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Lochan Shriwas vs State Of Chhattisgarh 15 … on 17 November, 2017

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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
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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
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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
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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
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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
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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.

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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.
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• 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
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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
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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
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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
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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
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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.

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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.

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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.

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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
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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
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should 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
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(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
34

penalty, 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/-

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