Viran Gyanlal Rajput vs The State Of Maharashtra

CRIMINAL APPEAL NOS.1558­1559 OF 2018 (Arising out of SLP (Criminal) Nos. 5416­5417/2015)

Viran Gyanlal Rajput ...Appellant

Versus

The State of Maharashtra ...Respondent

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Leave granted in SLP (Crl.) Nos. 5416­17/2015.

2. The instant appeals have been filed against the final common

judgment and order dated 16.02.2015 of the High Court of

Bombay in Confirmation Case No. 3 of 2014 with Criminal Signature Not Verified

Appeal No. 760 of 2014 whereby the learned High Court Digitally signed by VISHAL ANAND Date: 2018.12.05 16:50:36 IST Reason:

confirmed the death sentence awarded to the appellant herein.

1 By the impugned judgment, the High Court dismissed the

aforementioned confirmation case and criminal appeal arising

out of the judgment and order of conviction and sentence dated

25.06.2014 of the Additional Sessions Judge, Mangaon, Raigad,

in Sessions Case No. 8 of 2013. The Sessions Court had

convicted the appellant Viran Gyanlal Rajput for the offences

punishable under Sections 302 and 201 of the Indian Penal

Code, and under Sections 10 and 4 of the Protection of Children

from Sexual Offences Act, 2012 (“POCSO Act”) for the

kidnapping, rape and murder of a 13­year­old girl, and causing

disappearance of evidence. The appellant was sentenced to death

for the offence under S. 302, IPC; R.I. for 10 years and a fine of

Rs. 200 (1 year’s R.I. in default) under S. 366, IPC; R.I. for 7

years and a fine of Rs. 200 (1 year’s R.I. in default) under S. 10,

POCSO Act; imprisonment for life and a fine of Rs. 500 (2 years’

R.I. in default) under S. 4, POCSO Act; and R.I. for 7 years and a

fine of Rs. 200 (1 year’s R.I. in default) under S. 201, IPC. Except

for overturning the appellant’s conviction under Section 10,

POCSO Act, lacking a specific charge for the same, the judgment

and order of conviction and sentence rendered by the Sessions

Court was maintained by the High Court.

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3. The case for the prosecution in brief is that on 17.10.2012,

when the victim did not return home from school at the usual

time in the evening, a search was undertaken. The next day,

some of her belongings were found in the jungle area adjoining

the village. A complaint (Exh. 14) regarding missing of the girl

was lodged around 8.30 a.m. by PW3, Samir Parab, the victim’s

cousin. In the meantime, PW4, Vijay Parab, the victim’s uncle,

who had seen the victim being followed the last evening on the

way back from school by an unknown person wearing a red T­

shirt, and PW5 Abhijit Chavan (a resident of the neighbouring

Toranpada village), who had later seen the same person running

towards Toranpada village, went to the adjoining settlement of

Paradhis (a nomadic community) along with some other villagers,

suspecting him to be there. The person, none other than the

appellant herein, was apprehended by the villagers and was

being brought to Avandhe village (a neighbouring area). At that

time, they were accosted by the police who were proceeding to

undertake investigation with respect to the missing person’s

complaint. The police thereupon took custody of the appellant.

Around this time, the first information pertaining to the offence of

murder was given to the police by PW3. The dead body of the

3 victim was recovered in a naked condition, at the instance of the

appellant, from a field near Kamthekarwadi village (the village

where the victim resided) and subsequently her clothes were

recovered at his instance as well.

As per the post mortem report (Exh. 35) and the evidence of

the doctor who conducted it (PW13), the probable cause of death

was opined as asphyxia with cardio­respiratory arrest due to

strangulation. It was also found that the deceased had been

forcibly subjected to sexual intercourse.

4. The Trial Court as well as the High Court found the

following incriminating circumstances against the appellant,

namely, the deceased was last seen with him while she was

walking home from school; the appellant was seen running alone

towards Toranpada later in the evening; the recovery of the dead

body and incriminating articles (importantly, the clothes of the

victim) at the instance of the appellant; mud stains on the pants

of the appellant which matched with the mud seized from the

spot of recovery of the victim’s body; failure of the appellant to

explain injuries found on him; medical evidence showing that the

victim had been forcibly raped and killed; motive to gratify lust,

and to kill the victim and hide her body to suppress evidence of

4 his crime; and the failure of the appellant to offer a plausible

explanation for the incriminating circumstances against him.

Importantly, both the Courts relied on the testimony of PW Nos. 4

and 5 as last seen witnesses.

5. Heard the counsel on either side.

6. Shri V. Giri, learned Senior Counsel appearing for the

appellant, duly assisted by Shri Amartiya Kanjilal, Advocate,

submitted that the chain of circumstantial evidence had not been

established satisfactorily by the prosecution. He argued that the

recoveries made at the instance of the appellant were

inadmissible. According to him, the ‘last seen’ principle was

incorrectly applied, as none out of PWs 3­5 had actually seen the

deceased in the company of the appellant—rather, PW4 had only

seen him following the deceased at a distance, and PW5 had seen

him in the morning in the vicinity and shown him the way to

Pedali (a nearby village, where the victim went to school) and

later seen him running towards Toranpada, alone. Furthermore,

the identification of the appellant was based on the precarious

grounds of wearing a red T­shirt and having mud stains on his

pants, instead of through a Test Identification Parade. It was also

5 submitted that the injuries in the form of scratch marks found on

the appellant could not be interpreted as having been inflicted by

the deceased in her defence: firstly, because as per the evidence

of the doctor who examined the appellant (PW12), the injuries

had taken place within 24 hours preceding the examination, well

after the alleged time of the incident (i.e. the evening/night of

17.10.2012), which fact also suggested that they probably took

place during the manhandling of the appellant by the villagers

upon apprehending him (as also evident from PW12’s admission

that the injuries were possible in a scuffle if the injured fell on a

rough object), and secondly, because as per the FSL Report being

Exh. 38, there was no blood detected on the fingernail clippings

of the deceased, which would not have been the case if she had

indeed inflicted the scratches. Learned counsel for the appellant

also submitted that the non­naming of the appellant and non­

mentioning of the Crime Number in the inquest report (Exh. 40)

and the non­explanation of the discovery and ownership of a

second watch recovered from near the spot of the body was

suspicious. At the same time, as the vaginal swabs of the victim

did not indicate the presence of semen even after 3 samples were

taken (as per the FSL Report being Exh. 38, read with the

6 evidence of the doctor PW13), nothing remained to tie the

appellant to the commission of the crime.

On the issue of sentencing, learned counsel argued that the

appellant was only 22 years old at the time of the offence, had

dependents in the form of his wife and two young children,

lacked criminal antecedents, and had shown good behaviour post

his incarceration, and therefore the death penalty was not

warranted.

7. Per contra, Shri Nishant Ramakantrao Katneshwarkar, learned

counsel for the respondent­State of Maharashtra, stressed that

the chain of circumstance had been established beyond

reasonable doubt. The body of the victim as well as her articles

had been recovered only at the behest of the accused, and he had

been seen following the girl by PW4 and later running towards

Toranpada by PW5. He submitted that the identification of the

appellant could not be assailed, since the village merely consisted

of 25 houses, and thus the witnesses had immediately identified

that the person was an outsider, and went to search among the

nomadic Paradhi community as their settlement was located only

3 km outside the village, since they felt that it was probable that

7 the unidentified person belonged thereto. Furthermore, the mud

stains on the pants of the appellant were highly incriminating,

because as per the FSL Report being Exh. 62, they matched in

composition and characteristics with the mud seized from the

spot of recovery of the deceased’s body. Lastly, he submitted that

the non­explanation regarding the second watch could not be

considered fatal to the case of the prosecution at all.

On the issue of sentencing, learned counsel for the State

submitted that the Court keep in mind the plight and

helplessness of the victim and her parents.

8. We have perused the evidence on record carefully, as well as

the judgments of the Trial Court and the High Court.

To begin with, we find that the Trial Court and the High

Court were correct in relying upon the testimony of PWs 4 and 5,

which is natural and reliable. PW4 Vijay Parab was the victim’s

uncle, and PW5 Abhijit Chavan was a resident of the

neighbouring Toranpada village. PW4 testified that he saw the

victim being followed by a person in a red T­shirt, being the

appellant, while she was on the way home from school on the

8 evening of the incident. He also stated that he had asked the

victim if she was going home alone, to which she had answered

in the affirmative. PW5 testified that a person in a red T­shirt,

being the accused before the trial Court, had asked him the way

to Pedali village on the morning of the incident, at Toranpada

village, and he had seen the same person running alone, with his

pants muddied, towards Toranpada in the evening around 6­6.30

p.m., at a spot which was later found to be around 300m from

the spot of recovery of the victim’s body.

The presence of these witnesses at the relevant points of

time is also natural. PW4 was proceeding on a tractor from

Kamthekarwadi to Pedali when he met the victim on her way

back from school proceeding in the opposite direction. PW5, on

the other hand, had been asked the way to Pedali by the

appellant on the morning of the incident, while he was at his

house in Toranpada, and had seen the same person again in the

evening, running towards Toranpada, while he was grazing his

cattle near Awandhe.

PWs 4 and 5 also testified to being part of the party of

villagers that undertook to search the Paradhi settlement for the

9 person in the red T­shirt when it was discovered that the victim

had gone missing, and apprehended the appellant therefrom,

handing him over to the police, who they met on the way to

Avandhe village. We are of the opinion that the conduct of these

witnesses appears natural, as it would have been reasonable for

them to search the nearest settlement, when it was realised that

the victim was last seen being followed by an outsider. As rightly

contended by counsel for the prosecution, in a village of merely

25 houses, where everyone is well­acquainted with one another,

an outsider would stand out starkly, and attract attention. In

such a situation, his identification through clothes, if supported

by the testimony of multiple witnesses whose testimony has been

found to inspire confidence, cannot be found fault with only

because a Test Identification Parade was not conducted

subsequently.

The testimony of the witnesses as referred to above is

corroborated by PW3, Samir Parab, who is a cousin of the victim

and also the informant in this case. He testified that when the

search for the victim was undertaken, PW 4 told him about

seeing a person in a red T­shirt with the victim. The adjacent

10 jungle area was searched, and around 3 am in the morning her

sandal was recovered around 200m to the east of Kamthekarwadi

village, and in the morning her schoolbag as well as a wristwatch

given to her by PW3 himself, were discovered, after which he

proceeded to lodge a missing person’s report. Subsequently, on

his way to Avandhe with the police, he met PWs 4 and 5 in a

group of villagers with the appellant, who was handed over to the

police.

Furthermore, the testimony of PWs 3, 4 and 5 is also

consistent on the point that after the appellant was handed over

to the custody of the police, he gave a statement to them and led

them to the spot where the body of the victim was hidden, i.e. a

field owned by one Raghunath Deshmukh, around 300m away

from Kamthekarwadi village. This field was overgrown with grass,

and the appellant revealed the body by keeping aside grass and

mud. The body was buried about 2 feet under the ground. The

body was in a naked condition with a red odhani (dupatta) tied

around the neck. This is also corroborated by the evidence of

PW8, one of the panchas, and PW14, the I.O., who also testified

that articles such as the earrings of the deceased, her schoolbag

11 containing her ID card, books and notebooks, as well as two

wristwatches were also found on the spot.

In this situation, we also find that the minor discrepancies

in the recorded timings and sequence of events pertaining to the

recovery of the body, and articles including the victim’s

schoolbag, as evident through the First Information Statement

(Exh. 63), the testimony of the I.O., PW14, and the spot

panchanama (Ex. 23), are not fatal to the prosecution version

and may be explained due to all the events happening in quick

succession, viz. the apprehending of the appellant, the recovery

of the dead body, the lodging of the FIR pertaining to murder and

the preparation of the spot panchanama. Moreover, the argument

that the recovery of the dead body at the instance of the

appellant is highly suspicious cannot be sustained either, since it

is clear from the testimony of the witnesses that the body was

recovered from a spot which could only have been within the

knowledge of the person who hid the body to begin with. This is

also fortified by the lack of any explanation by the appellant

regarding the recovery of the body and the circumstance of the

victim being last seen around him. To add to this, even the

12 clothes of the deceased were recovered at the instance of the

appellant, from a spot around 200m from Kamthekarwadi, from a

pit which had been covered with a stone. This again is a location

of which only the perpetrator of the offence could have had

knowledge. Although it is true that the recovery of articles is to be

made based on the statement of the accused immediately after

the arrest of the accused and recording his statement, the

recovery should be based on the voluntary action relating to

showing of the place by the accused. Therefore, unless the

accused volunteers to show the place of hiding certain

things/facts, the recovery cannot be made by the investigating

officers. In this view of the matter, if the accused volunteered to

show the place where he had hidden the deceased’s clothes at a

particular place only after 5 days, the investigating officer cannot

be blamed for the same. In a given case, the accused may

confess ten or fifteen days after his arrest and as such the

recovery cannot be suspected on this ground alone. Together,

these circumstances establish that the appellant had hidden the

body of the deceased, as well as her clothes, in a bid to suppress

the evidence of his crime.

13 The matching of the mud recovered from the spot of

recovery of the victim’s body with the mud stains on the pants of

the appellant is also highly incriminating, as rightly held by the

Trial Court and the High Court.

As regards the scratch marks found on the face and neck of

the accused, we have considered the argument of the appellant

that it was possible for the injuries to have been inflicted during

the scuffle that would have ensued at the time that the party of

villagers apprehended the appellant, even though the medical

evidence given by PW13 also shows that they could have been

inflicted by a woman resisting sexual assault. It is the defence of

the appellant that 10 to 15 villagers who went to the Paradhi

settlement in search of the accused wearing a red T­shirt must

have caught hold of the accused and assaulted him mercilessly,

consequent to which the accused sustained scratch marks on his

body. Such explanation on behalf of the accused cannot be

accepted, inasmuch as a total of 8 injuries have been sustained

by the accused, out of which 7 are scratch marks and only 1 is a

contusion. If really the accused was assaulted mercilessly by 10

to 15 villagers, at least 10 to 15 contusions or abrasions etc.

14 should have been found on the body of the accused. On the

other hand, the scratch marks suffered by the appellant are of

such a nature as would generally occur while a victim resists any

illegal action by such person such as rape etc. Such scratch

marks are generally inflicted by nails. Since the victim was

unarmed, she must have resisted the assault on her by the

accused, leading to scratches on the accused. Thus, the scratch

marks found on his face and neck clearly show the resistance of

the victim.

The medical evidence also clearly establishes the occurrence

of rape. As per the evidence of PW13 and the post mortem report

(Exh. 35), there was swelling in the victim’s labia majora along

with multiple tears in the hymen. Additionally, there were several

scratch marks all over her body. As regards the murder of the

victim, the evidence of PW13 indicates that she was killed by

strangulation by the red odhani which was found tied tightly

around the victim’s neck when her body was recovered.

The motive for the crime, i.e. lust, is also apparent, which is

an important consideration in cases based on circumstantial

evidence, as pointed out by the High Court. No doubt, the semen

15 of the appellant has not been detected in the vaginal swabs of the

deceased (as per the FSL Report being Exh. 38), having been

found only on the knickers of the appellant himself (as per the

FSL Report being Exh. 61). However, this, too, cannot be a

ground to exonerate the appellant, given the totality of

circumstances of the case, and also considering that the swabs

were mixed with mud, as stated by the doctor PW13.

Additionally, in light of the incriminating circumstances

enumerated above, we find ourselves unable to agree with the

contention of the learned Senior counsel for the appellant that

the non­investigation into the ownership of the second

wristwatch recovered vitiates the case against the accused.

Moreover, as noted by the High Court, the non­seizure of the

sandal of the victim and the stone used to hide the victim’s

clothes, also does not strike at the root of the matter.

9. Thus, we are of the opinion that each link in the chain of

circumstantial evidence has been adequately established by the

prosecution, and the conviction of the appellant is affirmed.

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10. We now turn our attention to the issue of quantum of

sentence, particularly the sentence of death awarded to the

appellant. Before proceeding further, it would be pertinent to

recall that life imprisonment is the rule and the death penalty is

the exception, and the death penalty is to be imposed only when

the alternative of life imprisonment is totally inadequate, and

therefore unquestionably foreclosed, i.e. if it is the only inevitable

conclusion, as per the well­settled legal proposition first

enunciated in Bachan Singh v. State of Punjab, (1980) 2 SCC

684. While determining the sentence, it is equally important for

the Court to consider the aggravating circumstances of the crime

and the mitigating circumstances of the criminal. Moreover, since

the decision in Machhi Singh v. State of Punjab, (1983) 3 SCC

470, a balancing approach of such aggravating and mitigating

circumstances has been adopted, to see if the crime is among the

rarest of rare cases.

The Trial Court and the High Court, on an evaluation of the

aggravating and mitigating circumstances of the case, have

arrived at the conclusion that the death sentence is warranted in

this case. Undoubtedly, the Courts were correct in giving weight

17 to the dastardly nature and manner of the crime, i.e. kidnapping

a girl of the tender age of 13 years, taking her to a secluded area

and committing the act of rape and subsequently murdering her

by strangulation and burying her body in a field, having disrobed

her completely, and also in giving weight to the youth and

helplessness of the victim, and to the fact that the appellant

proceeded to target her to satisfy his lust.

Though we agree that the crime committed is of an

abominable nature, it cannot be said to be of such a brutal,

depraved, heinous or diabolical nature so as to fall into the

category of the rarest of rare cases and invite punishment with

death. We also find ourselves unable to agree with the view of the

Courts that the appellant is such a menace to society that he

cannot be allowed to stay alive.

On the other hand, we are of the view that the prosecution

did not establish that the appellant was beyond reform, especially

given his young age. We are also mindful of the appellant’s lack

of criminal antecedents prior to the commission of this crime,

and of his post incarceration conduct, which in no way suggests

the impossibility of his reform. It would be pertinent to observe at

18 this point that although the Trial Court noted his lack of remorse

during the hearing, and the High Court noted his lack of remorse

after committing the crime, as he was found calmly wandering

around the locality, this does not in any way indicate that there

is no scope of reform for the appellant.

11. Thus, neither the circumstances of the crime nor the

circumstances of the criminal, i.e. the appellant, would go to

show that the instant matter falls into the category of the rarest

of rare cases, or that the sentence of life imprisonment is

unquestionably foreclosed and grossly disproportionate.

Therefore, in the totality of the facts and circumstances of this

case, we find it fit to commute the death sentence of the

appellant to life imprisonment.

At the same time, we are of the opinion that a sentence of

life imprisonment simpliciter would not be proportionate to the

gravity of the offence committed, and would not meet the need to

respond to crimes against women and children in the most

stringent manner possible. Moreover, though we have noticed

above that the possibility of reform of the accused is not

completely precluded, we nevertheless share the concerns of the

19 Trial Court and the High Court regarding the lack of remorse on

behalf of the appellant and the possibility of reoffending. In such

a situation, we deem it fit to restrict the right of the appellant to

claim remission in his sentence of life imprisonment for a period

of 20 years.

12. At this juncture, we would like to acknowledge and

appreciate the diligence and painstaking attention to detail in

preparing for this matter on the part of Shri Amartiya Kanjilal,

learned counsel for the appellant, as also commended by Shri V.

Giri, learned Senior counsel appearing on behalf of the appellant.

13. Thus, the Criminal Appeals arising from Special Leave

Petition (Criminal) Nos. 5416­17 of 2015 are disposed of by

commuting the sentence of death awarded to the appellant to life

imprisonment, out of which the appellant shall mandatorily serve

out a minimum of 20 years without claiming remission.

..............................................J. [N.V. RAMANA]

...............................................J. [MOHAN M. SHANTANAGOUDAR]

NEW DELHI; .................................................J. DECEMBER 05, 2018. [HEMANT GUPTA]

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