Sambhubhai Raisangbhai Padhiyar vs The State Of Gujarat

2024 INSC 987 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. _________ of 2024 (@ Special Leave Petition (Crl.) Nos. 9015-9016 of 2019)

SAMBHUBHAI RAISANGBHAI PADHIYAR APPELLANT(s)

VERSUS

STATE OF GUJARAT RESPONDENT(s)

WITH

Special Leave Petition (Crl.) No. 9162/2021

JUDGMENT

K.V. Viswanathan, J.

Criminal Appeal Nos. _________ of 2024 (@ Special Leave Petition (Crl.) Nos. 9015-9016 of 2019) Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2024.12.17

1. 13:44:28 IST Reason:

Leave granted.

1 2. Wednesday, 13th April 2016 dawned normally for the

family of Pravingiri Gosai (PW-9), a farmer, who also

alternated as the temple priest at Piludara village under the

Vedaj Police Station, Bharuch District in the State of Gujarat.

However, by dusk the situation had turned macabre for them,

when their four-year old child was found murdered in the

village outskirts.

3. The appellant herein stood trial for the offences of

kidnapping, sexual assault and murder of the said child and was

convicted and sentenced to death by the Trial Court. The High

Court of Gujarat at Ahmedabad, by the judgment dated

03.04.2019 in R/Criminal Confirmation Case No. 2 of 2018

with R/Criminal Appeal No. 1207 of 2018, confirmed the

conviction and sentence of death imposed on him for the

offences punishable under Sections 302, 364, and 377 of the

Indian Penal Code (for short ‘IPC’) and Sections 4 and 6 of the

Protection of Children from Sexual offences Act, 2012 (for

2 short ‘POCSO Act’). The appellant is before us in appeal by

way of special leave.

Brief Facts:

4. Pravingiri Gosai (PW-9) and his wife Artiben (PW-13.2)

left their house at 06:00 a.m. in the morning of 13.04.2016 to

get fodder for their cattle leaving their two small children Rohit

@ Shital, aged about four years, the deceased and Rajeshwari,

aged three months, along with PW-9’s mother at home. When

they returned at 11.00 a.m., PW-9’s mother and children were

at home. PW-9 left again to install a Dish TV in the village and

returned at around 1 O’clock. He noticed that Rohit was not at

home and when he inquired from his wife Arti, she replied that

Rohit was playing near the temple and had not been seen since

long. The desperate father continued his inquiries when PW-10

Jyotsnaben, his sister-in-law, who lived in the neighborhood

told him that when Rohit was playing near the temple about

12:30 PM, the appellant who belonged to their village took the

deceased and when she inquired from the appellant as to where 3 he was taking the deceased, the appellant in spite of being

dissuaded from doing so, told her that he will buy the child ice-

cream and return in a while.

5. Since Rohit had not returned, PW-9 continued his search

in the village when he met the appellant under a jamun tree

behind the Pir Dargah at the bank of the lake at about 2

O’clock. When PW-9 inquired about his son with the appellant,

the appellant told him that he gave the deceased ice-cream to

eat and sent him home. PW-9 went home and when Rohit was

not there, he came back to the lake, the appellant was not found.

PW-13.2 Artiben, the mother of the deceased also carried out

the search carried out and after receiving information from PW-

11 Manoj Kumar Parmar that the deceased was taken by the

appellant, she along with her sister-in-law PW-10, and daughter

went to the appellant’s house. The appellant’s mother was there

and the appellant was not there. They left a message with the

appellant’s mother that the appellant may be told to send their

son (deceased) back home.

4

6. PW-9 continued his inquiries and search when he received

a call from Manoj Kumar Parmar (PW-11) who asked PW-9 to

come to the bank of the lake behind the Pir Dargah. When

PW-9 reached the spot, he found the dead body of his son lying

naked near the bushes.

7. PW-9 lodged a complaint around 06:45 at the Vedaj

Police Station which resulted in registration of an FIR and the

subsequent proceedings. After the inquest, the body of the

deceased was sent for postmortem to BKS Medical College

Vadodara. The postmortem report reveals that death was due to

asphyxia due to throttling. A number of injuries were found on

the body of the deceased which are as follows:

“The following injuries were observed during the external examination of the dead body.

(1) Multiple scratch abrasions of size varying from 0.1 cm x 0.5 cm to 1.5 cm x 0.1 cm with underlying contusions of size varying from 1 cm x 1 cm to 2.5 cm x 2 cm present over perianal region. Perianal skin swollen, reddish in colour. Anal orifice dilated, roomy diameter of anal orifice is 2.5 cm. Part of rectum protruded out through anal orifice.

5 (2) A bite mark in form of pressure abrasion of size 4 cm x 3.5 cm present over right cheek, 3 cm above right angle of mandible and 4 cm right to midline.

(3) Multiple laceration of size varying from 0.5 cm x 0.2 cm to 1 cm x 0.2 cm x tissue deep with underlying contusions of size varying from 1 cm x 0.5 cm to 1.5 cm x 1 cm present over inner aspects of both lips.

(4) Multiple crescentic shaped abrasions of size varying from 0.5 cm x 0.1 cm to 1.2 cm x 0.1 cm in an area of 5 cm x 3 cm present over left side of neck, 3.5 cm left to midline and 2 cm below chin.

(5) Two abrasions of size 1.5 cm x 0.5 cm and 0.5 cm x 0.2 cm present over right side of the neck, 1.5 cm below chin and 2 cm, 3 cm right to midline respectively.

(6) Multiple scratch abrasions of size varying from 8.5 cm x 0.5 cm to 2.5 cm x 0.5 cm present in an area of 20 cm x 9 cm, over back of right thigh.

Note: All abrasions and contusions are reddish in colour. Margins of all lacerated wounds are irregular and contused with red clotted blood over it.

All of the above mentioned injuries were antemortem in origin.”

It will be clear from the above that the deceased was also

subjected to penetrative sexual assault through the anus. PW-8

Dr. Kalpesh Kumar who led the postmortem team has

6 categorically opined that the cause of death was asphyxia due to

throttling. In view of this, there is no iota of doubt that the

deceased had a homicidal death. The only question that arises is

as to whether there is any evidence against the appellant to

convict him for the offences charged.

8. The appellant was arrested (at about 20:45 hrs. to 21:26

hrs.) on 14.04.2016 and his medical examination revealed that

there were injury marks on his genitals as spoken to by PW-7

Dr. Kamlesh Kumar.

9. The prosecution attempts to rely on the discovery

panchnama (Exh.18) to reinforce their case that it was pursuant

to the appellant’s statement that the place of occurrence was

discovered. PW-4 Bharat Kumar and PW-5 Arjun Sinh were

examined in support of the said purported discovery

panchnama. This document, however, is seriously disputed by

the defence. According to the defence, the panchnama (Exh.9)

of the place of the occurrence was already drawn on 14.04.2016

7 between 16:00 hrs and 18:30 hrs and by the time the discovery

panchnama (Exh.18) was drawn at around 09:00 a.m. on

15.04.2016, the place of occurrence was already known to the

prosecution.

10. It is also the case of the prosecution that as part of the

same transaction when the place of occurrence was discovered

and after the said panchnama was drawn at around 09:00 a.m.

on 15.04.2016, the accused voluntarily expressed willingness to

show the place where he had thrown the clothes of the victim

and in pursuance thereof the recovery panchnama (Exh.21) was

drawn up between 09:15 hours and 09:45 hrs on 15.04.2016

and a light pink coloured Tshirt and a red coloured leggings

were recovered The prosecution has examined PW-6

Maheshbhai in support of the recoveries. The defence has

strongly objected to the admissibility of the recoveries on the

ground that no statement of the accused was recorded on this

aspect and that what is available is merely a purported recovery

carried out. We have considered this aspect in the later part of 8 the judgment coupled with the applicability of Section 8 of the

Evidence Act to see if the conduct of the accused in leading to

the place where the clothes of the deceased were found would

be admissible in evidence.

11. We have heard Ms. Uttara Babbar, learned senior counsel

for the appellant, appearing pro bono, who presented the case

comprehensively and filed detailed written submissions. We

have also heard Ms. Swati Ghildiyal, learned counsel for the

State who in ably advancing the State’s case, left no stone

unturned in countering the submissions of the learned senior

counsel for the appellant. Detailed written submissions were

also filed by her. We have perused the records including the

records of the trial court.

12. The case rests on circumstantial evidence. We are

conscious of the five golden principles repeatedly reiterated by

this Court which are to be borne in mind in cases involved with

circumstantial evidence. In the leading case of Sharad

9 Birdhichand Sarda vs State of Maharashtra, (1984) 4 SCC

116, it was held as under:-

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made:

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

10 (4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

Approaching the case at hand with the above principles in

mind, we find the following.

Circumstance No. 1: The appellant last seen with the

deceased

13. It is the consistent case of the prosecution that the

deceased child Rohit @ Shital was barely four years old and

was playing near his house when the accused took him from

there under the pretext of getting him ice-cream. PW-10

Jyotsnaben, who was the aunt of the deceased and who lived

nearby, clearly deposed that on the day of the incident when she

was cooking near the front side of the house, the appellant came

to her and asked for water. Thereafter, while leaving, the

11 accused took the victim. When she asked the appellant where

he was taking the victim, the appellant replied that he was

taking the victim to get ice-cream and he will send him after

that. When PW-10 told him not to do so, the appellant stated

that he would send him back after getting the child ice-cream,

and so saying took the child with him.

14. It is undisputed that the family of the deceased knew the

appellant and his family. PW-10 further deposed that when

after a long time the deceased did not return, she informed the

same to her sister-in-law PW-13.2 Artiben. PW-10 maintained

her narration in the cross where it also emerges that she

searched for child at the ice-cream shop of Kabo and Yogesh in

the village and was told that the victim had not been there.

15. The deposition of PW-10 Jyotsnaben is fully corroborated

by the evidence given by PW-11 Manoj Kumar. PW-11 states

that he was running a garment shop at Piludara village; that on

the day of the incident, the appellant Shambhu passed by his

12 shop at about 12 O’clock; that Pravingiri’s son was with the

appellant; that on being asked the appellant informed that he

was going to the shop of Kaliya to get ice-cream. PW-11 also

stated that when the appellant was passing by the shop along

with victim, PW-12 Somabhai Ranchhodbhai, Ranjitbhai

Fatesang and Raysangbhai Manorbhai were also present. The

defence contends that PW-12 did not support the case of the

prosecution and was declared hostile. This aspect of the matter

does not detract from the clinching evidence of the evidence of

aunt of the deceased - PW-10 Jyotsnaben which we find very

natural or the evidence of PW-11 Manoj Kumar who had no

reason to falsely depose to the said fact. The only suggestion

given to PW-11 is that he was deposing because he was friend

of the father of the deceased. We are not persuaded to discredit

the testimony of PW-11 on this score.

16. Apart from PW-10 and PW-11, PW-13.1 Sursangbhai also

speaks about the appellant taking the deceased and the appellant

stating that he was going to get the child ice-cream. PW-13.1 13 states that thereafter he went inside the house and left for the

farm. It was strongly contended by the defence that in the cross-

examination, he had deposed that he had not seen the appellant

passing by the shop along with the deceased. The portion of the

cross-examination has to be read in the context of the earlier

statements occurring therein. They are as follows:

“It is not true that Manojbhai’s shop is located at the distance of half kilometer from my house. It is true that Manojbhai’s shop is in the market it is true that Manojbhai runs business of ice cream and other goods. Kaliya’s shop is located in the other market. I had reached Manojbhai’s shop at about 1 o’clock. It is true that the market was open and there was movement of people. It is true that I had not seen Shambhu passing by the shop along with the son of Pravin. Pravin bhai Maharaj is my friend. I do not know his family members.”

It will be seen that PW-13.1 states that he reached Manojbhai’s

shop at about 1 O’clock and that market was open and there

was movement of people and thereafter the statement occurs

that he had not seen appellant passing by along with the son of

Pravingiri. Mrs. Swati Ghildiyal, learned counsel for the State,

14 in her written submissions, has furnished the portion as in

Gujarati which was also read to us and translated at the time of

the oral hearing. According to the learned counsel for the State,

the particular sentence only meant that PW-13.1, did not see the

appellant leaving or going away from the shop and that this was

only because he had gone into his house prior to that. We are

inclined to accept the meaning as it comes out from the Gujarati

version. The small discrepancies insofar as the timings are

concerned are only natural as the witnesses were deposing

nearly two years after the incident. They are not material

discrepancies.

17. Hence, it is undisputed that between 12:00 and 01:00 PM,

the appellant went to the neighborhood of the house of the

deceased and partook water from the aunt PW-10, engaged in a

conversation with her and in spite of being dissuaded, took the

deceased child under the pretext of buying him ice-cream. The

time lag between the accused being last seen and the sighting of

the dead body lying is also extremely short. PW-11 Manoj 15 Kumar states that at about 5 O’clock in the evening when they

were searching for the victim and when they were near the

boundary wall of the lake near the Dargah, some persons

informed them that a dead body was lying in the acacia bushes

behind the Dargah.

18. The incident has clearly occurred between 12:00 noon and

05:00 PM on 13.04.2016. The timing is also corroborated by

the doctor PW-8 who did the postmortem on 14.04.2016

between 03:35 PM and 04:45 PM and he further deposed that

death would have occurred 24 to 36 hours before the

postmortem. There are some important aspects which require to

be noticed here and that is what brings out the clinching nature

of the case against the appellant.

19. The deceased, aged between three and a half and four

years, was a small child, just out of toddlerhood and at the pre-

school stage. This is very significant because when the

appellant has from the neighborhood of the house of the

16 deceased taken the deceased one would expect that the small

child would be brought back and dropped at the house. The

appellant offered no explanation as to what happened after the

time he spent with the child and has no case that he handed over

the child to any other person or that he dropped the child home.

Unlike in the case of grownups, where an explanation about the

manner of parting company could in a given case be acceptable

in the case of a small child who has been picked up from

neighborhood of his house, it would be normal to expect that

the small child would be dropped back home or an explanation

about entrusting of the child to another person to be safely

taken home is given. The appellant’s lack of explanation is to

say the least baffling.

20. According to PW-9 the father of the deceased, when he

went in search of the child for the second time to the area where

PW-11 had told him about the appellant having proceeded with

child, PW-9 actually met with the appellant and asked about the

deceased. The appellant on asking told PW-9 that he gave ice- 17 cream to the deceased and sent him. This statement in the

deposition is also mentioned at the earliest point in the First

Information Report lodged on 13.04.2016 at about 07:30 PM in

the evening.

21. It is well settled that if the accused is last seen with the

deceased and particularly in a case of this nature when the time

gap between the last seen stage and occurrence of death is so

short, the accused must offer a plausible explanation as to how he

parted company with the deceased and the explanation offered

must be satisfactory. Section 106 of the Evidence Act mandates

that when any fact is especially within the knowledge of any

person, the burden of proving that fact is upon him. It is on this

principle that this Court has repeatedly held that if an accused

fails to offer an explanation, he fails to discharge the burden cast

upon him under Section 106 and if he fails to offer a reasonable

explanation that itself provides an additional link in the chain of

circumstances [See State of Rajasthan Vs. Kashiram (2006) 12

SCC 254 and Pappu Vs. State of UP (2022) 10 SCC 321]. 18 Circumstance No. 2: Found in the vicinity of the scene of

crime at about the time of crime:

22. Both in the First Information Report and in the evidence,

PW-9 speaks about his going to the lake. It is not in dispute that

it was this place, viz, near the boundary wall of the lake behind

the Dargah of Pir in the acacia bushes, the body of the deceased

was found naked at around 5 O’clock on 13.04.2016. The

presence of the accused at the scene of crime in the afternoon at

about 2 O’clock in the background of the evidence of last seen

of PW-10, 11 and 13.2, is a clear link in the chain of

circumstances which point to the guilt of the accused. If one

couples this fact with the fact that he was not at home around

the time when PW-10 Jyotsnaben and PW13.2 Artiben, the

mother visited the house of the appellant, it reinforces the

evidence of PW-9 that in the afternoon, on the date of crime,

the appellant was at the place of the crime and the deceased

who was taken from the house was not with him at that

moment.

19 Circumstance No. 3: Injury on the private parts of the

accused

23. PW-7, Dr. Kamlesh Kumar who examined the accused on

15.04.2016 deposed that there was injury on the genitals of the

accused. Exh.P-27 certificate also reveals that there were

abrasions on the prepuce of the accused. It will be seen from the

injuries on the deceased as reflected in the evidence of PW-8

Dr. Kalpesh and the postmortem report Exh. P.28 that the

perianal region of the deceased had multiple scratch abrasions

with the underlying contusions; that the perianal skin was

swollen and reddish in colour; the anal orifice dilated, roomy

and that part of the rectum protruded out through the anal

orifice. The doctor has also opined that these injuries were

antemortem in origin. The abrasions in the prepuce of the

accused were there even two days after the incident. The only

suggestion in the cross-examination to the doctor raised that if a

person scratches the genitals a lot, signs of contusions could be

observed. No other explanation is offered. Considering the 20 overall facts, we are inclined to accept this circumstance as an

additional link in the chain of circumstances.

Circumstance No. 4: Conduct under Section 8 of the

Evidence Act:

24. Irrespective of the admissibility of the discovery,

panchnama (Exh.18) and the recovery panchnama Exh. 21 and

irrespective of the admissibility of the recovery of the clothes of

the deceased on the statement of the accused, we find that the

conduct of the appellant in leading the investigation team and

the panchas and pointing out where the apparel of the deceased

was hidden would be admissible. In this case PW-17, the

Investigating Officer has clearly deposed that the accused

showed willingness to show the place where he had thrown the

clothes. PW-17, his team and the panchas reached by walking

to the place as indicated by the accused. This Court in A.N.

Venkatesh and another v. State of Karnataka (2005) 7 SCC

21 714 relying on Prakash Chand v. State (Delhi Admn.), (1949)

3 SCC 90 held as under:

“9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 :

AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act.”

22 We take this as an additional link in the chain of circumstances.

Circumstance No. 5: Matching of Blood Group

25. Blood group on the clothes of the deceased tallied with the

blood group of the accused as per Exh.50, the Serological

Analysis Report. PW-9 the father of the deceased identified the

clothes worn by the deceased on the fateful day. PW-17 the

Investigating Officer Gajendra Kumar has clearly deposed that

the apparel of the deceased was recovered near the situs of the

crime. PW-7 Dr. Kamlesh Kumar who medically examined the

appellant deposed that samples of pubic hair, blood, saliva,

semen and nails were obtained of the accused and he further

deposed that the samples were sealed and the Muddamal was

sent for further investigation through police constable to FSL,

Surat. Coming back to PW-17, he deposed about receiving the

sealed samples and keeping it in safe custody. Thereafter, he

deposed that a forwarding note was prepared for analysis of the

aforementioned Muddamal and the sealed samples to FSL,

23 Surat and that a constable was deputed to submit the same to

FSL, Surat. The receipt obtained was duly filed. The Biological

and Serological Reports received from FSL, Surat were marked

as Exh.49 and Exh.50 respectively. The Serological analysis

clearly showed that the small trouser (leggings), the anal swab

(semen) and the perianal swab (semen) had blood of group O.

The accused had also blood group O. We are satisfied with the

chain of custody as emerging from the evidence. The defence

has a case that sample mark H mentioned in Exh.47 which is

the forwarding letter to the forensic science laboratory has

neither been analyzed in the biological analysis Exh.49 or in the

serological analysis Exh.50 and hence tampering cannot be

ruled out. The State has countered the submission by

contending that sample mark ‘H’ in Exh.47 is a Khaki cover

and is not an item recovered from the accused and as such the

State counsel contends that in all likelihood sample mark H was

a cover in which all other samples were put. The matching of

the blood group has occurred in sample F1 which is the anal

24 swab (semen) and F2 perianal swab (semen). The blood group

of the aforesaid semen was found to be O. It should be noted

that the sample of semen of appellant along with blood and

saliva in sample no. G1 to G4 also had blood group O. The

judgment in Prakash Vs. State of Karnataka (2014) 12 SCC

133 cited by the appellant also does not advance the case of the

defence. It is clear from the facts of the case, that the blood

sample therein was decomposed and its original grouping could

not be determined. In any event, coupled with other

circumstances indicated hereinabove, we are inclined to

consider the matching of blood group as an additional link in

the chain as far as the facts of this case is concerned.

26. The argument of Ms. Uttara Babbar, learned senior

counsel is that no DNA test was carried out. No doubt, the

DNA test was not carried out and it would have been better for

the prosecution to have done the same. However, keeping the

overall conspectus of the case in mind, we do not think that not

conducting DNA test was fatal to the prosecution. We draw 25 support from the judgment of this Court in Veerendra v. State

of Madhya Pradesh, (2022) 8 SCC 668, wherein it was held as

under:

“53. In view of the nature of the provision under Section 53-ACrPC and the decisions referred to, we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the court has still a duty to consider whether the materials and evidence available on record before it, are enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances form a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour.”

27. In view of the circumstances elucidated above, we do not

feel the need to comment upon the admissibility of the discovery

panchnama Exh.P.18 and the recovery panchnama Exh.P.21. Even

26 eschewing the aspect of discovery under Section 27, we have

found that other circumstantial evidence does exist pointing to the

guilt of the appellant.

Presumption under the POCSO Act

28. It is clearly established in evidence that the deceased was

subjected to a brutal sexual assault. The injuries as evidenced in

the postmortem report Exh.P.28 particularly injury no. 1 clearly

indicate that the deceased was subjected to aggressive penetrative

sexual assault. The injury on the prepuce of the penis of the

accused along with the matching of the blood group coupled with

other circumstantial evidence clearly constitute foundational facts

for raising presumption under Sections 29 and 30 of the POCSO

Act. Sections 29 and 30 of the POCSO Act reads as under:

“29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

27 30. Presumption of culpable mental state:- (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

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

29. It will be seen that presumption under Section 29 is

available where the foundational facts exist for commission of

offence under Section 5 of the POCSO Act. Section 5 of the

POCSO Act deals with aggravated penetrative sexual assault and

Section 6 speaks of punishment for aggravated penetrative sexual

assault. Section 3 of the POCSO Act defines what penetrative

sexual assault is. The relevant Sections are extracted hereinbelow.

“3. Penetrative sexual assault. - A person is said to commit "penetrative sexual assault" if-

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or 28

5. Aggravated penetrative sexual assault.— (i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

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

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

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.]

30. The manner in which the appellant enticed the deceased

child under the pretext of buying ice-cream in spite of being

dissuaded by the aunt (PW-10) and without the consent of the

lawful guardians also makes out an offence under Section 364 of

IPC. The aggravated penetrative sexual assault clearly establishes

offence under Section 377 of IPC and Sections 4 and 6 of the

29 POCSO Act. The appellant has not rebutted the presumption by

adducing proof to the contrary.

31. For the reasons stated above, we are satisfied that the

circumstances enumerated hereinabove are fully established; that

the circumstances so established are consistent only with the

hypothesis of the guilt of the accused and are not explainable by

any other hypothesis; that the circumstances are conclusive in

nature and further that the chain of circumstance is so complete as

to point to the conclusion that the appellant is guilty of the

offences charged. In view of the same, we uphold the conviction

as imposed by the Trial Court and confirmed by the High Court.

Sentence:

32. The Trial Court has imposed the sentence of death and the

High Court has confirmed the same. It is time for us to draw up a

balance sheet of the aggravating and mitigating circumstances to

decide whether the case falls in the category of rarest of rare case.

We also need to examine whether the sentence of life

30 imprisonment is foreclosed and the possibility of reformation is

completely ruled out.

33. Without doubt, the crime committed by the appellant was

diabolic in character. He enticed the innocent child by tempting

him with ice-cream and brutally sodomized and murdered the

four-year old. The appellant also mercilessly strangulated the

deceased. The post-mortem report clearly indicated that death was

due to asphyxia by throttling.

34. On the mitigating side, the appellant was 24 years of age

when the incident happened; he had no criminal antecedents; the

appellant hails from a low socio-economic household as the

Mitigation Investigation Report filed by Ms. Komal of Project

39A, pursuant to the order of this Court dated 05.10.2023

indicates. The mitigation report further indicates that experts have

opined that the appellant is diagnosed with moderate intensity

psychotic features and intellectual disability and that the appellant

had in his early childhood contacted Tuberculosis Meningitis

31 (TBM). The appellant, according to the report, maintains family

ties with his 64-year-old mother who takes care of his 10 year old

daughter. The appellant’s wife has deserted him.

35. By an order of 05.10.2023, we also called for the conduct

and behaviour of the appellant from the Superintendent of

Vadodara Central Jail as well as a report on his mental health. The

report from the Superintendent of Vadoara Jail indicates, that the

behaviour of the appellant in prison is completely normal and that

his conduct in jail is good. The report from the Hospital for

Mental Health indicates that the appellant has no psychiatric

problem at present. The report does indicate a feeling of remorse

in the appellant. The appellant has contended that the projective

test adopted by the Hospital for Mental Health has its limitations

for reliability. Be that as it may.

36. Considering the overall facts and circumstances, we hold

that the present is not a case where it can be said that the

possibility of reformation is completely ruled out. The option of

32 life imprisonment is also not foreclosed. The case does not fall in

the category of rarest of rare case. We are of the opinion that ends

of justice would be met if we adopt the path carved out in Swami

Shraddananda Vs. State of Karnataka (2008) 13 SCC 767.

37. Even though the case of the appellant falls short of the rarest

of rare category, considering the nature of the crime, we are

strongly of the view that a sentence of life imprisonment which

normally works out for 14 years would be grossly

disproportionate and inadequate. Having regard to the nature of

the offence, a sentence of imprisonment for a prescribed period

without remission would alone be proportionate to the crime and

also not jeopardize the public confidence in the efficacy of the

legal system.

38. This Court recently in Nawas Alias Mulanavas Vs. State of

Kerala (2024) SCC OnLine SC 315, adverting to this aspect had

the following to say :-

“29. How much is too much and how much is too little? This is the difficult area we have tried to 33 address here. As rightly observed, there can be no straitjacket formulae. Pegging the point up to which remission powers cannot be invoked is an exercise that has to be carefully undertaken and the discretion should be exercised on reasonable grounds. The spectrum is very large. The principle in Swamy Shraddananda (supra) as affirmed in V. Sriharan (supra) was evolved as the normally accepted norm of 14 years was found to be grossly disproportionate on the lower side. At the same time, since it is a matter concerning the liberty of the individual, courts should also guard against any disproportion in the imposition, on the higher side too. A delicate balance has to be struck. While undue leniency, which will affect the public confidence and the efficacy of the legal system, should not be shown, at the same time, since a good part of the convict's life with freedom is being sliced away (except in cases where the Court decides to impose imprisonment till rest of the full life), in view of his incarceration, care should be taken that the period fixed is also not harsh and excessive. While by the very nature of the task mathematical exactitude is an impossibility, that will not deter the Court from imposing a period of sentence which will constitute “a just dessert” for the convict…..” 34

39. Applying this principle, we hold that a sentence of

imprisonment for a period of 25 (twenty-five) years without

remission would be ‘a just dessert’.

40. The trial Court had sentenced the appellant to death under

Section 302 IPC, to simple imprisonment of 10 (ten) years and a

fine of Rs.10,000/- for offence under Section 364 and to life

imprisonment and a fine of Rs.10,000/- for offence under Section

6 of the POCSO Act. No separate sentences were awarded for

offences punishable under Section 4 of the POCSO Act and

Section 377 of IPC. The trial Court had directed that the accused

should suffer all the above ordered punishments together. The

High Court had confirmed the death sentence and dismissed the

appeal of the appellant.

41. In view of what we have held hereinabove, while

maintaining the conviction under Sections 302, 364, 377 of IPC

and Sections 4 and 6 of the POCSO Act, we set aside the sentence

of death for the offence under Section 302 and substitute the same

35 with that of rigorous imprisonment for a period of 25 (twenty-

five) years without remission. We also order that the sentence

imposed for offences under Section 364 IPC (10 years S.I. and

Rs. 10,000/- fine) and Section 6 of the POCSO Act (life

imprisonment and Rs.10,000/- fine) shall run concurrently with

the sentence of rigorous imprisonment for a period of 25 years

without remission, which we have presently ordered.

42. The appeals shall stand partly allowed in the above terms.

Considering the socio-economic condition of the accused on the

facts of the present case, we set aside the fine amounts imposed.

Special Leave Petition (Crl.) No. 9162 of 2021:

43. This Special Leave Petition arises out of an order of the

High Court of Gujarat at Ahmedabad in R/Special Criminal

Application No.18906 of 2021 whereby the High Court denied

parole to the petitioner.

36

44. In view of the judgment passed in Criminal Appeal (Arising

out of SLP (Crl.) No. 9015-9016 of 2019, no orders are required

to be passed in this Special Leave Petition. The Special Leave

Petition is, accordingly, dismissed. However, the dismissal of the

Special Leave Petition will not debar the petitioner from availing

such remedies as are available under law and in accordance with

our judgment rendered hereinabove.

………........................J. [B.R. GAVAI]

……….........................J. [ARAVIND KUMAR]

……….........................J. [K. V. VISWANATHAN] New Delhi;

17th December, 2024.

37