Veerendra vs State Of Madhya Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

CRIMINAL APPEAL NOS.5 & 6 OF 2018

VEERENDRA Appellant

VERSUS

STATE OF MADHYA PRADESH Respondent

J U D G M E N T

C.T.RAVIKUAMR, J.

1. The appellant, who was to avuncularise being the

cousin brother of victim’s mother, was found to have

stripped, stuprated and strangled to cause her death.

The incident took place on 19.9.2014 between 08:30 pm

and 09:30 pm, inside the ruined bada (used in the Signature Not Verified Digitally signed by GULSHAN KUMAR ARORA Date: 2022.05.13

sense 15:30:29 IST Reason: ‘varanda’) of Jagan Sindhi, which is a

dilapidated, worthless building, situated at Thakur 2

Das Baba Road, Dabra in the district of Gwalior in

Madhya Pradesh. Hereafter in this judgment it will be

referred to as “occurrence place” only, for brevity.

The victim was aged 8 years. The appellant, who is a

convict - awarded with capital sentence, calls in

question the common judgment dated 14.7.2016 of the

High Court of Madhya Pradesh at Gwalior in Criminal

Reference Case No.101/2015 titled as “State of Madhya

Pradesh vs. Veerendra” and in Criminal Appeal

No.39/2015 titled as “Veerendra Vs. The State of

Madhya Pradesh”. Over the stated incident, Crime

No.857/2014 was registered at Police Station, Dabra,

soon after the noon of night, to be precise at 00:05

hrs on 20.09.2014. The appellant was arrested on

20.9.2014 at about 04:00 pm. Upon culmination of the

trial for offences punishable under Sections 364A,

376A, 376(2)(i), 302 and 201 of the Indian Penal Code

(for short, “IPC”) and Section 6 of the Protection of

Children from Sexual Offence Act, 2012 (for short,

“POCSO Act”) in Session Trial No.642/2014 before the

Court of IInd Additional Sessions Judge, Dabra,

conviction was recorded against him for the offences 3

punishable under Sections 302, 376A, 376(2)(i) IPC

and Section 6 of POCSO Act. Consequently, he was

awarded death sentence on first two counts, subject

to confirmation by the High Court and life sentence

under the 3rd and 4th counts besides sentence of fine

of Rs.2,000/- each, on all counts. All the

substantive sentences were ordered to run

concurrently. As ordered under the said judgment, in

respect of sentence of capital punishment, reference

was made to the High Court of Madhya Pradesh as

CRRFC.01/2015. The appellant herein filed Criminal

Appeal No.39/2015 challenging his conviction for the

stated offences and consequential sentences imposed

therefor. As per the common judgment, the High Court

partly allowed the appeal as well as the reference

made to it as hereunder: -

“In the result, the appeal filed by the appellant is hereby partly allowed. His conviction as well as sentence of offence under Section 376A of IPC is hereby set aside on technical ground whereas the conviction and sentences of offence under Sections 376(2)(i) and 302 IPC and Section 6 of the POCSO Act recorded by the trial court are confirmed. The reference sent by the trial court is partly accepted. Death 4

sentence recorded for the offence under Section 302 IPC is hereby confirmed by us.”

Hence these appeals.

2. Briefly stated, the prosecution case is as

follows:

Laxmibai Batham (PW-1) and Shri Ganesh are the

parents of the deceased minor girl aged 8 years.

Brij Lal (PW-2) and Janki (PW-3) are her maternal

grand- parents. PW-1 is the cousin sister of the

appellant-convict. In other words, the appellant-

convict is an uncle (mama) of the deceased minor

girl. The incident occurred between 08:30 pm and

09:30 pm on 19.9.2014. On that fateful day at about

08:30 pm, Raju Badam, who is the father of the

appellant, sent her to purchase a bundle of bidi from

a nearby shop. While proceeding to the shop she went

past the house of Sri Patiram Basudev @ Pappu (PW-4).

The appellant who was there, with PW-4 and one

Rakesh, happened to see her. They gathered there for

drinking. Upon seeing the victim, the appellant asked

her whither she was going and then, he followed her

after promising the retinue that he would return. 5

Thereafter she was found missing. After a fervent,

futile search till midnight at 00:05 hrs on

20.09.2014 PW-1 lodged Ext.P1-complaint about her

missing. On 20.09.2014 itself, upon interrogation of

the appellant and the aforesaid Rakesh and Patiram

Basudev @ Pappu, the appellant was arrested. While in

custody, the appellant made Ext.P5-disclosure

Statement and thereafter, at his instance, the

victim’s corpse concealed underneath gunny bags, was

recovered. A team of two doctors conducted autopsy

on the body of the deceased and the post-mortem and

the forensic science laboratory (FSL)reports revealed

commission of rape in a diabolically and gruesome

manner and causing of death by throttling. Subsequent

to the filing of the final report and committal of

the case, the trial Court initially framed charges

against the appellant for offences punishable under

Sections 364A, 376(2)(i), 302, 201 IPC and under

Sections 3, 5 and 6 of the POCSO Act. After the

commencement of the trial vide order dated

16.12.2014, charge for offence under Section 376A was

also framed against the appellant. 6

3. Before the trial Court, for establishing the

aforesaid charges against the appellant, the

prosecution had examined PWs 1 to 19 and marked

exhibits P-1 to P-26 documents besides identifying

the material objects. In the examination under

Section 313 of the Code of Criminal Procedure (for

short ‘Cr.P.C.’) the appellant had failed to explain

the incriminating circumstances against him. Though

he was asked to enter on his defence he did not

adduce any evidence. Upon analyzing the evidence on

record, viz., the chain of events and circumstantial

evidence thereof, the trial Court convicted and

sentenced him as afore-stated. It is in

reappreciation of the said chain of events and the

circumstantial evidence that the High Court partly

allowed the aforesaid appeal and also the Criminal

Reference Case, in the stated manner.

4. In these appeals the appellant has candidly

stated thus:-

“The Petitioner at the very outset and with great respect confines this petition with regard to the aspect of the sentencing awarded by the courts below.” 7

After having stated thus the appellant has,

virtually, raised various contentions to challenge

the very common judgment dated 14.07.2016 itself.

Still, it will not be inappropriate to refer to ‘the

questions of law’ framed under “A” and “B” in the

contextual situation. They read as hereunder: -

“A. Whether the conviction of the petitioner u/s 302 IPC is sustainable in view of the medical evidence on record which categorically suggested the fact that the deceased had died due to injuries sustained on her private part?

B. Whether any intention to murder a prosecutrix can be attributed, the death of which has occurred in the course of commission of alleged rape?”

5. In spite of the stated nature of the contentions,

the circumstances and also what would be deducible

therefrom we are inclined to consider the appeal, on

all permissible grounds, taking note of the fact that

the appellant herein has been handed down capital

sentence for the conviction under 302 IPC, based on

circumstantial evidence. However, we cannot be

unmindful of the scope and delineated contours of an

appeal by special leave under Article 136 of the

Constitution of India. It is worthy to note that in 8

such an appeal, unlike in a regular appeal, this

Court would not undertake the exercise of an indepth

consideration by way of re-appreciation of evidence.

Normally, in such an appeal only in rare and

exceptional cases wherein manifest illegality appears

to have infected the impugned judgment (going by the

case of the appellant) concerned that this Court will

go beyond the stated scope of an appeal by special

leave. In this case, the trial Court convicted the

appellant based on circumstantial evidence and the

High Court though partly allowed the appeal and the

reference by setting aside the conviction under

Section 376A IPC maintained the conviction and the

sentences imposed for the other offences based on

circumstantial evidence. That apart, the High Court

disagreed with the findings of the trial Court as to

the admissibility and evidentiary value of the

underwear seized from the occurrence place (Art. F

described as shaddy), upon treating it to be that of

the appellant. In the circumstances thus obtained an

exercise to reassure as to the existence of a

complete chain of circumstances pointing to the guilt 9

of the appellant alone, in exclusion of every

hypothesis compatible with his innocence, is to be

undertaken.

6. In the adjudicative pursuit the trial Court

obviously considered the following circumstances: -

a)Post Mortem report together with the expert opinion of PW-10, the Doctor who conducted autopsy on the body of the deceased and Ext.P24 -

FSL report revealing that the victim was raped and murdered;

b)The deceased was aged about 8 years and therefore, fell within the definition of ‘child’, under Section 3 of the POCSO Act;

c) The deceased was lastly seen with the accused at about 08:30 pm on 19.09.2014 and thereafter she was found raped and murdered;

d) After 09.00 pm on 19.09.2014 the accused was seen coming out of the Bada of the ‘occurrence place’;

e) Based on the disclosure statement of the accused (Ext.P5) and at his instance the nude dead body of the victim, concealed beneath gunny bags, was recovered from the ‘occurrence place’;

f) Finger nail scratches were found on the body of the accused;

g) Clothes of the deceased were recovered in consequent to the information given by the accused;

h) Semen was present in the vaginal swab as also on the clothes of the accused and the deceased;

i) Human blood was found on the gunny bags and also 10

the clothes of both the accused and the deceased;

j) Additional link on account of the failure on the part of the accused to explain the incriminating circumstances put to him during the examination under Section 313, Cr.P.C.

7. As stated earlier, as per the impugned common

judgment in the appeal as also in the reference made

to the High Court for confirmation of the death sen-

tence, the High Court set aside the conviction under

Section 376A IPC. We may hasten to add that in spite

of such interference no appeal(s) has been filed by

the prosecution. It is true that despite such inter-

ference the High Court has concurred with the convic-

tion for the offence punishable under Section 302 IPC

and confirmed the capital sentence awarded by the

trial Court. The High Court has also sustained the

conviction for the other offences and also the sen-

tences imposed therefor. What is noticeable is that

even while concurring with the conviction and the

sentences imposed as stated above, on certain conclu-

sions such as the underwear found at the place of oc-

currence as that of the appellant there is no con-

comitancy among the trial Court and the High Court.

The conviction under Section 376A IPC was actually 11

interfered with on technical reasons. It is bearing

in mind the aforesaid aspects and circumstances that

the rival contentions are to be adverted to and ap-

preciated.

8. Heard Ms. Sonia Mathur, learned Senior Counsel

appearing as Amicus Curiae and Mr. Pashupatinath Raz-

dan, learned Standing Counsel for the State of Madhya

Pradesh. These appeals were heard together and this

judgment will dispose both of them.

9. The learned Amicus Curiae appearing for the

appellant submitted that the conviction of the

appellant is founded on circumstantial evidences and

a scanning of the materials on record and the

circumstances relied on for his conviction, would

reveal that the chain of circumstances was not

complete. Furthermore, it is submitted that even a

cursory glance of such evidence and the materials

relied on would reveal that the appellant was

entitled to get the benefit of doubt. Dilating the

contentions it is submitted that there is no medical

evidence pointing to the presence of the accused in

the place of occurrence. Though blood and semen were 12

found on the pants of the appellant recovered from

his house on the next day of the occurrence, the FSL

report is inconclusive and it did not connect the

appellant to the blood and semen found on the clothes

of the deceased. Following contentions were also

raised on behalf of the appellant: -

“that as per the report, in the matter of analyzation of the samples benzidine/ phenolphthalein and crystal tests were conducted and among them crystal test alone is a conclusive test. Ergo, in the absence of worksheet to demonstrate the nature of tests conducted on each of the items the report and the respective conclusions ought to have been discarded; that though in the list of articles seized from the house of the appellant and sent for examination, the pants seized from his house was described as the one worn by him at the time of the incident none of the witnesses had testified the fact that it was the same which he was wearing on the day of occurrence; that the MLC of the appellant was conducted in clear violation of Section 53A of the Cr.P.C.; that as relates nail scratches found on the face and neck of the appellant, allegedly caused by the victim, the evidence regarding the scratches is unreliable as despite the collection of nail samples of the deceased by PW-10 they were not sent to the laboratory for analysis.”

10. It is the further contention on behalf of the ap-

pellant that though, PW-14 testified that the finger 13

nail injuries were seen on the right cheek of the ap-

pellant, his MLC would indicate finger nail injuries

only on the left side of the face and neck. At any

rate, no reliance should have been given on that is-

sue as the appellant was in the custody of the police

even before his formal arrest, as spoken by PW-4. It

was also contended that the date of birth of the vic-

tim was not proved by producing the school records.

Furthermore, it was contended that the conclusion

that the deceased was lastly seen in the company of

the accused was arrived at relying on the oral testi-

monies of PW-2 and PW-4 without proper appreciation

of various relevant aspects. According to the appel-

lant neither PW-2 nor PW-4 had informed about the

same to the police at the first instance, i.e., at

the time of lodging complaint regarding missing of

the victim. The non-examination of one Rakesh who,

according to the prosecution, joined PW-4 and the ap-

pellant for drinking during that night and that of

Sri Ganesh, the father of the deceased, who was an

attesting witness to certain mahazars for the recov-

eries and seizures, is fatal to the case of the pros- 14

ecution. In regard to the testimony of PW-12 that he

had seen the appellant coming out of the bada of Ja-

gan Sindhi, in the night of 19.09.2014 at about 09:00

pm, it is submitted that it ought not to have been

taken as a link in the chain of circumstances, as his

statement under Section 161 Cr.P.C. was taken belat-

edly. May be as an alternative contention it is con-

tended that PW-12 is a chance witness and his testi-

mony is not creditworthy.

11. As relates, another link in the chain of circum-

stances viz., the recovery of the body and clothes of

the deceased at the instance of the appellant it was

contended that no independent witness was examined to

prove the same. In that regard, it was further sub-

mitted that the recoveries and seizure ought not to

have been taken as proved by PW-2 as he is a related

witness being the maternal grandfather of the de-

ceased. It was contended that the clothes of the ap-

pellant allegedly recovered from his house were not

sealed and therefore, the failure of the appellant to

explain the presence of human blood and semen on his

clothes recovered from his house, could not have been 15

relied on as a circumstance against him. In that re-

gard, it was further contended that no DNA test was

conducted to connect the appellant to the samples

found on the body of the deceased and thereby Section

53A Cr.P.C., was violated. Based on the aforesaid

contentions, the learned Amicus Curiae submitted that

the conviction founded on circumstantial evidence is

unsustainable on account of such glaring discrepan-

cies, lacuna and the stated lapses on the part of the

prosecution. At any rate, the circumstances relied

on would not establish continuity in the links of the

chain of circumstances to lead to an irresistible

conclusion regarding the guilt of the appellant. The

nub of the contentions is that appellant is entitled

to get the benefit of doubt in view of such circum-

stances and as such, the conviction and sentence

awarded are liable to be set aside and he is entitled

to be acquitted.

12. On the contrary, the learned counsel for the

State sought to get sustained the judgment contending

that the concurrent findings and the reasons assigned

therefor, are nothing but outcome of proper analysis 16

and appreciation/re-appreciation of evidence on

record, by the trial Court and the High Court. The

learned counsel urged that the contention based on

failure to comply with Section 53A Cr.P.C. is abso-

lutely bereft of any basis or merits as after rightly

construing the position of law under Section 53A

Cr.P.C., the High Court had properly appreciated the

remaining evidence to arrive at the conclusion that

the prosecution had succeeded in establishing a com-

plete chain of circumstances pointing to the guilt of

the appellant alone. It was contended that the tes-

timonies of PWs 2, 4 and 12 are uncontroverted and

credible and, therefore, rightly accepted and acted

upon by the trial Court and the High Court. Though,

PWs 2 and 4 were thoroughly cross-examined on behalf

of the appellant, nothing could be elicited to dis-

credit their version that they had seen the deceased

lastly in the company of appellant, just under an

hour before the commission of the gruesome acts of

rape and murder. Hence, the ‘last seen theory’ was

rightly applied, it was submitted. PW-12 is a chance

witness and his version that he had seen the appel- 17

lant coming out of the bada of Jagan Sindhi abutting

Thakur Das Baba Road around 09:00 pm on 19.09.2014,

was rightly accepted as the appellant had neither

succeeded in eliciting anything to discredit his ver-

sion nor offered any alternative possible explanation

for his presence at that time near the place of the

incident. With respect to the appellant’s contention

of non-examination of independent witness to prove

the recovery of the body and clothes of the deceased,

at the instance of the appellant from the place of

occurrence, the learned counsel submitted that their

recovery was rightly taken as proved through PW-2 and

his being the maternal grandfather of the deceased is

no ground at all to discredit his evidence or to

raise such a contention. The ocular evidence of PW-16

(Mr. Jitendra Nagaich) - a Police Officer who was

party to the police team which conducted investiga-

tion and present at the time of such recovery, of PW-

5 (Mr. Sonish Vashishtha)- who is a reputed journal-

ist, of PW-14 (Akhilesh Bhargava) - the then Senior

Scientific Officer, Gwalior, of PW-15 (Balakrishna) -

the police photographer and of PW-11 (Mr. Deepak 18

Shukla) who was the then Tehsildar and Executive Mag-

istrate of the locality and present at the place of

occurrence upon direction by the Sub-Divisional Mag-

istrate concerned, lent support to the evidence of

PW-2, on the said aspects, it was submitted. He drew

our attention to the other circumstantial evidence,

relied on to enter conviction by the trial Court and

the High Court to contend that taken together all

those circumstances would form a complete chain

pointing to the fact that the appellant alone is the

culprit and that they are incompatible with any hy-

pothesis of his innocence. In short, it was submit-

ted by the learned counsel appearing for the State

that the contentions raised on behalf of the appel-

lant do not merit any serious consideration and the

appeal is liable to be dismissed.

13. In the light of the rival contentions, we have to

examine whether the conviction of the appellant for

the stated offences and the sentences imposed there-

for warrant interference. In this case, the appel-

lant has been awarded death sentence for the convic-

tion under Section 300 IPC. The conviction is based 19

on circumstantial evidence. Rarely, death penalty

would be awarded if the conclusion on the connection

of the accused with the offence(s) is fixed based on

circumstantial evidence. It is true that even in

such cases existence of exceptional

circumstances/special circumstances would make death

penalty awardable. This position was reiterated by

this Court in the decision in Rajendra Pralhadrao

Wasnik Vs. State of Maharashtra [(2019) 12 SCC 460].

We need to dilate on this issue only if the challenge

of the appellant against the conviction for the of-

fence punishable under Section 302 IPC is repelled.

14. Obviously, there is concurrent finding in favour

of the prosecution as relates the first circumstance

viz., the victim was raped and murdered. In order to

establish the same, the prosecution mainly relied on

the expert opinion of Dr. D.C. Arya (PW-10), who per-

formed autopsy on the body of the deceased along with

Dr. Asha Singh, and Ext.P17 post-mortem report proved

by him wherein all the ante-mortem injuries are

noted. PW-10 deposed that post-mortem was jointly

performed by him and Dr. Asha Singh and Ext.P17 re- 20

port was prepared by him in his handwriting. Hence,

his competency as a witness is indisputable. While

being examined, he deposed thus on the ante-mortem

injuries found on the body of the deceased :-

1. Wound 3 inch x 2.5 cm., on inside direction of little finger;

2. Abrasion 3.5 inch x 2.5 cm. on left side of Labia Majora.

3. Contusion 4 cm. X 5 cm. on upper side of right thigh.

4. Contusion 4 cm. X 3 cm. on upper side of left thigh.

5. 3.5 inch x 2.5 cm. vaginal perennial tear of grade fourth extended up to anus.

6. Swelling and congestion were present on en-

tire vagina. Uterus was torn and coming out from vagina.

7. 8 cm x 2 cm. petechial hemorrhage was present underneath the sub cutaneous tis- sues of the neck extending from left side to right side of the neck.

15. As per Ext.P17 post-mortem report the cause of

death is ‘asphyxia due to throttling’. PW-10 - Dr.

D.C. Arya had also deposed to that effect. However,

the contention of the appellant is that when recalled

and cross-examined, subsequent to the addition of

charge under Section 376A IPC against the appellant,

PW-10 would depose that the reason of death could 21

possibly be a ruptured uterus with excessive bleed-

ing. However, on scrutiny of his testimony, we did

not find anything to suggest that PW-10 was prevari-

cating. His version was to the effect that death

would be possible going by the nature of injury Nos.7

and 8. ‘It is incorrect to say that today I am

wrongly stating the death to have occurred due to in-

juries No. 7 & 8,’ he deposed with reference to the

following injuries :-

1. The vaginal perineal tear of 3.5 inch x 2.5 cm of grade fourth extended up to anus.

2. Swelling and congestion were present on entire vagina. Uterus was torn and com-

ing out from vagina.

Attempt on the part of the appellant is to depict

and bring it as an incongruence in the opinion of

PW-10 regarding the cause of death and ultimately to

canvass the position that the case would not fall un-

der Section 300 IPC punishable under Section 302 IPC.

16. In the context of the contentions it is only ap-

posite to refer to the following aspects as also the

probative value of the deposition of a doctor, depos-

ing as an expert. Post-mortem certificate is a 22

medico-legal certificate and it contains two parts.

The first being the facts as found by the doctor who

conducted the autopsy, such as the number of injuries

(including ante-mortem), position of injuries and

their extent etc., and the second part being his ex-

pert opinion as to the cause of death. Though the

opinion of the doctor given with the support of post-

mortem report is entitled to get great weight, the

court cannot abdicate its function as the ultimate

opiner. Taking into account the ocular and medical

evidence and upon their deeper analysis, the court

has to form and record its opinion as to the cause of

death for the purpose of finding out whether the

death involved in a given case is accidental or sui-

cidal or homicidal, in nature. In the decisions in

Tahsildar Singh & Anr. Vs. State of UP (AIR 1959 SC

1012) and Pudhu Raja & Anr. Vs. State [(2012) 11 SCC

196] this Court virtually held it as the duty of the

Court to separate the chaff from the husk and to

dredge the truth from the pandemonium of statements.

16.1 In the decision in State of Haryana Vs. Bha-

girath [(1999) 5 SCC 96] this Court held : 23

“The opinion given by a medical witness need not be the last word on the sub- ject. Such an opinion shall be tested by the Court.” 16.2 In the decision in Mayur Panabhai Shah Vs.

State of Gujarat [(1982) 2 SCC 396], while allowing

an appeal by special leave filed against a judgment

of Gujarat High Court summarily dismissing an appeal

preferred against an order convicting the appellant

for the offence under Section 376 IPC, this Court

held :

“We think that this is not a case which should have been summarily rejected by the Learned Single Judge and moreover we do not think the Learned Judge was right in observing that, “our courts have al- ways been taken the doctors as witnesses of truth”. Even where a doctor has de- posed in court, his evidence has to be appreciated like the evidence of any other witness and there is no irrebut- table presumption that a doctor is al- ways a witness of truth.”

16.3 In the decision in State of WB Vs. Mir Mo-

hammed Omar and Ors. reported in (2000) 8 SCC 382

(referred to hereinafter to as ‘Mir Mohammed Omar’s

case’ only), this Court held thus :

“21. The post-mortem report made by PW30 (Dr Debabrata Chaudhary) shows that the victim was murdered. He noticed as many as 24

45 injuries on the dead body which in-

cluded fracture of 5 ribs (2-6) on the left side towards sternal and, fracture of some of the fingers and extravasation of blood on the right side of occipital re- gion and also on the situs of the rib fractures. The remaining injuries included a few lacerated wounds, contusions and aberrations. There was just one minor in- cised wound on the left pinna. The right lung was congested the doctor opined that the death of the deceased had resulted from multiple injuries and injuries of vi- tal organs and it was homicidal in nature.

22. The trial court made a fallacious con- clusion regarding the death of the de-

ceased on the premise that the Public Prosecutor did not elicit from the doctor as to whether the injuries were sufficient in the ordinary course of nature to cause death. The Sessions Judge concluded that on the said issue:

“There being no evidence on record to show that the injuries were suffi- cient in the ordinary course of na- ture to cause death, it cannot be said that the injuries noticed by the autopsy surgeon (PW30) were responsi- ble for causing the death of the de- ceased Mahesh.”

23. No doubt it would have been of advan- tage to the court if the Public Prosecutor had put the said question to the doctor when he was examined. But mere omission to put that question is not enough for the court to reach wrong conclusion. Though not an expert as PW30, the Sessions Judge himself would have been an experienced ju- dicial officer looking at the injuries he himself could have deduced whether those injuries were sufficient in the ordinary 25

course of nature to cause death. No sensi- ble man with some idea regarding the fea- tures of homicidal cases would come to a different conclusion from the injuries in- dicated above, the details of which have been stated by the doctor (PW30) in his evidence.

(Emphasis added)

16.4 Pithily stated, in the light of the decisions

referred (supra) it can only be said that like any

other evidence, the expert opinion also requires

proper appreciation at the hands of the Court, though

the opinion of the doctor given with the support of

post-mortem report carries great weight, for arriving

at the rightful conclusion as to question whether the

death involved is homicidal or not.

17. Bearing in mind the position derived from the de-

cisions referred (supra) we will consider the ques-

tion whether the concurrent finding that the death of

the victim was homicidal in nature calls for inter-

ference. As noted earlier, in holding so, the oral

testimony of PW-10 with Ext.P17 post mortem report

was relied on by the Courts. Obviously, PW-10 who

conducted the post mortem on the body of the de-

ceased, with the support of Ext.P17 prepared by him,

deposed that the deceased had sustained the stated 26

ante-mortem injuries, as indicated specifically in

Ext.P17 report. The presence of such ante-mortem in-

juries on the body of the deceased is not in dispute.

The alleged incongruence was only with reference to

the opinion of PW-10 as to the cause of death. PW-10

opined ‘Asphyxia due to throttling’ as the cause of

her death. He deposed about the presence of pe-

techial hemorrhage of the size 8 cm. x 2 cm., under-

neath the sub-cutaneous tissues of the neck extending

from left side to right side. In fact, these aspects

were specifically mentioned in Ext.P17, as well.

Now, we will consider some aspects of asphyxia. When

the respiratory functions of lungs stop as a result

of lack of oxygen, it causes failure of heart due to

oxygen deprivation and this mode of death is called

Asphyxia. Asphyxia can occur due to external pres-

sure like strangulation, to close air passages.

Strangulation is a violent form of death which occurs

from constriction of the neck by means of ligature or

by other means without suspending the body and throt-

tling is strangulation by constriction of neck pro-

duced by fingers or palms. Post mortem appearance of 27

death by Asphyxia includes numerous petechial hemor-

rhages seen under the serous membranes of various or-

gans due to rupture of capillaries caused as a result

of increased pressure in them. PW-10 deposed about

the presence of petechial hemorrhage underneath the

subcutaneous tissues of the neck extending from left

side to right side. Though, PW-10 was cross-examined

nothing could be elicited from him to discredit his

version. When that be the circumstances, the trial

Court and the High Court were justified in giving

weight to the oral testimony of PW-10 with Ext.P17

report, to form the opinion as to the cause of death

as Asphyxia by throttling.

18. It is also worthy to take note of the injuries

sustained by the deceased on her private parts in the

context of the contentions and in view of the nature

of the evidence tendered by PW-10. He would depose,

with the support of Ext.P17, that the deceased had

sustained perennial tear of grade fourth extending

upto anus of the size 3.5 cms x 2.5 cms. He also de-

posed that swelling and congestion were present on

entire vagina and that her uterus was torn and was 28

coming out of the vagina. PW-10 deposed that all

those injuries were ante-mortem. The above factual

aspects contained in Ext.P17 report regarding the

ante-mortem injuries and their positions proved

through PW-10 were also taken into account by the

trial Court. The injury referred above supporting

the opinion of cause of death as Asphyxia due to

throttling and the grave nature of the pudical in-

juries referred above sustained by the deceased, evi-

dently, made the trial Court and the High Court to

form the opinion that the death of the deceased girl

was homicidal in nature. Both the Courts, evidently

concluded that Asphyxia by throttling is the cause of

death and further that the grave injuries sustained

by her on the private parts were also sufficient to

cause death in the ordinary course of nature. The

aforesaid contention of the appellant did not commend

to us in the circumstances and also taking note of

their combined effect. In short, we have no hesita-

tion to hold that the concurrent finding that the

death of the victim was homicidal in nature invites

no interference.

29

19. We will consider the contentions of the appellant

that conviction for the offence punishable under Sec-

tion 302 IPC, consequent to the finding that the vic-

tim was murdered, is unsustainable and that if at all

he is guilty of causing her death the offence at-

tracted would only be under Section 304 IPC, a little

later.

20. In the light of the graveness of the injuries

sustained on the private parts by the deceased, as

detailed above in Ext.P17 post-mortem report proved

by PW-10 and also taking note of Ext.P21 FSL report

revealing the presence of blood and semen in the

vaginal swab of the deceased, the trial Court held

that the deceased was subjected to rape. The High

Court also carefully considered the nature of the

said injuries and the factum of presence of blood and

semen in the vaginal swab taken from the deceased and

sustained the finding that the deceased was subjected

to rape. In the light of the nature of the evidence

thus obtained and also the way in which they were an-

alysed and appreciated, we find no illegality or per- 30

versity at all with the concurrent finding that the

deceased was subjected to rape.

21. Obviously, both the trial Court and the High

Court answered the question as to who is the author

of the crimes by relying on the circumstantial evi-

dence. We have already taken note of the various

circumstances relied on by the trial Court and subse-

quently by the High Court, to fix culpability on the

appellant. Though the Courts concurrently found him

guilty of the offences of rape and murder there is

lack of concomitancy in respect of conclusions/find-

ings on certain aspects and circumstances, as noted

above. Before adverting to the said issue, it is

only proper to deal with a crucial contention of the

appellant founded on Section 53A of the Code of Crim-

inal Procedure, which was added to the Code by

Cr.P.C. (Amendment) Act, 2005 (Act 25 of 2005). The

relevant portion of Section 53A(1) reads thus :-

“[53A. Examination of person accused of rape by medical practitioner.-(1) When a person is arrested on a charge of commit- ting an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to 31

the commission of such offence, it shall be lawful for a registered medical practi- tioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practi- tioner acting at the request of a police officer not below the rank of a sub-in- spector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the ar- rested person and to use such force as is reasonably necessary for that purpose.”

22. The above extracted provision under Section

53A(1) Cr.P.C. would go to show that it provides for

a detailed examination, (which term has been ex-

plained under Explanation (a) to Section 53A

Cr.P.C.), of a person accused of an offence of rape

or attempt to commit rape, by a registered medical

practitioner employed in a hospital run by the Gov-

ernment or by a local authority and in the absence of

such a practitioner within the radius of 16 kilome-

ters from the place where the offence has been com-

mitted, by any other registered medical practitioner.

It is the said legal provision and the undisputed

factual position of non-conduct of DNA profiling of

the samples of the appellant that made him to take up

the contention of violation of Section 53A Cr.P.C. In 32

the said circumstances, he would further contend that

there is absence of conclusive evidence to connect

him with the samples taken from the body of the de-

ceased. Certainly, non-conduct of DNA profiling in

terms of the provisions under Section 53A Cr.P.C., is

a flaw in the investigation. But then, the question

emerged from the aforesaid indisputable position of

not holding DNA profiling is whether the conviction

of the appellant for the said offences, is liable to

be set aside on that sole score.

23. There can be no doubt with respect to the posi-

tion that a fair investigation is necessary for a

fair trial. Hence, it is the duty of the investigat-

ing agency to protect the rights of both the accused

and the victim by adhering to the prescribed proce-

dures in the matter of investigation and thereby to

ensure a fair, competent and effective investigation.

Even while holding so, we cannot be oblivious of the

well-nigh settled position that solely on account of

defects or shortcomings in investigation an accused

is not entitled to get acquitted. In other words, it

also cannot be the sole reason for interference with 33

a judgment of conviction if rest of the evidence are

cogent enough to sustain the same.

24. In the decision in Mir Mohammad Omar’s case

(supra), this Court held :-

“In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in in- vestigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the vic- tim. Effort should be made by courts to see that criminal justice is salvaged de- spite such defects in investigation.” (Emphasis added)

25. In the context of the contentions it is more ap-

propriate to refer to the decision of this Court in

Sunil Vs. State of Madhya Pradesh [(2017) 4 SCC 393].

It was a case of rape and murder of a four (4) year

old child. A three-Judge Bench held herein thus :

“3. At the very outset, we deal with the arguments advanced on behalf of the appel- lant that in the present case the report of DNA testing of the samples of blood and spermatozoa under Section 53-A of the Code of Criminal Procedure, 1973 has not been proved by the prosecution. The prosecu-

34 tion has, therefore, failed to prove its case beyond reasonable doubt. Reliance in this regard has been placed on the deci- sion of this Court in Krishan Kumar Malik v. State of Haryana [(2011) 7 SCC 130.

4. From the provisions of Section 53-A of the Code and the decision of this Court in Krishan Kumar it does not follow that failure to conduct the DNA test of the samples taken from the accused or prove the report of DNA profiling as in the present case would necessarily result in the failure of the prosecution case. As held in Krishan Kumar (para 44), Section 53-A really “facilitates the prosecution to prove its case”. A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA pro-

filing had not been done in a given case, the weight of the other materials and evi- dence on record will still have to be con- sidered. It is to the other materials brought on record by the prosecution that we may now turn to.”

26. Krishna Kumar Malik’s case (referred supra) was

rendered by a two-Judge Bench of this Court, wherein

at paragraph 43 with respect to the matching of the

semen, the following passage from Taylor’s Principles

and Practice of Medical Jurisprudence, 2nd Edn. (1965)

was extracted thus :-

“Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be 35

looked for in wet specimens. The actual time that spermatozoa may remain alive af- ter ejaculation cannot be precisely de- fined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detec- tion of dead spermatozoa in stains may be made at long periods of 5 years. Non- motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months.” In paragraph 43 of Krishna Kumar Malik’s

case, after extracting the above, it was further

held :

“Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the ap- pellant.” This Court went on to hold thus in Paragraph

44 therein :-

“Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23.6.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecu-

tion to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused.”

27. Evidently, the three Judge Bench in Sunil’s case

(supra) considered Krishna Kumar Malik’s case carry-

ing such observations and finding before coming to

the conclusion that ‘a positive result of the DNA

test would constitute clinching evidence against the 36

accused if, however, the result of the test is in the

negative i.e., favouring the accused or if DNA pro-

filing had not been done in a given case, the weight

of the other materials and evidence on record will

still have to be considered’.

28. In view of the nature of the provision under

Section 53A Cr.P.C and the decisions referred (supra)

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 espe-

cially, 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 vic-

tim. 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, is enough and cogent to prove the

case of the prosecution. In a case which rests on

circumstantial evidence, the Court has to consider 37

whether, despite such a lapse, the various links in

the chain of circumstances forms a complete chain

pointing to the guilt of the accused alone in exclu-

sion of all hypothesis of innocence in his favour.

29. As a matter of fact, the decision in Rajendra

Pralhadrao Wasnik’s case (supra), would also fortify

our view. The Bench was considering review petitions

in Criminal Appeal Nos.145-146 of 2011. That was a

case involving rape and murder of a three (3) year

old girl where the case was held as proved on the ba-

sis of circumstantial evidence. So also, in that

case DNA evidence was not produced before the Court,

in spite of samples being taken. Obviously, taking

note of the unerring nature of the circumstantial ev-

idence pointing only to the guilt of the accused and

the other circumstances the trial Court convicted and

awarded him capital punishment. The High Court con-

firmed not only the conviction but also the award of

capital sentence. Originally, this Court dismissed

the appeals and thereafter, the dismissed review pe-

titions were restored for consideration solely in

view of a Constitution Bench decision of this Court 38

in Mohd. Arif Vs. Supreme Court of India reported in

(2014) 9 SCC 737. In paragraph 79, this Court in Ra-

jendra Pralhadrao Wasnik’s case held therein thus :-

“Insofar as the present petition is con- cerned, we are of opinion that for the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, no material or evi- dence was placed before the courts to ar- rive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The pros- ecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecu- tion and in favour of the R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 43 of 43 appellant for the purposes of sentencing. The Trial Court was also in error in taking into consider- ation, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, con- sider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.”

30. In the light of the above referred decisions, the

contentions of the appellant founded on the factum of

non-holding of DNA profiling and the provision under

Section 53A, is only to be repelled. As held in 39

Sunil’s case (supra), a positive result of DNA test

would constitute clinching evidence against the ac-

cused. But, a negative result of DNA test or DNA

profiling having not been done would not and could

not, for that sole reason, result in failure of pros-

ecution case. So much so, even in such circum-

stances, the Court has a duty to weigh the other ma-

terials and evidence on record to come to the conclu-

sion on guilt or otherwise of the appellant herein

and that exactly what was done by the trial Court and

then by the High Court, in the instant case.

31. Now, we will refer to other materials and evi-

dence on record. PW-3, who is the maternal grand-

mother of the deceased deposed that the deceased was

aged 8 years and was wearing a frock and jeans pant

on the day of occurrence. She would further depose

that herself and the deceased were in the house of

Raju who is none other than the father of the appel-

lant. As already noted, they are all relatives. PW-

3 would depose that by about 08:30 pm Raju Badam sent

the deceased for fetching a bundle of bidi from a 40

nearby shop. Since then, she had not returned home

alive.

32. The case unfolded by the prosecution through the

witnesses to fix the culpability on the appellant

constitute a chain of circumstances, including the

“last seen theory”. The deceased was lastly seen

with the appellant by PW-2 and PW-4. ‘Last seen the-

ory’ is certainly applicable in a crime like the one

on hand which was carried out on sly and in secrecy

during night, in the absence of availability of any

eye-witnesses.

32.1 In the decision in Nizam and Anr. Vs. State

of Rajasthan [(2016) 1 SCC 550] this Court held that

it would not be prudent to base conviction solely on

‘last seen theory’. This Court, obviously, sounded a

caution that where time gap between ‘last seen’ and

‘time of occurrence’ is long it would be unsafe to

base the conviction solely on the ‘last seen theory’

and held that in such circumstances, it is safer to

look for corroboration from other circumstances and

evidence adduced by the prosecution.

41 32.2 In State of Rajasthan Vs. Kashi Ram reported

in (2006) 12 SCC 254, at paragraph 23 this Court held

:

“23. It is not necessary to multiply with authorities. The principle is well set- tled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowl- edge, he fails to discharge the burden cast upon him by Section 106 of the Evi- dence Act. In a case resting on circum- stantial evidence if the accused fails to offer a reasonable explanation in dis- charge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compati- ble with his innocence, the court can con- sider his failure to adduce any explana- tion, as an additional link which com- pletes the chain. The principle has been 42

succinctly stated in Naina Mohd., AIR 1960 Mad 218:1960 Crl LJ 620.” 32.3 In Arabindra Mukherjee Vs. State of West Ben-

gal [(2011) 14 SCC 352], while dismissing the appeal

by the convict who stood sentenced for offences pun-

ishable under Section 302, 364, 120B and 201 of IPC,

this Court held: “once the appellant was last seen

with the deceased, the onus is upon him to show that

either he was not involved in the occurrence at all

or that he had left the deceased at her home or at

any other reasonable place. To rebut the evidence of

last seen and its consequence in law, the onus was

upon the accused to lead evidence in order to prove

his innocence.”

32.4 In Pattu Rajan Vs. State of Tamil Nadu

[(2019) 4 SCC 771] this Court held in paragraph 63

thus :-

“It is needless to observe that it has been established through a catena of judg- ment of this court that the doctrine of last seen, if proved, shifts the burden of proof on to the accused, placing on him the onus to explain how the incident oc- curred and what happened to the victim who was last seen with him. Failure on the part of the accused to furnish any expla- nation in this regard, as in the case on 43

hand, or furnishing false explanation would give rise to strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances.” (Emphasis supplied) 32.5 The various aspects relating to the ‘last

seen theory’, derived from the aforementioned deci-

sions, are well-settled and hence, we do not think it

necessary to burden this judgment with further au-

thorities on the subject.

33. A scanning of the circumstances and the evidence

adduced in the case on hand would reveal that convic-

tion by the trial Court was not solely based on “last

seen theory”. Naturally, the confirmation of the con-

viction and sentence in the stated manner by the High

Court is also not solely based on the “last seen the-

ory”. Obviously, to establish that the deceased was

lastly seen with the appellant the prosecution had

relied on the oral testimonies of PWs 2 and 4. Before

adverting to their testimonies it is only worthwhile

to refer to the oral evidence of PW-3, the maternal

grandmother of the deceased. As noted earlier, she

deposed that on the fateful day she was in the house

of Raju along with the deceased and at about 08:30 pm 44

Raju sent the deceased to purchase bidi and there-

after she did not return home. PW-3 would also submit

that the deceased was then wearing an embroidered

broad frock and a blue-coloured jeans. Her evidence

was not seriously challenged. Now, we will refer to

the evidence of PWs 4 and 2. It is enroute to the

shop that the deceased girl went past the house of

PW-4 viz., Pappu @ Patiram. Both PW-4 and the appel-

lant are rickshaw pullers. PW-4 would depose that on

19.09.2014 himself, the appellant and one Mr. Rakesh

were sitting in front of his house and were preparing

to get intoxicated and he was making the pegs. He

would depose that earlier the appellant had given him

Rs.50 as drink-money and further that upon seeing the

deceased, the appellant asked her where she was going

and then followed her after promising them that he

would return. Evidently, a feeble attempt was made to

establish that PW-4 was entertaining animosity to-

wards the appellant. Evidently, the suggestion was

repudiated by him. Besides, putting the said sugges-

tion nothing to shatter the credibility of PW-4 was

brought out. Both the trial Court and the High Court 45

found the testimony of PW-4 as uncontroverted and be-

lievable. When the evidence is to the effect that in

the evening of that fateful day the appellant, PW-4

and another had gathered at the residence of PW-4,

that too for intoxication, it can only be said that

the suggestion of animosity was righty repelled by

both the Courts.

34. Now, we will refer to the testimony of PW-2. He

is the maternal grandfather of the deceased. But,

that by itself cannot be a reason to discredit or to

eschew his oral testimony. Both the trial Court and

the High Court had analysed and appreciated the evi-

dence of PW-2 acknowledging the said position. Evi-

dently, they found no reason to disbelieve PW-2. Upon

scrutiny of his testimony, we also found that despite

his thorough cross-examination on behalf of the ap-

pellant, nothing to discredit his version was brought

out. He deposed to the effect that he was sitting at

the door of his house at Thakur Baba Road, Dabra and

at about 8:00 to 8:30 in the night of the day of oc-

currence he had seen the accused following the de-

ceased. He would also depose to the effect that 46

thereafter the deceased had not returned. There is

not even a suggestion to the effect that his house is

not near to the road and it was not possible to see

someone passing from there. PW-2 further deposed that

the appellant is his nephew and that the deceased was

his grand-daughter. He was one of the attesting wit-

nesses to several prosecution documents including Ex-

t.P2 Safina Form, Ext.P3 dead body panchayatnama, Ex-

t.P4 arrest memo, Ext.P5 that carries the disclosure

statement of the appellant and Ext.P6 which is the

dead body recovery memo and its identification memo

and in Court, he had testified all of them. He de-

posed to the effect that the body of the victim as

also her dresses were recovered from the place of oc-

currence viz., bada of Jagan Sindhi at the instance

of the appellant. The contention of the appellant is

that since PW-2 being the grandfather of the deceased

the prosecution ought to have examined independent

witness to the mahazhars of seizures and recoveries.

As noticed earlier, despite thorough cross-examina-

tion on behalf of the appellant nothing to discredit

his evidence was elicited. There can be no two views 47

that being related to the victim, by itself, is no

reason at all to discredit the testimony of a wit-

ness. This position has been made clear by this

Court in various decisions.

35. In Dalip Singh and Ors. Vs. State of Punjab re-

ported in AIR 1953 SC 364, wherein four persons ap-

pealed against sentences of death imposed on them for

conviction for a double murder, this Court held :-

“A witness is normally to be consid- ered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real cul- prit and falsely implicate and innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an in- nocent person against whom a witness has a grudge along with the guilty, but founda- tion must be laid for such a criticism and the mere fact of relationship far from be- ing a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our ob- servations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be lim- ited to and be governed by its own facts.” 48

35.1. In Khurshid Ahmed Vs. State of Jammu & Kash-

mir [(2018) 7 SCC 429], this Court while setting

aside the order of acquittal and convicting the ac-

cused (the respondent therein) for charges under Sec-

tion 302, 341 IPC, held that there could be no prepo-

sition in law that relatives ought to be treated as

untruthful witnesses. On the contrary reason has to

be shown when a plea of partiality is raised to show

that the witness had reason to shield actual culprit

and falsely implicate the accused, it was further

held. In this case there is an added reason. PW-2

is also equi-related to the appellant-convict. The

accused is his nephew. Therefore, the question is why

should such a person who lost the granddaughter im-

plicate his nephew in the case. The suggestion that

he had a clash with the appellant was repudiated by

him and still, no evidence to establish that sugges-

tion was produced by the appellant. A suggestion to a

witness when repudiated can have no relevance at all

in the absence of any material produced, in accor-

dance with law, to prove the factum suggested, cer-

tainly, subject to admissibility. Hence, the said 49

suggestion is impactless and inconsequential. Taking

note of the nature of the contention raised against

the testimony of PW-2, idest, that he is related to

the deceased, it is apposite to refer to another as-

pect. Noticeably, the appellant has taken up a con-

tention in respect of the seizure/recoveries, in-

volved in this case, that non-examination of Sri.

Ganesh, the father of the deceased, is fatal to the

prosecution as he being the other attesting witness

to most of such documents. This would reveal the

paradox and hollowness in the contentions of the ap-

pellant inasmuch as, he would contend that PW-2 being

a relative of the deceased another independent wit-

ness ought to have been examined to prove the

seizures and recovery and in the same breath he would

raise contention against the non-examination of the

father of the deceased to prove the same. In this re-

gard it is relevant to note the position of law that

evidence is only to be weighed and not to be counted

and that it is essentially, for the prosecution to

decide as to how many witnesses are to be examined to

establish its case on any particular point. In this 50

case the version of PW-2 as relates the fact that the

deceased was lastly seen with the appellant would get

support from the oral testimony of PW-4 Pappu @ Pati-

ram. The evidence of PW-4 and the fact that nothing

was elicited from PW-2 to discredit his version that

the appellant was following the deceased there was no

reason to disbelieve PW-2 on that issue. In short,

there is no reason to mistrust the said material wit-

nesses on the point that the deceased was lastly seen

with the appellant as concurrently held by the trial

Court and the High Court.

36. The evidence of PW-12 was actually taken as res

gestae under Section 6 of the Indian Evidence Act,

1872 by the High Court. In Sukhar Vs. State of UP

[(1999) 9 SCC 507] this court explained the said pro-

vision. It was held therein that the statement

sought to be admitted, as forming part of res gestae,

must have been made contemporaneously with the acts.

Thus, it is evident that the essence of the doctrine

of res gestae is that a fact which, though not in is-

sue, is so connected with the fact in issue “as to

form part of the same transaction” that it becomes 51

relevant by itself. A conduct of the accused after

the incident may become admissible under Section 6 of

the Evidence Act, though not in issue, if it is so

connected with the fact in issue.

37. The statement of PW-12 is to the effect that af-

ter finishing his work he was returning home during

the night, at about 9 o’clock. He would depose that

he saw the appellant then coming out of bada of Jagan

Sindhi and dusting his clothes. It is true that a

suggestion was put to him, while being cross-exam-

ined, that he had not actually seen the appellant

coming out of the bada and he was deposing otherwise

due to animosity with the appellant. Though PW-12 had

repudiated the said suggestion, the appellant had not

adduced any further evidence to establish the same. A

careful scanning of the evidence of PW-12 would re-

veal that he had categorically stated that he knew

the appellant-accused and on the fateful day he had

seen him coming out of the bada of Jadan Sindhi. Ap-

plying the doctrine the evidence of PW-12 that he had

seen the appellant at about 9:00 pm on the fateful

day, coming out of the bada of Jagan Sindhi and dust- 52

ing his clothes, is admissible under Section 6 of the

Evidence Act. It was treated as another incriminat-

ing circumstance against the appellant. There can be

no doubt with regard to the position that he is an

independent witness though he was described as a

‘chance witness’. In this context it is relevant to

refer to the decision in Chanakya Dhibar Vs. State of

West Bengal (2004 (1) Crimes 196) whereas this Court

observed thus :-

“In a murder trial by describing the inde- pendent witness as ‘chance witness’ it cannot be implied thereby that their evi- dence is suspicious and their presence at the scene doubtful. Murders are not com- mitted with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passerby will be witnesses. Their evi- dence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’. The expression ‘chance witness’ is borrowed from coun- tries where every man’s home is considered his castle and everyone must have an ex- planation for his presence elsewhere or in another man’s castle. It is quite unsuit- able an expression in a country where peo- ple are less formal and more casual.” We referred to the aforesaid decision to give em-

phasis on the aspect that description of a witness as 53

‘chance witness’ cannot and will not by itself denude

the admissibility or relevance of the evidence of

such a witness if nothing was brought out to make his

version suspicious and thereby unacceptable. It is

to be noted that despite cross-examining PW-12 on be-

half of the appellant nothing to make his version

suspicious and untrustworthy was brought out. He de-

posed that he knew the appellant and further that at

about 9:00 pm he had seen him coming out of the bada

in question and dusting his clothes.

38. The evidence of PW-6 (Jagdish @ Jagan) is to the

effect that he is the son of Laxmibai, the owner of

the bada which is the occurrence place. According to

him, the said property was purchased by his mother

and its eastern and western boundaries are respec-

tively Thakurdas Baba Road and Dhan mill. He would

further depose thus :-

“On the aforesaid plot, four rooms were already

constructed. Presently, the aforesaid rooms and the

plot are not in use. Presently, the plot is in the

shape of a Bada (verandah), whose boundary is broken.

The rooms are in dilapidated condition.” According 54

to him, at that place, miscellany (empty sacks) of

the mills have been kept and the fallen clay wall of

the Bada gives easy access to the Bada, and it is not

worthy for use. The evidence of PW-6 on the aforesaid

aspects remains unchallenged. It is to be noted that

it is from such a place, which is in a dilapidated

and unusable condition, that the appellant was seen

coming out during the night by PW-12. Moreover, the

corpse of the victim was recovered from there the

very next day, based on Ext.P5 disclosure statement

of the appellant and at his instance.

39. It was on 20.09.2014 at about 04:00 pm that the

appellant was arrested. Ext.P4 is his arrest memo.

While in custody he gave Ext.P5-disclosure statement

regarding the concealment of the dead body of the de-

ceased as also her dresses. The factum of the appel-

lant having made such a disclosure statement as also

their subsequent recovery is proved through PW-2. PW-

19 deposed that he had recorded Ext.P5 memo. PW-16

Jitendra Nagaich, the then Station House Officer, Po-

lice Station, Dabra, deposed to the effect that along

with the appellant they proceeded to the place of oc- 55

currence, as shown by the appellant and from there

the dead body of the victim, concealed beneath the

gunny bags, was recovered at the instance of the ap-

pellant. They would also depose that the body was

seen in disrobed condition. The dresses of the de-

ceased were recovered from the place of occurrence

itself. The oral evidence of PW2 and PW16 that the

corpse of the deceased girl and her dresses were re-

covered from the said place of occurrence, at the in-

stance of the appellant, gained corroboration from

the oral testimonies of PW-5 Mr. Sonish Vasistha, a

journalist and PW-11 Mr. Deepak Shukla, who was the

then Tehsildar and Executive Magistrate of the local-

ity.

40. In the decision in Govindaraju @ Govinda Vs.

State [(2012) 4 SCC 722] this Court held that there

would be nothing wrong in relying on the testimony of

police officers if their evidence is reliable, trust-

worthy, cogent and duly corroborated by other wit-

nesses or admissible evidence. In the light of the

fact that nothing was brought out to discredit the

testimonies of PW-16 and PW-19 and their oral testi- 56

monies gained corroboration from the testimonies from

PWs 2, 5 and 11 it can only be held that the afore-

said aspects were rightly appreciated by the Courts

below and taken as circumstances against the appel-

lant.

41. The recovery of the dead body, which was in a

concealed condition from an unused and dilapidated

building based on the disclosure statement of an ac-

cused is a crucial incriminating circumstance. In the

decision in Jaharlal Das Vs. State of Orissa [AIR

1991 SC 1388], this Court held therein that the dis-

covery of the body at the instance of the accused is

a crucial circumstance, in a case resting on circum-

stantial evidence. This position was iterated in

Mohd. Mannan @ Abdul Mannan Vs. State of Bihar

[(2011) 5 SCC 317].

42. Now, we will advert to the other incriminating

circumstances taken into consideration by the High

Court to confirm the conviction of the appellant for

the stated offences.

43. The impugned judgment would reveal that the High

Court had interfered with the conviction of the ap- 57

pellant under Section 376A IPC. Among other things,

it also evident that on reappreciation of the evi-

dence the High Court disagreed with and reversed the

finding of the trial Court in regard to the admissi-

bility and evidentiary value of the recovery of an

underwear (Article F-described as shaddy) from the

occurrence place and also its result on analysis.

Nonetheless, the High Court went on to consider the

question whether the rest of the circumstantial evi-

dence and the supporting materials would unerringly

point to the guilt of the appellant alone. The said

approach cannot be said to be wrongful or illegal and

in fact, it is the rightful approach in view of the

fact that the conviction of the appellant was based

on various circumstantial evidences, in the light of

the decision of this court in State of West Bengal

Vs. Dipak Haldar & Anr. [(2009) 7 SCC 288]. Evi-

dently, the High Court had considered the cumulative

effect of the rest of the circumstantial evidences

and materials supporting them. In Dipak Haldar’s case

this court held thus:-

“17. In a case based on circumstantial evidence, the court is required to 58

consider whether the cumulative effect of all the circumstances leads to a conclusion that the same was a case of murder and the accused was responsible for such murder. A conviction can be based on circumstantial evidence if it is of such a character that the same is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. The incriminating circumstances that are being used against the accused must be such as to lead only to a hypothesis to reasonably exclude every possibility of his innocence.

18. To put it differently, the court should find out whether the crime was committed by the accused and the circumstances proved formed themselves into a complete chain, which clearly points to the guilt of the accused. If on the other hand, the circumstances proved against the accused are consistent either with the innocence of the accused or raise a reasonable doubt about the way the prosecution has alleged the offence is committed, the accused would be entitled to the benefit of doubt.” (Emphasis added) We are of the considered view that a different

approach in re-appreciating the evidence would have

defeated dispensation of justice, as in cases based

on circumstantial evidence also it is not the quan-

tity of the evidence that counts, but it is its qual-

ity. In other words, the question is only whether a

complete chain of circumstantial evidence of such a

character that the same is wholly inconsistent with 59

the innocence of the accused and is consistent only

with his guilt, is available.

44. PW.16-Shri. Jitendra Nagaich proved Ext.P-8

Seizure memo by which a pants and a shirt were

recovered from the residence of the Appellant. PW-2

also deposed to the same effect and he testified his

thumb impression in Ext.P-8 Seizure memo. In Ext.P-21

FSL Report human blood was found on the said pants

(article-C). True that the serological part of Ext.P-

21 report did not indicate the group of the blood

stains found in the pants. This aspect was

highlighted by the appellant before the High Court as

also before us to contend that in view of the failure

of the prosecution to establish that the blood stains

found thereon belonged to the deceased it could not

in anyway connect him with the crime and hence, could

not have been taken as an incriminating circumstance

against him. At the first blush this contention would

appear to be attractive and acceptable. However, as

per the impugned judgement the High Court had rightly

repelled the said contention by relying on the

decision of this court in Kansa Behera Vs. State of 60

Orrisa (AIR 1987 SC 1507). In the said decision this

Court exposited that when conviction is to be

recorded solely on the basis of presence of blood

stains in any article(s) seized from the accused

concerned the prosecution has to prove beyond doubt

that the blood found on that article(s) is that of

the deceased and for that the group of the blood

found on the seized article(s) should match with that

of the deceased upon their grouping. At the same

time, it was further held therein that when other

circumstances are available non-detection of blood

group by itself would not be fatal. The decision of

this Court in R. Shaji Vs. State of Kerala [(2013) 14

SCC 266] also assumes relevance in this context. This

court held thus :-

“30. It has been argued by the learned counsel for the appellant that as the blood group of the blood stains found on the chopper could not be ascertained, the recovery of the said chopper cannot be re- lied upon.

31. A failure by the serologist to detect the origin of the blood due to disintegra-

tion of the serum does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possi- ble, either because the stain is insuffi- cient in itself, or due to haematological changes and plasmatic coagulation, that a 61

serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reason-

able dimension, which a judicially consci- entious mind may entertain with some ob- jectivity, no benefit can be claimed by the accused in this regard. Once the re- covery is made in pursuance of a disclo- sure statement made by the accused, the matching or non-matching of blood group(s) loses significance. (Vide Prabhu Babaji Navle v. State of Bombay, Raghav Prapanna Tripathi v. State of U.P., State of Ra-

jasthan v. Teja Ram, Gura Singh v. State of Rajasthan, John Pandian v. State and Sunil Clifford Daniel v. State of Punjab.)

32. In view of the above, the Court finds that it is not possible to accept the sub- mission that in the absence of a report regarding the origin of the blood, the ac- cused cannot be convicted, for it is only because of the lapse of time that the blood could not be classified success- fully. Therefore, no advantage can be con- ferred upon the accused to enable him to claim any benefit, and the report of dis- integration of blood, etc. cannot be termed as a missing link, on the basis of which the chain of circumstances may be presumed to be broken.” (Emphasis added) The evidence on record in the case on hand would

reveal that conviction of the appellant herein was

not based solely on a presumptive finding that the

blood stains present in the pants (Article-C) seized

from the residence of the appellant is that of the

deceased. At the same time, it is a fact that it was 62

taken as one of the incriminating circumstances. It

is not the case of the appellant that the said pants

was not the one recovered from his residence. In

fact, under Ext.P8 it was recovered from his resi-

dence and that fact was proved through PWs 2 and 16.

Ext.P21 would reveal that upon analysis the blood

stains stuck thereon were ascertained to be of human

origin. In the light of Shaji’s decision (supra) once

the blood stains were ascertained as that of human

origin the mere non-detection of blood group would be

of no consequence. Despite the difference in factual

situation the exposition of law that on account of

mere non-detection of blood group no advantage could

be conferred upon the accused to enable him to claim

any benefit in such situation. Certainly, in such

circumstances a case of missing link in the chain of

circumstances could not be claimed on that sole score

and at the same time, absence/failure of explanation

from the appellant when the said incriminating cir-

cumstance was put to him during his examination under

Section 313 Cr.P.C. would work out against him.

In these circumstances, the Courts below cannot 63

be found in fault in taking it as an incriminating

circumstance against the appellant.

45. As noted earlier, another incriminating circum-

stance considered against the appellant is the pres-

ence of nail marks on his face and neck and also his

failure to offer explanation therefor. In this regard

the evidence of PW-17 (Dr. Harish Arya) with Ext.P24-

MLC was relied on. PW-17 was the doctor who examined

the appellant when he was produced for medical exami-

nation after his arrest. He found the following four

nail scratches on the body of the appellant: -

1. 1.5 cm x .02 mm on the left side neck near angle of left jaw.

2. 1 cm x 2 mm on left side of neck in front of injury no. 1.

3. 0.5 cm x 2 mm on left cheek.

4. 0.5 cm x 2 mm over angle of left jaw.

46. As per PW-17 those injuries were found on him on

21.09.2014 at about 1:00 pm and those injuries were

caused within 48 hours before his examination. When

this incriminating circumstance was put to the appel-

lant during his examination under Section 313 64

Cr.P.C., he did not offer any explanation as to how

such injuries were caused. Obviously, the trial Court

found that the appellant sustained such injuries in

the incident in question that occurred on 19.09.2014

at about 09:00 pm, after taking into account the evi-

dence of PW-17 with Ext.P24 and in the absence of ex-

planation from the appellant as to how those injuries

have been caused. The High Court did not disturb the

said conclusion. We find no illegality or infirmity

on such conclusion and finding.

47. We have already observed that since the High

Court had interfered with the conviction of the ap-

pellant under Section 376A IPC the question whether

the rest of the incriminating circumstances formed a

complete chain leading solely to the guilt of only

appellant in exclusion of all hypothesis in favor of

his innocence, as held by the High Court. We have

already considered in detail all the incriminating

circumstances and materials available to support them

that weighed with the High Court. It is absolutely

unnecessary to refer to each of them again. Suffice

it to say that they would go to show that despite 65

what are eschewed a continuous and complete chain of

circumstances and materials supporting them, is

available and they are wholly inconsistent with the

innocence of the appellant and consistent only with

his guilt. Above all, it is evident that an addi-

tional link is available in this case owing to the

failure on the part of the appellant to explain all

the aforesaid incriminating circumstances. While be-

ing examined under Section 318, Cr.P.C. in respect of

all questions his answers were either ‘it is false’

or ‘I do not know’. There is absolutely no case for

the appellant that all the incriminating circum-

stances were not put to him. In view of Pattu Rajan’s

case (supra) and other decisions such as, Trimukh

Maroti Kirkan Vs. State of Maharashtra (2006 AIR SCW

5300) offering no explanation on incriminating cir-

cumstances mentioned above would become an additional

link in the chain of circumstances. The cumulative

effect of all the aforesaid circumstances, referred

to in detail hereinbefore, would definitely justify

the finding of the High Court as to the guilt of the

appellant.

66

48. The trial Court and also the High Court had con-

currently concluded that the death of the victim is

homicidal in nature. We have found, based on the evi-

dence on record, that the Courts have rightly found

that the victim was raped. The diabolic and gruesome

manner in which the appellant had ravished the hap-

less girl is evident from the grave injuries on her

pudenda. There occurred perennial tear of grade

fourth extending up to anus and that her uterus was

torn and was coming out from the vagina. As noticed

above, the vaginal swab on examination revealed the

presence of blood and semen. Hence, the finding that

the deceased was subjected to rape warrants no inter-

ference.

49. Though the appellant had disputed the age of the

deceased before the trial Court, the impugned judg-

ment would reveal that the said contention was given

up at the appellate stage. When that be so, the ap-

pellant could not now be permitted to dispute the age

of the deceased at the time of occurrence in these

appeals. Even otherwise, the evidence on record would

reveal that PWs 1 to 3, who are respectively the 67

mother, the maternal grandfather and the maternal

grandmother of the victim, had deposed that the de-

ceased was aged 7-8 years. PW-1 would further depose

that the deceased was studying in Class-I in the

Govt. School situated near Laddaram. PW-10 who along

with the Dr. Asha Singh performed autopsy on the body

of the victim and prepared Ext.P17 report noted

therein that the deceased appeared to be of 8 years

old and he had also deposed to that effect while be-

ing examined before the Court. That apart, PW-9 who

was the Headmistress-in-charge in Govt. Primary Boys

School, Jawaharganj, brought and proved Ext.P14 -

School Admission Application of the deceased, Ext.P15

- Admission Register and the copy of which was marked

as Ext.P15C and also and also Ext.P16 which is her

age verification Certificate issued from the school.

They would disclose her Admission Number as 1937 and

the date of birth as 10.09.2006. Her evidence was

not seriously challenged by the appellant during the

cross-examination. At any rate, no contra-evidence

was adduced in this regard by the appellant. Taking

into account the nature of the commission of rape re- 68

vealed from the evidence on record and discussed

hereinbefore the concurrent finding of the courts be-

low that the appellant has committed the offence of

aggravated penetrative sexual assault punishable un-

der Section 6 of the POCSO Act also invites no inter-

ference.

50. The question, now to be considered is whether the

homicidal death of the victim amounts to murder or

whether it falls either under Section 304(1) or

304(2) as contended by the appellant. The impugned

judgment would reveal that the High Court concurred

with the finding of the trial Court that the

homicidal death of the victim amounts to murder. The

right approach in cases of culpable homicide is to

first find out whether the offence falls under any of

the four clauses viz., clauses firstly to fourthly

under Section 300 IPC. If it is so found, then the

Court has to see whether the case is covered by any

one of the five exceptions to section 300 IPC, which

would make a culpable homicide ‘not amounting to

murder’. The offence, if proved, to fall under one of

the said exceptions would be punishable under Section 69

304, either under Part 1 or Part 2 as the case may

be, or otherwise it would be murder punishable under

Section 302 IPC. In the case on hand both the trial

Court and the High Court, had analysed evidence on

record and found that the appellant had pressed the

neck of the victim so hard unmindful of the fact that

she was aged only 8 years and caused internal

hemorrhage. The cause of death was asphyxia due to

throttling. The nature of the injuries found on the

neck of the deceased would reveal the pressure

exerted by the appellant on the neck. The fact that

the victim was a hapless girl aged only 8 years has

to be taken into account while considering the

question. Intention is a subjective element and every

sane person must be presumed to intend the result

that his action normally produces. Hence,

constriction of the neck of a girl child aged about 8

years by fingers or palm by a young man aged 25

years, with such force to cause the injuries

mentioned hereinbefore cannot be said to be sans

intention to take her life. If the said act was

subsequent to commission of rape in the diabolic and 70

gruesome manner revealed from the grave injuries

sustained on her private parts, causing death alone

can be inferred from the circumstances. If the act of

constricting the neck with such force resulting in

the stated injuries preceded the offence of rape,

then, the manner by which she was ravished should be

taken only as an act done knowingly that it is so

imminently dangerous that it must in all probability

cause death or such bodily injury as is likely to

cause death. Thus, viewing in any angle the homicidal

death would fall either Clause 1 or Clause 4 of

Section 300 IPC. A feeble attempt was made by the

appellant to contend that the Courts had erred in

finding the appellant guilty under Section 300 IPC,

punishable under 302 IPC and that if at all he has to

be convicted for causing death of the victim it ought

to have been under Section 304 IPC. It is to be

noted, once it is found that the act falls under any

one of the 4 clauses under Section 300 IPC, to bring

it out of its purview it must be proved that it falls

under any one of the five exceptions to Section 300

IPC. There is nothing on record and no contention was 71

also raised by the appellant, with support of

material, to show that any one of the said five

exceptions attracts in this case. In fact, the only

contention urged and also taken in the written

submission by the appellant is that the deceased had

died due to an injury on her neck which had occurred

quite naturally during the commission of the rape. We

have no hesitation to hold that the said contention

is palpably untenable and at any rate, not at all

sufficient to bring the offence under any one of the

five exceptions to Section 300 IPC. The long and

short of the discussion is there is no reason to

interfere with the finding of the Trial Court, which

was confirmed by the High Court, that the appellant

is guilty of committing murder punishable under

Section 302 IPC. Thus, on a careful examination of

the matter in its entirety, we do not find any

perversity or manifest illegality with respect to the

concurrent finding of the trial Court and the High

Court that the appellant herein had committed

offences punishable under Section 302 IPC, 376(2)(i)

IPC and Section 6 of the POCSO Act.

72

51. As noticed hereinbefore, upon conviction for each

of the offence under Section 376(2)(i) IPC and under

Section 6 POCSO Act, the appellant was sentenced to

undergo rigorous imprisonment for life and to pay a

fine of Rs.2000/- and in default of payment of fine

to undergo imprisonment of one year. No extenuating

circumstances warranting an interference with the

sentence thus imposed by the trial Court, which was

confirmed by the High Court, for the conviction for

the stated offences were brought to our attention by

the appellant.

52. The next question is whether death sentence

awarded by the trial Court and confirmed by the High

Court for the conviction of the offence of murder be

maintained or substituted? This penalty is awardable

to a culprit only the category of the case falls un-

der ‘rarest of rare cases’, the culprit has become a

threat to the society at large and beyond reformation

and his elimination is the only way for eradication

of the threat. For deciding the said question various

aspects have to be considered. On a careful scanning

of the consideration made by the trial Court as also 73

the High Court for awarding the sentence for the con-

viction under Section 300 IPC, punishable under sec-

tion 302 IPC, we are of the view that the question

regarding the correctness of the death sentence

awarded to the appellant requires further considera-

tion, taking into account the statutory requirements

under Section 354(3) Cr.P.C. For awarding termination

of natural life, a careful scrutiny is required. The

statutory requirements under Section 354(3) Cr.P.C.

are as under :

“When the conviction for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such offence.”

53. On the aforesaid subject this Court has already

enunciated the principles. A careful survey of such

decisions was made by this very three-Judge Bench in

the decision in Pappu Vs. The State of Uttar Pradesh

(Criminal Appeal Nos.1097-1098/2018, pronounced on

9.2.2022. Paragraph 49 of the decision in Shankar

Kishanrao Khade Vs. State of Maharashtra reported in

(2013) 5 SCC 546, highlighting the requirement of 74

application of ‘crime test’, ‘criminal test’ and

‘rarest of rate test’ was referred therein. In the

said paragraph, with reference to the previous

decisions, the aggravating circumstances (crime test)

and the mitigating circumstances (criminal test) were

narrated as hereunder :

“49. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence:

(Rajendra Pralhadrao case, SCC pp. 47-48, para 33)

“‘Aggravating circumstances — (Crime test)

(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.

(2) The offence was committed while the offender was engaged in the commission of another serious offence.

(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.

(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.

75

(5) Hired killings.

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, 90 murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure.

(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold-blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating circumstances — (Criminal 76

test)

(1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

77

(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.’”

This Court further said: -

“52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the “criminal test” may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is “society-centric” and not “Judge-centric”, that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old 78

and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.”

54. After taking into account the same and such other

decisions specifically referred to therein, in

Pappu’s case (supra) it was held thus:-

“41. It could readily be seen that while this Court has found it justified to have capital punishment on the statute to serve as deterrent as also in due response to the society’s call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused, unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society. This has led to the evolution of ‘rarest of rare test’ and then, its appropriate operation with reference to ‘crime test’ and ‘criminal test’. The delicate balance expected of the judicial process has also led to another mid-way approach, in curtailing the rights of remission or premature release while awarding imprisonment for life, particularly when dealing with crimes of heinous nature like the present one.”

55. On going through the judgment of the trial Court

and the High Court, we are of the considered view

that in handing down capital sentence what had 79

weighed with the Courts are the horrendous feature of

commission of crime and the hapless state of the

victim. The trial Court considered the question of

sentence and awarded the same on the very same day on

which the appellant was convicted. We shall not be

understood to have held that this is absolutely

illegal and impermissible. Ultimately, what is

required is consideration of the aggravating and

mitigating circumstances with application of mind.

They were not given the proper attention while

considering the question of awarding the sentence for

conviction under Section 302 IPC, in the case on

hand. In the said circumstances, we will proceed to

consider the question of sentence in the present case

bearing in mind the principles enunciated by this

Court in the matter of awarding the capital sentence.

The trial Court as also the High Court arrived at the

conclusion that the act of the appellant herein

invited the extreme indignation of the community and

therefore, it deserves a deterrent sentence so as to

give a message to the society that such crimes should

not be repeated by anyone. In short, we are of the 80

considered view that the ‘crime test’ and the

‘criminal test’ require to be followed before

awarding capital sentence, did not gather the

required attention of the trial Court as also the

High Court.

56. It is true that all murders are inhuman. For

imposing capital sentence, the crime must be uncommon

in nature where even after taking into account the

mitigating circumstances the Court must be of the

opinion that the sentence of imprisonment for life is

inadequate and there is no alternative but to impose

death sentence. The heinous and brutal nature of the

commission of crime, viz., brutal rape and murder of

an eight-year old girl child who is none other than

the daughter of his own cousin, that too in a hapless

situation, is definitely an aggravating circumstance.

The nature of the injuries caused on the private

parts of the victim as is evident from the evidence

of PW10 with Ext.P17 report would definitely shock

the conscience. At the same time, the principles

enunciated by this Court in the matter of awarding of

death sentence and in such circumstances, the 81

undisputed and indisputable fact that the appellant

had no criminal antecedents and he hails from a poor

socio-economic background and also his unblemished

conduct inside the jail cannot go unnoticed. So also,

it is a fact that at the time of commission of the

offence the appellant was aged 25 years. Hence,

viewing the issue taking into account the aforesaid

aspects, we do not find any reason to rule out the

possibility and the probability of the reformation

and rehabilitation of the appellant. The long and

short of the discussion is that the present case

cannot be considered as one falling in the category

of ‘rarest of rare cases’ in which there is no

alternative but to impose death sentence.

57. In the aforesaid circumstances, the next question

is what is the comeuppance for the conviction for

offence of murder in this case. In the decision in

Swamy Shraddananda Vs. State of Karnataka [(2008) 13

SCC 767], taking into account the tenets of penology

and with a view to have a just, reasonable and proper

course in a case where the Court is of the opinion

that sentence for life is inadequate but imposition 82

of death sentence is unwarranted this Court adopted

the course of awarding life imprisonment without

application of the provisions of premature

release/remission before an actual imprisonment for a

definite period of time. This position was iterated

with agreement in the decision in Union of India Vs.

Sriharan [(2016) 7 SCC 1], thus :

“We hold that the ratio laid down in Swamy Shraddananda (supra) that a

special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well-founded and we answer the said question in the affirmative.

58. Thus, taking into account the fact that in the

case on hand a hapless 8 year old girl child, who is

none other than the daughter of appellant’s cousin

sister raped and murdered and that too, in an

extremely brutal manner revealed from the evidence on

record, we are of the considered view that course

adopted in the decision in Swamy Shraddananda’s case

(supra) and reiterated in Sriharan’s case (supra)has

to be adopted in this case. In other words, even

while commuting capital punishment, the appellant has 83

to be awarded life imprisonment without application

of the provisions of premature release/remission for

a substantial length of period. On such

consideration we are of the view that it would be

just and proper to award punishment of imprisonment

for life to the appellant for the offence punishable

under Section 302 IPC, by providing for an actual

imprisonment for a period of 30 (thirty) years

without application of the provisions of premature

release/remission.

59. In the circumstances, these appeals are partly

allowed as hereunder:

(i) The conviction of the appellant for the

offences punishable under Section 302 and

376(2)(i), IPC and conviction for the offence

punishable under Section 6 of POCSO Act is

upheld and the sentences awarded to him for

the conviction therefor, are confirmed, for

the offence under Section 302 IPC;

(ii) However, the death sentence awarded to the

appellant for the offence under Section 300,

IPC punishable under Section 302, IPC is 84

commuted to that of 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 thirty (30) years;

(iii) The other terms of sentences awarded to the

appellant including fine amount and default

stipulations also stand confirmed. All the

substantive sentences awarded to the

appellant shall run concurrently.

………………………………………………J. (A.M. KHANWILKAR)

………………………………………………J. (DINESH MAHESHWARI)

………………………………………………J. (C.T. RAVIKUMAR) New Delhi;

May 13, 2022.