of accused. They went towards the main

gate of the house and opened the gate. The father,

mother and brother of the accused Harswroop were

present in their house. Accused Harswroop moved

towards the right side of his room and removed a

blanket lying there. From beneath the blanket he took

out a jute bag of khaki colour, opened its mouth and

told that this is the deceased body, who was murdered

by him by throttling his neck after doing duskarm and

the naked body was hidden by him there. He told that

Roopwati and Pawan helped him in hiding the body.

The dead body was identified by P.W.1,

father of the deceased victim. The police in their

presence took the body out from the bag, examined it

and found that there were finger impression on the

neck and stool was coming out of the anal region. The

tongue of the deceased was protruding out. Near the

body of the deceased there were his clothes and the

slippers which were soiled with stool. On 21.02.2019,
at about 12-12:30 hours, the police prepared the

panchnama. Signatures were taken of P.W.1 and

P.W.2 on paper No. 3Ka/36 to 3Ka/38. The accused

Harswroop was caught on the spot by the police and a

memo (Ext. A-14) of the recovered body was prepared.

Police took possession of the clothes of the deceased,

which include one brown colour jacket, blue lower, a

red and black colour checked shirt, one pair of slippers,

brown colour underwear and a white baniyan. All these

articles were sealed in a white cloth. The jute bag from

which the naked body of the victim was recovered was

also sealed. The sealed packet was marked as Material

Ext. A-8 and the jute bag as Material Ext. A-9.

13) All the four witnesses were cross-examined

by the defence, and their version given in their

examination-in-chief remained consistent.

Medical evidence

14) P.W.5 Dr. Nagender Singh, who was posted

as Medical Officer on 21.02.2019, stated that on that

day in the evening at about 5.00 hours, he along with

Dr. R.D. Bhatt conducted the postmortem of the

deceased, aged 07 years, who was brought in white

stitched, sealed and stamped cloth. The dead body
was identified by Constable Neeraj Shukla and Kuldeep

of P.S. Transit Camp, Rudrapur, District Udham Singh

Nagar.

15) On conducting postmortem it was found that

the rigor mortis has after coming on the upper, lower

portion of the deceased had passed off from the neck

region of the deceased. From the external examination

of the body it was found that the muscularity was

average. The eyes of the deceased were closed and

shrinked. The tongue was protruding outside. During

postmortem, following ante mortem injuries were found

on the body of the deceased :

Injury No. 1 A scratch mark on the right side of
the neck and 4 x 2 cm in length just
below the right jaw.

Injury No. 2 A scratch mark on the left side of the
neck and 3 x 2 cm in length just
below the jaw.

Injury No. 3 A scratch mark measuring 10 x 5 cm
on the right side of stomach and just
above the hip bone.

Injury No. 4 A scratch mark measuring 2 x 0.5 cm
in size on left and outer side of
stomach just above the Illise crest
(Hip Bone).

Injury No.5 A scratch mark measuring 4 x 3 cm in
size just above the back over medal
to left forearm. (The Y on the back
was in line with the forearm).
16) On examination of the anal portion of the

dead body the panel of doctors found that the outer

area of anal passage was 4 cm and the anal canal

depth was 6 cm and broadened. It was visible easily.

The stool was present on the outer area of the anal

canal and outside the anal some hairs were present.

The colour of the nails, face, mouth and the ears (lower

soft part) colour was bluish. The tongue was

protruding outside the mouth. As per the opinion of

panel of doctors, the death of the deceased child was

about 36-42 hours ago, and the cause of death of the

deceased was due to asphyxia as a result of ante

mortem strangulation. The postmortem report was

marked as Ext. A-3. The postmortem report was

signed by Dr. R.D. Bhatt, who was another panel

doctor, in the presence of P.W.5 Dr. Nagender Singh.

17) P.W.5 further stated that blood sample was

taken for DNA test of accused Harswroop by Senior

Pathologist of District Hospital, Rudrapur on FTA card,

which was sealed and stamped. Application in this

regard was made before the court for collection of the

blood sample for DNA test of accused Harswroop, and

the same was marked as paper No. 3Ka/4. On

14.03.2019, the blood sample of accused, case
property for examination was send with the permission

of the court by special messenger Constable Devender

Singh to FSL Dehradun. The above report was marked

as paper No. 3Ka/55 to 3Ka/57.

18) The medical examination of the accused

Harswroop was done by P.W.11 Dr. Rajeev Kumar,

Orthopedic surgeon at L.D. Bhatt, Hospital, Kashipur,

who was posted as EMO in Jawahar Lal Nehru Hospital

on 21.02.2019. P.W.11 stated that on medical

examination of the accused it was found that the colour

of the glans penis was reddish especially base of glans

penis was red, pubic hair present. In the opinion of

P.W.11 the penis glans will be reddish when some

forceful act is done. At about 2.10 afternoon, this

witness did the medical examination of the accused and

prepared the medical report on which the left hand

thumb impression of the accused was taken. The

paper no. 3 Ka/24 i.e. medical report of the accused is

in the file and in the handwriting of this witness, on

which there is the stamp of the hospital and after

identification the same was marked as Ext. A-29.

On cross-examination, P.W.11 deposed that

the redness on the penis of the accused could have

been 24 to 48 hours. There was no scratch mark.
There was no smegma present on the penis. When

there is redness there is no smegma. The injury on the

private part of the victim was also deposed by P.W.11.

Police witnesses

19) The prosecution examined P.W.6 S.I.

Harvinder Kumar, P.W.7 Constable Hemraj Singh,

P.W.8 S.I. Jitender Kumar and P.W.10 S.H.O. Vidhya

Dutt Joshi. All the above said prosecution witnesses

deposed with respect to the registration of the FIR No.

30 of 2019 under
Section 365
IPC of the missing of

child. Thereafter on 21.02.2019, on the information

given by accused Harswroop to P.W.8 S.I. Jitender

Kumar, the body of the deceased and his clothes were

recovered. After said recovery the investigation of the

case was further made in respect of offences

punishable under
Section 302
,
,
,
IPC and

Section 5
/
and
/
of POCSO Act. Panchnama of

the deceased was done by P.W.6 S.I. Harvinder Kumar

on the spot. Accused Harswroop, Pappu and Roorwati

admitted the offence. Postmortem of the deceased was

conducted by a panel of doctors, who opined that the

cause of death was due to asphyxia as a result of ante

mortem strangulation. The unnatural act committed
with the victim was also reflected from the postmortem

examination.

20) On 22.02.2019, for getting the statement of

the accused recorded under
Section 164
Cr.P.C. an

application (paper No. 30Ka/3) was presented before

the court, where on the same day, the statement was

recorded by Judicial Magistrate, Rudrapur. Paper No.

3Ka/1 is the statement of confession of the accused

Harswroop. Another application in the file is (paper No.

3ka/2).

On 22.02.2019, the site plan of the recovery

was prepared which is paper No. 3ka/32, marked as

Ext. A-26. On 24.02.2019, the statement of the memo

witness and grandfather of the deceased were

recorded. On the same day the witnesses of the memo

panchan and the panchnama witness Manoj Gupta and

the S.I. who did the proceedings of the panchnama

statement were recorded. Panchnama witnesses stated

about the grievous offence done by the accused and

that the body of the deceased was recovered from the

house of the accused.

21) Photographs of the deceased victim were

kept on record which are Material Ext. 10, 11, 12 and
14. On 27.02.2019, the police officer, who did the

proceedings of the panchnama statement, received the

panchnama report of the deceased. The police

witnesses also deposed that on 11.03.2019, the

statements of a panel doctor Dr. Nagender Singh were

recorded. The doctor stated of the unnatural act, the

enlarged anal, injury on the adjoining area of the anal

and the murder done by throttling of the neck of the

victim. On the same day, an application paper No.

3Ka/4 was made before the court to collect the blood

sample for DNA test of the accused Harswroop. On

13.03.2019, Sr. Pathologist of District Hospital

Rudrapur took the sample on the FTA card which was

sealed and stamped. The statement of panel doctors

Dr. R.D. Bhatt and Dr. Nagender Singh were recorded.

On 14.03.2019 the blood sample of the

accused, case property for examination was sent with

the permission of the court to FSL, Dehradun. On the

same day statement of P.W. 11 Dr. Rajeev Kumar, who

had done the medical examination of the accused

Harswroop was also recorded.

P.W.11 in his statement stated that during

the medical examination, he found the mouth of the

private part of the accused open and reddish, the
description of which was made in medical report (Ext.

A-29) of the accused. He proved the medical report

which was in his handwriting.

22) On 20.03.2019, constable Devendra Singh

submitted the case property to FSL Dehradun which is

entered as Sl. No. 559/19 and the receiving receipt

3Ka/61 to 3Ka/62 bears the FSL Dehradun's seal. On

06.04.2019, majid statement of the complainant and

his wife were recorded at their residence. On

16.04.2019, the statement of the memo witnesses

Umesh Pant, constable Raj Kumar, Kuldeep, Neeraj

Shukla were recorded.

23) The evidence of all the above police

witnesses was that they had gone with accused

Harswroop, along with the complainant, on 21.02.2019

to his house where he got the dead body of the victim

recovered from his room from a jute bag. Recovery

was done in the presence of witnesses. After recovery

of the dead body information was immediately given to

the senior officials and to the forensic team, and

panchnama (Ext. A-5) was prepared. These witnesses

also proved all the recoveries as enumerated above.
24) The lower court had examined the above said

evidence with respect to arrest of the accused and

recovery from his possession. Accused Harswroop was

arrested on 13.30 hours from his house as per Ext. A-

15. Hence, the plea taken by the defence that he was

arrested from the fish market, near Govind Temple is

against the above said evidence. The arrest of accused

persons Pappu and Roopwati was made after the

recovery of body of the deceased under
Section 27
of

the Indian Evidence Act, and memos thereof were

prepared as Ext. A-16 and Ext. A-17, respectively.

On the basis of suspicion as raised in

application (Ext. A-2), submitted by P.W.1, and taken

by the Investigating Officer which is also a custody

since the information gathered at the time was

confirmed subsequently by the recovery of the jute bag

Mat. Ext. 10, which contains the dead body of deceased

whose photographs were on record as Mat. Ext. 11 and

Mat. Ext. 12. Accused Harswroop was in custody of the

police before his actual arrest was made vide arrest

memo (Ext. A-15). As per the evidence given by P.W.8

S.I. Jitender Kumar, accused Harswroop was

continuously with police after he was found in the fish

market near Govind Temple [Ext. A-15 (paper No.
3Ka/20)]. The recovery of the dead body was made

when accused Harswroop was in the custody of the

police under
Section 27
of the Indian Evidence Act and

after the recovery he has to be taken in the custody by

the police officer.

25) The lower court made reference to the

judgment rendered by the Supreme Court in
State of

U.P. Vs Deoman Upadhayaya
, AIR 1960 SC 1125, and

Aghno Nagesia Vs State of Bihar, AIR 1966 SC 119,

where the Supreme Court has held that where the FIR

is given by the accused to the police officer that he had

committed the murder then
Section 27
of the Act

serves as an exception to
Section 25
of the Indian

Evidence Act and assumes that the accused to be in

constructive custody of the police and has admitted the

information relating to the recovery of bodies and the

weapon. Under
Section 27
of the Indian Evidence Act,

custody does not mean formal custody but includes any

surveillance or restriction by police which is more

relaxing in the present case as the accused has himself

willingly stated about his involvement in taking of the

victim to his room, doing unnatural act with him and

committing murder.
Further accused Pappu and Roopwati were

also arrested after the dead body of deceased was

recovered at 11.45 hours, and accused Roopwati was

arrested after a lady Sub Inspector was called.

Hence, the proceedings have been correctly followed

while recovering the dead body, taking accused

Harswroop into custody, and arresting Pappu and

Roopwati. Finally, the final opinion taken by the lower

court was that since the recovery of deceased victim's

dead body (Ext. A-14) and the clothes (Ext. A-18) was

made fulfilling all the legal provisions and requirements

of
Section 27
of the Indian Evidence Act, as per the

judgment of
Anter Singh Vs State of Rajasthan
(2004)

10 SCC 657, the same is relevant and admissible in

evidence.

26) P.W.8 had deposed that the dead body of

victim was taken out of the jute bag and P.W.1, father

of the deceased child, started crying. The prosecution

has led all evidence with respect to the identification

and description of the recovered body, and how the

body was recovered, sealed and sent for postmortem

examination, and panchnama (Ext. A-5) of the

deceased was prepared by P.W.6 S.I. Harvinder in the
presence of the Panches, which is paper No. 3Ka/36 to

3Ka/38 on record.

Kidnapping under
Section 364
of IPC

27) As per the deposition given by P.W.1 , P.W.2

and P.W.3 in the court the deceased victim was playing

on the roof and subsequently recovery (memo Ext. A-

14) of the body of the victim from the room of the

accused Harswroop was identified by the witnesses at

the time of preparation of inquest report (Ext. A-5).

Hence, the offence punishable under
Section 364
IPC

was made out against accused Harswroop.

Offence under
Section 377
IPC and 5/6 of POCSO Act

28) As far as kidnapping is concerned, the

offence was made out against accused Harswroop as

discussed above. With respect to the offence under

Section 377
IPC, the panel of doctors prepared the

swab collected during postmortem and sent it to F.S.L.,

Dehradun. P.W.11 Dr. Rajeev Kumar has also

examined the accused on 21.02.2019, who in his cross-

examination stated that there was redness on the penis

which appears within 24-48 hours. There were no

scratch marks. There was no smegma present on the

penis. When there is redness there is no smegma

present. P.W. 11 further deposed in his examination-
in-chief that the penis glans is reddish when it is used

to do some work forcefully.

29) Apart from the evidence adduced by P.W.5

Dr. Nagender Singh and P.W.11 Dr. Rajeev Kumar with

respect to the offence of unnatural act, the FSL report

No. FSL-571(Bio)-914 (DNA) dated 10.06.2019 (Ext. A-

28) reveals that the following exhibits were prepared

by P.W.6 S.I. Harvinder Kumar at the time of sending

the same to F.S.L. for examination :

Parcel No. Description of Exhibits
1 Exhibit-1 Anal Swab of deceased
Exhibit-2 Hair of deceased
2 Exhibit-3 Hair of accused
3 Exhibit-4 Blood sample of accused on FTA card
(reference DNA sample)

Result of the examination for examination of the semen
and blood

1. Semen could not be detected on Exhibit-1 and 2

2. Human blood could not be detected on Exhibit-2

Result of DNA Examination

1. The DNA test was performed for Exhibit -1 and 4

2. The alleles were amplified at each loci to obtain the
DNA profiles of the sources of Exhibits -1 & 4

3. The DNA profile obtained from the Exhibit-1 (anal
swab of deceased) is from a single male human
source and not matching with the DNA profile
obtained from the Exhibit-4 (blood sample of
accused)
CONCLUSION
The DNA test performed on the exhibits provided is
sufficient to conclude that, the DNA obtained from the
Exhibit-1 (anal swab of the deceased) is from a single
male human source and not matching with the DNA
obtained from the exhibit-4 (blood sample of the
accused).

30) Nothing material has come in the FSL report

to show that accused had sodomized the deceased

victim, but
Section 377
of IPC stipulates there must be

penetration to constitute the carnal intercourse. The

postmortem report (Ext. A-3), paper No. 3Ka/43 was

silent with respect to any injury caused in or around

the anal region of the deceased victim. Reference was

made to the Modi's Medical Jurisprudence where it has

been observed that there can be less or no injury when

for the offence of 377 of
IPC
one is consenting or

major.

The deceased, in the present case, was

neither a major nor consenting. However, as per the

deposition of P.W.5 the outer area of anal passage was

4 cm and the anal canal depth was 6 cm and

broadened, it was visible easily. Hence the court

proceeded to discuss what can be the reason of

broadening of the anal canal. Hence the court

observed that it was difficult to recourse to the fact that
such an observation made at the time of medical

examination and the deposition of P.W.5 was a

consequence of the act done by the accused

Harswroop. Again, reference was made to the evidence

adduced by P.W.11 Dr. Rajeev Kumar, who had

examined the accused Harswroop. As per P.W.11,

there was redness found on the private part of accused

Harswroop during medical examination, after his arrest.

It transpires that the reason for the absence of

smegma was due to some forceful action. Since

redness was found on the private part of accused

Harswroop during medical examination, it could be a

clinching evidence as per the deposition made by this

witness. As per this witness the reason probably would

be that accused Harswroop could have exercised force

at some time other than when he was with the

deceased child. The victim was missing from

19.02.2019, the accused Harswroop was medically

examined on 21.02.2019 at 2.10 hours in the afternoon

which is soon after the commission of crime. As per,

P.W.11 the redness caused due to the force used by

the accused was soon after the commission of crime.

This was a probability that such a force caused the

redness and absence of smegma from the private part
of accused Harswroop. The accused failed to give any

evidence that how this redness came after missing of

the child and no evidence was led to prove his

availability at some other place. Failure to lead any

such evidence that he was elsewhere when the child

was went missing, the case of the prosecution has to

be taken more favourably.

31) Another fact which the lower court took into

account was that the body of the deceased was found

in a naked condition in the jute bag, and the body was

recovered from the room of the accused Harswroop.

The clothes of the victim were also recovered from the

room of the accused Harswroop (Ext. no. 18). This fact

was further stated by accused Pappu and Roopwati in

their statement recorded under
Section 313
Cr.P.C.,

and with respect to the recovery of the dead body in

naked condition and the clothes of the deceased

recovered from the room of accused Harswroop, a

strong presumption about the occurrence of offence

under
Section 377
IPC was made out. Harswroop used

less force due to which noticeable injury was not found

during postmortem. Hence the lower court came to the

conclusion that Harswroop used less force and due to

which no injury was found during postmortem.
The victim was only 07 years of age, and the

marks of injury Nos. 1, 2, 3 and 4 found on the body of

the deceased during postmortem examination was a

living example of the situation in front of the eyes that

some resistance was offered when the accused was

trying to make victim his prey. It is unusual for the

accused to grasp in his hand the neck of the deceased

victim while committing sodomy.

32) Apart from the above evidence which clinches

that the body of the deceased victim was found in a

naked condition from the room of Harswroop, and the

injury marks found during postmortem also confirms

that the deceased had offered resistance while the

accused was committing crime under
Section 377
IPC.

In the above background, the statement given by the

accused under
Section 164
Cr.P.C. before the

Magistrate confessing his crime, and statement under

Section 161
Cr.P.C., and as per the photograph Mat.

Ext. 12 (paper No. 3Ka/60) of the deceased victim, the

stool coming out was visible. All these facts show that

the unnatural act was committed with the victim before

his death. Since the age of the victim was below 12

years, the offence under
Section 5
of POCSO Act which

defines aggravated penetrative sexual assault is also
made out, keeping in view the fact that the offence

punishable under
Section 377
IPC is proved beyond

reasonable doubt against the accused Harswroop.

33) After the amendment in the
POCSO Act
, even

if body of the victim is touched it amounts to

penetrative sexual assault, when the victim is under 12

years of age
Section 5(m)
of the POCSO Act is

attracted. Since the body of the deceased victim was

found in a naked condition, a presumption under

Sections 29
and
of the POCSO Act, of existence of

culpable mind and offence to have occurred is also

made out.

Offence under
Section 302
of IPC

34) As discussed in the preceding paragraphs of

the judgment that accused Harswroop in his confession

statement made under
Section 161
Cr.P.C. stated that

he did unnatural act and thereafter committed murder

of the victim by pressing his neck through his right

hand when the victim started crying and insisted to go

outside. Accused committed the murder of the victim

with a fear of being caught. In his confession

statement under
Section 164
Cr.P.C. also, accused

Harswroop reiterated the story of committing murder of

the victim and the fact of committing rape on him again
after his death. Accused also stated that he moved the

clothes of the victim kept them aside, covered the body

with a blanket and went to sleep. He admitted his

offence. Accused even hid the dead body of the victim

in a jute bag in order to dispose it off at an appropriate

time. It was the fear in his mind which does not allow

him to move out and cooperate in the ongoing search

of the missing victim. The confessional statement

given by Harswroop under
Sections 161
and
Cr.P.C., and thereafter recovery of the dead body at

his instance was evidence sufficient enough to hold that

these statements of the accused to the police is barred

by limitation of
Section 25
of the Indian Evidence Act,

while it does not apply on
Section 27
of the Act.

Based on these confessional statements inference can

safely be drawn that the accused had every intention to

entice away the victim to his room for fulfilling his

sexual desire. This is further corroborated by the fact

that both the families had no enmity and they were

neighbours, as had come in the statement of all the

accused persons recorded under
Section 313
Cr.P.C.

Accused Harswroop did not adduce any evidence to

contradict the prosecution evidence, apart from making

a statement that it was a false case against him. The
statement recorded under
Section 313
Cr.P.C. can not

be relied upon to shake the credibility of the

prosecution story.

Finally, the evidence adduced by P.W.5 are

fully corroborated by the postmortem report (Ext. A-3)

that cause of death of the victim was due to asphyxia

as a result of ante mortem strangulation, and the death

had occurred 30-40 hours before the postmortem.

Hence, the cause of death after the dead body was

recovered was due to asphyxia as a result of ante

mortem strangulation, and strong presumption can be

drawn that the death of the victim was not natural, but

it was a homicidal death. Keeping in view the above

facts, the court below rightly came to the conclusion

that offence punishable under
Section 302
IPC was

clearly made out against accused Harswroop.

Offence
u/s 201
of IPC against all the accused

35) The dead body of the deceased was

recovered from the room of accused Harswroop hidden

in a jute bag, and said fact is in the knowledge of his

parents viz. accused Pappu and Roopwati, which amply

indicates that he and his family members were in an

opportunity to dispose off the dead body in order to

cause disappearance of the evidence. The recovery of
the dead body, seizure memo (Ext. A-14), photographs

filed as Mat. Exts. 11 & 12, and the clothes recovered

(Ext. A-18) from the room of accused Harswroop which

was in his possession proves the case of the

prosecution beyond reasonable doubt under
Section
IPC against the accused Harswroop.

Other accused persons Pappu and Roopwati

in their statement under
Section 313
Cr.P.C. stated

that clothes of the deceased victim were recovered

from the room of Harswroop. They admitted it since

both the accused Pappu and Roopwati were living with

accused Harswroop in the same house, and there was

no specific denial about the commission of the offence.

Both of them expressed their consent in words

regarding investigation done against accused

Harswroop to be correct.

With respect to the offence punishable under

Section 201
IPC, it has come on record that both the

accused Pappu and Roopwati were labourers and they

used to go for work everyday in the morning and used

to return back in the late evening. They knew nothing

about the offence. They did not aid the accused

Harswroop in any way, but they played a role in order

to save their son Harswroop and helped him in
disappearance of the evidence. Hence, the case of the

prosecution on this count against accused persons

Pappu and Roopwati is also proved beyond reasonable

doubt.

However, prosecution led no evidence to

prove the case under
Section 16
/
of POCSO Act

against accused Pappu and Roopwati and, hence the

charge under
Section 16
/
of POCSO Act was not

proved against them.

36) Thus, the court below after hearing counsel

for the parties, came to the conclusion that the

prosecution was successful to prove its case beyond

reasonable doubt against accused Harswroop in respect

of offences punishable under
Section 364
,
,
of

IPC, and the one under
Section 5
/
of POCSO Act, and

after conviction, sentenced him accordingly. Similarly,

the court below also came to the conclusion that

prosecution has successfully proved charge for the

offence punishable under
Section 201
of IPC against

the accused persons namely, Pappu and Roopwati, and

after convection, sentenced them accordingly.
)
The present case
is based on circumstantial

evidence, and reference can be made to the case of

Sharad Birdhichand Sarda Vs State of Maharastra,
AIR 1984 SC 1622, wherein the Supreme Court has

laid down the following tests which have to be

followed before conviction has to be recorded in cases

which are based on circumstantial evidence. The

same read as under :

(a) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.

The circumstances concerned 'must or should'
and not 'may be' established;

(b) 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;

(c) tendency; The circumstances should be of
conclusive nature and

(d) They should exclude every possible hypothesis
except the one to be proved; and

(e) 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.

38) As per evidence collected by the

prosecution the following facts came to light. The

same are enumerated as under:

(1) the house of the complainant and that of the
accused persons is adjacent to each other as
per the site plan (Ext. A-26). Accused
Harswroop in his statement recorded under
Section 313
Cr.P.C. also stated that P.W.1
(complainant) was his neighbour. In the site
plan the house of the complainant was shown
as the house of Roshan Lal (landlord), in which
the complainant was staying, and the same
was shown adjacent to the house of the
accused.

(2) On 21.02.2019, at about 09.05 hours, an
application (Ext. A-2) was given by P.W.1 in
the police station alleging the role of accused
Harswroop, Pappu, Roopwati and Pawan
(declared juvenile). It was stated by P.W.1
that in the night, he heard some noise on the
roof, when he reached there along with his
family members, he saw accused Harswroop
trying to open the lid of the water tank. When
P.W.1 shouted, Harswroop rushed to his house
through the staircase and this raised a
suspicion in the mind of P.W.1 and he
immediately made a complaint (Ext. A-2) with
the police station doubting the role of accused
Harswroop with respect to his child went
missing. This complaint was made by P.W.1
subsequent to the tehrir dated 21.02.2019
(Ext. A-1).

On the basis of this application (Ext. A-2),
the investigation was carried out and the police
along with P.W.1 / complainant went in search
of the accused Harswroop, and he was found in
the fish market near Govind Temple. Accused
was taken into custody and at his instance the
dead body of deceased was recovered from his
room in his house. Harswroop was never
arrested, he was merely taken on the basis of
information (Ext. A-2).
(3) As per evidence given by P.W.8 S.I. Jitender
Kumar when search was being made for
accused Harswroop, they met P.W.1 at the P.S.
Transit Camp, who told them that accused was
in the fish market. Thereafter, when
Harswroop was confronted in the fist market
near Govind Temple, he informed the police
that he lured the victim by offering toffee and
committed bad act (unnatural act) with him,
and after 1-2 hours, he again committed
unnatural act with the victim, and when the
victim started crying for going outside with the
fear of being caught, accused throttled his neck
with his right hand due to which victim died.
There is no occasion to doubt the complaint
(Ext. A-2) made by P.W.1. The investigation
was thereafter carried out, and Harswroop was
apprehended in the fish market from where he
was taken to the police station, where he
admitted his crime. There are entries in the
General Diary that police had taken him there.

Harswroop took them to his house, and
then to his room, where the naked dead body
of the victim was recovered from a jute bag,
and clothes of the deceased victim were also
recovered from his room. Harswroop was
arrested vide arrest memo (Ext. A-15) at 13.30
hours from his residence. The arrest was
made after recovery of the dead body of the
victim as per the information given by
Harswroop to the police and the recovery of
dead body under
Section 27
of the Indian
Evidence Act is crucial evidence connecting
with the chain of circumstances which started
with the complaint (Ext. A-2) made by P.W.1.
The sustainable evidence that it was Harswroop
who had kept the naked dead body of the
victim in his room in a jute bag and had taken
out the clothes and kept in the room as well,
which were soiled with stool. The clothes of
the victim, as well as the dead body of the
victim, were identified by P.W.1.

(4) Apart from the above, the statement given by
parents of Harswroop under
Section 313

Cr.P.C. also supports the case of the
prosecution. Both the accused Pappu and
Roopwati in their statement recorded under

Section 313
Cr.P.C. stated that the clothes of
the victim were recovered from the room of
Harswroop. Roopwati further stated that the
mother of Harswroop had died and she is the
stepmother of Harswroop, who had brought
him up when he was four and a half years old.
No other evidence was led by the defence to
show that they had doubted anybody else of
committing the murder of deceased victim.
They admitted that the clothes have been
recovered from the room of their son
Harswroop.

Hence the whole chain of events as per
the judgment of the Supreme Court in Sharad
Birdhichand Sarda's case (supra) is complete
and does not leave any reasonable doubt for
the conclusion with respect to the innocence of
the accused. The whole chain of event does
not leave any doubt that it was Harswroop who
had enticed the child from the roof top to his
room, committed unnatural act, and murdered
him.
(5) The postmortem report and the evidence given
by the doctors further require to be assessed
whether an unnatural act was done by
Harswroop or not?

As per the evidence given by P.W.5 Dr.
Nagender Singh, who was one of the panel
doctors, during postmortem after examining
the anal portion of the dead body it was found
that the outer area of anal passage was 4 cm.
and the anal canal dept was 6 cm. and
broadened. It was visible easily. The stool
was present on the outer area of the anal canal
and outside the anal some hairs were present.
The colour of nails, face, mouth and the ears
(lower soft part) colour was bluish. The tongue
was protruding outside the mouth.

39) Whether this medical examination and the

injuries would reflect the commission of offence under

Section 377
IPC and
Section 5
/
of POCSO Act is to be

examined now.

40)
Section 6
of the POCSO Act provides for

rigorous imprisonment for a term which shall not be

less than twenty years, but which may extend to

imprisonment for life, and also liable to fine. As far as

aggravated penetrative sexual assault on a child below

twelve years is concerned, the same is defined in

Section 5(m)
of the POCSO Act. The same reads as

under :
"5. Aggravated penetrative sexual assault

(m) whoever commits penetrative sexual
assault on a child below twelve years"

41) Since the victim in the present case was

below twelve years of age then for the purpose of

punishment committed of an offence of aggravated

penetrative sexual assault even an assault can be

considered to be covered under the provision of
Section

5(m)
and the same will be applicable, and the

punishment as per
Section 6
would be as under :

"6. Punishment for aggravated penetrative
sexual assault. -(1) Whoever commits aggravated
penetrative sexual assault shall be punished with
rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment
for the remainder of natural life of that person, and
shall also be liable to fine, or with death."

42) Now with respect to the offence punishable

under
Section 377
IPC, the medical opinion given by

the panel of doctors in their report, while conducting

the postmortem of the deceased victim, is an under :

"From the examination of the anal portion of the
dead body by the panel of doctors it was found that
the outer area of anal passage was 4 cm. and the anal
canal depth was 6 cm. and broadened. It was visible
easily. The stool was present on the outer area of the
anal canal and outside the anal some hairs were
present. The colour of nails, face, mouth and the ears
(lower soft part) colour was bluish. The tongue was
protruding outside the mouth."

Hence, even if there is such injury or no

injury, the offence punishable under
Section 6
of the

POCSO Act is made out. In the present case, as per

the evidence adduced by P.W.5 Dr. Nagender Singh,

the court below had rightly observed the reason of

broadening of the anal canal.

43) In the present case, as per evidence adduced

by P.W.5 Dr. Nagender Singh, on examination of the

anal portion of the dead body it was found that the

outer area of anal passage was 4 cm and the anal canal

depth was 6 cm and broadened, it was visible easily.

The above said evidence as per
Section 6
read with

Section 5(m)
of POCSO Act would amount to sexual

assault. Even if the offence punishable under
Section
IPC per se would not be made out, the offence

punishable under
Section 6
of the POCSO Act is made

out.

44) Another finding recorded by the lower court

was that on account of presence of stool on the outer

area of the anal canal the possibility of committing the

crime for sexual assault before the stool came out was
more probable. Apart from the postmortem report of

the deceased and the opinion given by P.W.5, the

opinion given by P.W.11 Dr. Rajeev Kumar, Orthopedic

surgeon of L.D. Bhatt, Hospital, Kashipur, who

conducted the medical examination of the accused

Harswroop on 21.02.2019, at about 2.10 hours, would

also be relevant. P.W.11 stated that on medical

examination of the accused it was found that the colour

of the glans penis was reddish especially base of glans

penis was red, pubic hair present. In the opinion of

P.W.11 the penis glans will be reddish when some

forceful act is done. The said medical examination

report is marked as (Ext. A-29). Further, on cross-

examination, P.W.11 deposed that the redness on the

penis of the accused could have been 24 to 48 hours.

There was no scratch mark. There was no smegma

present on the penis. When there is redness there is

no smegma.

45) As per the evidence given by P.W.11, the

reason for absence of smegma was due to some

forceful action and redness may occur within 24 to 48

hours. When there is redness smegma is not present,

and as per P.W.11, if redness was found during medical

examination of accused Harswroop, this would be a
clinching evidence that accused Harswroop could have

exercised force at some time other than when he was

with deceased victim, but this does not completely rule

out the possibility that the accused could have also

exercised force through the small anal aperture of the

deceased victim due to which the smegma was absent.

46) The medical examination of accused

Harswroop was conducted on 21.02.2019 afternoon,

and the crime was committed on 19.02.2019, and as

per P.W.11, the redness caused was due to force used

by the accused soon after the commission of crime.

Since there was no delay in conducting medical

examination of accused Harswroop, and the dead body

was recovered from his room, under
Section 106
of the

Indian Evidence Act, the burden was on the accused to

prove how the body came in his room, and where was

he after 19.02.2019 till 21.02.2019, when the child

went missing in order to prove his non-involvement in

the crime. No evidence has been led by the defence to

show that Harswroop was not in his house on

19.02.2019. The marks of ante mortem injuries found

on the dead body of the victim during postmortem, i.e.,

injury Nos. 1, 2, 3 and 4 were also living example of

the situation in front of the eyes that some resistance
was offered when the accused was trying to make

deceased victim his prey. The Doctor further stated

that it was not unusual for the accused to grasp in his

hand the neck of the deceased victim while committing

sodomy.

47) Apart from the postmortem examination, and

medical examination of accused, proved by Medical

Officers P.W.5 and P.W.11, the accused in his

statements recorded under
Section 164
Cr.P.C. and
Cr.P.C
. had admitted that this act was done with

the victim before or after his death. The accused

committed the crime with the victim which is evident

from Mat. Ext. 12 (Paper No. 3Ka/60) which is the

photograph of the deceased victim, in which stool was

seen coming out of anal canal and it means the act was

done before the death of the victim.

48) The lower court after going through the

above said medical evidence given by P.W.5 and

P.W.11; statement of the accused recorded under

Section 164
and
Cr.P.C.; and photograph of the

deceased victim Mat. Ext. 12, has rightly come to a

conclusion that the offence punishable under
Section
IPC was made out. The best evidence could have
been given by the victim, and since he had died, hence

the prosecution case has been weighed. The trial court

observed that the anal swab (Ext. A-28) collected and

send to the FSL, even if does not give any findings

suggesting the offence of sodomy, it does not

neutralize the prosecution case with respect to the

offence under
Section 377
IPC, and the same has to be

appreciated in the light of other evidence available.

49) Reliance has been placed on the judgment of

the Supreme Court in
State of Uttarakhand Vs

Darshan Singh
, 2019 SCC Online SC 1431, wherein it

has been held that the ocular evidence is primary to

the expert evidence. In the present case, even if the

body of the victim is touched it amounts to penetrative

sexual assault with the victim, who is twelve years of

age, under
Section 5(m)
of POCSO Act. The trial court

in para 124 of its judgment observed as under :

"Here it is very important to mention that
penetrative sexual assault means not only to
penetrate once penis into the vagina of the victim
child as earlier the situation was, but now after the
amendment under the relevant sections of the
IPC

and creation of this
POCSO Act
makes this clear that
rape / sexual assault includes penetration of penis or
anything into the vagina or anus etc., using of mouth
on the vagina, anus etc. or making her to use her
mouth on his penis, anus etc. or to manipulate her
body in such a way that the act is done in furtherance
to commit rape upon her that is the act shows that he
is about to penetrate. In the POCSO cases even if the
body of the victim is touched it amounts to
penetrative sexual assault and when the victim is
under twelve years of age,
Section 5(m)
of the POCSO
Act is attracted."

50) For the purpose of convicting the accused,

reference was made to
Sections 29
and
of the

POCSO Act, which relates to existence of culpable mind

and offence to have occurred, and also holds a

presumption for an offence of the murder. The same

read as under :

Section 29
POCSO Act - where a person is
prosecuted for committing or abetting or attempting
to commit any offence under
Section 3
,
,
and

section 9
of this Act, the Special Court shall presume,
that such person has committed or abetted or
attempted to commit the offence, as the case may be,
unless the contrary is proved.

Section 30
POCSO Act - In any prosecution for
any offence under this Act which requires a culpable
mental state on the part of the accused, the Special
Court shall presume the existence of such mental
state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect
to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is
said to be proved only when the Special Court believes
it to exist beyond reasonable doubt and not merely
when its existence is established by a preponderance
of probability.

Explanation. -In this section, "culpable mental
state" includes intention, motive, knowledge of a fact
and the belief in, or reason to believe, a fact.

As per the above said provisions if an

accused is charged under the section of penetrative

sexual assault in
POCSO Act
, then the court must

believe and shall presume that the charge and
existence of such mental state is true against the

accused unless he himself proves it otherwise.

51) In the facts of the present case, as per the

statements of accused persons Pappu and Roopwati

recorded under
Section 313
Cr.P.C., they admitted that

the clothes of the deceased victim were recovered from

the room of accused Harswroop, and even naked dead

body of the victim was recovered from a jute bag from

his room, and as per
Sections 29
and
of POCSO Act,

it was accused Harswroop who had to led evidence to

show that the offence has not been committed by him.

He led no evidence in defence. Moreover, as per the

evidence given by P.W.5, the cause of death was

asphyxia as a result of ante mortem injuries. There

were ante mortem injuries found on the body of the

deceased, stool was found present, which is one of the

symptom of death caused due to pressing of the neck.

The death had occurred 36-48 hours before, and the

time of the death related back to 19.02.2019. Hence,

the postmortem report also reflected that the victim

had died on 19.02.2019 and the dead body was

recovered on 21.02.2019 from the room of accused

Harswroop. Thus, the offence punishable under
Section
IPC was made out against accused Harswroop, and

he was convicted on said charge.

52) The dead body was recovered at the

instance of accused Harswroop, and as per P.W.8 S.I.

Jitender Kumar, it was identified by P.W.1, father of the

deceased. The recovery was made in the presence of

panch witnesses, a panchnama (Ext. A-5) was also

prepared, and further as per the confessional

statement, postmortem report, evidence adduced by

P.W.5, and statement recorded under
Section 313

Cr.P.C., the accused Harswroop was convicted under

Section 302
IPC.

53) Hence, the prosecution has proved the case

beyond reasonable doubt that accused Harswroop has

killed the deceased victim with a motive to commit

sodomy with him. However, other accused persons

Pappu and Roopwati helped the main accused

Harswroop for causing disappearance of the evidence,

as it has come on record that they knew that dead

body was in Harswroop's room and did not inform the

police. Hence, they have been rightly convicted under

Section 201
IPC.
54) Learned Senior Counsel appearing for the

accused-appellant Harswroop argued that there is

inconsistency in the evidence given by P.W.1, P.W.2

and P.W.3 with respect to the time when they went to

the house of accused Harswroop in the morning on

21.02.2019. One of the witnesses had stated 11:00 to

11:30, P.W.1 had stated 11:00 to 11:30, P.W.3 had

stated 1 o'clock, P.W.4 stated 11:30 to 12:00, and as

per P.W.2 the body was recovered at night and the

police did not take the body at night. These are the

minor discrepancies in the statements of witnesses

P.W.1, P.W.2, P.W.3 and P.W.4. However, in the

present case, the evidence given by prosecution and

the investigating agency is consistent. These minor

discrepancies in giving the date and time wrongly

cannot dent the prosecution evidence. Evidence

collected by the I.O. after thorough investigation

especially keeping in view the fact that the incident

took place on 19.02.2019, at night when the child went

missing, and on 21.02.2019 the police team went to

the fish market and found accused Harswroop there,

who accompanied the police to the police station and

then he gave his confessional statement under
Section
Cr.P.C. that he had done unnatural act with the
victim and had committed his murder. Accused took

the police to his house and opened his room and

showed them the naked dead body of the victim under

the cover of a blanket in a jute bag. Further, the

postmortem report also reflected that as per the

medical report of accused Harswroop (Ext. A-29)

proved by P.W.11 Dr. Rajeev Kumar, the redness on

the private part of the accused Harswroop could have

occurred 36 to 48 hours before, and that was the exact

time when the murder took place, i.e., 19.02.2019.

With respect to the mentioning wrong timing by P.W.1,

P.W.2 P.W.3 and P.W.4, the finding recorded by the

lower court can not be interfered.

55) Learned Senior Counsel further referred to

the judgment of Supreme Court in Dhan Raj alias

Dhand Vs State of Haryana
, (2014) 6 SCC 745, where

while examining a case of circumstantial evidence some

extra-judicial confession was made and on the basis of

extra-judicial confession some recoveries of robbed

articles were made. In that case there were material

discrepancies between the two extra-judicial

confessions and even with respect to the recovery of

robbed articles, it was doubtful. This judgment cannot

be applied to the facts of the present case, as in the
present case recovery of the naked body of the victim

was made from the room of accused Harswroop where

he himself accompanied the police and the

complainant. Even if the confession made under

Section 161
Cr.P.C. and under
Section 164
Cr.P.C., it

must be taken into account that the recovery of the

naked dead body of the victim from his own room casts

onus on accused Harswroop under
Section 106
of the

Indian Evidence Act to lead evidence to show how this

dead body came in his room. Moreover, the clothes

and naked dead body of the victim were recovered

from the room of accused Harswroop, and even this

fact was stated by other accused persons Pappu and

Roopwati, while giving statements under
Section 313

Cr.P.C.

56) In the same backdrop, learned Senior

Counsel for the appellant referred to the judgments of

Supreme Court in
State of Karnataka Vs

Mahabaleshwar Gourya Naik
, 1992 Supp (3) SCC 179

and Shankarlal Gyarasilal Dixit Vs State of

Maharashtra, (1981) 2 SCC 35. He has referred these

judgments on the proposition that in a case of offence

punishable under
Section 376
IPC, as per medical

jurisprudence smegma would require 24 hours to re-
accumulate after intercourse and presence of smegma

perhaps exclude the possibility of recent sexual

intercourse but its absence will not necessarily establish

that the person has had a recent intercourse.

57) Even the ratio of the above two judgments

will not be applicable to the facts of the present case,

as in the present case, after medical examination of the

accused Harswroop, as per the opinion given by P.W.11

Rajeev Kumar it was found that the colour of the glans

penis was reddish especially base of glans penis was

red, pubic hair present. In the opinion of P.W.11 the

penis glans will be reddish when some forceful act is

done.

Apart from the opinion given by P.W.11, the

offence punishable under
Section 5
/
of POCSO Act,

which is similar in nature to an offence punishable

under
Section 377
of IPC makes it clear that rape,

sexual assault includes penetration of penis or anything

into vagina or anus, using of mouth on vagina, anus

etc. or making her use of mouth on penis etc. or to

manipulates her body in such a way that the act is

done in furtherance to commit rape.
In the POCSO Act

cases, even if body of a victim is touched it amounts to

penetrative sexual assault, and when the victim is
under twelve years of age under
Section 5(m)
of

POCSO Act, said Act is attracted. The medical evidence

was sufficient to prove that confession of the accused

Harswroop while making his statement under
Section
Cr.P.C. and 164
Cr.P.C
. were correct, and not

false.

58) Reference can now be made to a recent

judgment of Supreme Court in Perumal Raja @

Perumal Vs State, Rep. by Inspector of Police, 2024

0 AIR(SC) 460, where the Supreme Court while

examining a case of circumstantial evidence has held

that distinction has to be drawn between incomplete

chain of circumstances and a circumstance after a

chain is complete and defence or explanation given by

accused is found to be false in which event said

falsehood is added to reinforce conclusion of court. If

defence case is false it would constitute an additional

link for the case of prosecution. While dealing with

the confessional statements, the Supreme Court

observed that the bar under
Section 25
of Evidence

Act would apply. The expression "accused person" in

Section 24
, and expression "a person accused of any

offence" in
Sections 26
and
have some

connotation, and describe the person against whom
evidence is sought to be led in a criminal proceeding.

The term "accused of any offence" is descriptive of

person against whom a confessional statement made

by him is declared not provable and does not

predicate a condition of that person at the time of

making statement. Confession includes not only

admission of offence but all other admissions of

incriminating facts related to offence, except to the

extent that the ban is lifted by
Section 27
of the

Evidence Act. Relevant paragraphs of above said

judgment of the Supreme Court are reproduced as

under :

"32.
In
State of Maharashtra Vs Suresh
,
(2000) 1 SCC 471, this Court in the facts therein
held that recovery of a dead body, which was from
the place pointed out by the accused, was a
formidable incriminating circumstances. This would,
the Court held, reveal that the dead body was
concealed by the accused unless there is material
and evidence to show that somebody else had
concealed it and this fact came to the knowledge of
the accused either because he had seen that person
concealing the dead body or was told by someone
else that the dead body was concealed at the said
location. Here, if the accused declines and does not
tell the criminal court that his knowledge of the
concealment was on the basis of the possibilities
that absolve him, the court can presume that the
dead body (or physical object, as the case may be)
was concealed by the accused himself. This is
because the person who can offer the explanation as
to how he came to know of such concealment is the
accused. If the accused chooses to refrain from
telling the court as to how else he came to know of
it, the presumption is that the concealment was by
the accused himself.

40. The appellant - Perumal Raja @ Perumal
in his statement under
Section 313
of the Code of
Criminal Procedure, 1973 plainly denied all
accusations without furnishing any explanation
regarding his knowledge of the places from which
the dead body was recovered. In this circumstance,
the failure of the appellant - Perumal Raja @
Perumal to present evidence on his behalf or to offer
any cogent explanation regarding the recovery of
the dead body by virtue of his special knowledge
must lead to a reasonable adverse inference, by
application of the principle under
Section 106
of the
Evidence Act, thus forming an additional link in the
chain of circumstances. The additional link further
affirms the conclusion of guilt as indicated by the
prosecution evidence.

41. The whereabouts of Rajini @ Rajinikanth
were unknown. The perpetrator(s) were also
unknown. It is only consequent to the disclosure
statement by the appellant - Perumal Raja @
Permual, that the police came to know that Rajini @
Rajinikanth had been murdered and his body was
first dumped in the sump tank and after some
months, it was retrieved, cut into two parts, put in
sack bags, and thrown in the river/canal. The
police, accordingly, proceeded on the leads and
recovered the parts of the dead body from the sump
tank and sack bags from the river/canal. It has
been also established that Rajini @ Rajinikanth was
murdered. In addition, there have been recoveries
of the motorcycle and other belongings at the behest
of the appellant - Perumal Raja @ Perumal. These
facts, in the absence of any other material to doubt
them, establish indubitable conclusion that the
appellant - Perumal Raja @ Perumal is guilty of
having committed murder of Rajini @ Rajinikanth.
The presence of motive reinforces the above
conclusion."

59) The ratio of the above said judgment is

directly applicable to the facts of the present case.

The recovery was made on the statement given by

accused Harswroop while he accompanied the police

from fish market to police station, and thereafter to

his house. The naked dead body of the deceased

victim was recovered from the room of the accused

hidden in a jute bag, and clothes worn by the

deceased victim along with slippers were also

recovered from the same room. Hence, as per

Section 27
of the Evidence Act, accused failed to give

any explanation as to how these things came in his

room, and in this backdrop, the recovery of naked

dead body in itself from his own room, whose

presence was not explained by the accused

Harswroop, completes the chain of circumstantial

evidence.
60) Another important fact is that the

complainant's family and family of the accused were

neighbours and there were known to each other. It is

the case of the prosecution that on 19.02.2019,

accused Harswroop came to his house in a drunkard

state and he himself has stated that he had lured the

child from the roof to his room by offering toffee. Ante

mortem injuries were found on the dead body of victim

during postmortem. As per the postmortem report

proved by P.W.5 Dr. Nagender Singh there were

scratch marks on the neck, forearm and two scratch

marks on left and right side of stomach just above the

hip bone. On examination of the anal portion of the

dead body it was found that outer area of anal passage

was 4 cm. and the anal canal depth was 6 cm. and

broadened. It was visible easily. The stool was

present on the out area of the anal canal. The tongue

was protruding outside the mouth. The death of the

victim was due to asphyxia as a result of ante mortem

strangulation. The prosecution was successful to prove

its case beyond reasonable doubt that accused

Harswroop had kidnapped the deceased victim with a

motive to sodomize him. After the act of sodomy /

aggravated penetrative assault, accused murdered the
victim and hide the dead body in a jute bag in his room

to cause disappearance of the evidence. Hence,

accused Harswaroop has rightly been convicted for the

offences punishable under
Sections 364
,
,
,
of IPC. Also, keeping in view the fact that the victim

was 07 years old dumb child, and below 12 years, the

accused Harswroop was rightly convicted and

sentenced for the offence punishable under
Section 6

POCSO Act. Hence, no interference is called for in the

judgment of the trial court recording the conviction

against the accused Harswroop on above said counts.

The appeal filed by accused-appellant Harswroop is

liable to be dismissed.

61) With respect to the appeals filed by other

accused persons Pappu and Roopwati since the appeal

of convict Harswroop has been dismissed keeping in

view the statements recorded by them under
Section
Cr.P.C., even these two accused persons did not

lead any evidence in defence to show that Harswroop

had not committed the crime, rather they had stated

that the clothes of the naked deceased victim were

recovered from the room of convict Harswroop, hence

their conviction under
Section 201
IPC is also proved

beyond reasonable doubt, and they have been rightly
convicted and sentenced by the court below on said

count. Thus, the appeals filed by convicts Pappu and

Roopwati are also liable to be dismissed.

Quantum of sentence :

62) The lower court has referred to the

judgments of the Supreme Court in
Shankar Kisanrao

Khade Vs State of Maharashtra
, (2013) 5 SCC 546;

Kamta Tiwari Vs State of M.P.
, decided on

04.09.1996;
State of Karnataka Vs Krishnappa
,

(2004) 4 SCC 75; and
Gurvail Singh @ Gala and

another Vs State of Punjab
, AIR 2013 SC 1177.

In

Kamta Tiwari
(supra) death penalty was awarded to

an accused, who has committed rape on a seven year

old girl, and he was in a position of trust.

63) In the case in hand, lower court observed

that the victim at the time of the incident was a

young boy about 7 years of age. He must have

undergone severe pain and found himself helpless.

The inability of the victim to speak properly which has

come in evidence of the witnesses P.W.1, P.W.2,

P.W.3 and P.W.4, and said fact has also been

admitted by convict Harswroop in his statement

recorded under
Section 313
Cr.P.C. Further the court

below observed that Harswroop was not seen in pain
or no remorse on his face, and he kept smiling whole

time when his statements were recorded. He did not

even plead for his innocence in front of the court. He

did not adduce any defence evidence and even his

parents held him responsible for the entire case, and

finally the court below held that Harswroop had

intentionally and knowingly committed the murder of

the victim aged 7 years, and in this backdrop, the

convict Harswroop was awarded the death penalty

under
Section 302
IPC.

64) In the facts of the present case, convict-

appellant Harswroop is 24 years old poor person, and

had no previous criminal history. He had lost his

mother when he was only four and a half years old.

He was brought up by his stepmother. Convict-

appellant was an alcoholic, and as per the evidence

brought on record, he used to do only daily wage

work. His mental status could not be of a satisfied

person being a daily wager.

65) Reference can now be made to the judgments

of the Supreme Court where the sentence of capital

punishment was committed to life imprisonment.
66) In 1973, the Supreme Court in the case of

Jagmohan Singh Vs State of U.P.
(1973) 1 SCC 20,

examined the question whether death sentence awarded

by a court under
Section 302
of Indian Penal Code, 1880

was violative of sub-clause (1) of
Article 19
of the

Constitution. As per Sub-Section (5) of
Section 367
of

Criminal Procedure Code, there was a discretion with the

court either to award capital sentence or life

imprisonment. The Supreme Court held that
Article 19

of the Constitution does not directly deal with the

freedom to live. It is not included in the seven freedoms

mentioned in that Article. As far as India is concerned,

capital punishment cannot be described as unusual

because that kind of punishment has been with us from

ancient times right up to the present day though the

number of offences for which it can be imposed has

continuously changed. The framers of our Constitution

were well aware of the existence of capital punishment

as a permissible punishment under the law. The other

Articles in the Constitution, viz., Section 72(1)(c), 72(3),
and 134 and
Sections 401
and
of the Code of

Criminal Procedure and the Entries 1 and 2 in List III of

the Seventh Schedule, all indicate that capital sentence
has not been regarded per se as unreasonable or not in

the public interest.

67) After the amendment by Act 26 of 1955, it

was left to the judicial discretion of the court whether

the death sentence or the lesser sentence should be

imposed.
Article 14
cannot be invoked in matters of

judicial discretion. If the law has given to the Judges

wide discretion in matter of sentence to be exercised by

him after balancing all the aggravating and mitigating

circumstances of the crime, it will be impossible to say

that there would be at all any discrimination, since facts

and circumstances of one case can hardly be the same

as the facts and circumstances of another. In a criminal

trial, the accused who is charged for murder knows that

he is liable to sentence of death in the committing court

itself. The accused has a right to examine himself as a

witness, and thereafter, give evidence on the material

facts. He and his counsel are at liberty to address the

court not merely on the question of guilt but also on the

question of sentence, and so on. After the prosecution

and the accused have had their full say, the court is

principally concerned with the facts and circumstances,

whether aggravating or mitigating, which are connected

with the particular crime under inquiry. In this
backdrop, the procedure established by law cannot be

said to be unconstitutional under
Article 21.

68) The Supreme Court also examined several

studies made by Western Scholars to show the

ineffectiveness of capital punishment either as a

deterrent or as an appropriate retribution. The Supreme

Court Judges in the above study observed that social

conditions are different and also the general intellectual

level. The only authoritative study in India is that of the

Law Commission of India published in the year 1967.

One the basis of its conclusions it is difficult to hold that

capital punishment as such is unreasonable or not

required in public interest. The policy of the law in

giving a very wide discretion in the matter of

punishment to the Judge has its origin and impossibility

of laying down standards.

69) The impossibility of laying down standards is

at the very core of the Criminal Law as administered in

India which invests the Judges with a very wide

discretion in the matter of fixing the degree of

punishment. This discretion in the matter of sentence is

liable to be corrected by superior courts. Laying down of

standards to the limited extent possible as was done in
the Mode Judicial Code would not serve the purpose.

The exercise of judicial discretion of well-recognised

principles is, in the final analysis, the safest possible

safeguards for the accused. The
Code of Criminal

Procedure
lays down a detailed procedure and this

procedure is limited to the finding of the guilt. The

Supreme Court finally held that it was necessary to

emphasize that the court was principally concerned with

the facts and circumstances, whether aggravating or

mitigating, which are connected with the particular crime

under inquiry.

70) In paragraph 29 of the
Jagmohan
's case

(supra), the Supreme Court observed as under :

"However, it is necessary to emphasize that the
court is principally concerned with the facts and
circumstances, whether aggravating or mitigating,
which are connected with the particular crime under
inquiry. All such facts and circumstances are capable of
being proved in accordance with the provisions of the

Indian Evidence Act
in a trial regulated by the
Cr.P.C
.
The trial does not come to an end until all the relevant
facts are proved and the counsel on both sides have an
opportunity to address the court. The only thing that
remains is for the judge to decide on the guilt and
punishment and that is what
Sections 306(2)
and

309(2)
, Cr.P.C. purport to provide for. These
provisions are part of the procedure established by law
and, unless it is shown that they are invalid for any
other reasons, they must be regarded as valid. No
reasons are offered to show that they are
constitutionally invalid, and, hence, the death sentence
imposed after trial in accordance with the procedure
established by law is not unconstitutional under Article

21."

71) Thereafter, in
Bachan Singh Vs State of

Punjab
(1980) 2 SCC 684, a larger bench of Supreme

Court consisting of five judges has affirmed the view

taken in
Jagmohan
's case (supra), and has affirmed the

proposition that the provisions of death penalty for an

offence punishable under
Section 302
IPC, and the

sentencing procedure
laid down in
sub-section (3) of

Section 354 of Criminal procedure Code, requires that

special reasons have to be recorded for awarding a

death penalty, and these provisions are not violative of

Article 14
, 19
and
21.

72) While approving the judgment in Jagmohan's

case (supra), the Supreme Court also referred to the

new provision in sub-section (3) of
Section 354
of the

Criminal Procedure Code, 1973, that award of death

sentence was an exception to be made for "exceptional

reasons" founded on grave circumstances of the

particular case relating to the crime and the criminal.
73) In Paragraphs 160, 161 & 162 of the Supreme

Court judgment rendered in
Bachan Singh
's case

(supra), it has been observed as under :

"160.
In the light of the above conspectus, we
will now consider the effect of the aforesaid
legislative changes on the authority and efficacy of
the propositions
laid down by
this Court in

Jagmohan
's case. These propositions may be
summed up as under:

(i) The general legislative policy that underlies
the structure of our criminal law, principally
contained in the
Indian Penal Code
and the
Criminal
Procedure Code
, is to define an offence with
sufficient clarity and to prescribe only the maximum
punishment therefor, and to allow a very wide
discretion to the Judge in the matter of fixing the
degree of punishment.

With the solitary exception of Section 303, the
same policy permeates Section 302 and some other
sections of the Penal Code, where the maximum
punishment is the death penalty.

(ii)(a) No exhaustive enumeration of
aggravating or mitigating circumstances which
should be considered when sentencing an offender,
is possible. "The infinite variety of cases and facets
to each case would make general standards either
meaningless 'boiler plate' or a statement of the
obvious that no Jury (Judge) would need." (Referred
to McGoutha v. California, (1971) 402 US 183.

(b) The impossibility of laying down standards
is at the very core of the criminal law as
administered in India which invests the Judges with
a very wide discretion in the matter of fixing the
degree of punishment.

(iii) The view taken by the plurality in Furman
v. Georgia, 408 US 238 (1972), decided by the
Supreme Court of the United States, to the effect,
that a law which gives uncontrolled and un-guided
discretion to the Jury (or the Judge) to choose
arbitrarily between a sentence of death and
imprisonment for a capital offence, violates the
Eighth Amendment, is not applicable in India. We do
not have in out Constitution any provision like the
Eighth Amendment, nor are we at liberty to apply
the test of reasonableness with the freedom with
which the Judges of the Supreme Court of America
are accustomed to apply "the due process" clause.
There are grave doubts about the expediency of
transplanting western experience in our country.
Social conditions are different and so also the
general intellectual level. Arguments which would be
valid in respect of one area of the world may not
hold good in respect of another area.

(iv)(a) This discretion in the matter of sentence
is to be exercised by the Judge judicially, after
balancing all the aggravating and mitigating
circumstances of the crime.

(b) The discretion is liable to be corrected by
superior courts. The exercise of judicial discretion on
well-recognised principles is, in the final analysis,
the safest possible safeguard for the accused.

In view of the above, it will be impossible to
say that there would be at all any discrimination,
since crime as crime may appear to be superficially
the same but the facts and circumstances of a crime
are widely different. Thus considered, the provision
in Section 302, Penal Code is not violative of
Article
of the Constitution on the ground that it confers
on the Judges an unguided and uncontrolled
discretion in the matter of awarding capital
punishment or imprisonment for life.

(v)(a) Relevant facto and circumstances
impinging on the nature and circumstances of the
crime can be brought before the Court at the pre-
conviction stage, notwithstanding the fact that no
formal procedure for producing evidence regarding
such facts and circumstances had been specifically
provided. Where counsel addresses the Court with
regard to the character and standing of the accused,
they are duly considered by the Court unless there is
something in the evidence itself which belies him or
the Public Prosecutor challenges the facts.

(b) It is to be emphasised that in exercising its
discretion to choose either of the two alternative
sentences provided in Section 302, Penal Code, "the
Court is principally concerned with the facts and
circumstances whether aggravating or mitigating,
which are connected with the particular crime under
inquiry. All such facts and circumstances are capable
of being proved in accordance With the provisions of
the
Indian Evidence Act
in a trial regulated by the

Cr.P.C
. The trial does not come to an end until all
the relevant facts are proved and the counsel on
both sides have an opportunity to address the Court.
The only thing that remains is for the Judge to
decide on the guilt and punishment and that is what
Sections 306(2)
and
309(2)
, Cr.P.C. purport to
provide for. These provisions are part of the
procedure established by law and unless it is shown
that they are invalid for any other reasons they must
be regarded as valid. No reasons are offered to show
that they are constitutionally invalid and hence the
death sentence imposed after trial in accordance
with the procedure established by law is not tin-
constitutional under
Article 21.
(emphasis added).

161. A study of the propositions set out above,
will show that, in substance, the authority of none of
them has been affected by the legislative changes
since the decision in
Jagmohan
's case. Of course,
two of them require to be adjusted and attuned to
the shift in the legislative policy. The first of those
propositions is No. (iv)(a) which postulates, that
according to the then extant
CrPC
both the
alternative sentences provided in Section 302, Penal
Code are normal sentences, and the court can,
therefore, after weighing the aggravating and
mitigating circumstances of the particular case, in its
discretion, impose either of those sentences. This
postulate has now been modified by Section 354(3)
which mandates the Court convicting a person for an
offence punishable with death or, in the alternative
with imprisonment for life or imprisonment for a
term of years, not to impose the sentence of death
on that person unless there are "special reasons" -
to be recorded - for such sentence. 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.

162.
In this view we are in accord with the
dictum of this Court in
Balwant Singh v. State of
Punjab
, 1976 SCC (Cri) 43, wherein the
interpretation of Section 354(3) first came up for
consideration. After surveying the legislative
background, one of us (Untwalia, J.) speaking for
the court, summed up the scope and implications of
Section 354(3), thus:

Under this provision the Court is required
to state the reasons for the sentence awarded
and in the case of sentence of death, special
reasons are required to be stated. It would
thus be noticed that awarding of the sentence
other than the sentence of death is the general
rule now and only special reasons, that is to
say, special facts and circumstances in a given
case, will warrant the passing of the death
sentence. It is unnecessary nor is it possible to
make a catalogue of the special reasons which
may justify the passing of the death sentence
in a case.

While applying proposition (iv)(a), therefore,
the Court has to bear in mind this fundamental
principle of policy embodied in Section 354(3)."

74) The Supreme Court further observed that

there could be no rigid standards which can be
laid down

in
the form of guidelines with respect to area of

imposition of death penalty. The purpose of "laying

down standards" meant that 'murder' should be

categorised beforehand according to the degrees of its

culpability and all aggravating and mitigating

circumstances should be exhaustively and rigidly

enumerated so as to exclude all free play of discretion.

Such standardisation was not possible. Firstly, the

degree of culpability cannot be measured in each case;

secondly, criminal cases cannot be categorized where

there are infinite, unpredictable and unforeseeable

variations; thirdly, on such categorisation the sentencing

process will cease to be judicial; and, fourthly, such

standardization or sentencing discretion is a policy
matter belonging to legislation beyond the court's

function. In this backdrop, no rigid standard in this area

can be laid down. Some broad guidelines consistent

with the policy indicated by the legislature in Section

354(3) can be taken. The Court finally has to pay due

regard both to the crime and the criminal. What is

relative weight to be given to the aggravating and

mitigating factors, depends on the facts and

circumstances of a particular case. In many cases, the

extremely cruel or beastly manner of the commission of

murder is itself a demonstrated index of the depraved

character of the perpetrator. Hence, it is not desirable

to consider the circumstances of the crime and the

circumstances of the criminal in two separate watertight

compartments. The Judges should never be

bloodthirsty. Hence, courts aided by the broad

illustrative guidelines will discharge the onerous function

with evermore scrupulous care and humane concern. As

per the legislative policy guidelines in sub-section (3) of

Section 354, i.e., for the person 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.

75) The Supreme Court, thereafter, in
Machhi

Singh and others Vs State of Punjab
, (1983) 3 SCC

470, followed the guidelines
laid down by
it in
Bachan

Singh
's case (supra), and examined the case of a death

sentence imposed on Machhi Singh, Kashmir Singh,

Jagir Singh by the Sessions Court as confirmed by the

High Court. They confirmed the death sentence awarded

to the above said three accused. While, affirming the

death sentence, in paragraph 32 of said judgment, the

Supreme Court observed as under :

"32. The reasons why the community as a whole
does not endorse the humanistic approach reflected in
'death sentence-in-no-case' doctrine are not far to
seek. In the first place, the very humanistic edifice is
constructed on the foundation of 'reverence for life'
principle. When a member of the community violates
this very principle by killing another member, the
society may not feel itself bound by the shackles of this
doctrine. Secondly, it has to be realized that every
member of the community is able to live with safety
without his or her own life being endangered because of
the protective arm of the community and on account of
the rule of law enforced by it. The every existence of
the rule of law and the fear of being brought to book
operates as a deterrent of those who have no scruples
in killing others if it suits their ends. 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, or the anti-
social or abhorrent nature of the crime."

76) All the three accused had murdered two

innocent and helpless women named Ghamo Bai and

Rajo Bai in a helpless and defenceless state in their own

house. A couple namely Bishan Singh and his wife Paro

Bai were killed in similar circumstances. Sahib Singh,

Mukhtiar Singh, Manto Bai, Palo Bai and Jita Singh were

killed by five men including Machhi Singh and Jagir

Singh. They put to death a young newly married couple

and rendered a young woman a widow. The appeal filed

by above accused was dismissed by the Supreme Court

following the guidelines indicated in
Bachan Singh
's case

(supra).

77) Recently, the Supreme court in the case of

Digambar Vs The State of Maharashta, 2023 2 CriCC

647, had an occasion to examine whether death penalty

could be awarded in case of an honour killing. In that

case, the Supreme Court observed that the appellant

Digambar was a young boy of 25 years at the time of

incident and had not acted in a brutal manner as there
was one single injury inflicted on both deceased. As far

as offence punishable under Section 302 is concerned,

the Supreme Court held that the prosecution had

established that the deceased and accused persons left

the house together and soon thereafter the death of

deceased person had occurred. The accused were held

guilty of the offence punishable under
Section 302
IPC.

However, keeping in view the fact that appellant

Digambar was 25 years of age, it was not considered to

be a 'rarest of rare' case. He was held to be not a

person with criminal mindset and criminal records, and

in this backdrop, the sentence of capital punishment was

committed to life imprisonment. The Supreme Court

had also taken into account the report of the Probation

Officer. As per said report, the Sarpanch and people of

the village had stated that inter-caste marriage of

deceased friend Govind and deceased sister Pooja was

putting social pressure and being angry about it, the

incident took place in sudden provocation by Digambar.

However, overall behaviour of Digamber was found to be

good.

78) The Supreme Court also referred to the case

of Gandi Doddabasappa alias
Gandhi Basavaraj Vs

State of Karnataka
, (2017) 5 SCC 415, wherein the
accused had committed murder of his daughter, who

was in the advanced stage of pregnancy. The Supreme

Court had upheld the conviction of the accused in

respect of offence punishable under
Section 302
IPC, but

commuted the sentence from capital punishment to

imprisonment for life.

79) Similarly, in the case of
Prakash Dhawal

Khairnar (Patil) Vs State of Maharashtra
, (2002) 2 SCC

35, the appellant was a Senior Scientific Assistant. He

wiped out his brother's entire family. The Supreme

Court found that this was done by him on account of

frustration as his brother was not partitioning the alleged

joint property. The Supreme Court held that the crime

was heinous and brutal, but the same could not be

considered to be 'rarest of rare' case. It is, however,

held that it was difficult to hold that the accused was a

menace to the society, and that there was no reason to

believe that he could not be reformed or rehabilitated.

80) Also, Mohinder Singh Vs State of Punjab,

(2013) 3 SCC 294, was a case where the accused had

committed murder of his wife and daughter, and the

Supreme Court had held that it could not be considered
to be 'rarest of rare' case to inflict the capital

punishment.

81) The Supreme Court also referred to the case

of Sundar @ Sundarrajan Vs State by Inspector of

Police [Review Petition (Criminal) Nos. 159-160 of

2013, in Criminal Appeal Nos. 300-301 of 2011, dated

21.03.2023], wherein it was held that 'rarest of rare'

doctrine does not require that in such a case only death

sentence has to be imposed. The Court has to consider

not only the grave nature of crime, but also as to

whether there is possibility of reformation of a criminal.

82) Supreme Court in the case of
B.A. Umesh Vs

Union of India and others
, Criminal Appeal No. 1892 of

2022 (arising out of SLP (Crl.) No. 890 of 2022,

decided on 04.11.2022, has also examined the issue

whether delay in execution of death sentence could be a

sufficient ground for substituting death sentence by

imprisonment for life.

83) In the above matter, the Supreme Court was

examining the case where the execution of death

sentence was due to the delay which took place in

execution of the death sentence due to pendency of

mercy petition and reference was made to a judgment of
Ajay Kumar Pal Vs Union of India and another
, 2015

(2) SCC 478. In that case there was a delay of 03 years

and 10 months, which was found to be inordinate and

the delay was not attributed to the accused / petitioner

but the delay was found on account of functionaries and

authorities in question.

84) In paragraph 14 of the above said judgment,

the Supreme Court observed as under :

"Paras 44 and 48 of the decisions of this Court in

Shatrughan Chauhan and another Vs Union of India

and others
, (2014) 3 SCC 1, which were quoted in
Ajay

Kumar Pal
(supra), had laid down that undue long

delay in execution of death sentence would entitle the

condemned prisoner to pray for commuting the death

sentence to that of life imprisonment.

The individual

cases were thereafter dealt with in
Shatrughan

Chauhan
(supra) and paragraph 105 onwards of said

decision show that in cases where there was a delay of

12 years (para 118), 9½ years (para 137), 9½ years

(para 147), 7 years and 8 months (para 161), 5 years

and 8 months (para 175) and 7 years and 5 months

(para 209), the benefit of commutation was extended

by this Court."
85) In the case before the Supreme Court the

mercy petition was received by the Central Government

on 03.03.2011, and it was disposed of on 15.05.2013.

In between, the Ministry of Home Affairs, Government of

India, forwarded the mercy petition to the Principal

Secretary, Home Department, Karnataka so that the

Governor, Karnataka could consider the mercy petition.

Thereafter, in the meantime, on 09.03.2011 in Writ

Petition No. 52 of 2011, preferred by the accused-

appellant, Supreme Court granted stay of execution of

death sentence. Before the Central Government

authorities, the State Cabinet on 07.05.2012, decided to

approve the note prepared by the Home Department

recommending rejection of mercy petition. The

Governor also rejected the mercy petition on

06.06.2012, and subsequently, the matter was referred

to the Central Government on 30.08.2012, and finally,

the Hon'ble President after considering the mercy

petition, rejected the mercy petition on 12.05.2013.

Hence, a period of 02 years and 03 months was taken to

dispose of the mercy petition.

86) In
A.G. Perarivalan Vs State
through

Superintendent of Police and another, 2022 SCC Online

SC 635, a bench of three Judges of Supreme Court had
commuted the sentence of death to life in a petition filed

under
Article 161
of the Constitution keeping in view the

fact that the petition remained pending for 2½ years

with the Hon'ble Governor, despite recommendation of

the State Cabinet for remission of the sentence.

87) In the present case, the judgment was passed

on 06.03.2021, and the Reference is now being decided

after a gap of almost more than three years. If there is

a delay in deciding the Reference that is one of the

reasons this Court can take into account for commuting

the death penalty.

88) It must also be borne in mind that imposition

of death penalty is exception rather than a rule, and

further special reasons must be given. The extreme

penalty of death is to be awarded to a convict only in

those discerning few cases where the murder committed

by him is shocking, brutal diabolical and revolting and

the tremors of which are felt far and wide. In the

present case, the convict is 24 years of age and did not

have the criminal background. There is scope for

reformation of the convict. There is every hope that by

associating him with counselors, his mindset could be

reformed while in custody and even while he is in
custody, he can be given training to lead a good life by

giving him technical skills to make a good livelihood so

that he can be reformed. Hence, it will be in the interest

of justice that the death sentence awarded to convict

Harswroop be commuted to imprisonment for life.

89) In view of the foregoing discussion, Criminal

Reference No. 01 of 2021 in respect of convict-appellant

Harswroop made by the trial court so far as the

confirmation of sentence of death to him is concerned is

answered in negative.

90) Instead of confirming the sentence of death

awarded by the trial court, (in exercise of powers

conferred under
Section 368(a)
Cr.P.C.) the sentence

of death is commuted to imprisonment for life against

convict Harswroop.

91) The conviction recorded by the trial court in

S.S.T. No. 104 of 2019, under
Section 364
,
,
IPC, and the one under
Section 6
of POCSO Act,

against accused-appellant Harswroop is affirmed.

Convict Harswroop is sentenced to undergo

imprisonment for life with the stipulation that he shall

not be entitled to premature release or remission
before undergoing actual imprisonment for a period of

20 years.

92) The conviction recorded by the trial court in

S.S.T. No. 104 of 2019, under
Section 201
IPC

against accused-appellants persons Pappu and

Roopwati is affirmed.

93) The other terms of sentences awarded to all

the convicts including fine amount and default

stipulations also stand confirmed. All the substantive

sentences awarded to the convict Harswroop shall run

concurrently.

94) The Criminal Jail Appeal filed by the

accused-appellant Harswroop against the conviction

and sentences awarded by the trial court in S.S.T. No.

104 of 2019 in respect of offences punishable under

Section 364
,
,
IPC, and one under Section 6

of the PCSO Act stands dismissed.

95) The Criminal Jail appeals filed by accused-

appellants Pappu and Roopwati against their

conviction and sentence awarded by the trial court in

S.S.T. No. 104 of 2019 in respect of offence

punishable under
Section 201
IPC also stand

dismissed.
96) The Criminal Jail Appeal filed by accused-

appellant Harswroop in respect of offences punishable

under
Section 364
,
and
IPC, and one under

Section 6
of the POCSO Act, having been dismissed,

his sentence is modified as directed in Paras 91 and

93 above.

97) Let a copy of this Judgment be sent to the trial

court with reference to its letter dated 08.03.2021, in

S.S.T. No. 104 of 2019. A copy of this judgment be also

sent to the Superintendents of Jail concerned where the

convicts are presently serving out their sentences, for

ensuring compliance of this order. Lower court record

be sent back.

______________
RITU BAHRI, C.J.

_________________
ALOK KUMAR VERMA, J.

Dt: 21ST MAY, 2024
Negi