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In Reference State Of … vs Ram Sona 8 Cra/1517/2018 Ram Sona … on 31 January, 2020

1

CRREF No. 2 of 2018 CRA No. 1517 of 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRREF No. 2 of 2018

Judgment Reserved On : 29/07/2019
Judgment Delivered On : 31/01/2020

 In Reference State Of Chhattisgarh Through Police Station
Khursipar, Durg District Durg Chhattisgarh

—- Appellant

Versus

1. Ram Sona S/o Gulli Sona Aged About 24 Years R/o Chandrama
Chowk, Shivaji Nagar, Ward No. 28, Khursipar, Police Station
Khursipar, Bhilai, District Durg Chhattisgarh

2. Amrit Singh /singh @ Kile @ Keli S/o Kashmira Singh / Singh Aged
About 23 Years R/o Govind S. T. D. Ke Piche, Khursipar, Police
Station Khursipar, Bhilai, District Durg Chhattisgarh

3. Kunti Sona W/o Gulli Sona Aged About 38 Years R/o Chandrama
Chowk, Shivaji Nagar, Ward No. 28, Khursipar, Police Station
Khursipar, Bhilai, District Durg Chhattisgarh

—- Respondent

CRA No. 1517 of 2018

1. Ram Sona S/o Gulli Sona Aged About 24 Years R/o Chandrama
Chowk Shivaji Nagar, Ward No.- 28, Khursipar, Police Station-
Khursipar, Bhilai, District- Durg, Chhattisgarh.

2. Amrit Singh/sing @ Kile @ Keli S/o Kashmira Aged About 23 Years
R/o Behind Govind Std, Khursipar, Police Station- Khursipar,
Bhilai, District- Durg, Chhattisgarh.

3. Kunti Sona W/o Gulli Sona Aged About 38 Years R/o Chandrama
Chowk, Shivaji Nagar, Ward No.- 28, Khursipar, Police Station-
Khursipar, Bhilai, District- Durg, Chhattisgarh.

—- Appellant

Versus

 The State Of Chhattisgarh Through District- Magistrate, District-
Durg, Chhattisgarh.

—- Respondent
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

For Accused/appellants : Mr. DK Gwalre, Mr. Akhil Mishra and Mr. Anand
Shukla, Advocates.
For Respondent/State : Mrs. Fouzia Mirza, Additional Advocate General.

Hon’ble Shri Prashant Kumar Mishra
Hon’ble Shri Gautam Chourdiya, JJ

C A V JUDGMENT

The following judgment of the Court was delivered by Prashant
Kumar Mishra, J.

1. CRREF No. 2 of 2018 is a reference under Section 366 of the CrPC

for confirmation of death sentence awarded to accused Ram Sona for

offence under Sections 376 (A) and 302 of the IPC whereas CRA No.

1517 of 2018 has been preferred by the appellants challenging their

conviction and sentence imposed by the trial Court vide judgment

dated 24.8.2.018 passed in Special Sessions Trial No.56/2015 in the

following manner:-

Name of the accused : Amrit Singh

Conviction Sentence

Under Section 201/34 of the IPC RI for 5 years with fine of Rs.500/-,
in default of payment of fine to
further undergo RI for 2 months
Under Section 202 of the IPC RI for 6 months with fine of
Rs.100/-, in default of payment of
fine to further undergo RI for 7 days

Name of the accused : Kunti Sona

Conviction Sentence

Under Section 201/34 of the IPC RI for 5 years with fine of Rs.500/-,
in default of payment of fine to
further undergo RI for 2 months
Under Section 202 of the IPC RI for 6 months with fine of
Rs.100/-, in default of payment of
fine to further undergo RI for 7 days
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

Under Section 216 of the IPC RI for 5 years with fine of Rs.500/-,
in default of payment of fine to
further undergo RI for 2 months
Under Section 212 of the IPC RI for 5 years with fine of Rs.500/-,
in default of payment of fine to
further undergo RI for 2 months

Name of the accused : Ram Sona

Conviction Sentence

Under Section 363 of the IPC RI for 5 years with fine of Rs.500/-,
in default of payment of fine to
further undergo RI for 2 months
Under Section 365 of the IPC RI for 5 years with fine of Rs.500/-,
in default of payment of fine to
further undergo RI for 2 months
Under Section 366 of the IPC RI for 7 years with fine of Rs.500/-,
in default of payment of fine to
further undergo RI for 2 months
Under Section 376 (A) of the IPC Death Sentence

Under Section 302 of the IPC Death Sentence with fine of
Rs.500/-, in default of payment of
fine to further undergo RI for 2
months
Under Section 201/34 of the IPC RI for 5 years with fine of Rs.500/-,
in default of payment of fine to
further undergo RI for 2 months

2. Accused No.1 Ram Sona is the son of accused No.3 Kunti Sona,

whereas accused No.2 Amrit Singh @ Kile @ Keli is the friend of

accused No.1 Ram Sona.

3. As per the prosecution case, the deceased/victim was a deaf and

dumb girl aged about 5½ years. At about 11 am on 25.2.2015, she

disappeared while playing near her house opposite to Chandrama

Chowk, Shivaji Nagar, Khursipar, Bhilai. The informant (PW-1) Raju

Lal Shrivastava is the father of the deceased. In his missing report

(Ex.-P/42), he informed that despite search at various places and in
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

the residence of the relatives and friends the deceased is not

traceable, therefore, he has suspicion that some unknown person

has allured and abducted his daughter. The FIR (Ex.-P/1) was

registered at 8.55 hours on 26.2.2015 against unknown person for

offence under Section 363 of the IPC. During investigation, Kunti

Sona and Amrit Singh were apprehended and their memorandum

statements were recorded vide Ex.-P/9 P/10 respectively. Kunti

Sona informed to the police that her younger son juvenile Dipak

informed her that brother Ram Sona has murdered a girl and has

kept the dead body in the house. Later in the night, her son Ram

Sona and his friend accused Keli reached the house and all three

have concealed the dead body in a muddy Nala besides the railway

track and she can point out the place. In his memorandum

statement, Keli informed the IO that at about 12-12.30 in the noon

of 25.2.2015 he was watching TV in the house of Ram Sona. At that

time, Ram Sona brought a girl from outside and committed rape by

gagging her mouth. Despite persuasion Ram Sona did not leave the

girl. The girl was bleeding from her private part. Ram Sona

committed her murder by pressing her mouth and has kept the dead

body in a white coloured bag, and has kept it in the courtyard near

the bricks. When Ram Sona’s younger brother juvenile Dipak

reached the house and saw the bag and the dead body, Ram Sona

threatened him not to disclose the fact to anybody. Later in the

night, he, Ram Sona and Kunti Sona concealed the dead body in a

muddy Nala besides the railway track.

4. Dehati Merg was registered at about 15.00 hours on 2.3.2015 vide
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

Ex.-P/17 against unknown assailants. The dead body was identified

by (PW-1) Raju Lal Shrivastava. Dead body inquest (Ex.-P/5) was

prepared on 2.3.2015 after the dead body was recovered vide dead

body recovery memo (Ex.-P/6). White plastic bag in which dead

body was thrown near the railway track was seized vide Ex.-P/7.

Memorandum statement of Kunti Sona was recorded at 1.45 pm on

2.3.2015 vide Ex.-P/9 in which she disclosed to the police that her

younger son Dipak informed her that Ram Sona has murdered a girl

and concealed the dead body in the house near bricks. She opened

the bag and sprinkled water but found the girl to be dead. In the

late night, she and her both sons concealed the dead body near

muddy Nala besides the railway track. Memorandum statement of

Keli @ Amrit was recorded on similar lines vide Ex.-P/10. He claims

to have seen his brother accused Ram Sona committing rape and

thereafter committing murder of the deceased.

5. Accused Ram Sona was taken into custody on 4.3.2015 and his

memorandum statement was recorded vide Ex.-P/13. He disclosed

to the police that when the deceased was playing alone near

Chandrama Chowk at about 12-12.30 noon, he brought her in his

house by gifting her chocolate and promising to her more chocolates

if she comes to his house. When he reached the house, his friend

Amrit @ Keli was watching TV in his house. When he was

committing rape with the deceased, Amrit Singh tried to restrain him

but he continued the act and later on thrashed her head on the

ground due to which she became unconscious. Out of fear he

gagged her, killed her and concealed the dead body in the white
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

plastic bag and kept it near the bricks. When his younger brother

Dipak reached the house, he saw the plastic bag and threatened to

disclose in the locality on which he requested and threatened Dipak

not to disclose. When his mother reached the house, his younger

brother informed her about the incident. Later in the night, he, his

friend Amrit Singh and mother Kunti Sona concealed the dead body

near muddy Nala besides the railway track. He also disclosed that

on the next day his brother Dipak informed that members of the

locality (Mohalla) are searching him and he may be thrashed.

Therefore, he ran away to Raipur and started working in the Court’s

canteen. His semen stained red coloured underwear was recovered

vide Ex.-P/14.

6. Postmortem was conducted by (PW-9) Dr. Nitin Barmate, who

submitted his report (Ex.-P/39). He found the following symptoms

and injuries over the dead body of the deceased:-

“Body wrapped in white polythene sheet. Brown
shawl white clothe clothes. Black with red
white colour design frock. Blue jeans pant, pant
torn at inner midline crease. Clothes stained with
decomposition fluid. Clothes sealed, labelled
handed over to PC-864 on duty. Averagely built.
Body swollen. Rigor mortis passed off. Sign of
decomposition present in the form of whole body
swollen. Easily pluckable scalp hair, greenish
discolourisation over abdomen. Postmortem blisters
over abdomen. Marbling over shoulder. Peeling of
skin at places. Maggots crawling over injured area
and trunk and buttocks. Uterus prolapsed.
Features : both eyes closed. Mouth open. Tongue
inside mouth. Teeth 10/10. No oozing from mouth,
nostrils and ears. No faccul purging. Nail cyanosed.
Blackish stains over legs. Injury : (1) contusion
present over left side upper lip, 1×0.7 cm bluish. (2)
Abrasion present over left lower lip, 1 x 1cm,
reddish. (3) Lacerated wound over left lower lip,
0.7×0.4cmxmuscle deep. (4) Contusion present over
inner aspect of right upper lip, 1×0.6cm, bluish. (5)
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

Contusion present over right cubital fogga, 3×3 cm,
bluish. (6) Tear laceration present over right sided
labia minora of 1×0.5 m x tissue deep. (7) Tear
laceration present over right sided labia minora of
1.2 x 0.6 cm x tissue deep. (8) Tear laceration
present over mons pesincal region of 1.3 x 0.5 cm
x muscle deep.

He opined that injury No.1 to 4 are sufficient to cause death and

further that injury No.1 to 8 are antemortem in nature. Cause of

death was opined to be due to head injury with smothering;

homicidal in nature and duration within 4-6 days. FSL report of the

vaginal swab and slide of the deceased as also frock and capri

recovered from the place of occurrence and underwear of the

accused was found negative vide FSL report Ex.-P/34.

7. Memorandum statement of juvenile Dipak Sona was recorded on

26.5.2015 vide Ex.-P/28. After completion of investigation, charge

sheet was filed for regular Sessions Trial against the present

appellants whereas juvenile Dipak was sent for trial to the juvenile

Court.

8. The prosecution examined as many as 13 witnesses namely, (PW-1)

Raju Lal Shrivastava, (PW-2) Ramaiya Prasad Shrivastava, (PW-3)

K.L. Shrivastava, (PW-4) Sanjay Kumar Sharma, (PW-5) B. Seemadri

Acharya, (PW-6) Hemant Kumar Behra, (PW-7) Pramod Jaiswal, (PW-

8) M.B. Patel, (PW-9) Dr. Nitin Barmate, (PW-10) Shyamlal Majhi,

(PW-11) Yashwant Shrivastava, (PW-12) Premlal Dhruv and (PW-13)

Manoj Gaikwad to bring home the charges. The accused persons

abjured the guilt, pleaded innocence and false implication. However,

they did not examine any defence witness. Based on the evidence on

record, the trial Judge has convicted all the accused and sentenced
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

accused Ram Sona to be hanged till death for offence under Section

376 (A) and 302 of the IPC, with other sentences for the remaining

charges. The accused persons have also been sentenced to undergo

different period of imprisonment for the charges proved against

them, as mentioned in opening paragraph of this judgment.

9. Learned counsel for the appellants would argue that the names of

the accused persons were not mentioned in the missing report/FIR,

therefore, they were framed subsequently by the prosecution, as

they were not finding the culprits. It is argued that the evidence of

(PW-7) Pramod Jaiswal, who has been examined as witness of last

seen together is of no consequence and further that evidence of

witnesses to the memorandum statements are full of contradictions

and they do not support the prosecution. It is pointed out that in

the spot map prepared by (PW-10) Shyam Lal, the house of the

accused is not mentioned. It is also pointed out from the evidence of

(PW-11) Yashwant Shrivastava that merg was registered at 4.10 pm

on 2.3.2015 against unknown persons although the memorandum

was already recorded and the police was aware of the names of the

accused. Therefore, it is proved that memorandum statement was

subsequently prepared. It is also argued that there is evidence that

two strangers had come to the house of the deceased for curing her

of her deaf and dumb illness, but the prosecution has not

investigated those two strangers, even though the I.O. has stated

that they were traced at Bilaspur. It is further argued that the last

seen evidence is very weak in nature and similarly, abscondance of

accused Ram Sona is neither a circumstance nor there is any
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

evidence of such abscondance. It is also argued that memorandum

of Kunti Sona was recorded at 1.45 pm and thus, the facts were

already discovered. Therefore, it cannot be discovered again in the

memorandum statement of accused Amrit Singh vide Ex.-P/10 and

accused Dipak Sona vide Ex.-P/28, which were recorded later.

There is no evidence against accused Amrit Singh except his

memorandum statement (Ex.-P/10). It is also argued that the

prosecution cannot start investigation only on the basis of

memorandum. It is also argued that confession by Kunti Sona and

Amrit Singh in their memorandum statements is not admissible

against accused Ram Sona. It is further put forth that nothing has

been recovered pursuant to the memorandum statement of accused

Ram Sona, therefore, the whole memorandum statement is

inadmissible in evidence.

10. Per contra, Smt. Fouzia Mirza, learned Additional AG would argue

that the dead body has been recovered at the instance of accused

Kunti Sona and Amrit Singh and they have clearly implicated

accused Ram Sona in their memorandum statement and the said

accused Ram Sona was last seen together in the company of the

deceased and thereafter his conduct of absconding from the locality

are such circumstances which prove his complicity in committing

rape and murder. She would argue that the contents of confessional

statements of accused Ram Sona tallies with the injuries found on

the person of the deceased in the postmortem report. She would

further argue that under Section 30 of the Evidence Act

memorandum statement of co-accused is admissible in evidence if it
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

is self implicating. It is also argued that simultaneous disclosure is

permissible. Learned Additional Advocate General would next argue

that there is absolutely no reason for the father and uncle of the

deceased to falsely implicate the present accused persons and save

the real culprits. While reading the evidence of the IO, it is argued

that investigation was carried in respect of two unknown doctors

who visited the house of the deceased just before she went missing.

It is also put forth that merely because there are gaps in the

investigation, the same should not come in punishing the accused,

as has been held by the Hon’ble Supreme Court in the matter of

Dhanaj Singh alias Shera and others Vs. State of Punjab 1.

11. We shall first appreciate the oral evidence adduced by the

prosecution witnesses.

12. (PW-1) Raju Lal Shrivastava, father of the deceased, states that his

daughter went missing on 25.2.2015 for which he lodged missing

report on the next day vide Ex.-P/1. According to him, when he was

attending duties at his work place, his brother telephoned him that

one doctor accompanied with his friend has come to his house on

the date of the incident assuring to treat his deaf and dumb

daughter. Due to this, he reached back his house at about 12-1 pm

and called the doctor, but this time his daughter was not available in

the house, whereas during the first visit of the doctor his daughter

was in the house. He admits that when his daughter was not

traceable, he had called the doctor on phone on which the doctor

replied evasively stating that he is at Rajnandgaon or at Nagpur. In

his diary statement and in the FIR, he had not informed the police

1 (2004) 3 SCC 654
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

that when they were tracing his daughter, accused Ram Sona was

trying to abscond on seeing them. However, in the next paragraph,

he says that they developed suspicion on Ram Sona when he started

absconding on seeing them, as also for the reason that they had

heard in the Mohalla that the accused persons are involved in the

wrongful activity by offering biscuits, Kurkure etc to the children.

However, this fact is not stated in his diary statement. He also

admits that in his diary statement (Ex.-P/3), he named the

appellants only on the basis of suspicion.

13. (PW-2) Ramaiya Prasad Shrivatava is the uncle of the deceased. It is

this witness who attended the doctor who had visited the house of

the deceased at about 12 noon on the date of the incident. He states

that the doctor informed them that he has come from Narayan Seva

Sansthan, Udaipur, Rajasthan and the said Institution treats deaf

and dumb people. He also admits that when the deceased went

missing, the first doubt was on the doctor, therefore, they called the

doctor over phone, on which the doctor informed that he is in

Rajnandgaon and later said that he is at Bilaspur. He says that

after 3-4 days, Ram Sona started running away on seeing the

members of the locality, therefore, suspicion arose that he might be

involved in the offence and Kunti Sona was enquired but she denied

to have any knowledge about the deceased. On 2.3.2015, the police

informed them that Kunti Sona and Amrit have disclosed to the

police about commission of offence, therefore, they should identify

the body, on which they went there and identified the body. He

proves the dead body inquest notice (Ex.-P/4), dead body (Ex.-P/5),
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

recovery of dead body vide Ex.-P/6 and seizure of white coloured

plastic bag vide Ex.-P/7. He admits that in his diary statement (Ex.-

D/1) given to the police on 26.2.2015, he had raised suspicion on

the doctor. He also admits that neither their family nor members of

the locality liked the family of the appellants and further that the

family is not in talking terms with the appellants’ family.

14. (PW-3) K.L. Shrivastava is another uncle of the deceased. He was

informed by the mother of the deceased at about 3.30 pm that the

deceased is not traceable. It is also stated by this witness that when

they were making announcement in the locality about missing of the

deceased, they met Ram Sona, but he started running away on

seeing them, but they kept on making announcement. He also

admits that at about 9 pm, one Tandon Saheb from Crime Branch

had come to their house on which Kunti Sona was called and

interrogated but she did not disclose anything.

15. (PW-4) Sanjay Kumar Sharma is the resident of the deceased’s

locality. He also says that when they were making announcement at

about 7-8 pm, they had seen Ram Sona near Anda Chowk but

seeing them Ram Sona ran away from the spot. He has proved and

supported the prosecution by stating that Kunti Sona had given

memorandum statement (Ex.-P/9) in their presence. He has also

proved memorandum statement of Amrit vide Ex.-P/10. He also

admits the presence of witness B. Seemadri (PW-5) at the time of

recording of memorandum statement. He is also witness to the dead

body recovery Panchnama (Ex.-P/6). Thus this independent witenss

has proved memorandum statements Ex.-P/9 and Ex.-P/10.
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CRREF No. 2 of 2018 CRA No. 1517 of 2018

16. B. Seemadri Acharya (PW-5) has also supported the prosecution by

stating that memorandum statements (Ex.-P/9 P/10) were

recorded in their presence wherein accused Kunti Sona and Amrit

Singh had informed the police as to the contents of the

memorandum. This witness has also proved Ex.-P/4, P/5 (dead

body inquest) and P/7 (seizure of white coloured plastic bag).

17. Hemant Kumar Behra (PW-6) is a witness to the memorandum

statement of appellant Ram Sona vide Ex.-P/13. He has supported

the prosecution by stating that Ram Sona has made such statement

to the police.

18. Pramod Jaiswal (PW-7) is the resident of the locality. He is a witness

to the last seen together. He states that at about 11-12 am on

25.2.2015 he was proceeding to go to Raigarh for his work and had

seen that accused Ram Sona was taking the deceased with him.

When he returned after 3-4 days, he came to know that the

deceased is not traceable. He admits that when he returned to

Bhilai on 27th or 28th February, 2015, he informed the deceased’s

family that he had seen the deceased with Ram Sona on the date of

the incident but had not informed this fact to the police immediately,

however, later informed the police in a day or two.

19. MB Patel (PW-8) is the SHO of the concerned Police Station. He had

registered the missing report and has recorded case diary

statements of witnesses, as also memorandum statements (Ex.-P/9

P/10), and thereafter recovered the dead body. This witness has

stated that during investigation, residents of locality informed that

appellant Ram Sona is a drug addict and sadist person.
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20. Dr. Nitin Barmate (PW-9) has conducted the postmortem and

submitted his report vide Ex.-P/39. He has found 8 injuries, as

mentioned supra The injuries were ante mortem and the death had

occurred within 4-6 days from the time of postmortem.

21. Shyam Lal Majhi (PW-10) is the R.I. who has prepared the spot map,

whereas (PW-11) Yashwant Shrivastava has registered Dehati Merg

vide Ex.-P/41. (PW-12) Prem Lal Dhruv is the Constable involved in

investigation. (PW-13) Manoj Gaikwad is a witness to the spot map

(Ex.-P/40).

22. We shall first concentrate on the legality and evidentiary value of the

memorandum statements of the accused persons and to what extent

they can be relied upon to establish one of the important

circumstance against the appellant.

23. (PW-4) Sanjay Kumar Sharma and (PW-5) B. Seemadri Acharya have

proved memorandum statements of Kunti Sona and Amrit vide Ex.-

P/9 P/10 respectively. Similarly, (PW-6) Hemant Kumar Behra

has proved memorandum statement of Ram Sona vide Ex.-P/13.

Thus all the 3 memorandum statements have been proved by the

prosecution. While accused Kunti Sona and Amrit have not

committed the main offence under Sections 376 and 302 of the IPC

but have only assisted the main accused Ram Sona in concealing

the evidence of crime by disposing of the dead body, their disclosure

statements are self inculpatory. Referring to the judgment of the

Hon’ble Supreme Court in the matter of Sukhvinder Singh and

Others Vs. State of Punjab 2, it has been argued that the facts

already discovered cannot again be discovered. Then again referring

2 (1994) 5 SCC 152
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to the judgment of the Hon’ble Supreme Court in the matter of State

(NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru 3, it is argued

that the facts disclosed to the prosecution by the accused Kunti

Sona and Amrit have already been discovered, memorandum of

accused Ram Sona has in fact not discovered any new fact,

therefore, it is not a piece of legal evidence against accused Ram

Sona.

24. To deal with the submission, it would be necessary to refer to

Section 30 of the Evidence Act which provides thus :-

“30. Consideration of proved confession affecting
person making it and others jointly under trial
for same offence.–When more persons than one
are being tried jointly for the same offence, and a
confession made by one of such persons affecting
himself and some other of such persons is proved,
the Court may take into consideration such
confession as against such other person as well as
against the person who makes such confession.”

25. In the matter of Balbir Singh Vs. State of Punjab 4, it has been

held (vide para-14) that so far as confessional statement of co-

accused is concerned, it may be taken into consideration against the

appellant if it fulfills the conditions laid down in Section 30 of the

Evidence Act. Similarly in the matter of Haricharan Kurmi Vs.

State of Bihar 5 it has been held thus in para-12:-

“(12). As we have already indicated, this question
has been considered on several occasions by
judicial decisions and it has been consistently held
that a confession cannot be treated as evidence
which is substantive evidence against a co-accused
person. In dealing with a criminal case where the
prosecution relies upon the confession of one
accused person against another accused person,
the proper approach to adopt is to consider the

3 (2005) 11 SCC 600
4 AIR 1957 SC 216
5 AIR 1964 SC 1184
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other evidence against such an accused person, and
if the said evidence appears to be satisfactory and
the court is inclined to hold that the said evidence
may sustain the charge framed against the said
accused person, the court turns to the confession
with a view to assure itself that the conclusion
which it is inclined to draw from the other evidence
is right. As was observed by Sir Lawrence Jenkins
in Emperor v. Lalit Mohan Chuckerbuttv, ILR 38
CAL 559, at P.588, a confession can only be used to
“lend assurance to other evidence against a co-

accused”. In Peryaswami Noopan Vs. Emperor, ILR
54 MAD 75 at P.77; AIR 1931 MAD 177 at P.178;

Reilly J. observed that the provision of s. 30 goes
not further than this : “where there is evidence
against the co-accused sufficient, if believed, to
support his conviction, then the kind of confession
described in s. 30 may be thrown into the scale as
an additional reason for believing that evidence.” In
Bhuboni Sahu v. The King, Ind App 147 at P.155;
AIR 1949 PC 257 at P.260, the Privy Council has
expressed the same view. Sir. John Beaumont who
spoke for the Board, observed that “a confession of
a co-accused is obviously evidence of a very weak
type. It does not indeed come within the definition
of “evidence” contained in s. 3 of the Evidence Act. It
is not required to be given on oath, nor in the
presence of the accused, and it cannot be tested by
cross-examination. It is a much weaker type of
evidence than the evidence of an approver, which is
not subject to any of those infirmities. Section 30,
however, provides that the Court may take the
confession into consideration and thereby, no
doubt, makes it evidence on which the court may
act; but the section does not say that the confession
is to amount to proof. Clearly there must be other
evidence. The confession is only one element in the
consideration of all the facts proved in the case; it
can be put into the scale and weighed with the
other evidence.”

It would be noticed that as a result of the provisions
contained in s. 30, the confession has no doubt to
be regarded as amounting to evidence in a general
way, because whatever is considered by the court is
evidence; circumstances which are considered by
the court as well as probabilities do amount to
evidence in that generic sense. Thus, though
confession may be regarded as evidence in that
generic sense because of the provisions of s. 30, the
fact remains that it is not evidence as defined by s.
3 of the Act. The result, therefore, is that in dealing
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with a case against an accused person, the court
cannot start with the confession of a co-accused
person; it must begin with other evidence adduced
by the prosecution and after it has formed its
opinion with regard to the quality and effect of the
said evidence, then it is permissible to turn to the
confession in order to receive assurance to the
conclusion of guilt which the judicial mind is about
to reach on the said other evidence. That, briefly
stated, is the effect of the provisions contained in s.

30. The same view has been expressed by this Court
in Kashmira Singh v. State of Madhya Pradesh,
1952 SCR 526; AIR 1952 SC 159 where the decision
of the Privy Council in Bhuboni Sahu’s case, 76 Ind
App. 147 (AIR 1949 PC 257) has been cited with
approval.”

26. In a recent judgment in the matter of Surinder Kumar Khanna Vs.

Intelligence Officer, Directorate of Revenue Intelligence 6, the

Hon’ble Supreme Court has reiterated the law in the following

words:-

“11…………………………………………………………………
………………………………………………………………………
………………………………………………………………………
………………………………………………………………………
………………………………………………………………………
………………………………………………………………………
………………………………………………………………………

It would be noticed that as a result of the provisions
contained in Section 30, the confession has no
doubt to be regarded as amounting to evidence in a
general way, because whatever is considered by the
court is evidence; circumstances which are
considered by the court as well as probabilities do
amount to evidence in that generic sense. Thus,
though confession may be regarded as evidence in
that generic sense because of the provisions of
Section 30, the fact remains that it is not evidence
as defined by Section 3 of the Act. The result,
therefore, is that in dealing with a case against an
accused person, the court cannot start with the
confession of a co-accused person; it must begin
with other evidence adduced by the prosecution and
after it has formed its opinion with regard to the
quality and effect of the said evidence, then it is
permissible to turn to the confession in order to
receive assurance to the conclusion of guilt which

6 (2018) 8 SCC 271
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the judicial mind is about to reach on the said other
evidence. That, briefly stated, is the effect of the
provisions contained in Section 30. The same view
has been expressed by this Court in Kashmira Singh
v. State of Madhya Pradesh where the decision of the
Privy Council in Bhuboni Sahu case has been cited
with approval.”

27. It is thus settled that confession of co-accused can be used when

there are other corroborative evidence against the co-accused. The

Court may begin with other evidence adduced by the prosecution

and after it has formed its opinion with regard to quality and effect

of the said evidence, then it is permissible to turn to confession in

order to receive assurance to the conclusion of guilt which the

judicial mind is about to reach on the said other evidence. Stage to

consider the confessional statement arrives only after the other

evidence is considered and found to be satisfactory. Thus self

inculpatory confession of accused can be used against the co-

accused and there is no general proposition that it can never be

used for any purpose.

28. In the case at hand, confessional statements of accused Kunti Sona

and Amrit Singh clearly states that they along with Ram Sona took

the dead body in a white plastic bag and threw it near muddy Nala

besides the railway track. In addition, memorandum statement of

Ram Sona discloses about commission of sexual intercourse, hitting

head of the deceased on the ground and putting the dead body in a

plastic bag and keeping the same near bricks in the courtyard. He

also speaks that Amrit Singh had seen him committing rape which

fact is also mentioned in the memorandum statement of Amrit

Singh. Thus the facts disclosed in the memorandum statement of
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Ram Sona find corroboration from the medical report, which has

found injuries over private parts of the deceased and over her head

as well. It also corroborates the memorandum statement of Amrit

Singh, who has stated that he has seen accused Ram Sona

committing rape. It is further corroborated from the memorandum

statements of accused Kunti Sona and Amrit Singh, who have stated

that all the 3 concealed the dead body near muddy Nala besides the

railway track. Memorandum statements of Kunti Sona and Amrit

Singh are therefore admissible in evidence against accused Ram

Sona. Moreover, it is not a case where facts have not been

discovered pursuant to the statement of Ram Sona.

29. In the celebrated case of Pulukuri Kottaya and Others Vs.

Emperor 7, the Hon’ble Supreme Court considered the construction

and legal embrace of Section 27 of the Evidence Act to cull out

difference between the terms “fact discovered” and “object

produced”. It was held thus in paras 8 10:-

“8. The second question, which involves the
construction of Section 27, Evidence Act, will now be
considered. That section and the two preceding
sections, with which it must be read, are in these
terms:-

25. No confession made to a Police officer, shall be
proved as against a person accused of any offence.

26. No confession made by any person whilst he is
in the custody of a Police officer, unless it be made
in the immediate presence of a Magistrate, shall be
proved as against such person.

10. Section 27, which is not artistically worded,
provides an exception to the prohibition imposed by
the preceding section, and enables certain
statements made by a person in police custody to be
proved. The condition necessary to bring the section

7 AIR 1947 Privy Council 67
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into operation is that the discovery of a fact in
consequence of information received from a person
accused of any offence in the custody of a Police
officer must be deposed to, and thereupon so much
of the information as relates distinctly to the fact
thereby discovered may be proved. The section
seems to be based on the view that if a fact is
actually discovered in consequence of information
given, some guarantee is afforded thereby that the
information was true, and accordingly can be safely
allowed to be given in evidence; but clearly the
extent of the information admissible must depend on
the exact nature of the fact discovered to which such
information is required to relate. Normally the
section is brought into operation when a person in
police custody produces from some place of
concealment some object, such as a dead body, a
weapon, or ornaments, said to be connected with the
crime of which the informant is accused. Mr. Megaw,
for the Crown, has argued that in such a case the
“fact discovered” is the physical object produced,
and that any information which relates distinctly to
that object can be proved. Upon this view
information given by a person that the body
produced is that of a person murdered by him, that
the weapon produced is the one used by him in the
commission of a murder, or that the ornaments
produced were stolen in a dacoity would all be
admissible. If this be the effect of Section 27, little
substance would remain in the ban imposed by the
two preceding sections on confessions made to the
police, or by persons in police custody. That ban was
presumably inspired by the fear of the legislature
that a person under police influence might be
induced to confess by the exercise of undue
pressure. But if all that is required to lift the ban be
the inclusion in the confession of information
relating to an object subsequently produced, it
seems reasonable to suppose that the persuasive
powers of the police will prove equal to the occasion,
and that in practice the ban will lose its effect. On
normal principles of construction their Lordships
think that the proviso to Section 26, added by
Section 27, should not be held to nullify the
substance of the section. In their Lordships’ view it
is fallacious to treat the “fact discovered” within the
section as equivalent to the object produced; the fact
discovered embraces the place from which the object
is produced and the knowledge of the accused as to
this, and the information given must relate distinctly
to this fact. Information as to past user, or the past
history, of the object produced is not related to its
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discovery in the setting in which it is discovered.
Information supplied by a person in custody that “I
will produce a knife concealed in the roof of my
house” does not lead to the discovery of a knife;
knives were discovered many years ago. It leads to
the discovery of the fact that a knife is concealed in
the house of the informant to his knowledge; and if
the knife is proved to have been used in the
commission of the offence, the fact discovered is very
relevant. But if to the statement the words be added
“with which I stabbed A”, these words are
inadmissible since they do not relate to the discovery
of the knife in the house of the informant.”

30. In the matter of Pandurang Kalu Patil and Another Vs. State of

Mahrasthra 8, the Hon’ble Supreme Court following Pulukuri

Kottaya (Supra) held that a fact can be discovered by the police

pursuant to an information elicited from the accused if such

disclosure was followed by one or more of a variety of causes.

Recovery of an object is only one such cause. Recovery or even

production of object by itself need not necessarily result in

discovery of a fact.

31. In yet another judgment in the matter of Sandeep Vs. State of

Uttar Pradesh 9, the Hon’ble Supreme Court held that admissible

portion of the statement of the accused which is mere statement of

fact can be relied upon for ascertaining other facts which are

intrinsically connected with the occurrence , while at the same time,

the same would not in any way result in implicating the accused in

the offence directly. The Hon’ble Supreme Court held at paras-52

53 thus:-

“52. We find force in the submission of the learned
Senior Counsel for the State. It is quite common that
based on admissible portion of the statement of the
accused whenever and wherever recoveries are

8 (2002) 2 SCC 490
9 (2012) 6 SCC 107
22

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made, the same are admissible in evidence and it is
for the accused in those situations to explain to the
satisfaction of the court as to the nature of
recoveries and as to how they came into possession
or for planting the same at the places from where
they were recovered. Similarly, this part of the
statement which does not in any way implicate the
accused but is mere statement of facts would only
amount to mere admissions which can be relied
upon for ascertaining the other facts which are
intrinsically connected with the occurrence, while at
the same time, the same would not in any way result
in implicating the accused in the offence directly.

53. In that view, when we examine the statements
referred to by the learned Senior Counsel for the
State which were stated to have been uttered by the
accused to PW 1, we find that the first statement
only reveals the fact of accused Sandeep’s friendship
developing with the deceased Jyoti six months prior
to the occurrence and the physical relationship
developed by him with her. Accepting the said
statement cannot be held to straightway implicate
the accused in the crime and consequently it cannot
be construed as a confessional statement in order to
reject the same by applying Section 25 of the
Evidence Act.”

32. The argument advanced by learned counsel for the appellants that

the fact that the deceased was raped, murdered at a particular

place, and the manner and thereafter the dead body was thrown

near muddy Nala besides railway track has already been discovered

in the memorandum statements of Kunti Sona and Amrit Singh,

therefore, the fact already discovered cannot again be discovered

through memorandum statement of accused Ram Sona, is not

acceptable for the view taken by the Hon’ble Supreme Court in the

matter of Charandas Swami Vs. State of Gujarat and Others 10 at

paras-57 and 74 which read thus:-

“57. The dead body of deceased Gadadharanandji
was found on 4-5-1998 in a burnt condition in a
ditch behind the house of PW 50 in Barothi Village
10 (2017) 7 SCC 177
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in Rajasthan. How the dead body of
Gadadharanandji reached that spot was revealed by
none other than Accused 3. In what circumstances
burnt injuries were caused on the dead body of
Gadadharanandji, no prosecution witness has
spoken about that. Be that as it may, the fact that
the dead body recovered from Barothi Village on 4-5-
1998 was that of Gadadharanandji could be known
only after Accused 3, during the course of
investigation, made a disclosure about the location
where he had disposed off the dead body of
Gadadharanandji. Till the aforesaid disclosure was
made, in the records of Rajasthan Police, the dead
body was noted as that of an unknown person. If,
Accused 3 had not disclosed to the investigating
officer about the location where the dead body was
dumped by him — which information was personally
known to him and at best Accused 5 and none else,
then the investigation would not have made any
headway.

74. As noted earlier, it was only on the basis of the
disclosure made by Accused 5 as to the place where
the murder was committed that the investigating
agency was able to take the investigation forward
and then interrogate the aforesaid witnesses i.e. PW
25, PW 42, PW 43 and PW 49. Only a person who
was present at the time of commission of the offence
could have known about the location of the offence
and Accused 5 undoubtedly had exclusive
knowledge about the place where the crime was
committed, a fact which has been affirmed by both
the courts. The panchnama drawn on the basis of
this disclosure has been corroborated by
independent pancha witness PW 31. The courts
below, on analysing the relevant evidence, have held
that the inescapable conclusion is that the deceased
was taken to Navli. We are in agreement with this
finding, as the evidence on record supports that
conclusion.”

33. In the matter of Navjot Sandhu (Supra), the Hon’ble Supreme

Court, while dealing with the extent of disclosure statement which is

admissible in evidence, held at paras-120 121 thus:-

“120. The history of case-law on the subject of
confessions under Section 27 unfolds divergent
views and approaches. The divergence was mainly
on twin aspects: (i) Whether the facts contemplated
by Section 27 are physical, material objects or the
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mental facts of which the accused giving the
information could be said to be aware of. Some
Judges have gone to the extent of holding that the
discovery of concrete facts, that is to say material
objects, which can be exhibited in the Court are
alone covered by Section 27. (ii) The other
controversy was on the point regarding the extent of
admissibility of a disclosure statement. In some
cases a view was taken that any information, which
served to connect the object with the offence
charged, was admissible under Section 27. The
decision of the Privy Council in Kottaya case which
has been described as a locus classicus, had set at
rest much of the controversy that centred round the
interpretation of Section 27. To a great extent the
legal position has got crystallised with the rendering
of this decision. The authority of the Privy Council’s
decision has not been questioned in any of the
decisions of the highest court either in the pre-or
post-independence era. Right from the 1950s, till the
advent of the new century and till date, the passages
in this famous decision are being approvingly quoted
and reiterated by the Judges of this Apex Court. Yet,
there remain certain grey areas as demonstrated by
the arguments advanced on behalf of the State.

121. The first requisite condition for utilising
Section 27 in support of the prosecution case is that
the investigating police officer should depose that he
discovered a fact in consequence of the information
received from an accused person in police custody.
Thus, there must be a discovery of fact not within
the knowledge of police officer as a consequence of
information received. Of course, it is axiomatic that
the information or disclosure should be free from
any element of compulsion. The next component of
Section 27 relates to the nature and extent of
information that can be proved. It is only so much of
the information as relates distinctly to the fact
thereby discovered that can be proved and nothing
more. It is explicitly clarified in the section that there
is no taboo against receiving such information in
evidence merely because it amounts to a confession.
At the same time, the last clause makes it clear that
it is not the confessional part that is admissible but
it is only such information or part of it, which relates
distinctly to the fact discovered by means of the
information furnished. Thus, the information
conveyed in the statement to the police ought to be
dissected if necessary so as to admit only the
information of the nature mentioned in the section.
The rationale behind this provision is that, if a fact
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is actually discovered in consequence of the
information supplied, it affords some guarantee that
the information is true and can therefore be safely
allowed to be admitted in evidence as an
incriminating factor against the accused. As pointed
out by the Privy Council in Kottaya case (AIR p. 70,
para 10)

“clearly the extent of the information admissible
must depend on the exact nature of the fact
discovered”

and the information must distinctly relate to that
fact.

Elucidating the scope of this section, the Privy
Council speaking through Sir John Beaumont said:
(AIR p. 70, para 10)

“Normally the section is brought into operation
when a person in police custody produces from
some place of concealment some object, such as a
dead body, a weapon, or ornaments, said to be
connected with the crime of which the informant is
accused.”

(emphasis supplied)

We have emphasised the word “normally” because
the illustrations given by the learned Judge are not
exhaustive. The next point to be noted is that the
Privy Council rejected the argument of the counsel
appearing for the Crown that the fact discovered is
the physical object produced and that any and every
information which relates distinctly to that object
can be proved. Upon this view, the information given
by a person that the weapon produced is the one
used by him in the commission of the murder will be
admissible in its entirety. Such contention of the
Crown’s counsel was emphatically rejected with the
following words: (AIR p. 70, para 10)

“If this be the effect of Section 27, little
substance would remain in the ban imposed by the
two preceding sections on confessions made to the
police, or by persons in police custody. That ban was
presumably inspired by the fear of the legislature
that a person under police influence might be
induced to confess by the exercise of undue
pressure. But if all that is required to lift the ban be
the inclusion in the confession of information
relating to an object subsequently produced, it
seems reasonable to suppose that the persuasive
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powers of the police will prove equal to the occasion,
and that in practice the ban will lose its effect.”

Then, Their Lordships proceeded to give a lucid
exposition of the expression “fact discovered” in the
following passage, which is quoted time and again
by this Court: (AIR p. 70, para 10)

“In Their Lordships’ view it is fallacious to treat
the ‘fact discovered’ within the section as equivalent
to the object produced; the fact discovered embraces
the place from which the object is produced and the
knowledge of the accused as to this, and the
information given must relate distinctly to this fact.
Information as to past user, or the past history, of
the object produced is not related to its discovery in
the setting in which it is discovered. Information
supplied by a person in custody that ‘I will produce
a knife concealed in the roof of my house’ does not
lead to the discovery of a knife; knives were
discovered many years ago. It leads to the discovery
of the fact that a knife is concealed in the house of
the informant to his knowledge , and if the knife is
proved to have been used in the commission of the
offence, the fact discovered is very relevant. But if to
the statement the words be added ‘with which I
stabbed A’ these words are inadmissible since they
do not relate to the discovery of the knife in the
house of the informant.”

(emphasis supplied)

34. Applying the above settled legal position, to find out the admissible

part of the memorandum statement of accused Ram Sona, it

appears, it discloses certain facts which find corroboration from the

memorandum statements of other co-accused persons namely,

Kunti Sona and Amrit Singh. Be it noted that when memorandum

statement of accused Ram Sona was recorded, it was not known to

him as to what disclosure statement has been made by co-accused

persons to the police. Therefore, if the memorandum statement of

accused Ram Sona discloses facts of gagging her mouth, hitting her

head on the ground, bleeding from and injuries on the private parts,

putting dead body in a white plastic bag and placing the same near
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bricks in the courtyard, request by co-accused Amrit Singh not to

commit offence, threat by younger brother Dipak that he would

disclose the incident and the steps taken by all the 3 accused in

disposing of the dead body near the muddy Nala besides railway

track to conceal the evidence of crime is admissible in evidence and

the same is vital piece of evidence implicating the accused in the

crime. It is moreso because the facts discovered by other accused

persons in their memorandum statements are otherwise admissible

against accused Ram Sona in view of Section 30 of the Evidence Act,

as discussed in the preceding paragraphs of this judgment.

35. The argument that the evidence of last seen together is very weak

evidence, therefore, merely on the basis that (PW-7) Pramod Jaiswal

has last seen the accused Ram Sona with the deceased would not be

sufficient to bring home the charge against the accused Ram Sona,

would not appeal to this Court for the reason that if in addition to

the evidence of last seen, there are other corroborative evidence

completing the chain of circumstantial evidence, the said evidence of

last seen is not only admissible but can be used against the

accused. For this, we may profitably refer to the judgment of the

Hon’ble Supreme Court in the matter of Satpal Vs. State of

Haryana 11 wherein the following has been held at para-6:-

6. We have considered the respective submissions
and the evidence on record. There is no eyewitness
to the occurrence but only circumstances coupled
with the fact of the deceased having been last seen
with the appellant. Criminal jurisprudence and the
plethora of judicial precedents leave little room for
reconsideration of the basic principles for invocation
of the last seen theory as a facet of circumstantial
evidence. Succinctly stated, it may be a weak kind

11 (2018) 6 SCC 610
28

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of evidence by itself to found conviction upon the
same singularly. But when it is coupled with other
circumstances such as the time when the deceased
was last seen with the accused, and the recovery of
the corpse being in very close proximity of time, the
accused owes an explanation under Section 106 of
the Evidence Act with regard to the circumstances
under which death may have taken place. If the
accused offers no explanation, or furnishes a wrong
explanation, absconds, motive is established, and
there is corroborative evidence available inter alia in
the form of recovery or otherwise forming a chain of
circumstances leading to the only inference for guilt
of the accused, incompatible with any possible
hypothesis of innocence, conviction can be based on
the same. If there be any doubt or break in the link
of chain of circumstances, the benefit of doubt must
go to the accused. Each case will therefore have to
be examined on its own facts for invocation of the
doctrine.”

(Emphasis supplied)

36. In yet another recent judgment in the matter of Pattu Rajan Vs.

State of Tamil Nadu 12, the Hon’ble Supreme Court held at paras-63

and 66 thus:-

63. It is needless to observe that it has been
established through a catena of judgments of this
Court that the doctrine of last seen, if proved, shifts
the burden of proof onto the accused, placing on
him the onus to explain how the incident occurred
and what happened to the victim who was last seen
with him. Failure on the part of the accused to
furnish any explanation in this regard, as in the
case in hand, or furnishing false explanation would
give rise to a strong presumption against him, and
in favour of his guilt, and would provide an
additional link in the chain of circumstances. (See
Rohtash Kumar v. State of Haryana {(2013) 14
SCC 434} and Trimukh Maroti Kirkan v. State of
Maharashtra . {(2006) 10 SCC 681})

66. In our considered opinion, the prosecution has
proved the complicity of all the appellants in
murdering Santhakumar by strangulating him and
thereafter throwing the dead body at Tiger-Chola. It
is worth recalling that while it is necessary that
proof beyond reasonable doubt should be adduced
12 (2019) 4 SCC 771
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in all criminal cases, it is not necessary that such
proof should be perfect, and someone who is guilty
cannot get away with impunity only because the
truth may develop some infirmity when projected
through human processes. The traditional dogmatic
hypertechnical approach has to be replaced by a
rational, realistic and genuine approach for
administering justice in a criminal trial. Justice
cannot be made sterile by exaggerated adherence to
the rule of proof, inasmuch as the benefit of doubt
must always be reasonable and not fanciful. [See
Inder Singh v. State (UT of Delhi) {(1978) 4 SCC
161}; State of H.P. v. Lekh Raj {(2000) 1 SCC 247};

Takhaji Hiraji v. Thakore Kubersing Chamansing
{(2001) 6 SCC 145} and Chaman v. State of
Uttarakhand {(2016) 12 SCC 76}.]

37. Learned counsel for the appellants have referred to the other

discrepancies in the investigation alleging that memorandum

statements were prepared subsequently, spot map is defective and

absence of conduct of proper investigation in respect of the two

doctors who visited the house of the deceased just prior to the

incident. However, having examined the evidence, we have found

that memorandum statements have been recorded in a proper and

legal manner and there is no doubt or suspicion about its

genuineness. The Investigating Officer has clearly stated in para-51

of his deposition that this aspect of the crime was also investigated.

In any case, in view of the memorandum statements of the accused

persons and the recovery of dead body at their instance, it is not a

case where the accused persons have been falsely implicated to

shield some other accused who might have committed the crime.

Accused Ram Sona was last seen in the company of the deceased

and the whole investigation appears to have centered around

accused Ram Sona, once the police was informed that he was last

seen together with the deceased. It is not a case where investigation
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started from memorandum statement.

38. True it is that merely because the accused was absconding soon

after the incident may not by itself be conclusive of his involvement

in the crime, but conduct of absconcion when read along with other

corroborative admissible circumstantial evidence, is one such

circumstance which has its own importance for completing the chain

of circumstantial evidence. Absconcion of the accused Ram Sona

gains importance, as he was the person who was last seen together

with the deceased.

39. For the foregoing, we are convinced that the chain of circumstantial

evidence has been duly proved against all the accused including

Ram Sona and it is he who brought the deceased to his house,

committed rape and thereafter murdered deaf and dumb

prosecutrix, aged about 5½ years.

40. We are now required to consider whether the death sentence

awarded to accused Ram Sona is to be confirmed or the same

deserves to be commuted to life imprisonment.

41. Before proceeding to analyze the mitigating and aggravating factors,

it is necessary to notice the law laid down by the Hon’ble Supreme

Court on this particular issue.

42. In Bachan Singh Vs. State of Punjab 13 the Hon’ble Supreme Court

held that normal rule is that offence of murder shall be punished

with the sentence of life imprisonment. The Court can depart from

that rule and impose sentence of death only when there are special

reasons for doing so. The said reasons must be recorded in writing

before imposing death sentence and while doing so, the Court must

13 (1980) 2 SCC 684
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have regard to every relevant circumstance relating to crime as well

as criminal. If the Court finds that the offence is of exceptionally

deprave and heinous character and constitutes, on account of its

design and the manner of its execution, a source of grave danger to

the Society at large, the Court must impose death sentence. The

Supreme Court thereafter delineated the aggravating and mitigating

circumstances in the following manner in paras-202, 203 206:-

202. Drawing upon the penal statutes of the States
in U.S.A. framed after Furman v. Georgia {408 US
238 (1972)}, in general, and clauses 2 ( a), (b), (c) and

(d) of the Indian Penal Code (Amendment) Bill
passed in 1978 by the Rajya Sabha, in particular, Dr
Chitale has suggested these “aggravating
circumstances”:

“Aggravating circumstances : A court may,
however, in the following cases impose the penalty of
death in its discretion:

(a) if the murder has been committed after previous
planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed
forces of the Union or of a member of any police
force or of any public servant and was committed–

(i) while such member or public servant was on
duty; or

(ii) in consequence of anything done or attempted to
be done by such member or public servant in the
lawful discharge of his duty as such member or
public servant whether at the time of murder he was
such member or public servant, as the case may be,
or had ceased to be such member or public servant;
or

(d) if the murder is of a person who had acted in the
lawful discharge of his duty under Section 43 of the
Code of Criminal Procedure, 1973, or who had
rendered assistance to a Magistrate or a police
officer demanding his aid or requiring his assistance
under Section 37 and Section 129 of the said Code.”

203. Stated broadly, there can be no objection to the
acceptance of these indicators but as we have
indicated already, we would prefer not to fetter
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judicial discretion by attempting to make an
exhaustive enumeration one way or the other.

206. Dr Chitale has suggested these mitigating
factors:

“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.

(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.”

43. Then came the Supreme Court’s judgment in the matter of Machhi

Singh Vs. State of Punjab 14 explaining the concept of “rarest of rare

cases” in the following manner in para-32:-

32. The reasons why the community as a whole does
not endorse the humanistic approach reflected in
“death sentence-in-no-case” doctrine are not far to
seek. In the first place, the very humanistic edifice is
constructed on the foundation of “reverence for life”

principle. When a member of the community violates
this very principle by killing another member, the
society may not feel itself bound by the shackles of
this doctrine. Secondly, it has to be realized that
every member of the community is able to live with
safety without his or her own life being endangered
because of the protective arm of the community and
on account of the rule of law enforced by it. The very
existence of the rule of law and the fear of being
14 (1983) 3 SCC 470
33

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brought to book operates as a deterrent for those
who have no scruples in killing others if it suits their
ends. Every member of the community owes a debt
to the community for this protection. When
ingratitude is shown instead of gratitude by “killing”
a member of the community which protects the
murderer himself from being killed, or when the
community feels that for the sake of self-

preservation the killer has to be killed, the
community may well withdraw the protection by
sanctioning the death penalty. But the community
will not do so in every case. It may do so “in rarest of
rare cases” when its collective conscience is so
shocked that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or
otherwise of retaining death penalty. The community
may entertain such a sentiment when the crime is
viewed from the platform of the motive for, or the
manner of commission of the crime, or the anti-
social or abhorrent nature of the crime, such as for
instance:

I. Manner of commission of murder

33 . 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. For instance,

(i) when the house of the victim is set aflame with
the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of
torture or cruelty in order to bring about his or her
death.

(iii) when the body of the victim is cut into pieces or
his body is dismembered in a fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a motive
which evinces total depravity and meanness. For
instance when (a) a hired assassin commits murder
for the sake of money or reward (b) a cold-blooded
murder is committed with a deliberate design in
order to inherit property or to gain control over
property of a ward or a person under the control of
the murderer or vis-a-vis whom the murderer is in a
dominating position or in a position of trust, or (c) a
murder is committed in the course for betrayal of
the motherland.

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III. Anti-social or socially abhorrent nature of the
crime

35 . (a) 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. For instance when such a crime
is committed in order to terrorize such persons and
frighten them into fleeing from a place or in order to
deprive them of, or make them surrender, lands or
benefits conferred on them with a view to reverse
past injustices and in order to restore the social
balance.

(b) In cases of ‘bride burning’ and what are known
as ‘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.

IV. Magnitude of crime

36. 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.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent
child who could not have or has not provided even
an excuse, much less a provocation, for murder (b) a
helpless woman or a person rendered helpless by old
age or infirmity (c) when the victim is a person vis-a-
vis whom the murderer is in a position of
domination or trust (d) when the victim is a public
figure generally loved and respected by the
community for the services rendered by him and the
murder is committed for political or similar reasons
other than personal reasons.”

44. Referring to Machchi Singh (Supra), the Hon’ble Supreme Court in

the matter of Haresh Mohandas Rajput Vs. State of

Maharashtra 15 held thus at paras-19, 20 21:-

19. In Machhi Singh v. State of Punjab this Court
expanded the “rarest of rare” formulation beyond the
aggravating factors listed in Bachan Singh to cases

15 (2011) 12 SCC 56
35

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where the “collective conscience” of the community is
so shocked that it will expect the holders of the
judicial power centre to inflict the death penalty
irrespective of their personal opinion as regards
desirability or otherwise of retaining the death
penalty, such a penalty can be inflicted. But the
Bench in this case underlined that full weightage
must be accorded to the mitigating circumstances in
a case and a just balance had to be struck between
the aggravating and the mitigating circumstances.

20. “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 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 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. (See C.
Muniappan v. State of T.N. {(2010) 9 SCC 567}, Dara
Singh v. Republic of India {(2011) 2 SCC 490},
Surendra Koli v. State of U.P. {(2011) 4 SCC 80},
Mohd. Mannan and Sudam v. State of Maharashtra
{(2011) 7 SCC 125}.

21. Thus, it is evident that for awarding the death
sentence, there must be existence of aggravating
circumstances and the consequential absence of
mitigating circumstances. As to whether the death
sentence should be awarded, would depend upon the
factual scenario of the case in hand.”

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45. In Dhananjoy Chatterjee alias Dhana Vs. State of W.B. 16, the

Hon’ble Supreme Court was considering the measure of sentence to

be awarded when the victim was helpless and defenceless school

going girl of 18 years of age. After considering Bachan Singh

(Supra) and other judgments of the Apex Court, death penalty was

affirmed in this case.

46. Similarly, when the victim was a girl of the tender age of 7 years fell

prey to the accused’s lust, the Hon’ble Supreme Court in the matter

of Laxman Naik Vs. State of Orissa 17 held thus at para-28:-

“28. The evidence of Dr Pushp Lata, PW 12, who
conducted the postmortem over the dead body of the
victim goes to show that she had several external
and internal injuries on her person including a
serious injury in her private parts showing the
brutality which she was subjected to while
committing rape on her. The victim of the age of
Nitma could not have even ever resisted the act with
which she was subjected to. 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, the appellant
with a view to screen the evidence of his crime also
put an end to the life of innocent girl who had seen
only seven summers. The evidence on record is
indicative of the fact as to how diabolically the
appellant had conceived of his plan and brutally
executed it and such a calculated, cold-blooded and
brutal murder of a girl of a very tender age after
committing rape on her would undoubtedly fall in
the category of rarest of the rare cases attracting no
punishment other than the capital punishment and
consequently we confirm the sentence of death
imposed upon the appellant for the offence under
Section 302 of the Penal Code. As regards the
punishment under Section 376, neither the learned
trial Judge nor the High Court have awarded any
separate and additional substantive sentence and in
view of the fact that the sentence of death awarded
to the appellant has been confirmed we also do not

16 (1994) 2 SCC 220
17 (1994) 3 SCC 381
37

CRREF No. 2 of 2018 CRA No. 1517 of 2018

deem it necessary to impose any sentence on the
appellant under Section 376.”

47. In yet another case where the victim was again a seven years old

hapless girl, the Hon’ble Supreme Court in Kamta Tiwari Vs. State

of M.P. 18 held thus at para-8:-

8. Taking an overall view of all the facts and
circumstances of the instant case in the light of the
above propositions we are of the firm opinion that
the sentence of death should be maintained. In vain
we have searched for mitigating circumstances – but
found aggravating circumstances aplenty. The
evidence on record clearly establishes that the
appellant was close to the family of Parmeshwar and
the deceased and her siblings used to call him
‘Tiwari uncle’. Obviously her closeness with the
appellant encouraged her to go to his shop, which
was near the saloon where she had gone for a
haircut with her father and brother, and ask for
some biscuits. The appellant readily responded to
the request by taking her to the nearby grocery shop
of Budhsen and handing over a packet of biscuits
apparently as a prelude to his sinister design which
unfolded in her kidnapping, brutal rape and
gruesome murder.- as the numerous injuries on her
person testify; and the finale was the dumping of her
dead body in a well. When an innocent hapless girl
of 7 years was subjected to such barbaric treatment
by a person who was in a position of her trust his
culpability assumes the proportion of extreme
depravity and arouses a sense of revulsion in the
mind of the common man. In fine, the motivation of
the perpetrator, the vulnerability of the victim, the
enormity of the crime, the execution thereof
persuade us to hold that this is a ‘rarest of rare
cases’ where the sentence of death is eminently
desirable not only to deter others from committing
such atrocious crimes but also to give emphatic
expression to society’s abhorrence of such crime.”

48. Once again the Hon’ble Supreme Court in the matter of Bantu Vs.

State of UP 19 confirmed the death sentence when the accused

raped and murdered a five years old minor girl.

18 (1996) 6 SCC 250
19 (2008) 11 SCC 113
38

CRREF No. 2 of 2018 CRA No. 1517 of 2018

49. In Rajendra Pralhadrao Wasnik Vs. State of Maharashtra 20,

death sentence awarded to the accused for rape and murder of 3

years old minor girl was affirmed finding the case to be the “rarest of

rare”. In the said case, the Hon’ble Supreme Court ruled thus in

paras-37 38 :-

37. When the Court draws a balance-sheet of the
aggravating and mitigating circumstances, for the
purposes of determining whether the extreme
sentence of death should be imposed upon the
accused or not, the scale of justice only tilts against
the accused as there is nothing but aggravating
circumstances evident from the record of the Court.
In fact, one has to really struggle to find out if there
were any mitigating circumstances favouring the
accused.

38.Another aspect of the matter is that the minor
child was helpless in the cruel hands of the accused.
The accused was holding the child in a relationship
of `trust-belief’ and `confidence’, in which capacity
he took the child from the house of PW2. In other
words, the accused, by his conduct, has belied the
human relationship of trust and worthiness. The
accused left the deceased in a badly injured
condition in the open fields without even clothes.
This reflects the most unfortunate and abusive facet
of human conduct, for which the accused has to
blame no one else than his own self.”

50. In the case at hand, the deceased was hapless, deaf and dumb girl

aged about 5½ years. She was lured by the accused to his house on

the pretext of providing chocolates/toffee. She was gaged, raped and

thereafter murdered by the accused in his own house and thereafter

the dead body was kept in white plastic bag and thrown into muddy

Nala besides the railway track. Accused Ram Sona thereafter

absconded and did not make himself available for

investigation/interrogation. The victim was resident of the same

locality where the accused Ram Sona resides and had thus prior

20 (2012) 4 SCC 37
39

CRREF No. 2 of 2018 CRA No. 1517 of 2018

acquaintance with the family of the deceased. It is not a case of rape

and murder of any stranger. The accused has betrayed the trust

and confidence of family of the deceased and the members of the

locality as well, because he being the resident of same locality,

people around might not have suspected the accused Ram Sona that

he is likely to commit any mischief or offence with the girl. As

against these aggravating factors, there are no special mitigating

factors except the age of the accused. However, considering the

depraved and shameful manner in which the offence has been

committed, the said mitigating factor would not outweigh the

aggravating factors and as such, we are satisfied that present case

falls within the ambit of “rarest of rare case”.

51. We accordingly affirm the conviction and death sentence imposed

upon appellant Ram Sona under Sections 376-A, 302, 363, 365, 366

201/34 of the IPC; under Sections 201/34 and 202 of the IPC

imposed upon appellant Amrit Singh and Under Section 201/34,

202, 216 212 of the IPC imposed upon appellant Kunti Sona and

we dismiss the Appeal preferred by them.

52. The Criminal Reference is answered accordingly.

Sd/- Sd/-
(Prashant Kumar Mishra) (Gautam Chourdiya)
Judge Judge
Barve
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HE A D LI NE S

Death sentence awarded to accused for committing rape and
murder of 5½ years old girl is confirmed.

In view of Section 30 of the Evidence Act, self inculpatory
memorandum statement of co-accused can be read in evidence
if there are other corroborative evidence against the accused.

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