1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on 21.8.2017
Judgment Delivered on 17.11.2017
CRREF No. 1 of 2016
• In Reference Of Chhattisgarh Through Thana Kotwali, District Raigarh
Chhattisgarh.
—- Petitioner
Versus
• Lochan Shrivas, S/o Tilakram Shrivas, aged about 23 years, R/o Gram
Pusalda Thana Pusoure, Distt. Raigarh Chhattisgarh. At Present Nagar
Nigam Aawas Colony Bajrangpara, H. No. D-15, Second Floor, Thana
Kotwali District Raigarh Chhattisgarh.
—- Respondent
And
CRA No. 888 Of 2016
• Lochan Shriwas S/o Tilakram Shriwas Aged About 23 Years R/o Village
Pulsada, Thana Pussore District Raigarh, Chhattisgarh. Present Address
Nagar Nigam Awas Colony, Bajrangpara, House No. D 15 Second Floor,
Thana Kotwali, District Raigarh, Chhattisgarh.
—- Appellant (In Jail)
Vs
• State Of Chhattisgarh Through The Police Station Kotwali Raigarh,
District Raigarh, Chhattisgarh.
—- Respondent
Cr. Ref. No.1 of 2016
For Appellant : Shri N.K. Malviya, Advocate
For Respondent : Shri Vivek Sharma, Government Advocate
Cr.A No. 888 Of 2016
For Appellant : Shri Vivek Sharma, Government Advocate
For Respondent : Shri N.K. Malviya, Advocate
Hon’ble Shri Justice Pritinker Diwaker
Hon’ble Shri Justice Ram Prasanna Sharma
2
CAV Judgement
Per P. Diwaker, J
17/11/2017
1. This death reference was made to this Court under Section 366 of the
Criminal Procedure Code, 1973 for confirmation of the sentence passed
against the appellant before this Court. The appeal of the accused and
the death reference case were heard together and this judgment will
govern both the reference and the appeal.
2. A large number of cases in recent times coming before the Courts of law
involving rape and murder of young girls, is a matter of concern. In the
instant case girl was about three years of age who was the victim of
sexual assault and animal lust of the accused-appellant; she was not only
raped but was murdered by the accused/appellant.
3. This death reference and the criminal appeal arise out of the judgment
dated 17.6.2016 passed by the Court of Additional Sessions Judge, Fast
Track Court, Raigarh in Special Case No.19/2016 in which, the
accused/appellant herein was tried, found guilty, convicted and sentenced
to undergo death sentence (he was directed to be hanged by neck until
he dies) and to pay a fine of Rs.5,000/- for the offence punishable under
Section 302 of the Indian Penal Code (for short ‘the IPC’); to undergo
rigorous imprisonment for three years and to pay a fine of Rs.500/-, in
default of payment of fine, to undergo additional rigorous imprisonment for
one month for the offence punishable under Section 363 IPC; to undergo
rigorous imprisonment for seven years and to pay a fine of Rs.500/-, in
default of payment of fine to undergo additional rigorous imprisonment for
two months for the offence punishable under Section 366 IPC; to undergo
rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default of
3
payment of fine to undergo additional rigorous imprisonment for six
months for the offence punishable under Section 377 IPC; to undergo
rigorous imprisonment for five years and to pay a fine of Rs.500/-, in
default to undergo additional rigorous imprisonment for one month for the
offence punishable under Section 201 IPC and also to undergo rigorous
imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment
of fine to further undergo additional rigorous imprisonment for six months
for the offence punishable under Section 6 of the Protection of Children
from Sexual Offences Act, 2012. The substantive sentences of
imprisonment were directed to run concurrently.
4. According to the prosecution case, the victim, a 3 years old girl, along
with her parents was residing at Flat No. D-15 situated at 4 th floor of the
building in which the accused/appellant was residing at 2nd floor in Flat
No.D-19. On 24.2.2016 the victim girl went missing. Her family
members and neighbourers searched for her relentlessly and also
reported the matter to the police vide Ex.P-1 based on which un-
numbered FIR (Ex.P-2) was registered at Police Outpost Jute Mill,
Rajnandgaon. Thereafter, registered FIR (Ex.P-36) under Section 363
IPC was registered at Police Station Kotwali, Rajnandgaon against
unknown person for the offence punishable under Section 363 IPC.
Having come to know on 25.2.2016 that the accused/appellant is claiming
that he can trace the whereabouts of the girl within an hour by performing
pooja, the parents of victim girl approached him and asked him to perform
pooja and also provided him material required for performing pooja.
Accused/appellant informed them that the girl is packed in a gunny bag
lying in the bushes near the pole at Amlibhauna. This disclosure made by
the accused/appellant has created doubt in the mind of not only the
4
parents of the girl but also the neighbourers and according the police was
called. Accused/appellant was thoroughly interrogated on the basis of
suspicion and during interrogation, the accused/appellant disclosed that
when the victim was walking down, he took the girl inside his room,
undressed her and after removing his clothes committed sexual
intercourse with her as a result of which she started crying loudly,
therefore, he gagged her mouth by pillow. On account of forcible sexual
intercourse, the prosecutrix began to bleed profusely and seeing this he
got frightened and therefore, in order to ensure that he is not caught and
to further ensure that he leaves no trace of brutal incident, firstly he killed
the girl by pressing her neck and then washed the blood spermatozoa
present on the male organ by a towel. Thereafter, he tied her hands and
legs, put her body in the gunny bag and tied the same with the rope and
dropped the gunny bag in the bushes near the electric pole at Amlibhauna
Road. He had also thrown the clothes of the victim in the dustbin. He
further contends that he will show the place where he had thrown the
dead body if the police accompanied. Memorandum statement of
accused/appellant to the aforesaid effect was recorded vide Ex.P-11 in
presence of witnesses Mohammed Shahid (PW-3) one Hamid Ali (not
examined). On the basis of disclosure statement of accused/appellant,
the police party along with accused/appellant visited the aforesaid place
and with the help of witness Mohd. Shahid alias Raju Khan (PW-3), the
gunny bag containing the corpse was taken out from the bushes. Prior to
that, the photographer was called by the police vide Ex.P-24 and the
photographs of the spot and dead body were taken by him. Dead body
was identified as of the deceased prosecutrix by Mohammed Aman,
father of girl, vide Ex.P-3. Inquest was conducted over the dead body
5
vide Ex.P-5. In the course of investigation, birth certificate of the
deceased girl was seized vide seizure memos of Ex.P-6 P-7. One blue
colour plastic sack having the label of ‘No.1 Dall Best Quality’ was seized
vide Ex.P-14. Jeans half pant of the deceased was recovered at the
instance of accused/appellant vide Ex.P-15. Bloodstained gamchha
having imprints of small flowers and stains like blood and sperm, one
colourful pillow and one yellow-white colour plastic bag were seized at the
instance of accused/appellant vide seizure memo of Ex.P-16.
On 25.2.2016 Body was sent for post-mortem examination which
was conducted by Dr. S. Lakda (PW-10) and found as follows;-
“Rigor mortis near to passes over. Head skull intact. Cervical
spine broken. Head freely moving like without skeletal muscle
resistance only. Face cyanosed. Eyes and mouth semi-closed.
Frothing from mouth. Blood tinged skull intact. Throat bluish in
colour. Chest and abdomen dislodged. Bluish clotted blood
abrasions over upper limbs, thighs, inner parts and private (soft)
parts bleed line over cheek from nostrils and mouth. Semen
like fleshy, drop and post fornix of vagina along with blood clot
around the anus, there are lacerations and clotted blood. Left
calf also has blood wiped. Layer blood clot and flow line up to
foot through calf. Soft part is dark brownish red. Inner and back
of thighs abraded. Bruise lips. Nose, lips, nail beds with hand
pale. Toe nail bed. Feet pulp and cyanosed. All the injuries
were ante mortem in nature.
According to autopsy surgeon, the cause of death was asphyxia
and homicidal in nature. Duration of death was 24 to 28 hours prior to
post-mortem examination. He also prepared, packed and sealed two
6
vaginal contents slides. Two slides of anal contents were also prepared
by him. All these slides were handed over to the police team to be
dispatched for chemical examination. Accused/appellant was also
medically examined by Dr. Vinod Nayak (PW-12) vide Ex.P-33 and
opined him to be capable of performing sexual intercourse. He did not
notice any injury on the penis of the accused/appellant. Kishore Kumar
Sriwas, a Barber, was called for cutting the nails of the accused and the
nails of both the hands of the accused/appellant were cut by him and
were seized vide seizure memo Ex.P-20. Seized articles were sent for
chemical examination to the Forensic Science Laboratory from where
report of Ex.P-46 has been received, according to which, Article – A
(gunny bag), Article-B (gamchha), Article C1 C2 (slides of deceased)
Article – D (nails of accused) were found to be stained with blood.
Statements of the witnessed were recorded under Section 161 Cr.P.C.
5. On completion of investigation, the police filed the charge sheet for the
offence punishable under Sections 363, 376, 377, 302, 201 IPC and
Section 6 of the Act of 2012 before the competent court on 26.4.2016
against the accused/appellant and accordingly the charges were framed
against them by the trial Court. In order to hold the accused/appellant
guilty, the prosecution had examined as many as 19 witnesses.
Statement of accused/appellant was also recorded under Section 313 of
Cr.P.C. in which he denied the circumstances appearing against him in
the prosecution case and pleaded innocence false implication.
6. After assessing the evidence on record and hearing both the parties, the
trial Court found the accused/appellant guilty of the offences, convicted
him and imposed the sentence as stated in the opening paragraph by the
impugned judgment.
7
7. We have heard counsel for the parties quite in extenso and also perused
the record of the trial Court including the impugned judgment.
8. Counsel for the appellant submits that:-
• there is no direct evidence to connect the appellant with the
incident in question and conviction is based on the circumstantial
evidence but the circumstances relied upon by the prosecution do
not warrant conclusion of guilt of the appellant. Since the
conviction was based on circumstantial evidence, no death
sentence should have been awarded by the trial Court and in any
event this is not a case where death sentence should have been
imposed.
• when an infant girl is subjected to rape by a fully developed man,
there must appear injuries on the male organ, but here in this case
the doctor, who had medically examined the appellant, did not
notice any injury whatsoever on the male organ of the appellant.
Absence of injury would point to the appellant’s innocence.
• there is total non-compliance of Section 53A of the CrPC as the
sample of semen were not sent for DNA profiling and matching.
Compliance of Section 53-A Cr.P.C. is mandatory, therefore, non-
compliance thereof supports the defence of the appellant that he
had never had sexual intercourse with the prosecutrix and he has
been falsely implicated in the case. Reliance is placed on the
judgment reported in (2011) 7 SCC 130; (2014) 5 SCC 108
(2009) 14 SCC 607.
• recovery of body of deceased allegedly at the instance of appellant
was from the open place which was accessible to the public and
therefore the same is not admissible in evidence.
8• the actual culprit is Raju Khan (PW-3) who had committed the
offence in question but the appellant has been falsely implicated at
his instance.
• Pushpa Chouhan (PW-18) has not supported the prosecution case.
• lastly it has been submitted that if this Court reaches to a
conclusion that the judgment impugned does not warrant any
interference then death sentence may be substituted by life
imprisonment. Reliance is placed on
• even after coming to know about the whereabouts of their daughter
at 3.30 a.m., her parents did not inform the said fact to the police
and the police reached the house of deceased at 6.30 a.m. only
and thereafter the body of deceased was recovered at 9.05 am.
This delay in sending intimation to the police is indicative of the fact
that the appellant is innocent and has been falsely implicated in the
crime in question.
9. Learned counsel for the respondent-State on the other hand submitted
that trial court has analysed the evidence in great detail to show the
horrendous manner in which a tiny girl was done to death after ravishing
her. The circumstances relied upon by the prosecution establish the guilt
of the appellant to the hilt. He further submits that only from the
disclosure statement of the accused it discovered that after committing
the murder of the deceased, he had thrown her body in the bushes near
electric pole at Amlibhona and thereafter he had taken the police to the
spot and pointed out the place where he had thrown the body. The said
place was not accessible to the public at large and was within the special
knowledge of the accused only. The remote and isolated nature of place
where the body was found clearly establishes the complicity of
9
accused/appellant. Reliance is placed on the judgement in the matter of
(2011) 5 SCC 317. The memorandum and seizure witnesses have duly
supported the prosecution case. He further submits that the nail clippings
collected from the accused/appellant were found to be stained with blood
in the FSL report (Ex.P-46). The accused in order to ensure that he is not
caught and to further ensure that he leaves no traces of the brutal
incident, systematically attempted to destroy all the evidence of the
incident. He first killed the deceased and then cleaned the blood semen
on his penis with the towel, threw the clothes of the deceased in the
dustbin and thereafter the body of deceased after wrapping it in a gunny
bag at the isolated place.
He further submits that though all the incriminating circumstances
which point to the guilt of accused/appellant had been put to him, yet he
chose not to give explanation under Section 313 CrPC except choosing
the mode of denial. It is well settled in law that when the attention of the
accused is drawn to the said circumstances that inculpated him in the
crime and he fails to offer appropriate explanation or give a false answer,
the same can be counted as providing a missing link for building the chain
of circumstances. In the case at hand, though a number of circumstances
were put to the accused, yet he has made a bald denial and did not offer
any explanation whatsoever. Thus, it is also a circumstance that goes
against him.
It is true that on medical examination no injury or blood or semen
was found on the penis of the appellant but on this ground alone, the
prosecution evidence with regard to rape committed by the appellant on
the prosecutrix cannot be disbelieved. It is not necessary that there
should always be marks of injuries on the penis of the accused and
10
therefore the accused cannot take any benefit simply because of the
absence of the injuries on his penis.
He further submits that due to sudden and untimely death of their
daughter, the parents of deceased might have been under shock and for
this reason they could not have informed the police immediately, but this
does not make the prosecution story doubtful or unreliable.
He also submits that taking into consideration the brutality of attack,
age of the victim and acts of perversion on the person of the victim,
cumulatively, the sentence awarded by the trial Court is just and proper
and do not call for any interference by this Court in exercise of its
appellate jurisdiction.
10. We have heard counsel for the parties and perused the record of the trial
Court including the impugned judgment.
11. Gudiya Parveen (PW-1), mother of victim, has stated that she resides at
Flat No.D-29, 4th Floor, Bajrang Dheepa Colony. Accused/appellant was
residing at Flat No.D-15, 2nd Floor of the same building. On 24.2.2016 at
about 10.00 am when she made enquiry from her husband about the
deceased, he informed that she had gone downstairs to play with her
friends. She went downstairs and found that her daughter is not there
and thereafter she went up and informed the said fact to her husband and
thereafter both of them came downstairs and searched for their daughter,
but they could not find her and then they lodged a missing report of their
daughter with the police vide Ex.P-1. She has further stated that on 24 th
at about 3-4 in the morning Raju Khan (PW-3) came and informed them
that the accused/appellant is claiming that he would trace the
whereabouts of their daughter within one hour subject to performing
pooja. She gave her consent to the appellant for performing pooja and
11
also made available him vermilion, lemon, diya, incense stick coal.
After about 15-20 minutes, the accused informed us that the deceased is
lying in a gunny bag in the bushes near a pole beside the road at
Amlibhauna. This creates doubt in our mind and therefore we disclose
the aforesaid fact to Raju Khan (PW-3) who called the police by making a
telephone call. The police inquired from the accused as to what had he
done with the girl. The accused/appellant told that while the victim was
going downstairs for playing, he took her inside his house by gagging her
mouth, committed sexual intercourse with her and thereafter smothered
her by closing her mouth by pillow. Thereafter, he packed the body of
deceased in yellow colour bag and threw it in the bushes near the pole at
Amlibhona. On such disclosure being made by accused, they along with
police and accused had gone to Amlibhona where the accused had taken
out the gunny bag from the bushes which was cut by Raju Khan and the
body of her daughter was taken out. The gunny bag was full of blood.
Nail injuries were present on the thighs of her daughter. Inquest on the
body of her daughter was prepared and thereafter the body was sent for
post-mortem examination. Nothing material could be elicited by the
defence in the cross examination of this witness so as to make her
testimony unreliable or untrustworthy.
12. Mohammed Arman (PW-2), father of deceased, has repeated almost the
similar statement which has been made by PW-1, mother of deceased.
He has stated that on interrogation by the police, the accused/appellant
admitted his guilt of murdering his daughter after committing bad work
with him and thereafter throwing her body in a gunny bag in the bushes
near the pole at Amlibhauna. He has further stated regarding
identification proceeding of the body of deceased conducted by the police
12
and that he has identified the dead body as of his daughter. He has
further stated that during identification proceeding, the police had taken
the photographs of her deceased daughter. The police had seized birth
certificate of the deceased from him vide seizure memo of Ex.P-6. In the
cross examination this witness has admitted that the accused had taken
out yellow colour gunny bag from the bushes.
13. Mohammed Shahid alias Raju Khan (PW-4) has stated that he had
lodged the missing report of deceased at the instance of her mother (PW-
1). On 25.2.2016 at about 3.00-3.30 in the morning when they returned to
the building in their occupation, one Munni Khatoon, one of the occupants
of the said building, had told that accused/appellant had disclosed her to
ascertain the whereabouts of the deceased through ritual ceremonials but
nobody should know about this. Thereupon, after disclosure of this fact
by him to the mother of deceased, the essentials like vermilion, lemon,
oil etc. for that ritual were arranged. On completion of such ritual, the
accused made a disclosure about the location of the body of the
deceased lying in the shrubs thrusted in a gunny bag. He nurtured
suspicion and informed the police accordingly. He has further stated that
the accused in his presence told the police that while the deceased was
going downstairs, he took her inside his house and committed sexual
intercourse with her after undressing her and when she started shouting
and crying, he pressed her mouth by pillow. The accused further told
that when he saw blood coming out from the private part of the
deceased, he strangulated her to death. Thereafter he wrapped the body
in a gunny bag and thrown it in the shrubs near the pole at Amlibhona.
This witness has also stated that the accused further disclosed that he
had thrown the half pant of the deceased in the street dustbin and pillow
13
gamchha were kept in his house. Memorandum statement of
accused/appellant was recorded vide Ex.P-1. Thereafter, they along with
the police and accused reached Amlibhona where the accused/appellant
pointed out the place where he had thrown the body of deceased by
putting it in a gunny bag. The accused/appellant had taken out the gunny
bag from the shrubs and on opening the same by this witness, the body of
deceased was found in it. Body of the deceased was seized vide seizure
memo (Ex.P-12). Dead body was identified by Mohammed Shahid (PW-
2) as of his daughter. Identification proceeding memo is Ex.P-3. He has
further stated that a spot map (Ex.P-13) was prepared by the police. He
has further stated that on opening the plastic gunny bag by blade, it was
also found to be stained with blood of the deceased. He has further
stated that on being produced by accused/appellant, one black colour half
jeans pant was seized by the police vide seizure memo Ex.P-15.
Likewise, one white colour gamchha stained with substance like semen
blood, one dust-coloured pillow and yellow colour bag were also seized at
the instance of accused/appellant vide seizure memo Ex.P-16. Nails of
the accused/appellant were also got cut and were seized vide seizure
memo Ex.P-20. In the cross-examination this witness has reiterated his
testimony as submitted by him during examination-in-chief.
14. Mohammed Amir (PW-4) is the witness of inquest (Ex.P-5). He has
stated that seeing the crowd going towards Amlibhauna, he also followed
and reached on the spot. On reaching there, he saw that
accused/appellant had taken out a gunny bag from the shrubs which was
cut by one person with blade. Dead body of a girl was found in the said
gunny bag. Blood was coming out from the left ear, private part and annul
of the girl.
14
15. Munni alias Sarbari (PW-5) is the lady to whom the accused told that he
can trace the whereabouts of the deceased through ritual ceremonials.
According to this witness, on 25.2.2016 at 3.30 a.m. in the morning the
accused/appellant came to him and told her to ascertain the whereabouts
of the deceased by worshipping and in turn, she disclosed this fact to
Raju Khan (PW-3). She has further stated that after completing ritual,
accused/appellant informed that the girl is lying in a gunny bag near the
pole beside the road and that she is alive. Such disclosure nurtured
suspicion in the mind of Raju Khan (PW-3) and he had called the police.
She has further stated that upon interrogation by the police, the
accused/appellant confessed to have murdered the deceased after
committing sexual intercourse with her. The defence has not been able to
elicit anything incriminating in her cross-examination so as to make her
testimony unreliable or untrustworthy.
16. Sheikh Tarannum (PW-6) is the landlady in whose house the
accused/appellant was residing as tenant.
17. Krishna Kumar Jaiswal (PW-7) is the Photographer who had taken the
photos of the deceased and the place where the accused/appellant
performed ritual ceremonials and proved the same as Article A-1 to Article
A-18. This witness has also done the video shooting of the entire
proceedings conducted by the prosecution.
18. Kishore Sriwas (PW-8), is the Barber who had taken the sample of nails
of the accused/appellant on asking by the police and proved the
panchnama of Ex.P-19.
19. Dr. S. Lakda (PW-10) is the person who conducted post-mortem
examination over the body of the deceased and noticed the injuries as
described above.
15
20. Dr. Vinod Nayak (PW-12) is the doctor who medically examined the
accused/appellant and opined him to be capable of performing sexual
intercourse. His report is Ex.P-33.
21. Chameli Sarthi (PW-9), Sunil Kumar Pradhan (PW-11), Chandresh
Pandey (PW-13), Chamar Sai (PW-14), Anup Kumar Sahu (PW-15),
Dinesh Bahidar (PW-16) and Rajesh Mishra (PW-17) are the formal
witnesses and no purpose will be served in marshalling the evidence of
these witnesses.
22. PW-19 is the investigating officer who has duly supported the prosecution
case.
23. We have given our anxious thought to the rival submissions made by
learned counsel for the appellant and learned counsel for the State and
also carefully gone through the material on record.
24. Admittedly, there is no eye-witness to the occurrence and the judgment of
conviction is based on the circumstantial evidence. The main
circumstances which the learned Additional Sessions Judge appears to
have taken note of, are;
• recovery of body of the deceased on the showing of
accused/appellant. Accused pointed out the place where the body
of deceased was lying in a gunny bag, tied with rope, inside the
shrubs;
• recovery of jeans pant of the deceased from the dustbin near his
house at his instance;
• presence of blood on gamchha (a piece of cloth) and nail clippings
of the accused.
• presence of human spermatozoa on the vaginal slides of the
deceased.
16
25. The law relating to circumstantial evidence is well settled. In dealing with
circumstantial evidence, there is always a danger that conjecture or
suspicion lingering on mind may take place of proof. Suspicion, however,
strong cannot be allowed to take place of proof and, therefore, the Court
has to judge watchfully and ensure that the conjectures and suspicions
do not take place of proof. However, it is no derogation of evidence to say
that it is circumstantial. Human agency may be faulty in expressing
picturization of actual incident but the circumstances cannot fail.
Therefore, many a times, it is aptly said that ―men may tell lies, but
circumstances do not‖. In cases where evidence is of a circumstantial
nature, the circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established. Each fact must be
proved individually and only thereafter the Court should consider the total
cumulative effect of all the proved facts, each one of which reinforces the
conclusion of guilt. If the combined effect of all the facts taken together is
conclusive in establishing the guilt of the accused, the conviction would
be justified even though it may be that one or more of these facts by
itself/themselves, is/are are not decisive. The circumstances proved
should be such as to exclude every hypothesis except the one sought to
be proved. But this does not mean that before the prosecution case
succeeds in a case of circumstantial evidence alone, it must exclude
each and every hypothesis suggested by the accused, howsoever,
extravagant and fanciful it might be. There must be a chain of evidence
so complete as not to leave any reasonable ground for conclusion
consistent with the innocence of the accused and it must be such as to
show that within all human probability, the act must have been done by
the accused. Where the various links in a chain are in themselves
17
complete, then a false plea or false defence may be called into aid only to
lend assurance to the Court. If the circumstances proved are consistent
with the innocence of the accused, then the accused is entitled to the
benefit of doubt. However, in applying this principle, distinction must be
made between facts called primary or basic on the one hand and
inference of facts to be drawn from them on the other. In regard to proof
of basic or primary facts, the Court has to judge the evidence and decide
whether that evidence proves a particular fact or not and if that fact is
proved, the question arises whether that fact leads to the inference of
guilt of the accused person or not. In dealing with this aspect of the
problem, the doctrine of benefit of doubt applies. Although there should
be no missing links in the case, yet it is not essential that every one of the
links must appear on the surface of the evidence adduced and some of
these links may have to be inferred from the proved facts. In drawing
these inferences or presumptions, the Court must have regard to the
common course of natural events, and to human conduct and their
relations to the facts of the particular case.
26. There are plethora of decisions in this regard. It is unnecessary to refer
all of them and mention of some would be sufficient. In the leading case
i.e. Hanumant another v. The State of Madhya Pradesh reported in
(1952) SCR 1090 the Court has held thus;-
“In dealing with circumstantial evidence there is always the
danger that conjecture or suspicion may take the place of legal
proof. It is therefore right to remember that in cases where the
evidence is of a circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn should in the first
instance be fully established and all the facts so established
18should be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive
nature and tendency, and they should be such as to exclude
every hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as
not leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to
show that within all human probability the act must have been
done by the accused.”
27.A reference may be made to a later decision in Sharad Birdhichand
Sarda v. State of Maharastra reported in AIR 1984 SC 1622 wherein,
while dealing with circumstantial evidence, it has been held that onus was
on the prosecution to prove that the chain is complete and the infirmity or
lacuna in prosecution cannot be cured by false defence or plea. The
conditions precedent before conviction could be based on circumstantial
evidence, must be fully established, and they are;-
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned
must or should and not may be established;
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused is
guilty;
(3) the circumstances should be of a conclusive nature and
tendency;
(4) they should exclude every possible hypothesis except the one to
be proved; and
19
(5) there must be a chain of evidence so compete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
28. In Padala Veera Reddy v. State of A.P. ors reported in AIR 1990 SC
79, it was laid down that when a cast rests upon circumstantial evidence,
such evidence must satisfy the following tests;
“(1) the circumstances from which an inference of guilt is sought
to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;(3) the circumstances, taken cumulatively should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and (4) the circumstantial evidence
in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of
the guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should be
inconsistent with his innocence.”
29. We may also make a reference to a decision of this Court in C. Chenga
Reddy ors v. State of A.P. reported in (1996) 10 SCC 193, wherein it
has been observed thus:
“In a case based on circumstantial evidence, the settled law is
that the circumstances from which the conclusion of guilt is
drawn should be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should
be complete and there should be no gap left in the chain of
evidence. Further the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused
and totally inconsistent with his innocence….”
20
30. In the decision reported in Vinay D Nagar v. State of Rajasthan reported
in (2008) 5 SCC 597 it was held as follows:
“The principle of law is well established that where the
evidence is of a circumstantial nature, circumstances from
which the conclusion of guilt is to be drawn should in the first
instance be fully established, and the facts, so established,
should be consistent only with the hypothesis of the guilt of
the accused. The circumstances should be of a conclusive
nature and they should be such as to exclude hypothesis
than the one proposed to be proved. In other words, there
must be chain of evidence so complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show
that within all human probability the act must have been done
by the accused.”
31. In Chattar Singh v. State of Haryana reported in AIR 2009 SC 378, the
Supreme Court held as follows;-
“It has been consistently laid down by this Court that where a
case rests squarely on circumstantial evidence, the inference
of guilt can be justified only when all the incriminating facts
and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person”
32. Keeping the above caution in mind, we shall now proceed to examine the
facts and circumstances as put forward and the various arguments
advanced. Our endeavour in this case is to consider whether all these
tests have been satisfied.
33. The important and crucial circumstance heavily relied upon by the
prosecution is the alleged recovery of dead body of the deceased on
showing of the accused/appellant and the accused pointed the place
where the body of the deceased was lying.
21
34. It is not disputed that on 24.2.2016 the deceased went missing and a
report to this effect was also lodged by her parents with the police and
based on which unregistered FIR under Section 363 IPC was registered
against unknown person. It is the prosecution case that disclosure of
whereabouts of deceased by the accused/appellant nurtured suspicion in
the mind of parents of deceased and accordingly, at their instance, the
accused/appellant was taken into custody and soon thereafter he had led
to the police along with the parents of the deceased to Amlibhauna from
where a gunny bag containing body of deceased was taken out by him
from a particular spot i.e. from the shrubs. From the evidence of Gudiya
Parveen (PW-1), Mohammed Arman (PW-2), Raju Khan (PW-3),
Mohammed Amir (PW-4) Munni alias Sarwari (PW-5), it is clear that the
body of the deceased was recovered at the instance of
accused/appellant. Evidence of aforesaid witnesses further show that
Munni alias Sarwari (PW-5), one of the occupants of the said building
where deceased was residing with her parents, informed Raju Khan (PW-
3) that the accused/appellant had disclosed her to ascertain the
whereabouts of the deceased through ritual ceremonials. After disclosure
of this fact by Raju Khan (PW-3) to the mother of deceased, the
essentials like vermilion, lemon, oil etc. for that ritual were arranged. On
completion of such ritual, the accused made a disclosure about the
location of the body of the deceased lying in the shrubs thrusted in a
gunny bag. This nurtured suspicion in the mind of parents of deceased
and accordingly they called the police. The fact that the
accused/appellant had performed ritual ceremonials in the house of
deceased stands established from the recovery of pieces of coal, lemon,
lamp, incense stick, vermilion etc. from the house of deceased vide
22
seizure memo Ex.P-18. Mohammed Shahid Hamid Ali are the
witnesses of this recovery and they have duly supported the prosecution
case.
Further, this circumstance is corroborated by Krishna Kumar
Jaiswal (PW-7), a Photographer who stated in the Court that being called
by the police, he went to the spot and took the photographs of the
deceased, place of recovery of dead body at Amlibhauna and the place
where the accused/appellant had performed pooja. He has further stated
that he prepared video movie of the entire proceedings conducted at the
spot in his presence. After preparing the photographs and CD, he
handed over the same to the police and the same were seized from him
vide seizure memo of Ex.P-23.
So, from the discussion mentioned above, it is clear that the dead
body of deceased was recovered on 25.2.2016 in pursuance of the
information that was supplied by the accused/appellant from a secluded
place which was the matter of exclusive knowledge of the
accused/appellant only. The entire proceedings regarding recovery of
the dead body of deceased was also filmed by the Photographer PW-7
and photographs and film were also taken into possession. The
witnesses to recovery in most categorical and explicit manner have given
vivid detail of the manner in which the entire proceedings of recovery was
carried out and they have been extensively cross-examined by the
defence, but has not been able to create any dent in their testimonies.
35. We have gone through the video movie prepared and after watching the
video, we are of the view that the recovery of dead body was made from a
place which cannot be said to be accessible to an ordinary person without
23
prior knowledge as the body recovered was kept concealed in a gunny
bag inside the shrubs situated at sufficient distance from the main road.
In the statement under Section 313 CrPC, the accused/appellant failed to
explain how he came to know that the deceased had been murdered and
thrown in the shrubs after wrapping her in a gunny bag. In Ibrahim Musa
Chauhan @ Baba Chauhan v. State of Maharashtra reported in 2013
(3) SCALE 207, the Supreme Court has held thus;-
“133. Undoubtedly, the appellant’s disclosure statement
had been made before the police, as well as the panch
witness. The fact that he did not disclose the place where
the contraband had been hidden remains entirely
insignificant, for the reason that he had led the police
party to the said place, and that the said recovery had
been made at his behest. The open space from where
the recovery had been made though was accessible to
anybody, it must be remembered that the contraband had
been hidden, and that it was only after digging was done
at the place shown by the appellant, that such recovery
was made. Hence, it would have been impossible for a
normal person having access to the said place, to know
where the contraband goods were hidden.
36. That apart, the jeans pant of the deceased from the dustbin and one
gamchha pillow from the house of accused/appellant were also
recovered at the instance of accused/appellant vide Ex.P-15 Ex.P-16
respectively. To prove these recoveries the prosecution has relied upon
Mohammed Shahid (PW-3). From the statement of Mohammed Shahid
24
(PW-3) it is apparent that after getting the body of deceased recovered,
the accused/appellant took them to the colony and produced the jeans
pant of the deceased thrown by him in the dustbin and accordingly the
jeans pant was seized vide Ex.P-15 at the instance of accused/appellant.
He has further stated that accused/ appellant got recovered one gamchha
pillow from his house vide seizure memo of Ex.P-16. In the cross-
examination this witness not only remained firm on the issue of recovery
of aforesaid articles at the instance of accused/appellant but denied the
suggestion of putting signature on Ex.P-20 without reading it or at the
instance of police. This apart, Gamchha seized from accused/appellant
was sent for chemical examination and as per FSL report (Ex.P-46), the
blood was found on it. No explanation in regard to presence of blood on
said Gamchha was offered by accused/appellant in his examination under
Section 313 CrPC.
37. In Aftab Ahmad Ansari v. State of Uttaranchal reported in (2010) 1
SCC 471, the Hon’ble Supreme Court, while dealing with aspect of
discovery in consequence of information given by accused, has held
thus;-
“The part of the disclosure statement, namely, that the appellant
was ready to show the place where he had concealed the
clothes of the deceased is clearly admissible under Section 27 of
the Evidence Act because the same relates distinctly to the
discovery of the clothes of the deceased from that very place.
The contention that even if it is assumed for the sake of
argument that the clothes of the deceased were recovered from
the house of the sister of the appellant pursuant to the voluntary
disclosure statement made by the appellant, the prosecution has
failed to prove that the clothes so recovered belonged to the
deceased and therefore, the recovery of the clothes should not
25
be treated as an incriminating circumstance, is devoid of merits”.
In State of Maharashtra v. Damu reported in (2000) 6 SCC 269 it has
been held as follows:
” … It is now well settled that recovery of an object is not
discovery of a fact as envisaged in [Section 27 of the
Evidence Act, 1872]. The decision of the Privy Council in
Pulukuri Kotayya v. King Emperor is the most quoted
authority for supporting the interpretation that the ‘fact
discovered’ envisaged in the section embraces the place
from which the object was produced, the knowledge of the
accused as to it, but the information given must relate
distinctly to that effect.”
38. In the case at hand, as is perceptible, the recovery had taken place when
the appellant was accused of an offence, he was in custody of a police
officer, the recovery had taken place in consequence of information
furnished by him and the panch witnesses have supported the seizure
and nothing has been brought on record to discredit their testimonies.
Thus, in these circumstances, we are of the firm view that the prosecution
has been able to prove the recovery of dead body of deceased and other
articles like jeans pant of the deceased etc. at the instance of
accused/appellant beyond doubt. Recovery of incriminating material at
his disclosure statement duly proved is a very positive circumstances
against him.
39. Another circumstance relied upon by the prosecution is the circumstance
that the blood was found in the nail clippings of accused/appellant.
According to the investigating officer, in the course of investigation one
Barber namely Kishore Kumar Sriwas was called for cutting the nails of
the accused. Nails of both the hands of accused/appellant were cut by
26
said Barber and the same were seized by him vide seizure memo
Ex.P-20. The nail clippings were subjected to forensic chemical
examination and it was revealed that the nail clippings of
accused/appellant were stained with blood. Query being raised by the
police as to whether injuries present on the thigh back of the deceased
could be caused by human finger nails has also been answered by the
autopsy surgeon (PW-10) vide Ex.P-29. Thus, this is also, according to
us, a very crucial circumstance but the same has not been explained by
accused/appellant in his statement under Section 313 CrPC.
So far as the origin of blood is concerned, sometimes it happens,
either because the stain is too insufficient or disintegrated, that a chemical
analyst might fail to detect the origin of blood, but that does not mean that
the blood found on the nail clippings of accused would not have been
human blood at all. In the present case also the reason assigned by the
chemical analyst for not being able to determine the origin of blood is its
insufficiency for test. Notwithstanding the absence of specific evidence
that the blood in nail clippings of accused/appellant were human blood or
blood of the group of the deceased, the significance of the circumstance
is not lost. This circumstance also is quite a formidable circumstance
against the accused/appellant.
40. Insofar as homicidal death of the deceased, the learned counsel for the
accused offered no argument at all. Even otherwise, the prosecution has
proved beyond reasonable doubt that the deceased suffered homicidal
death as the evidence of the doctor (PW-10) and post-mortem report
(Ex.P-9) given by him clearly depicts various external and internal injuries
on the body of the deceased as afore-noticed. Evidence of the doctor
27
(PW-10) and the contents of post-mortem report (Ex.P-28) further prove
that the injuries were ante-mortem in nature and time since the death was
fixed at 24-28 hours prior to conducting post-mortem examination and
death was due to asphyxia and spinal multi vital organs injury, intense
pain shock. To a query put by to the doctor by the Court whether such
injuries were caused to the deceased prosecutrix are indicative to have
done with intention, he has given reply in positive. Nothing has been
elicited in the cross-examination of PW10 to discredit his evidence or the
contents of Ex.P-28 issued by him and wherefore, the prosecution has
proved beyond reasonable doubt that Sakamma suffered homicidal
death.
41. Dr. S. Lakda (PW-10) who conducted the post-mortem examination on
the body of the deceased. The post-mortem report graphically depicts the
injuries on the private parts of the deceased prosecutrix which could be
caused by sexual intercourse only. According to this witness, he had
noticed bluish clotted blood and abrasion over thighs, inner parts and
private part. Semen like fleshy drop and post fornics of vagina along with
blood clot around the anus and there is laceration and clotted blood. Inner
and back of thighs abraded. Thus, evidence of the doctor is very clear
that there was external and internal injury especially on some of the
important parts, like, the vulva, perineum thighs. He had also prepared
two vaginal slides of the deceased and handed over the same to the
police for chemical examination. These slides were sent for chemical
examination to determine living or dead spermatozoa on it and as per
report of Ex.P-28, human spermatozoa was found on the vaginal slides of
the deceased. On query being made by the police as to whether the
deceased was subjected to sexual unnatural intercourse, has been
28
answered by this witness in affirmative vide Ex.P-29 by opining that
vaginal and anal sexual assaulted was done with the deceased. To a
query put to the doctor by the Court to the effect that the grievous injuries
found on almost every body part of the deceased prosecutrix is indicative
of her subjection to sexual and unnatural intercourse in a most brutal and
barbaric manner, the reply is given in positive emphatically stating that the
deceased died only on account of such barabarism and animalism. The
doctor was very firm in his opinion that the deceased prosecutrix was
subjected to sexual and unnatural sex and he remained unshaken during
exhaustive cross-examination. Thus, from the aforesaid medical
evidence, it is clear as crystal that the deceased prosecutrix received
injuries on her private parts i.e. vagina, anus etc. and that there was
forcible sexual and unnatural intercourse was committed with the
deceased prosecutrix.
42. We find no force in the argument advanced on behalf of
accused/appellant that mandatory provision of Section 53(A) of Cr.P.C.
has not been followed and so, right of accused/appellant is found
prejudiced. The accused/ appellant was medically examined by Dr. Vinod
Nayak (PW-12) and opined that nothing has been found by him which
would indicate that he is not capable to perform sexual intercourse. Thus,
there is no denial of the fact that the accused/appellant was physically fit
to perform penile sexual intercourse with a female. Furthermore,
application of aforesaid provision is in favour of the prosecution and not in
favour of accused. It is not mandatory one rather it happens to be
optional and its application is only to enable the prosecution to get
additional evidence, in case accused is examined soon after commission
of rape, if apprehended otherwise as per “Medical Jurisprudence by
29
Modi”, the connecting evidence would disappear as soon as accused
urinates. That being so, submission regarding non-compliance of
provision of Section 53A of CrPC has got no leg to stand.
43. As regards the submission of counsel for the accused/appellant that
presence of injury on the male organ of accused/appellant is essential
because of the tender age of the deceased prosecutrix. It is true that the
doctor examining the accused/appellant did not notice any external injury
on his penis. It is also true that normally an injury is caused to the male
organ when sexual act is committed by a fully developed man with a girl
of tender age who is virgin. However, this is not a universal phenomenon.
It is relevant to quote Para-9 at Page No.380 of Modi’s Medical
Jurisprudence and Toxicology, 21st Edition;-
“9. Injuries to the genital parts may result from force exerted by
the accused or from forces applied by the victim. In addition to
scratches or lacerations on the penis caused by the finger nails
of the victim during a struggle, an abrasion or a laceration may
be discovered on the prepuce or glans penis, but more often on
the franeum, due to forcible introduction of the organ into the
narrow vagina of a virgin, especially of a child, but it is not
necessary that there should always be marks of injuries on the
penis in such cases.”
The Hon’ble Supreme Court also in catena of judgements has held that
absence of the injuries on the private parts of the victim or on the penis of
the accused would not be treated as fatal for the case of the prosecution.
Thus, we are of opinion that the accused/appellant cannot take any
benefit simply because of the absence of the injuries on his penis.
30
44. We notice from the record that though all the incriminating circumstances
which point to the guilt of the accused/appellant had been put to him, yet
he chose not to give any explanation under Section 313 CrPC except
choosing the mode of denial. It is well settled in law that when the
attention of the accused is drawn to the said circumstances that
inculpated him in the crime and he fails to offer appropriate explanation or
gives a false answer, the same can be counted as providing a missing
link for building the chain of circumstances. In State of Maharashtra v.
Suresh reported in (2001)… SCC 471, the Supreme Court reckoned a
blunt and outright denial of incriminating circumstances pointed out by the
prosecution against the accused is sufficient to connect the accused with
the offence. In Harivadan Babubhai Patel v. State of Gujarat reported
in (2013) 7 SCC 45 the Supreme Court has held thus;-
“28. Another facet is required to be addressed to. Though all
the incriminating circumstances which point to the guilt of the
accused had been put to him, yet he chose not to give any
explanation under Section 313 CrPC except choosing the
mode of denial. It is well settled in law that when the attention
of the accused is drawn to the said circumstances that
inculpated him in the crime and he fails to offer appropriate
explanation or gives a false answer, the same can be counted
as providing a missing link for building the chain of
circumstances. (See State of Maharashtra v. Suresh.) In the
case at hand, though a number of circumstances were put to
the accused, yet he has made a bald denial and did not offer
any explanation whatsoever. Thus, it is also a circumstance
that goes against him.”
31
45. The above principle of law has been repeated and reiterated in Phula
Singh v. State of Himachal Pradesh reported in (2014) 4 SCC 9 and
relevant portion of the above decision is quoted below:-
“11. The accused has a duty to furnish an explanation in his
statement under Section 313 CrPC regarding any
incriminating material that has been produced against
him. If the accused has been given the freedom to remain
silent during the investigation as well as before the court,
then the accused may choose to maintain silence or even
remain in complete denial when his statement under
Section 313 CrPC is being recorded. However, in such an
event, the court would be entitled to draw an inference,
including such adverse inference against the accused as
may be permissible in accordance with law. (Vide
Ramnaresh v. State of Chhattisgarh, Muhish Mubar v.
State of Haryana and Raj Kumar Singh v. State of
Rajasthan.)”
46. In the case in hand also, though incriminating circumstances were put to
the accused/appellant while recording his statement under Section 313
CrPC, yet he has made a bald denial and did not offer any explanation
whatsoever. Thus, it is also a circumstance that goes against the
accused/ appellant.
47. Thus, on critical analysis of the entire evidence on record, we are
convinced that the circumstances relied upon by the trial Court stand fully
established and the chain of circumstances is so complete that there was
no escape from the conclusion that within all human probability, the
32
deceased prosecutrix was raped and murdered by none other but the
accused alone. Thus, we do not find any reason to interfere with the
finding of the trial Court convicting the accused/appellant for commission
of offence punishable under Sections 302, 363, 366, 377, 201 of IPC and
Section 6 of the Act of 2012.
48. Upholding the conviction of the appellant, we proceed to consider the
question of death sentence awarded to him by the court below under
Section 302 IPC.
49. Capital punishment has been the subject-matter of great social and
judicial discussion and catechism. From whatever point of view it is
examined, one indisputable statement of law follows that it is neither
possible nor prudent to state any universal form which would be
applicable to all the cases of criminology where capital punishment has
been prescribed. Thus, it is imperative for the court to examine each
case on its own facts, in the light of enunciated principles and before
opting for the death penalty, the circumstances of the offender also
required to be taken into consideration along with the circumstances of
crime for the reason that life imprisonment is the rule and death sentence
is an exception.
50. Before going into the legality and propriety of question of sentence
imposed upon the appellant, it is profitable to have a look at the various
decisions of the Apex Court in the matter. The decision in Bachan Singh
v. State of Punjab reported in AIR 1980 SC 898 pronounced by the
Constitutional Bench of the Hon’ble Apex Court stands first among the
class making a detailed discussion after the amendment of Cr.P.C. in
1974. In this case the Apex Court has held that provision of death penalty
33
was an alternative punishment for murder and is not violative of Article 19
of the Constitution of India. Para-132 of the said judgment is relevant and
the same is reproduced herein below;-
“To sum up, the question whether or not death penalty serves
any penological purpose is a difficult, complex and intractable
issue. It has evoked strong, divergent views. For the purpose
of testing the constitutionality of the impugned provision as to
death penalty in Section 302 of the Penal Code on the ground
of reasonableness in the light of Articles 19 and 21 of the
Constitution, it is not necessary for us to express any
categorical opinion, one way or the other, as to which of these
two antithetical views, held by the Abolitionists and
Retentionists, is correct. It is sufficient to say that the very fact
that persons of reason, learning and light are rationally and
deeply divided in their opinion on this issue, is a ground among
others, for rejecting the petitioners argument that retention of
death penalty in the impugned provision, is totally devoid of
reason and purpose. If, notwithstanding the view of the
Abolitionists to the contrary, a very large segment of people,
the world over, including sociologists, legislators, jurists,
judges and administrators still firmly believe in the worth and
necessity of capital punishment for the protection of society, if
in the perspective of prevailing crime conditions in India,
contemporary public opinion channelized through the people’s
representatives in Parliament, has repeatedly in the last three
decades, rejected all attempts, including the one made
recently, to abolish or specifically restrict the area of death
34penalty, if death penalty is still a recognised legal sanction for
murder or some types of murder in most of the civilised
countries in the world, if the framers of the Indian Constitution
were fully aware — as we shall presently show they were — of
the existence of death penalty as punishment for murder,
under the Indian Penal Code, if the 35th Report and
subsequent reports of the Law Commission suggesting
retention of death penalty, and recommending revision of the
Criminal Procedure Code and the insertion of the new
Sections 235 (2) and 354 (3) in that Code providing for pre-
sentence hearing and sentencing procedure on conviction for
murder and other capital offences were before the Parliament
and presumably considered by it when in 1972-1973 it took up
revision of the Code of 1898 and replaced it by the Code of
Criminal Procedure, 1973, it is not possible to hold that the
provision of death penalty as an alternative punishment for
murder, in Section 302 of the Penal Code is unreasonable and
not in the public interest. We would, therefore, conclude that
the impugned provision in Section 302, violates neither the
letter nor the ethos of Article 19.”
51. While dealing with the circumstances in which the death sentence may be
imposed, the Supreme Court has summarized the circumstances and
following guidelines have been issued in Bachan Singh’s case (supra) for
imposition of death sentence;-
“185. Soon after the decision in Furman, the Georgia
Legislature amended its statutory scheme. The amended
35
statute retains the death penalty for six categories of crime:
murder, kidnapping for ransom or where victim is harmed,
armed robbery, rape, treason, and aircraft hijacking. The
statutory aggravating circumstances, the existence of any of
which may justify the imposition of the extreme penalty of
death, as provided in that statute, are :
(1) The offence of murder, rape, armed robbery, or
kidnapping was committed by a person with a prior
record of conviction Tor a capital felony, (or the
offence of murder was committed by a person who
has a substantial history of serious assaultive
criminal convictions).
(2) The offence of murder, rape, armed robbery, or
kidnapping was committed while the offender was
engaged in the commission of another capital felony,
or aggravated battery, or the offence of murder was
committed while the offender was engaged in the
commission of burglary or arson in the first degree.(3) The offender by his act of murder, armed robbery,
or kidnapping knowingly created a great risk of death
to more than one person in a public place by means
of a weapon or device which would normally be
hazaradous to the lives of more than one person.(4) The offender committed the offence of murder for
himself or another, for the purpose of receiving
money or any other thing of monetary value.
(5) The murder of a judicial officer, former judicial
officer, district attorney or solicitor or former district
attorney or solicitor during or because of the exercise
of his official duty.
(6) The offender caused or directed another to
commit murder or committed murder as an agent or
employee of another person.
36
(7) The offence of murder, rape, armed robbery, or
kidnapping was outrageously or want only vile
horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the
victim.
(8) The offence of murder was committed against any
peace officer, corrections employee or fireman while
engaged in the performance or his official duties.(9) The offence of murder was committed by a
person in, or who has escaped from, the lawful
custody of a peace officer or place of lawful
confinement.
(10) The murder was committed for the purpose of
avoiding, interfering with, or preventing a lawful arrest
or custody in a place of lawful confinement, of himself
or another.”
The Supreme Court in Bachan Singh’s caes (supra), did not only state
the above guidelines, but also specified the mitigating circumstances
which could be considered by the Court while determining such serious
issue and they are as follows:-
“204………Mitigating circumstances: In the exercise of its
discretion in the above cases, the Court shall take into
account the following circumstances :
(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he
shall not be sentenced to death.
(3) The probability that the accused would not commit criminal
acts of violence as would constitute a continuing threat to
society.
(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the
accused does not satisfy the conditions 3 and 4 above.
37(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in committing
the offence.
(6) That the accused acted under the duress or domination of
another person,(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.”
52. In Machhi Singh v. State of Punjab reported in (1983) 3 SCC 470 a
three-Judges Bench of the Supreme Court has made an attempt to cull
out certain aggravating and mitigating circumstances and it has been held
that it was only in rarest of rare cases, when the collective conscience of
the community is so shocked that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death penalty. In this
judgment the Supreme Court has summarized the instances on which
death sentence may be imposed, which reads thus;-
“38. xxxxxxxxxxx
(i) The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the
‘offender’ also require to be taken into consideration along with
the circumstances of the ‘crime’.
(iii) Life Imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed only
when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the
crime, and provided, and only provided, the option to impose
sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the
crime and all the relevant circumstances;
38
(iv) A balance-sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating circumstances
has to be accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating circumstances
before the option is exercised.”
39. In order to apply these guidelines inter alia the following questions
may be asked and answered:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and
calls for a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances in
the light of the aforesaid proposition and taking into account the
answers to the questions posed hereinabove, the circumstances
of the case are such that death sentence is warranted, the court
would proceed to do so.” (Emphasis supplied)
53. In Devender Pal Singh v. State of NCT of Delhi anr, reported in
(2002) 5 SCC 234, after referring to the Bachan Singh and Machhi Singh
cases (supra), the Supreme Court held that when the collective
conscience of the community is so shocked, it will expect the judiciary to
inflict death penalty. Para-58 of the same reads thus;-
“58.From Bachan Singh v. State of Punjab and Machhi Singh
and others v. State of Punjab, the principle culled out is that
when the collective conscience of the community is so
shocked, that it will expect the holders of the judicial power
center to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death
penalty, the same can be awarded. It was observed:
54. In Union of India ors v. Devendra Nath Rai reported in (2009) 2 SCC
243 the Hon’ble Supreme Court after examining Bachan Singh’s case
(supra), Machhi Singh’s case (supra) and Devender Pal Singh’s case
(supra) culled out the broad principles with regard to the infliction of the
39
death penalty in the following terms:
“The community may entertain such sentiment in the following
circumstances:
1.When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting, or dastardly manner so as to
arouse intense and extreme indignation of the community.
2. When the murder is committed for a motive which evinces
total depravity and meanness; e.g. murder by hired assassin
for money or reward; or cold-blooded murder for gains of a
person vis-`-vis whom the murdered is in a dominating
position or in a position of trust; or murder is committed in the
course for betrayal of the motherland.
3. When murder of a member of a Scheduled Caste or minority
community etc. is committed not for personal reasons but in
circumstances which arouse social wrath; or in cases of ‘bride
burning’ or ‘dowry deaths’ or when murder is committed in
order to remarry for the sake of extracting dowry once again
or to marry another woman on account of infatuation.
4. When the crime is enormous in proportion. For instance when
multiple murders, say of all or almost all the members of a
family or a large number of persons of a particular caste,
community, or locality, are committed.
5. When the victim of murder is an innocent child, or a helpless
woman or old or infirm person or a person vis-`a-vis whom
the murderer is in a dominating position, or a public figure
generally loved and respected by the community.”
55. The issue again came up before Hon’ble Apex Court in Ramnaresh
others v. State of Chhattisgarh reported in (2012) 4 SCC 257, wherein
the Supreme Court reiterated the 13 aggravating and 7 mitigating
circumstances as laid down in the case of Bachan Singh (supra) required
to be taken into consideration while applying the doctrine of “rarest of
rare” case.
56. After considering the issue regarding imposition of death sentence at
40
length, the Supreme Court in State of Maharashtra v. Goraksha Ambaji
Adsul reported in AIR 2011 SC 2689 has held as under:
“Awarding of death sentence amounts to taking away the life of
an individual, which is the most valuable right available, whether
viewed from the constitutional point of view or from the human
rights point of view. The condition of providing special reasons for
awarding death penalty is not to be construed linguistically but it
is to satisfy the basic features of a reasoning supporting and
making award of death penalty unquestionable. The
circumstances and the manner of committing the crime should be
such that it pricks the judicial conscience of the court to the
extent that the only and inevitable conclusion should be awarding
of death penalty.” (See also: Bachan Singh v. State of Punjab AIR
1980 SC 898; Machchi Singh Ors. v. State of Punjab AIR 1983
SC 957; and Devender Pal Singh v. State NCT of Delhi Anr.
AIR 2002 SC 1661).”
57. A similar view has been taken by the Hon’ble Supreme Court in Haresh
Mohandas Rajput v. State of Maharashtra reported in (2011) 12 SCC
56 observing as under:
“The rarest of the rare case” comes when a convict would be a
menace and threat to the harmonious and peaceful coexistence
of the society. The crime may be heinous or brutal but may not
be in the category of “the rarest of the rare case”. There must be
no reason to believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts of
violence as would constitute a continuing threat to the society.
The accused may be a menace to the society and would
continue to be so, threatening its peaceful and harmonious
coexistence. The manner in which the crime is committed must
41
be such that it may result in intense and extreme indignation of
the community and shock the collective conscience of the
society. Where an accused does not act on any spur-of-the-
moment provocation and indulges himself in a deliberately
planned crime and [pic] meticulously executes it, the death
sentence may be the most appropriate punishment for such a
ghastly crime. The death sentence may be warranted where the
victims are innocent children and helpless women. Thus, in case
the crime is committed in a most cruel and inhuman manner
which is an extremely brutal, grotesque, diabolical, revolting and
dastardly manner, where his act affects the entire moral fibre of
the society e.g. crime committed for power or political ambition
or indulging in organised criminal activities, death sentence
should be awarded.”
58. Recently, the question of imposition of death sentence has come up for
consideration before the Hon’ble Supreme Court in Mukesh Anr. v.
State for NCT of Delhi ors reported in (2017) 6 SCC 1, popularly
known as “Nirbhaya’s case”. In this case four accused persons were
convicted and awarded death sentence by the Special Fast Track Court,
Saket, New Delhi holding that it is a case falling under the category of
‘rarest of rare’ and the same was confirmed by the High Court of Delhi
also. After referring catena of judicial pronouncements and authorities on
such issue, that is to say, the authorities where in cases of rape and
murder, the death penalty was awarded and some authorities where
death penalty was not awarded, a three-Judge Bench of the Hon’ble Apex
Court has held thus;-
“363. Now, we shall focus on the nature of the crime and
manner in which it has been committed. The submission of Mr
Luthra, learned Senior Counsel, is that the present case
amounts to devastation of social trust and completely destroys
the collective balance and invites the indignation of the society.
It is submitted by him that a crime of this nature creates a fear
psychosis and definitely falls in the category of the rarest of
rare cases.
42
364. It is necessary to state here that in the instant case, the
brutal, barbaric and diabolic nature of the crime is evincible
from the acts committed by the accused persons viz. the
assault on the informant, PW 1 with iron rod and tearing off his
clothes; assaulting the informant and the deceased with hands,
kicks and iron rod and robbing them of their personal
belongings like debit cards, ring, informant’s shoes, etc.;
attacking the deceased by forcibly disrobing her and
committing violent sexual assault by all the appellants; their
brutish behaviour in having anal sex with the deceased and
forcing her to perform oral sex; injuries on the body of the
deceased by way of bite marks (10 in number); and insertion of
rod in her private parts that, inter alia, caused perforation of her
intestine which caused sepsis and, ultimately, led to her death.
The medical history of the prosecutrix (as proved in the record
in Ext. PW-50/A and Ext. PW-50) demonstrates that the entire
intestine of the prosecutrix was perforated and splayed open
due to the repeated insertion of the rod and hands; and the
appellants had pulled out the internal organs of the prosecutrix
in the most savage and inhuman manner that caused grave
injuries which ultimately annihilated her life. As has been
established, the prosecutrix sustained various bite marks which
were observed on her face, lips, jaws, near ear, on the right
and left breast, left upper arm, right lower limb, right inner
groin, right lower thigh, left thigh lateral, left lower anterior and
genitals. These acts itself demonstrate the mental perversion
and inconceivable brutality as caused by the appellants. As
further proven, they threw the informant and the deceased
victim on the road in a cold winter night. After throwing the
informant and the deceased victim, the convicts tried to run the
bus over them so that there would be no evidence against
them. They made all possible efforts in destroying the evidence
by, inter alia, washing the bus and burning the clothes of the
deceased and after performing the gruesome act, they divided
the loot among themselves.
365. As we have narrated the incident that has been
corroborated by the medical evidence, oral testimony and the
dying declarations, it is absolutely obvious that the accused
persons had found an object for enjoyment in her and, as is
evident, they were obsessed with the singular purpose sans
any feeling to ravish her as they liked, treat her as they felt and,
if we allow ourselves to say, the gross sadistic and beastly
instinctual pleasures came to the forefront when they, after
ravishing her, thought it to be just a matter of routine to throw
her along with her friend out of the bus and crush them. The
casual manner with which she was treated and the devilish
manner in which they played with her identity and dignity is
humanly inconceivable. It sounds like a story from a different
world where humanity has been treated with irreverence. The
appetite for sex, the hunger for violence, the position of the
empowered and the attitude of perversity, to say the least, are
bound to shock the collective conscience which knows not
what to do. It is manifest that the wanton lust, the servility to
absolutely unchained carnal desire and slavery to the
43
loathsome bestiality of passion ruled the mindset of the
appellants to commit a crime which can summon with
immediacy a “tsunami” of shock in the mind of the collective
and destroy the civilised marrows of the milieu in entirety.
366. When we cautiously, consciously and anxiously weigh the
aggravating circumstances and the mitigating factors, we are
compelled to arrive at the singular conclusion that the
aggravating circumstances outweigh the mitigating
circumstances now brought on record. Therefore, we conclude
and hold that the High Court has correctly confirmed the death
penalty and we see no reason to differ with the same.”
59.Having recorded concurrence as a whole an addendum on the core issue
has been stamped by Hon’ble Shri Justice R. Banumathi. Fewer valuable
portion is being adumbrated as under;-
116. Question of awarding sentence is a matter of discretion
and has to be exercised on consideration of circumstances
aggravating or mitigating in the individual cases. The courts
are consistently faced with the situation where they are
required to answer the new challenges and mould the
sentence to meet those challenges. Protection of society and
deterring the criminal is the avowed object of law. It is
expected of the courts to operate the sentencing system as to
impose such sentence which reflects the social conscience of
the society. While determining sentence in heinous crimes,
Judges ought to weigh its impact on the society and impose
adequate sentence considering the collective conscience or
society’s cry for justice. While considering the imposition of
appropriate punishment, courts should not only keep in view
the rights of the criminal but also the rights of the victim and
the society at large.
119. Whether the Case falls under rarest of rare cases: Law
relating to award of death sentence in India has evolved
through massive policy reforms-nationally as well as
internationally and through a catena of judicial
pronouncements, showcasing distinct phases of our view
towards imposition of death penalty. Undoubtedly, continuing
prominence of reformative approach in sentencing and India’s
international obligations have been majorly instrumental in
facilitating a visible shift in court’s view towards restricting
44
imposition of death sentence. While closing the shutter of
deterrent approach of sentencing in India, the small window of
‘award of death sentence’ was left open in the category of
‘rarest of rare case’ in Bachan Singh v. State of Punjab (1980)
2 SCC 684, by a Constitution Bench of this Court.
137. Another significant development in the sentencing policy
of India is the ‘victim-centric’ approach, clearly recognised in
Machhi Singh (Supra) and re-emphasized in a plethora of
cases. It has been consistently held that the courts have a duty
towards society and that the punishment should be
corresponding to the crime and should act as a soothing balm
to the suffering of the victim and their family. [Ref: Gurvail
Singh @ Gala and Anr. v. State of Punjab (2013) 2 SCC 713;
Mohfil Khan and Anr. v. State of Jharkhand (2015) 1 SCC 67;
Purushottam Dashrath Borate and Anr. v. State of Maharashtra
(2015) 6 SCC 652]. The Courts while considering the issue of
sentencing are bound to acknowledge the rights of the victims
and their family, apart from the rights of the society and the
accused. The agony suffered by the family of the victims
cannot be ignored in any case. In Mohfil Khan (supra), this
Court specifically observed that ‘it would be the paramount
duty of the Court to provide justice to the incidental victims of
the crime – the family members of the deceased persons.”
143. In Purushottam Dashrath Borate and Anr. v. State of
Maharashtra (2015) 6 SCC 652, this Court held that age of the
accused or family background of the accused or lack of
criminal antecedents cannot be said to be the mitigating
circumstance. It cannot also be considered as mitigating
circumstance, particularly taking into consideration, the nature
of heinous offence and cold and calculated manner in which it
was committed by the accused persons.
144. Society’s reasonable expectation is that deterrent
punishment commensurate with the gravity of the offence be
awarded. When the crime is brutal, shocking the collective
conscience of the community, sympathy in any form would be
misplaced and it would shake the confidence of public in the
45
administration of criminal justice system. As held in Om
Prakash v. State of Haryana (1999) 3 SCC 19, the Court must
respond to the cry of the society and to settle what would be a
deterrent punishment for what was an apparently abominable
crime.
149. We have a responsibility to set good values and guidance
for posterity. In the words of great scholar, Swami
Vivekananda, “the best thermometer to the progress of a
nation is its treatment of its women.” Crime against women not
only affects women’s self esteem and dignity but also
degrades the pace of societal development. I hope that this
gruesome incident in the capital and death of this young
woman will be an eye-opener for a mass movement “to end
violence against women” and “respect for women and her
dignity” and sensitizing public at large on gender justice. Every
individual, irrespective of his/her gender must be willing to
assume the responsibility in fight for gender justice and also
awaken public opinion on gender justice. Public at large, in
particular men, are to be sensitized on gender justice. The
battle for gender justice can be won only with strict
implementation of legislative provisions, sensitization of public,
taking other pro-active steps at all levels for combating
violence against women and ensuring widespread attitudinal
changes and comprehensive change in the existing mind set.
We hope that this incident will pave the way for the same.”
60. Thus, it is evident from the above that for awarding the death sentence,
there must be existence of aggravating circumstances and the
consequential absence of mitigating circumstances. As to whether death
sentence should be awarded, would depend upon the factual scenario of
the case in hand. Therefore, the instant case is required to be examined
in the light of the aforesaid settled legal propositions.
61. The present case before us reveals a sordid story which took place
sometime in the night of 24.02.2016 in which the appellant took the victim
girl inside his house with a view to commit rape and after satisfying his
46
lust on three years old girl, he committed her murder in a brutal and
merciless manner. Accused/appellant is neighbour of the deceased and
this fact obviously encouraged the deceased to go with the appellant
inside his house. The victim was totally helpless child there being no one
to protect her in the house where she was taken by the appellant
misusing her confidence to fulfil his lust. It appears that the appellant had
preplanned to commit the crime by resorting to diabolical methods and it
was with that object that he took the deceased inside his house to
execute his dastardly act. Post-mortem report (Ex.P-28) of the deceased
revealed that she had been raped as well as sodomized and had died
due to asphyxia, spinal multi-vital organ injuries plus intense shock and
pain. A number of injuries were observed on her person. Thus, the
appellant seems to have acted in a beastly manner as after satisfying his
lust he thought that the victim might expose him for the commission of the
offence of forcible rape on her to the family members and others, he with
a view to screen the evidence of his crime also put an end to the life of
innocent girl who had seen only three springs, and thereafter he wrapped
the unclothed body of the deceased in a gunny bag and thrown it in the
shrubs near the pole at Amlibhona road.
After the savage act was over, the coolness of the appellant is
evident, that he washed the bloodstained pillow by which he pressed the
face of deceased and the towel by which he cleaned the blood on his
penis and also took proper care to hide things like pillow, towel and jeans
pant of deceased etc. Not only this, after finishing off the deceased, the
appellant had expressed his desire that he can trace the whereabouts of
girl within an hour by performing rituals and thereafter he disclosed the
place where the body of deceased was lying with the accuracy that the
47
same is wrapped in a gunny bag and lying inside the bushes. The
appellant’s conduct exhibits total disregard for human values and shows a
totally depraved, brutal and scheming mind taking advantage of
helplessness of a child, who had only seen three springs of life.
62. As is manifest, the accused/appellant even did not think for a moment the
trauma and torture that was caused to the deceased. The gullibility and
vulnerability of a three year old girl, who could not have nurtured any idea
about the maladroitly designed biological desires of this nature,
accompanied the accused who extinguished her life spark. The barbaric
act of appellant does not remotely show any concern for the precious life
of a minor child who had really not seen life. The criminality of conduct of
appellant is not only depraved and debased, but can have a menacing
effect on the society. The nature of the crime and the manner in which it
has been committed speaks about its uncommonness. It is diabolical and
barbaric. The appalling cruelty shown by the accused to minor girl child is
extremely shocking and it gets accentuated, when her age is taken into
consideration. Life of a girl was taken away in a gruesome and barbaric
manner which pricks not only the judicial conscience but also the
conscience of the society. The crime in question was not committed
under any mental stress or emotional disturbance and therefore it is
difficult to comprehend that he would not commit such acts and would be
reformed or rehabilitated.
According to Lord Denning, the punishment inflicted for grave
crimes should reflect the revulsion felt by the great majority of citizens. To
him, deterrence, reformation or prevention are not the determinative
factors. His statement to the Royal Commission on Capital Punishment
made in 1950 reads thus:
48
“Punishment is the way in which society expresses its
denunciation of wrong doing; and, in order to maintain respect
for the law, it is essential that the punishment inflicted for grave
crimes should adequately reflect the revulsion felt by the great
majority of citizens for them. It is a mistake to consider the
objects of punishments as being a deterrent or reformative or
preventive and nothing else… The truth is that some crimes are
so outrageous that society insists on adequate punishment,
because the wrong doer deserves it, irrespective of whether it
is a deterrent or not.”
63. On appreciation of the evidence on record and keeping the facts and
circumstances of the case in mind, we are of the definite and considered
view that the trial Judge rightly held that the accused/appellant deserved
capital punishment. The death reference is answered accordingly.
64. Consequently, Criminal Appeal preferred by the accused/appellant
against his conviction under Sections 302, 363, 366, 376, 377, 201 of IPC
and Section 6 of the Act of 2012 and sentences imposed under those
sections is dismissed. Impugned judgment passed by the trial Court is
hereby maintained.
65. A copy of this judgment under the seal of this Court attested by the
concerned official, with signature, shall be sent to the court below, without
delay as per the mandate of Section 371 Cr.P.C.
Sd/- Sd/-
(Pritinker Diwaker) (RP Sharma)
Judge Judge
roshan/-