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Manoharan vs State By Inspector Of Police, … on 1 August, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos. 1174-1175 of 2019
[Arising out of SLP (Criminal) Nos.7581-7582 of 2014)

Manoharan …Appellant
Versus
State by Inspector of Police,
Variety Hall Police Station, Coimbatore …Respondent

JUDGMENT

R.F. NARIMAN, J.

1. Leave granted.

2. The present appeals raise the spectre of a ghastly rape and

murder. The brief facts necessary for appreciation in these appeals

are as follows.

3. One Mohanakrishnan (at 7.50 a.m. on 29.10.2010) who had
Signature Not Verified

Digitally signed by R
NATARAJAN
borrowed a vehicle from PW.7 its owner, picked up two children, a girl
Date: 2019.08.01
16:06:19 IST
Reason:

aged 10 years old and her brother aged 7 years old from outside a

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Hindu Temple as the children were preparing to go to school. This

Mohanakrishnan was seen by PW.3, the priest of the particular

Vinayakar Temple and by PW.9, the grandmother of the two children,

taking the children away in the aforesaid vehicle. Mohanakrishnan

then drove the children to a petrol pump at around 8.15 a.m. on the

same day, and at 9.30 a.m. picked up the Appellant from his house in

Angalakuruchi. The children were then taken to a remote area called

the Gopalsamy Temple Hills at roughly 10.45 a.m. at which point rape

was allegedly committed on the girl whose hands were tied by both

Mohanakrishnan and the Appellant. Thereafter, considering that the

girl had been brutally raped (her anus having ruptured), the two

accused bought what is called cow dung powder which is nothing but

a poisonous substance which is added to cow dung to keep insects

away. This substance together with milk that was also purchased by

the Appellant herein was allegedly administered by both

Mohanakrishnan as well as the Appellant to the two children in an

attempt to do away with both of them. Both children ingested only a

small portion of the cow dung powder mixed with the milk and did not

die. Mohanakrishnan and the Appellant thereafter to do away with

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both the children threw them in Parambikulam-Axhiyar Project canal

(“PAP Canal”) and it was alleged by the prosecution that the girl was

tied up and pushed into the canal by the Appellant herein whereas

the boy was pushed into the canal by Mohanakrishnan. At 5.00 p.m.,

PW.24 saw the school bags of the two children floating in the canal,

which were then given to PW.22. Later on the same evening, PW.22

informed PW.10 the principal of the school who then informed the

police between 6.15 p.m. and 6.30 p.m. the same evening. At 9.00

p.m. on the same day, Mohanakrishnan went to the house of PW.7

one Anbu @ Gandhiraj, who informed the police, as a result of which

Mohanakrishnan was arrested at 9.45 p.m. on the same night at

PW.7’s house. At 9.30 a.m. on the next day, the girl’s body was

recovered from the canal. On 31.10.2010, the present Appellant was

arrested at 7.15 a.m. and on the same day, the boy’s body was also

recovered from the canal. To complete the narrative,

Mohanakrishnan was shot dead by the police on 9.11.2010 in an

encounter. That left only the Appellant to be tried as an accused. A

confession was recorded before the Magistrate in a statement made

under Section 164 of the Code of Criminal Procedure by the

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Appellant on 20.11.2010 which was partially retracted only by a letter

dated 25.7.2012, which the Appellant asked the trial court to treat as

a statement under Section 313 of the Code of Criminal Procedure.

4. The prosecution examined a large number of witnesses – 49 in

all. The trial court in a detailed judgment ultimately held the Appellant

guilty under Section 120-B, Section 364-A, Section 376, Section 302,

Section 302 read with Section 34 and Section 201 of the Indian Penal

Code. Under Section 376 IPC, the Appellant was awarded life

sentence, and for the offence under Section 302 IPC, he was given

the death sentence.

5. The High Court of Madras, in the impugned judgment dated

24.3.2014, set aside the Appellant’s conviction under Section 120-B

and 364-A of the Penal Code, but confirmed the sentences under

Sections 376, 302, Section 302 read with Section 34, and Section

201. After considering aggravating and mitigating circumstances,

ultimately the death sentence imposed by the trial court was

confirmed by the High Court.

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6. In order to make out the offence of kidnapping the two children

for ransom, a number of witnesses were examined. Though the

Appellant was acquitted for this offence, yet the High Court found that

the last seen theory was made out in the facts of the present case

after closely scrutinizing the evidence of the following witnesses:

1. Sundararajan – PW.3, who was the temple priest who saw

Mohanakrishnan picking up the two children around 8.00 a.m.

on 29.10.2010.

2. Senthil Kumar – PW.20, a tailor, who saw both the accused with

the children at 10.00 a.m. on that day.

3. N. Mani – PW.25, owner of a brick kiln in the foot hills of

Gopalasamy Hills, who saw both the accused with the children

at roughly 10.45 a.m. as they were coming down from the

Gopalasamy Hillock.

4. Saravanakumar – PW.23, owner of a bakery who sold the milk

at 1.00 p.m. on the same day to the Appellant, who saw the two

children with Mohanakrishnan and the Appellant; and

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5. R. Soundararajan – PW. 24 who saw both the accused with the

children in a Maruti van around 3.00 p.m. on the same day.

On the basis of this evidence, the Court held:-

“38. After closely scrutinizing the evidences of

(a)Sundararajan [P.W.3], the temple Priest, who saw
Mohanakrishnan picking up the two children around
8.00 a.m. on 29.10.2010; (b)K.Senthil Kumar [Tailor,
P.W.20], who saw both the accused with the children
at 10.00 a.m. on 29.10.2010; (c) N.Mani [P.W.25]
owner of the Brick kiln at the foothills of Gopalsamy
Hills, who saw both the accused with the children at
10.45 a.m. on 29.10.2010, while they were coming
down from the hills; (d) Saravanakumar [P.W.23]
owner of “Winner Bakery”, who sold milk at 1.00 p.m.
on 29.10.2010 to the accused and who saw the two
children with them and (e) R.Soundararajan [P.W.24]
who saw both the accused with the children in the
Maruthi van around 3.00 p.m. on that day, we have no
hesitation in our mind that the prosecution has proved
beyond reasonable doubt that Mohanakrishnan picked
up the two children and later Manoharan joined him
and together both the accused were last seen with the
two children and thus, the prosecution has proved the
kidnapping and last seen theory without any iota of
doubt.”

So far as rape of the girl by the Appellant is concerned, the High

Court concluded as follows:-

“44. To sum up, we hold that the panties M.O.1 was
recovered with hairs on 29.10.2010 in the Maruthi van
with the help of Saravanan, P.W.43, the expert of

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Forensic Sciences Laboratory and the same was sent
to the Court without delay and thereafter, the Court
had sent it to the Forensic Sciences Department,
where, after DNA comparison, the experts have opined
that the DNA profiles in the pubic hairs tally with the
DNA profile extracted from the blood of Manoharan.

45. Since we have left incomplete the discussion in
Para No.9 supra about “Evidence Relating to Rape of
‘X’”, we are now concluding it after answering to the
points raised by Mr.A.Raghunathan relating to the
seizure of the panties (M.O.1).

46. From (a) the final opinion of Dr.Jeyasingh that ‘X’
was subjected to sexual assault; (b) injury on the penis
of Manoharan; (c) the absence of panties in the dead
body of ‘X’; (d)the presence of panties (M.O.1) in the
Maruthi van; (e)identification of the panties (M.O.1) by
‘X”s father; (f)presence of hairs on it at the time of
recovery and (g)matching of DNA profile extracted
from the hair with that of Manoharan, we hold that
Manoharan has subjected ‘X’ to sexual assault. To
come to this finding also, we have still not used the
judicial confession given by Manoharan.”

The High Court devoted a few pages to the confession made by the

Appellant to the Magistrate. The High Court held:

“47. Confession of Manoharan:

L.Sathyamoorthy, P.W.28, Judicial Magistrate No.1,
Coimbatore examined Manoharan on 19.11.2010 and
extensively questioned him and made a roving enquiry
in order to find out if he was voluntarily giving
confession statement. The questions were asked in
Tamil and the answers were also recorded in Tamil by
the learned Judicial Magistrate. 17 questions were put
to him on 19.11.2010. Thereafter, he was sent back to

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the jail for reflection and was directed to be produced
the next day again i.e. on 20.11.2010. On 20.11.2010,
the learned Judicial Magistrate has put nine questions
to him. He has even told Manoharan that he need not
have to give any confession. We also went through the
preliminary examination done by the Judicial
Magistrate on 19.11.2010 and 20.11.2010 and we find
that the Judicial Magistrate has not mechanically
acted, but has sincerely endeavoured to make the
accused be aware of his rights and also the fallout of
giving a confession. Sufficient reflection time was also
given by the learned Judicial Magistrate and thereafter,
he has proceeded to record his confession.”

It then set out some of the relevant questions that were asked by the

said Magistrate to the Appellant as follows:-

“49. We gave our anxious consideration to the
arguments advanced by the learned senior counsel
and therefore, we scrutinized carefully the questions
put by the Judicial Magistrate on 19.11.2010 and
20.11.2010.

The learned Judicial Magistrate has put 17 questions
on 19.11.2010. Some relevant questions run thus
(English Translation):

Question No.5 : Do you know that I am a Judicial
Magistrate No.1, Coimbatore?

Ans :Yes. I know that this is Judicial Magistrate
Court, but only from you, I know the number.

Question No.9 :Do you know as to why you have
come here?

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Ans : I want to give a true statement to the
Judicial Magistrate. That is why I have come here.

Question No.10 :Did police torture to give
statement in any manner?

Ans :No. Nothing like that has happened.

Question No.11 :Did the Police or anyone tell you
that if you give confession statement, it will be
beneficial to you and if you do not give confession
statement, they will do something to you?

Ans :No one has said like that to me.

Question No.12 : Are you aware that you have no
duty to give confession?

Ans :I have understood it from what you told now.

Question No.15 :I am asking you once again this
question, Has anybody tortured you or induced
you to give confession?

Ans :No. Nobody has tortured me.

50. Again on 20.11.2012, some questions were asked
to Manoharan in order to find out whether he was
voluntarily willing to give confession. Only thereafter,
the learned Judicial Magistrate has recorded the
confession.”

Since the confession was later partially retracted, the High Court

dealt with this aspect of the matter as follows:-

“61. In this case confession was recorded on
20.11.2010 and it was retracted only on 13.08.2012
during the cross examination of Mr. L.S.

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Sathiyamoorthy (P.W.28). When Manoharan was put
the following question under Section 313 Cr.P.C. viz.
“That P.W.28 Mr.L.S. Sathiamoorthy in his evidence
has stated that he was Judicial Magistrate in
Coimbatore and that he examined Manoharan on
19.11.2010 in the Court for the purpose of recording
the confession statement and for that he had taken
appropriate steps and had also given 24 hours time to
reflect and that on 20.11.2010, he recorded the
confession statement running to 17 pages in the
appropriate manner. That confession statement is
Ex.P.18. What do you say?” The answer given by
Manoharan is, “Correct”. This singular answer of
Manoharan demolishes the defence argument that the
Magistrate had not followed the proper procedure for
ascertaining whether the confession was voluntary.

62. xxx xxx xxx

63. We have already extracted the statement of
Manoharan under Section 313 Cr.P.C. with regard to
the evidence of Mr. L.S. Sathiamoorthy P.W.28. This
statement under Section 313 Cr.P.C. was recorded on
04.09.2012, after the evidence, whereas Mr. L.S.
Sathiamoorthy was crossexamined on 13.08.2012. In
other words on 13.08.2012, when P.W.28 was cross
examined by the counsel, the confession was
retracted. But in the 313 examination recorded
subsequently on 04.09.2012, Manoharan had admitted
that the confession was properly recorded. Manoharan
was examined by us u/s 313 Cr.P.C. on 27.02.2014
with regard to the inculpatory portion in his confession
statements. At that time he stated that Police forced
him to give the confession.

64. We may now mention about the letter dated
25.07.2012 written by Manoharan from jail addressed
to the Sessions Judge which he wanted to be treated
as his statement under Section 313 Cr.P.C.’73. In that

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letter he has stated that Police made him to confess to
the crime and had it videographed in the Police
Station. Thereafter they played the videograph to the
Magistrate and the Magistrate merely wrote down the
confession statement by seeing the videograph. In
other words, the Magistrate did not record any
statement from him directly but copied a statement
from the videograph. This is given as a reason for
retraction. Such a suggestion was not even put to
Mr.Sathiamurthi, the Magistrate when he was cross
examined. Applying the test in Subramania Goundan’s
case cited above, we cannot but simply reject the very
retraction.”

The High Court then held that the confessional statement given

by the Appellant was voluntarily made and the retraction was clearly

an afterthought.

The confessional statement given by the Appellant was set out

verbatim by the High Court as follows:-

“66. The English translation of the confession
statement given by Manoharan that was given in Tamil
is given below:

“I used to go for flower business along with my mother
Amavasai Selvi on Fridays. I do not remember the
date. About two weeks ago, on a Friday, I finished my
flower business and had my breakfast at 9.15 in the
morning. Afterwards, when I was about to attend to
tractor work of my owner Thambu, my friend
Mohanakrishnan, who studied with me till 7th standard
in the same school at Angalakurichi, came to my home
at 9.30 A.M. in the morning in a Maruti Omni Van. He

11
knew my house. He called me to Azhiyaru dam. He
asked for some rope, which was lying near my house,
took that rope and kept it in the omni van. He asked
me to get into the van and I sat next to the driver seat
in the omni van. A boy and a girl in School uniform
were seated at the back seat. When I asked about
them, he told me that they had come to see Azhiyaru,
and that a school bus had already gone ahead. When
we went to the house of Mohanakrishnan, which was
located near the Tank-mound, which was in Azhiyaru
road, there was a tailor. He asked that tailor for two
covers and obtained them. There was no possibility for
the tailor to look at the persons, who were seated in
the omni van. The vehicle was parked on the road. In
the meantime, a telephone call came. When I asked,
Mohanakrishnan he said that it was his mother, who
spoke over the phone. Again, we went to my house in
the vehicle. He told me to get fifty rupees. I got it from
my mother. He asked me to buy two packets of cow
dung powder for mopping up his house. I got two
packets for Rs.12/- Rs.6/- each from Nayakam’s shop,
which is next to my house. I kept them in the omni van
and we went straight to the hill of Gopalsamy temple.
We parked the vehicle at the foothill and walked up the
hill. Mohanakrishnan asked the children to climb up
the hill so that they could see tiger, lion and deer. Both
of them ie., the girl and the boy walked some distance
and stopped. They sternly said that they would not
come up. They started crying stating that they wanted
to go to school. Immediately, Mohanakrishnan took the
mobile phone and made a fake call, as if, he was
talking to the Principal Sir, saying that they would
come then, that the vehicle broke down and that they
would come to the school immediately. He asked for
apology from the Principal for being late to the school
and made the children believe his words. But the small
boy asked his elder sister in their language, not to go.
Then both of them started crying. Hence, all of us

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came back without going up the hill. Immediately, we
started from the Gopalsamy foothill and crossed
Manjanaickanur, Kambalampatti, crossed the bridge
and went to a place adjacent to the canal. That place
looked like a big forest with groves all around. I do not
know the name correctly. We parked the vehicle under
the tree and I said I needed to answer nature’s call
urgently. So saying, I went by the side of the canal.
The boy, who was in the vehicle was tied with a rope
near the side of the driver seat, so that he could not go
out. He put that female child alone in the back seat
and tied her hands behind. When I asked him, he said
that I was not aware that he and her father had a deal.
Then Mohan stripped all his garments, removed the
pant of the said girl, and laid himself upon her. When I
asked him, he told me he would make the girl a
prostitute. He had sex with that girl and raped her. I
thought if the small boy was present there at that time,
it would be embarassing and I slowly took him out.
Later on, after some time, I returned with that small
boy. Then I asked Mohan as to how he felt. He said
that his male organ could not properly penetrate. I
asked him to give me a chance. Immediately he asked
me to have sexual intercourse with that girl. Mohan sat
in the front seat and watched. I went and saw the said
girl who did not wear the pant and who was in the back
seat. When I placed my penis in the front, the girl cried
stating that she felt pain She was also adamant. Then,
I had intercourse with her on her back side, through
her rectum. That also did not suit me. Immediately, I
masturbated and ejected the seminal fluid ([tpe;J
jz;zpia). Having thought that if the matter became
public and revealed out, it would become a big
problem for us, all the 4 of us went near our house by
the vehicle. There, I bought milk in a plastic bag for ten
rupees. Mohan asked me to buy milk saying that it was
required for the children. Then in order to let the
children believe that, we transferred the milk into a

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water bottle and mixed it with cow dung powder. When
we made the children drink that, the girl and the boy
swallowed half and spat out the remaining half on the
seat. When I bought the said milk, I bought two
disposable plastic tumblers. I asked them to drink only
through that. She swallowed only half of that and spat
the remaining milk. After giving the cow dung powder,
we drove the omni vehicle again to Manjanayakanur. It
would be noon time, when we went to Deepalipatti. We
did not know the time exactly. He told me that in such
a situation, one should always pass through the place,
which is not frequented by people. He went near the
canal, pushed the girl and returned. Then he was
sweating a lot. Thereafter, I pushed the boy and he
was washed away by the flow of the water in the
canal, in which water had been flowing fully. Then,
after travelling some distance Mohan halted the
vehicle, and when he saw me, it looked that he would
push me too. But, we took the school bag and threw it
in the canal. Then he dropped me at Angalakurichi
tollgate. Then, he told me that he had thought that he
would get Rupees Twenty lakhs, and that the event
had resulted in that manner. He told that he would
abscond thereafter. He told me that he would sport ”
“Lion-moustache” and asked me not to disclose to
anyone and to come with him. Since, Mohan told me
that he would buy an autorickshaw for me, I went with
Mohan and it happened like this. Then, the same day,
at 7.30 p.m. Mohan called me up in my mobile number
9790299953 from his mobile number and talked to me.
I don’t know the number. He threatened me asking not
to disclose the matter to anyone. This only had
happened I don’t wish to say anything else.”

MAGISTRATE’S NOTE [ENGLISH VERSION]

“I recorded the statement given by Manoharan, the
person who was charged as above, in my own

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handwriting as stated by him. After recording
completely, it was read over to him clearly. I asked him
to read it and after he had acknowledged it as correct,
his signature was obtained in my presence. Till the
completion of the recording of the statement, the doors
of the court were bolted, closed and the entire
proceedings were held in camera. Then, no one else
other than me, my court assistant Thiru.T.Raja and
Office Assistant M.M.Vijayakumar were present.”

This being done, then the High Court in paragraph 70 in

tabular form set out in a table the facts that are admitted in the

confessional statement; what continues to be admitted and

what is retracted by the letter dated 25.7.2012; and the other

evidence on record which otherwise corroborates the

confessional statement. This aspect of the case is important

and is set out hereinbelow:-

“70. Now we are giving a tabular column to corroborate
the confession statement:

SI. Confession Written Evidence on
Statement Ex. P.18 Statement record
No Dated
25.07.2012

1. He knows He admits —
Mohanakrishnan this fact

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2. Mohanakrishnan He admits —
picked him up this fact
around 9.30 a.m. in
the Maruthi Omni
Van saying that they
are going to Aliyar
Dam

3. Mohanakrishnan He admits —
took the two children this fact
in School uniform in
the Maruthi Omni
Van

4. Mohanakrishnan He admits Evidence of
went to meet the this fact the Tailor
Tailor P.W.20
Senthilkumar,
who saw both
of them with
the children at
10.00 a.m.

5. Mohanakrishnan He admits P.W.35
and Manoharan this fact Nayagam
went to purchase corroborate
cow dung powder this fact.
from the shop of
Nayagam [P.W.35]

6. Both of them went to He admits Both of them
Gopalsamy hills with this fact were seen with
the two children and two children at
climbed the hill by Gopalsamy
walk Hills by
N.Mani,
P.W.25.

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7. Both of them He admits —
proceeded to a this fact
secluded place
besides the canal

8. Both of them parked He admits —
the vehicle and this fact
Manoharan goes to
attend nature’s call

9. On Manoharan He admits —
returning, he finds this fact
Mohanakrishnan
raping ‘X’ after tying
her with a rope

10. After He does —
Mohanakrishnan, not admit
Manoharan raped ‘X’ this fact

11. Manoharan attempts He does The
vaginal coitus, the not admit postmortem
child cried, he does this fact shows ‘X’ had
anal coitus injuries on
vagina and
anus.
Manoharan
had injury in
the penis.

12. Thereafter they went He admits Saravana
to winner bakery and this fact Kumar,
purchased milk for P.W.23, owner
Rs.10/- of Winner
Bakery
corroborates.
The Children are

13. given cow dung Giving Milk Viscera shows

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powder mixed in
milk alone is the presence
admitted of auramine
poison in the
stomach and
small intestine
of both the
children
(Ex.P.50 and

53)

14. The children drank He does Stains were
some of the milk not admit found in the
mixed with auramine this fact floor mat of the
and spit the rest in van
the van

15. Both the accused He does Both of them
take the children to not admit are seen by
Deepalapatti area of this fact Sundarrajan,
the canal P.W.24.

16. Mohanakrishnan He does Body of ‘X’ and
pushed ‘X’ in the not admit ‘Y’ are
canal and the fact recovered
Manoharan pushed from the canal
‘Y’ in the canal and the
postmortem
report shows
that they died
of drowning
and they had
auramine
poison in the
stomach

Based on this, the High Court, therefore, concluded:-

18

“71. Therefore we have no hesitation in holding that
the confession statement Ex.P.18 has been
corroborated in all aspects and the same is true. If one
reads the letter dated 25.07.2012, which Manoharan
wanted to treat as a written statement under Section
313 Cr.P.C., the exculpatory portions are absolutely
incredible. He says that it was Mohanakrishnan, who
raped ‘X’, but he was simply sitting and watching.
Then, he says that he got down from the van at a
distance and after that he was picked up by
Mohanakrishnan again and at the time, the two
children were missing. What is baffling us is,
Manoharan was aged about 23 years at that time and
he did nothing to prevent Mohanakrishnan from
committing a horrendous crime of raping a child and
pushing the two children into the running canal. We
find that the explanation given by Manoharan in his
written statement is patently false and the Hon’ble
Supreme Court has stated that a false explanation will
provide the missing link in a case based on
circumstantial evidence.”
“78. To sum up, we hold that the prosecution has
proved all the circumstances beyond reasonable doubt
and if we apply the golden rule laid down by the
Supreme Court in Sharad Birdhichand Sarda vs. State
of Maharashtra [1984 (4) SCC 116] the inescapable
inference we come to is, that Manoharan had joined
Mohanakrishnan who had already kidnapped the two
children; that Manoharan raped ‘X’ and also had
sodomica luxuria (anal coitus); that Manoharan shared
the common intention with Mohanakrishnan in the
murder of ‘X’, by pushing her in the canal; and
Manoharan murdered ‘Y’ by pushing him in the canal;
the murder was committed in order to cover up the
offence of kidnapping and rape.”

When it came to confirming the death sentence, the High Court held:-

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“82. In this case, the aggravating circumstances are:

(i) The offence is one of rape of a minor and murder of
two children;

(ii) The hands of ‘X’ were tied behind and one after the
other they have raped her;

(iii) After committing rape, cow dung powder which
contains auramine and which is normally used for
committing suicide was purchased from a shop and
milk was purchased from another shop.

(iv) Thereafter, they mixed the cow dung powder and
milk and filled it in a water bottle and gave it to the
children. Both the children drank a little bit of it and spit
the balance in the car. Then the accused realised that
since the children had spit the milk mixed with poison,
they may not die. They wanted to make sure that the
children die and so they took the children to
Deepalapatti, a secluded place in the outskirts of
Coimbatore District, where the P.A.P. canal flows with
gusto.

(v) They pushed one child after the other and the body
of the children were recovered several kilometres
away in the canal. Manoharan pushed ‘Y’

and the body was recovered 12 km away from
Deepalapatti two days later. Here both the victims
were innocent, helpless and defenceless children.

83. MITIGATING CIRCUMSTANCES: There is nothing
to suggest that Manoharan suffered from any
emotional or mental imbalance or disturbance or was
under any external provocation while committing this
offence. As regards the chances of him not indulging in
commission of such a crime again, we find that even in
his letter addressed to the learned Sessions Judge, he
was trying to fix the responsibility on Mohanakrishnan

20
and was attempting to absolve himself completely of
the offence. He went to the extent of even charging
that the Magistrate had colluded with the police in
recording the confession by seeing the videograph.
There does not seem to be any remorse shown by
Manoharan.

84. CRIME TEST: The victim in this case were 10 and
7 years old and they were defenceless. The victim ‘X’
was first raped by Mohanakrishnan; Manoharan
committed rape and since she cried, he committed
sodomy. Since that also did not satisfy him, he
masturbated in order to release his excitement in the
presence of the children. They were administered
poison and then to be doubly sure that they die, they
were pushed into the running waters.

85. CRIMINAL TEST: Manoharan is an able bodied
person and is aged about 23 years. As stated earlier,
he does not seem to show any inkling of reformation.
Therefore, we hold that the criminal test is also
satisfied.

86. RR TEST:

This is society centric test and not judge centric test,
i.e. whether the society will approve the awarding of
death sentence to certain types of crime or not. In
Sevaka Perumal v. State of Tamil Nadu [1991 (3) SCC
471] the Supreme Court has said :

“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. Where an
accused does not act or any spur of the moment
provocation and he indulged himself in a deliberately
planned crime and meticulously executed it, the death
sentence may be the most appropriate punishment for
such a ghastly crime.”

21
In this case also, the accused will be a menace to the
society as could be inferred in the manner in which he
raped a 10-year old child and pushed a 7-year old boy
in the canal. Hence, the R.R. test is also satisfied.”

7. Shri P. Vinay Kumar, learned counsel appearing on behalf of

the Appellant, assailed the High Court judgment by stating that he

adopted the arguments of Shri A. Raghunathan where Shri

Raghunathan assailed the allegation that the Appellant had raped the

10 years old girl. In paragraph 41 of the judgment, the High Court had

held regarding the evidence relating to rape as follows:-

“41. Evidence relating to Rape of ‘X’:

There is no direct evidence to prove this fact. The
prosecution is relying upon the following pieces of
evidence for inferring rape.

(a) Dr.Jeyasingh [P.W.46], who conducted the autopsy
on the body of ‘X’, has stated that he found “(4)
Contusion 2×1 cm x 0.5 cm depth noted over in the
posterior fouchette and lateral wall of vagina. Hymen
Intact. (5)On examination of anus:- Anus found roomy
measuring 3 cm in diameter and mucosal tear 1 x
0.5cm x mucosal deep noted over left lateral aspect of
the anus at the level of muco-cutaneous junction. On
dissection of Thorax and Abdomen: Contusion 4×2 cm
noted over anterior aspect of lower end of uterus.” In
his final opinion, Ex.P.50, he has stated, “The
deceased would appear to have died of DROWNING.

Injuries noted on the vagina and anus due to forcible
sexual assault. The deceased has consumed

22
auramine poison prior to death (detected in stomach
small intestine)”.

(b) Dr.Jeyasingh, examined Manoharan on the orders
of the Magistrate on 04.11.2010 and observed the
following injury on his penis in his report Ex.P.56.

“A dark colour contusion noted over proximal part of
glands penis around urethral orifice.”

(c)The Police had recovered the panties [M.O.1] of ‘X’
with some hair strand from the Maruthi van as early as
on 29.10.2010 and had sent the same to the Tamil
Nadu Forensic Sciences Laboratory through the Court
for D.N.A. Analysis. The blood samples and saliva that
were collected from Mohanakrishnan and Manoharan
by Dr.Bhuvana [P.W.44] were also sent to the Tamil
Nadu Forensic Sciences Laboratory. The D.N.A.
analysis was done by Mrs.Lakshmi Balasubramaniam
[P.W.49]. She was examined by us in this Court, the
reason for which we have already given in the earlier
part of the judgment. In her evidence, she stated that
she extracted D.N.A. from the blood samples of
Mohanakrishnan and Manoharan and amplified them
for amelogenin and for 15 Short Tandem Repeat
markers using PCR amplified STR technique. The hair
strands that were received by the Forensic Sciences
Department from the Court with the panties [M.O.1]
was also subjected to amplification for amelogenin.
The DNA typing results of the blood samples of
Mohanakrishnan and Manoharan were compared with
the DNA profile of the hair in the panties [M.O.1]. On
comparison, P.W.49 found that the DNA profile of the
hair did not match with that of Mohanakrishnan, but,
matched with that of Manoharan. Her report was
marked as Ex.P48(A). The defence counsel did not
seriously challenge the final opinion of the expert, but
Mr.A.Raghunathan, learned Senior Counsel for the
accused attacked the very seizure of the hair and

23
contended that Manoharan was made to pluck 5
strands of his pubic hair on 04.11.2010, when he was
examined by Dr.Jeyasingh [P.W.46] and this was
substituted in the cover that was sent to the Forensic
Sciences Department. Mr.A.Raghunathan, learned
Senior Counsel, who cross examined Dr.Jeyasingh
[P.W.46], Mrs.Radhika Balachandran [P.W.48] and the
Investigating Officer [P.W.47] before us, shaped this
defence and presented the following arguments
attacking the seizure of the panties [M.O.1] and the
pubic hairs from the Maruthi van on 29.10.2010.”

8. Shri Raghunathan’s arguments against the pubic hair of the

Appellant being found on the panty of the dead girl was then dealt

with in great detail after which the High Court then summed up the

matter as follows:-

“45. Since we have left incomplete the discussion in
Para No.9 supra about “Evidence Relating to Rape of
‘X’”, we are now concluding it after answering to the
points raised by Mr.A.Raghunathan relating to the
seizure of the panties (M.O.1).

46. From (a) the final opinion of Dr.Jeyasingh that ‘X’
was subjected to sexual assault; (b) injury on the penis
of Manoharan; (c) the absence of panties in the dead
body of ‘X’; (d)the presence of panties (M.O.1) in the
Maruthi van; (e)identification of the panties (M.O.1) by
‘X”s father; (f)presence of hairs on it at the time of
recovery and (g)matching of DNA profile extracted
from the hair with that of Manoharan, we hold that
Manoharan has subjected ‘X’ to sexual assault. To

24
come to this finding also, we have still not used the
judicial confession given by Manoharan.”

9. Having gone through the exhaustive analysis of the High Court

on this aspect, we feel no reasonable ground has been made out by

learned counsel for the Appellant to assail the same and, therefore,

confirm the findings that the Appellant had subjected the girl to sexual

assault.

10. Learned counsel for the Appellant, then argued that the

Learned Magistrate should have refused to record the confessional

statement made on 20.11.2010 given the fact that Appellant had been

beaten by the police. The High Court has dealt with this aspect of the

case by stating that the Ld. Magistrate asked the Appellant repeatedly

as to whether the statement that is being given by him is voluntary or

because of torture or beatings. The Appellant repeatedly stated that

the statement being given was voluntary. Further, the High Court has

also adverted in paragraph 60 of its judgment, to the fact that police

custody ended after the first 15 days of arrest that is on 14.11.2010.

The accused was produced before the Ld. Judicial Magistrate only on

19.11.2010 after which statement was recorded on 20.11.2010. It

25
was clear therefore that on this date there was no possibility of

handing back the Appellant to police custody. Further, the retraction

that was made from the confessional statement was made one year

and nine months after it was made and as can be the seen from the

table set out in paragraph 70 of the impugned judgment, the

retraction statement confirms the original confessional statement in

every detail except that the Appellant retracts the part played by him

in the rape and murder of the ten year old girl and the girl boy

respectively. For all these reasons, therefore we reject the arguments

of the Ld. Counsel for the Appellant in this behalf.

11. The Appellant’s counsel then argued that PW.24 who is a very

material witness as to the last seen theory cannot possibly be

believed, because in his evidence he states that he saw the children

after the girl was raped standing on the road next to Mohanakrishnan

and the Appellant, and found nothing untoward with the children, who

did not utter a word or show in any manner that they have just gone

through the most gruesome ordeal. According to him, PW.24’s

version is, therefore inherently not believable and cannot be relied

upon. Even if we were to accept learned counsel’s argument on this

26
aspect, we must not forget that for the last seen theory a number of

other persons were relied upon by the High Court. PW.20, PW.25

and PW.23 all saw the two accused together with the children at

different times on 29.10.2010. Indeed, even if one were to read the

confessional statement of the Appellant together with the retraction

thereof, the fact that he purchased milk at 1.00 p.m. from PW.23 is

clearly made out and the fact that Mohanakrishnan went to meet the

tailor, was also admitted by him in both the original confessional

statement as well as the retraction. It is clear therefore that the

evidence of PW.20 and 23 are corroborated by the confessional

statement and the retraction made by the Appellant and therefore the

factum of the two accused being with the two children in the vehicle is

clearly made out and thus the High Court’s conclusion that the last

seen theory can be relied upon cannot possibly be assailed.

12. Learned counsel for the Appellant then argued that having

raped a girl in the morning hours, it is highly improbable that the

victim would be paraded around and taken to so many places

including the shop selling milk and cow dung powder, and that the

entire story is so inherently improbable that it should be rejected. We

27
are afraid that this kind of argument flies in the face of the

confessional statement made even when read with the retraction

thereof. All the facts as to Mohanakrishnan abducting the children,

raping the girl and murdering the children are contained in both the

statement as well as the retraction of the Appellant. It is only in the

retraction that the Appellant seeks to exculpate himself completely

from rape and murder, which, as has rightly been held by the High

Court, cannot be given any credence. This is also for the added

reason that once it is accepted that the DNA sample from the pubic

hairs of the Appellant are found in the panty of the dead girl, rape

gets established beyond reasonable doubt.

13. The argument of the learned counsel for the Appellant that no

semen or blood was found on the body of the dead girl pales into

insignificance in view of the DNA evidence. In any case, the body of

the dead girl was found in a canal, which had fast flowing water in it,

several kilometers away, after one day of the commission of the

crime. It is obvious that with this passage of time whatever semen

and blood that may have been on the dead body when the girl was

28
thrown into the canal has been effaced by the fast flowing water in

which the body was immersed for a day after it was recovered.

14. Learned counsel then tried to argue that the allegation of tying

up of the children has no evidence to support it. We are afraid that

this is also not correct inasmuch as in both the confessional

statement as well as the retraction thereof it is clear that

Mohanakrishnan at least tied the girl with a rope and then raped her.

15. The Appellant then argued that the panty was found later in the

car thereby rendering its being found in the car suspect, and that the

panty which is stated to be torn was never so stated in the earlier

statements made to the police. What is clear from the forensic

examination is that the panty was found in the car only after the car

was searched at 2.00 a.m. on the night after the rape and the murder

as is clear from a reading of exhibit P.5 marked on the side of the

prosecution.

16. Learned counsel for the Appellant then argued that it is wholly

improbable that the lunch bag of the murdered boy would be taken

home by the accused Appellant and would be found by the police at

29
his house two days thereafter. Obviously therefore the aforesaid bag

has been planted by the police. Even if this is so, this does not take

the Appellant anywhere. What is clear from a narration of the facts

above is that it is clear that the children were initially abducted by

Mohanakrishnan after which the Appellant joined them. The fact that

the Appellant brutally raped the 10 year old girl is corroborated not

only by his confessional statement but also by the DNA test which

found the Appellant’s pubic hair on the panty of the girl. It is clear that

once this heinous act was committed, the next important step would

be for both the accused to do away with the children so that they

would not be able to give evidence as to the kidnapping and rape

committed on the girl. Towards this end, it is admitted that the

Appellant purchased “cow dung” powder, that is poison, and milk, and

stated in his confessional statement that the two were then mixed and

administered to both children by both the accused. Since the poison

did not work, the only other way of doing away with the children

would be to find some other method, and the method found by the

two accused was to take the children to the canal in question and

throw them into the canal so that they would be dead by drowning.

30
The entire chain of events has been made out and despite this being

a case of circumstantial evidence, the prosecution has clearly proved

its case beyond reasonable doubt. The courts below are right in

convicting the Appellant of rape and murder.

17. The question that now arises is whether the death sentence

should be confirmed by this Court. The Appellant has pleaded that

the mitigating circumstances in the present case are that the accused

belongs to a rural area and he is only 23 years old and has no other

previous conviction, and if let out will not be a menace to society. On

the other hand, the counsel for the respondent has argued that this is

an extremely heinous crime committed ruthlessly and cold bloodedly

and that the aggravating circumstances made out by the High Court

clearly outweigh the alleged mitigating circumstances and therefore

this is a clear case for the death penalty to be imposed.

18. In Machhi Singh v. State of Punjab, (1983) 3 SCC 470, this

Court laid down the circumstances in which a death sentence may be

imposed for the crime of murder as follows:-

“32. The reasons why the community as a whole
does not endorse the humanistic approach reflected in

31
“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 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,

32

(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.

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.

33
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.

38. In this background the guidelines indicated
in Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC
(Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] will
have to be culled out and applied to the facts of each
individual case where the question of imposing of
death sentence arises. The following propositions
emerge from Bachan Singh case [(1980) 2 SCC 684 :
1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ
636] :

“(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’.

34

(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.

(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have 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?”

In so far as Kashmir Singh, that is one of the appellants before the

Court, in this case was concerned, this Court, applying paragraph 37

(a), upheld the conviction as follows:-

“44. Insofar as appellant Kashmir Singh s/o Arjan
Singh is concerned death sentence has been imposed

35
on him by the Sessions Court and confirmed by the
High Court for the following reasons:

Similarly, Kashmir Singh appellant caused the
death of a child Balbir Singh aged six years while
asleep, a poor defenceless life put off by a depraved
mind reflecting grave propensity to commit murder.”

It will thus be seen that the fact that the victim of the murder was a

defenceless 6 year old child, was found sufficient to make Kashmir

Singh’s case a rarest of rare case, shocking the Court’s conscience.

19. In Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1, this Court

speaking through Dipak Misra, J. and R. Banumathi, J. had occasion

to deal with a large number of judgments, in which, after considering

aggravating and mitigating circumstances, this Court has either

awarded the death sentence in the case of violent crimes or life

imprisonment. From paragraph 322 of Dipak Misra, J.’s judgment, all

these judgments are set out in great detail and, therefore, need not

be repeated by us. It may only be noted that in paragraph 349,

Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220,

was referred to, in which rape and murder of an 18 year old girl

resulted in affirmation of the death sentence by this Court. Equally, in

36
paras 350 and 351, Laxman Naik v. State of Orissa (1994) 3 SCC

381, was referred to where a 7 year old girl was raped by her uncle

and then murdered, also resulted in confirmation of the death

sentence by this Court. Similar is the case in Bantu v. State of U.P.

(2008) 11 SCC 113 and Rajendra Pralhadrao Wasnik v. State of

Maharashtra (2012) 4 SCC 37, referred to in paragraphs 353 and

354 of the said judgment.

20. However, in Akhtar v. State of U.P. (1999) 6 SCC 60, referred

to in paragraph 356, in a similar case of rape and murder of a young

girl, this Court awarded life imprisonment because the evidence of

witnesses showed that the murder was not committed intentionally

and with any premeditation as the girl had been picked up for

committing rape. Similarly, in State of Maharashtra v. Bharat Fakira

Dhiwar (2002) 1 SCC 622, referred to in paragraph 357, in the case

of a 3 year old girl who was raped and murdered, this Court held that

as the accused had been earlier acquitted by the High Court, this

Court refrained from imposing the death penalty in spite of the fact

that “this case is perilously near the region of ‘the rarest of rare

cases’..…”.

37

21. Paragraphs 358 to 362 deal with Vasanta Sampat Dupare v.

State of Maharashtra (2017) 6 SCC 631, in which a minor girl child

was raped and murdered. The death penalty was confirmed by this

Court. After a review petition was then heard in open Court, the

death penalty was reconfirmed despite the fact that the accused had,

after the judgment under review, completed Bachelors Preparatory

Program and had a jail record without any blemish. What was

projected was that there is a possibility of the accused being

reformed and rehabilitated and, therefore, the death sentence should

not be imposed. This Court turned down this argument stating that

the extreme depravity and barbaric manner in which the crime was

committed and the fact that the victim was a helpless girl of 4 years

clearly outweigh the mitigating circumstances resulting in a dismissal

of the review petition. The Court then went on to confirm the death

sentence on the facts of that case as follows:

“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

38
fear psychosis and definitely falls in the category of the
rarest of rare cases.

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

39
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
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.”

xxx xxx xxx
“512. We are here concerned with the award of an
appropriate sentence in case of brutal gang rape and

40
murder of a young lady, involving most gruesome and
barbaric act of inserting iron rods in the private parts of
the victim. The act was committed in connivance and
collusion of six who were on a notorious spree running
a bus, showcasing as a public transport, with the intent
of attracting passengers and committing crime with
them. The victim and her friend were picked up from
the Munirka Bus-stand with the mala fide intent of
ravishing and torturing her. The accused not only
abducted the victim, but gang-raped her, committed
unnatural offence by compelling her for oral sex, bit
her lips, cheeks, breast and caused horrifying injuries
to her private parts by inserting iron rod which ruptured
the vaginal rectum, jejunum and rectum. The diabolical
manner in which crime was committed leaves one
startled as to the pervert mental state of the inflictor.
On top of it, after having failed to kill her on the spot,
by running the bus over her, the victim was thrown
half-naked in the wintery night, with grievous injuries.

513. If we look at the aggravating circumstances in the
present case, following factors would emerge:

(i) Diabolic nature of the crime and the manner of
committing crime, as reflected in committing gang rape
with the victim; forcing her to perform oral sex, injuries
on the body of the deceased by way of bite marks;
insertion of iron rod in her private parts and causing
fatal injuries to her private parts and other internal
injuries; pulling out her internal organs which caused
sepsis and ultimately led to her death; throwing the
victim and the complainant (PW 1) naked in the cold
wintery night and trying to run the bus over them.

(ii) The brazenness and coldness with which the acts
were committed in the evening hours by picking up the
deceased and the victim from a public space, reflects
the threat to which the society would be posed to, in
case the accused are not appropriately punished.
More so, it reflects that there is no scope of reform.

41

(iii) The horrific acts reflecting the inhuman extent to
which the accused could go to satisfy their lust, being
completely oblivious, not only to the norms of the
society, but also to the norms of humanity.

(iv) The acts committed so shook the conscience of
the society.

514. As noted earlier, on the aspect of sentencing,
seeking reduction of death sentence to life
imprisonment, three of the convicts/appellants,
namely, A-3 Akshay, A-4 Vinay and A-5 Pawan placed
on record, through their individual affidavits dated 23-
3-2017, following mitigating circumstances:

(a) Family circumstances such as poverty and rural
background,

(b) Young age,

(c) Current family situation including age of parents, ill-
health of family members and their responsibilities
towards their parents and other family members,

(d) Absence of criminal antecedents,

(e) Conduct in jail, and

(f) Likelihood of reformation.

In his affidavit, accused Mukesh reiterated his
innocence and only pleaded that he is falsely
implicated in the case.

515. In Purushottam Dashrath Borate v. State of
Maharashtra [Purushottam Dashrath Borate v. State of
Maharashtra, (2015) 6 SCC 652 : (2015) 3 SCC (Cri)
326] , 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

42
and calculated manner in which it was committed by
the accused persons.

516. 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 administration of
criminal-justice system. As held in Om
Prakash v. State of Haryana [Om Prakash v. State of
Haryana, (1999) 3 SCC 19 : 1999 SCC (Cri) 334] , 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.

517. Bearing in mind the above principles governing
the sentencing policy, I have considered all the
aggravating and mitigating circumstances in the
present case. Imposition of appropriate punishment is
the manner in which the courts respond to the
society’s cry for justice against the crime. Justice
demands that the courts should impose punishments
befitting the crime so that it reflects public abhorrence
of the crime. Crimes like the one before us cannot be
looked with magnanimity. Factors like young age of the
accused and poor background cannot be said to be
mitigating circumstances. Likewise, post-crime
remorse and post-crime good conduct of the accused,
the statement of the accused as to their background
and family circumstances, age, absence of criminal
antecedents and their good conduct in prison, in my
view, cannot be taken as mitigating circumstances to
take the case out of the category of “the rarest of rare
cases”. The circumstances stated by the accused in
their affidavits are too slender to be treated as
mitigating circumstances.

43

518. In the present case, there is not even a hint of
hesitation in my mind with respect to the aggravating
circumstances outweighing the mitigating
circumstances and I do not find any justification to
convert the death sentence imposed by the courts
below to “life imprisonment for the rest of the life”. The
gruesome offences were committed with highest
viciousness. Human lust was allowed to take such a
demonic form. The accused may not be hardened
criminals; but the cruel manner in which the gang rape
was committed in the moving bus; iron rods were
inserted in the private parts of the victim; and the
coldness with which both the victims were thrown
naked in cold wintery night of December, shocks the
collective conscience of the society. The present case
clearly comes within the category of “the rarest of rare
cases” where the question of any other punishment is
“unquestionably foreclosed”. If at all there is a case
warranting award of death sentence, it is the present
case. If the dreadfulness displayed by the accused in
committing the gang rape, unnatural sex, insertion of
iron rod in the private parts of the victim does not fall in
the “rarest of rare category”, then one may wonder
what else would fall in that category. On these
reasonings recorded by me, I concur with the majority
in affirming the death sentence awarded to the
accused persons.”

22. In Khushwinder Singh v. State of Punjab, (2019) 4 SCC 415,

this Court affirmed the death sentence of the accused in which the

accused had killed six innocent persons, out of which two were

minors, by kidnapping three persons, drugging them with sleeping

tablets, and then pushing them into a canal. Thereafter, three other

44
members of the same family were done away with. This Court upheld

the award of capital punishment as follows:-

“14. Now, so far as the capital punishment imposed by
the learned Sessions Court and confirmed by the High
Court is concerned, at the outset, it is required to be
noted that, as such, the learned counsel appearing on
behalf of the accused is not in a position to point out
any mitigating circumstance which warrants
commutation of death sentence to the life
imprisonment. In the present case, the accused has
killed six innocent persons, out of which two were
minors — below 10 years of age. Almost, all the family
members of PW 5 were done to death in a diabolical
and dastardly manner. Fortunately, or unfortunately,
only one person of the family of PW 5 could survive. In
the present case, the accused has killed six innocent
persons in a pre-planned manner. The convict
meticulously planned the time. He first kidnapped
three persons by way of deception and took them to
the canal and after drugging them with sleeping
tablets, pushed them in the canal at midnight to ensure
that the crime is not detected. That, thereafter he killed
another three persons in the second stage/instalment.
Therefore, considering the law laid down by this Court
in Mukesh v. State (NCT of Delhi)[Mukesh v. State
(NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri)
673] , the case would fall in the category of the “rarest
of rare case” warranting death sentence/capital
punishment. The aggravating circumstances are in
favour of the prosecution and against the accused.

Therefore, striking a balance between the aggravating
and mitigating circumstances, we are of the opinion
that the aggravating circumstance would tilt the
balance in favour of capital punishment. In the facts
and circumstances of the case, we are of the opinion
that there is no alternative punishment suitable, except

45
the death sentence. The crime is committed with
extremist brutality and the collective conscience of the
society would be shocked. Therefore, we are of the
opinion that the capital punishment/death sentence
imposed by the learned Sessions Court and confirmed
by the High Court does not warrant any interference by
this Court. Therefore, we confirm the death sentence
of the accused imposed by the learned Sessions Court
and confirmed by the High Court while convicting the
appellant for the offence punishable under Section 302
IPC.”

The present case consists of a crime even more shocking than that in

Khushwinder’s case (supra), in as much as a young 10 year old girl

has first been horribly gangraped after which she and her brother

aged 7 years were done away with while they were conscious by

throwing them into a canal which caused their death by drowning.

23. Just as this judgment is being dictated, we notice that a

significant amendment has been made to The Protection of Children

from Sexual Offences Act, 2012, vide “The Protection of Children

from Sexual Offences (Amendment) Bill, 2019” (hereinafter,

“Amendment”) which was passed on 24.07.2019 by the Rajya Sabha.

In the original Act, aggravated penetrative sexual assault is defined in

Section 5 as follows:-

46
“5. Aggravated penetrative sexual assault.-

g. whoever commits gang penetrative sexual assault on
a child.

Explanation.- When a child is subjected to sexual
assault by one or more persons of a group in
furtherance of their common intention, each of such
persons shall be deemed to have committed gang
penetrative sexual assault within the meaning of this
clause and each of such person shall be liable for that
act in the same manner as if it were done by him
alone;”

“l. whoever commits penetrative sexual assault on the
child more than once or repeatedly;

m. whoever commits penetrative sexual assault on a
child below twelve years;”

xxx….xxxx…xxx

“r. whoever commits penetrative sexual assault on a
child and attempts to murder the child;”

Originally, the punishment for aggravated penetrative sexual assault

was as follows:-

“6. Punishment for aggravated penetrative sexual
assault.-

Whoever, commits aggravated penetrative sexual
assault, shall be punished with rigorous imprisonment
for a term which shall not be less than ten years but

47
which may extend to imprisonment for life and shall
also be liable to fine.”

Post the Amendment, Section 6 has been substituted as follows:-

“6. (1) Whoever commits aggravated penetrative sexual
assault shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years, but
which may extend to imprisonment for life, which shall
mean imprisonment for the remainder of natural life of
that person, and shall also be liable to fine, or with
death.

(2) The fine imposed under sub-section (1) shall be just
and reasonable and paid to the victim to meet the
medical expenses and rehabilitation of such victim.”

It will be noticed that the minimum sentence has gone up from 10

years to 20 years, and imprisonment for life has now been expressly

stated to be imprisonment for the remainder of the natural life of the

person. What is more significant is that the death penalty has also

been introduced.

24. On the facts of the present case there is no doubt that

aggravated penetrative sexual assault was committed on the 10 year

old girl by more than one person. The 10 year old girl child (who was

below 12 years of age) would fall within Section 5 (m) of the POCSO

48
Act. There can be no doubt that today’s judgment is in keeping with

the legislature’s realisation that such crimes are on the rise and must

be dealt with severely. In fact, the Statement of Objects and Reasons

of the Amendment are important and state as follows:-

“3. However, in the recent past incidences of child
sexual abuse cases demonstrating the inhumane mind-
set of the abusers, who have been barbaric in their
approach towards young victims, is rising in the country.
Children are becoming easy prey because of their
tender age, physical vulnerabilities and inexperience of
life and society. The unequal balance of power leading
to the gruesome act may also detriment the mind of the
child to believe that might is right and reported studies
establish that children who have been victims of sexual
violence in their childhood become more abusive later
in their life. The report of the National Crime Records
Bureau for the year 2016 indicate increase in the
number of cases registered under the said Act from
44.7 per cent. in 2013 over 2012 and 178.6 per cent. in
2014 over 2013 and no decline in the number of cases
thereafter.

4. The Supreme Court, in the matter of Machhi Singh
vs. State of Punjab [1983 (3) SCC 470], held that 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

49
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
same analogy has been reiterated by the Supreme
Court in the matter of Devender Pal Singh vs. State
(NCT of Delhi) [AIR 2002 SC 1661] wherein it was held
that when the collective conscience of the community is
so shocked, the court must award death sentence.

5. In the above backdrop, as there is a strong need to
take stringent measures to deter the rising trend of child
sex abuse in the country, the proposed amendments to
the said Act make provisions for enhancement of
punishments for various offences so as to deter the
perpetrators and ensure safety, security and dignified
childhood for a child. It also empowers the Central
Government to make rules for the manner of deleting or
destroying or reporting about pornographic material in
any form involving a child to the designated authority”

25. In the circumstances, we have no doubt that the trial court and

High Court have correctly applied and balanced aggravating

circumstances with mitigating circumstances to find that the crime

committed was cold blooded and involves the rape of a minor girl and

murder of two children in the most heinous fashion possible. No

remorse has been shown by the Appellant at all and given the nature

of the crime as stated in paragraph 84 of the High Court’s judgment it

50
is unlikely that the Appellant, if set free, would not be capable of

committing such a crime yet again. The fact that the Appellant made

a confessional statement would not, on the facts of this case, mean

that he showed remorse for committing such a heinous crime. He did

not stand by this confessional statement, but falsely retracted only

those parts of the statement which implicated him of both the rape of

the young girl and the murder of both her and her little brother.

Consequently, we confirm the death sentence and dismiss the

appeals.

………………………………..J.

(R.F. NARIMAN)

New Delhi; ….…………………………… J.

August 01, 2019. (SURYA KANT)

51
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 1174-1175 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO(S). 7581-7582 OF
2014)

MANOHARAN ….. APPELLANT(S)

VERSUS

STATE BY INSPECTOR OF POLICE,
VARIETY HALL POLICE STATION,
COIMBATORE. ….. RESPONDENT(S)

JUDGMENT
SANJIV KHANNA, J.

There is so much in the comprehensive judgment of my

esteemed brother Justice Rohinton Fali Nariman, with which I

entirely agree. I would uphold the appellant’s conviction under

Sections 302, 376 (2) (f) and (g) and 201 of the Indian Penal

Code,1898 (“IPC” for short). However, for reasons stated below, I

do not think this is a case wherein the appellant should be given

death penalty and would commute it to imprisonment for life i.e. till

52
his natural life with a stipulation that the appellant would not be

entitled to remission under Sections 432 and 433 of the Code of

Criminal Procedure, 1973 (“Cr.P.C” for short).

2. In Bachan Singh v. State of Punjab1, this Court, while

upholding constitutionality of death penalty for murder under

Section 302 of the IPC and the procedure for sentencing laid

down in Section 354(3) of the Cr.P.C., had held:

“209… A real and abiding concern for the
dignity of human life postulates resistance to
taking a life through law’s instrumentality. That
ought not to be done in the rarest of rare cases
when the alternative option is unquestionably
foreclosed.”

Thus, Bachan Singh (supra), while accepting validity of the

death penalty, had settled as a ratio that imprisonment for life is

the normal and preferred punishment for the offences under

Section 302 of the IPC, and that death penalty, which deprives the

accused of his life, is an exception to be imposed only in the

‘rarest of rare’ cases, when the first option of imposing

imprisonment for life is foreclosed and for which special reasons

must be recorded.

1 (1980) 2 SCC 684

53

3. Recognising that the legislative policy underlying the

provisions of Sections 302 IPC and 354 (3) Cr.P.C. requires

exercise of the court’s discretion on the award of

punishment, Bachan Singh (supra) had laid down that a

balance sheet of aggravating and mitigating circumstances

has to be drawn up and in doing so the mitigating

circumstances have to be accorded full weightage and a just

balance has to be struck between the aggravating and the

mitigating circumstances for the judicial discretion to be

exercised. The expression ‘special reasons’ in the context, it

was observed, means ‘exceptional reasons’ founded on

exceptionally grave circumstances of the particular case

relating to the crime and the criminal.

4. On the aspect of mitigating circumstances in general and

on the factual matrix of the case, in Bachan Singh (supra) it

was observed:

“206. Dr. Chitaley has suggested these mitigating
factors:

54
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.”

Bachan Singh (supra) in the aforesaid paragraph highlights

the aspect of probability of reform and rehabilitation, and also

probability that the accused would not commit criminal acts as to

55
constitute a continuing threat to society and that the State must by

evidence adduced establish that conditions 3 and 4 are not

satisfied.

5. In Machhi Singh v. State of Punjab2, this Court

elucidated that from the tussle between the protagonists of “an

eye for an eye” philosophy who demand “death for death” on

one hand and the “humanists” who press for “death in no case”,

a synthesis had emerged for imposing a death sentence only in

the ‘rarest of rare’ cases. Judgment referred to the collective

conscience of the community which is so shocked from the

crime that had occurred that it will expect the holders of judicial

office to inflict death penalty irrespective of their personal

opinion on the desirability or otherwise of retaining death

penalty. The community it was observed may entertain these

sentiments 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 (1983) 3 SCC 470

56
(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 a cold-blooded murder for gains of a person vis-à-vis

whom the murderer 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 an old or infirm person or a person vis-à-vis whom the

murderer is in a dominating position or a public figure generally loved

and respected by the community.

57
If upon taking an overall global view of all the circumstances in

the light of the aforesaid propositions and taking into account the

answers to the questions posed by way of the test for the ‘rarest of

rare’ cases, the circumstances of the case are such that death

sentence is warranted, the court would proceed to do so.

6. Machhi Singh (supra) analysing the principles in

Bachan Singh (supra) observed that they postulate a twin

question test which is required to be answered by the Court

when they exercise discretion to determine the ‘rarest of rare’

cases. The questions that must be put and answered are:

(a) Whether there was something uncommon about the

crime, which renders the sentence of imprisonment

for life inadequate and calls for death sentence?

(b) Whether there were other circumstances concerning

the crime, i.e. aggravating circumstances, because

of which there is no alternative but to impose the

death sentence after having accorded maximum

58
weightage to all mitigating circumstances which

speak in favour of the offender?

7. The circumstances elucidated in Machhi Singh (supra),

if carefully analysed, relate to the first question to be posed

and answered. But this is not the only question that the court

must answer, for the second question has to be also

answered in order to direct or uphold the death penalty.

Second question can be answered with reference to the

grounds quoted from Bachan Singh (supra) in paragraph 3

above. These grounds relating to mitigating factors are

however not exhaustive.

8. In Rajesh Kumar v. State through the Government of

NCT of Delhi3, this Court had traced out case laws for

evaluation of the sentencing structure with reference to the

aggravating and mitigating circumstances in the Indian context.

Elucidating that the question of sentence is not to be

determined only with reference to the volume, nature or

character of the evidence produced by the prosecution in order

3 (2011) 13 SCC 706

59
to secure a conviction, but also with regard to the facts of a

particular case and the existence of extenuating circumstances

that can mitigate the enormity of the crime, reference was

made to Vadivelu Thevar and Anr. v. State of Madras4, a

judgment delivered in 1955 under the Code of Criminal

Procedure, 1898. Volume and character of the evidence would

refer to the first question, while the extenuating circumstances

in current trends in penology and sentencing procedures would

refer to the second question. It is also obvious that not only the

statutory provisions have undergone a substantive change,

there has been an evolution in the law of sentencing and the

judicial interpretation on the principles applicable for award of

the death penalty. Rajesh Kumar (supra) clearly rejects the

theory that while inflicting the punishment of death penalty, only

the nature and gravity of the crime to the exclusion of the

characteristics of the criminal are germane for consideration

and imposition of an appropriate punishment. Thus, while

awarding the sentence, the Court should not confine its

consideration “principally or merely” to the circumstances of a
4 AIR 1957 SC 614

60
particular crime, but also give due consideration and regard to

the circumstances and attributes of the criminal. An earlier

judgment of this Court in Ravji alias Ram Chandra v. State of

Rajasthan5, which was followed by at least six other decisions

of this Court, holding that it is the nature of the crime but not

the criminal that are germane for consideration of appropriate

punishment was commented upon and held to be per incurium.

Referring to the mitigating circumstances and the aggravating

circumstances, the Court held that the brutality and cruelty in

the manner of committing a crime and the subsequent conduct

of the criminal may be a relevant factor, but is not the sole

criteria for awarding death sentence and must not seminally

influence the court. Alluding to the mitigating circumstances

stated in ‘3 and 4’ of ‘paragraph 206’ of the judgment in

Bachan Singh (supra) quoted above, on the probability of the

accused being reformed and rehabilitated and of not

committing criminal acts of violence so as to constitute a

continuing threat to the society, were held, must be given due

weightage in determining the appropriate sentence. There
5 (1996) 2 SCC 175

61
should be some disapprobatory evidence and material to show

that the accused is incapable of being reformed or rehabilitated

in the society. The dictum was expressed in the following

words:

“74. It is clear from the aforesaid finding of the
High Court that there is no evidence to show that
the accused is incapable of being reformed or
rehabilitated in society and the High Court has
considered the same as a neutral circumstance. In
our view the High Court was clearly in error. The
very fact that the accused can be rehabilitated in
society and is capable of being reformed, since
the State has not given any evidence to the
contrary, is certainly a mitigating circumstance and
which the High Court has failed to take into
consideration. The High Court has also failed to
take into consideration that the appellant is not a
continuing threat to society in the absence of any
evidence to the contrary. Therefore, in paragraph
78 of the impugned judgment, the High Court, with
respect, has taken a very narrow and a myopic
view of the mitigating circumstances about the
appellant. The High Court has only considered that
the appellant is a first-time offender and he has a
family to look after. We are, therefore, constrained
to observe that the High Court’s view of mitigating
circumstance has been very truncated and narrow
in so far as the appellant is concerned.”

9. In an earlier decision in Santosh Kumar Satishbhushan

Bariyar v. State of Maharashtra6, it was observed that the

6 (2009) 6 SCC 498

62
‘rarest of rare’ dictum breathes life into the ‘special reasons’

which are mandated to be recorded under Section 354(3) of the

Cr.P.C. In this regard, referring to Bachan Singh (supra), the

Court had emphasised the aforesaid principles rest on a real

and abiding concern for the dignity of human life which

postulates resistance to the taking away of a life through the

instrumentality of laws, and that death ought not to be awarded

save in the ‘rarest of rare’ cases and when the alternative

option is incontrovertibly foreclosed.

10. The expression ‘rarest of rare’ literally means rarest even

in the rare, i.e. a rarest case of an extreme nature. The

expression and the choice of words, means that punishment

by death is an extremely narrow and confined rare exception.

The normal, if not an unexceptional rule, is punishment for life,

which rule can be trimmed and upended only when the award

of sentence for life is unquestionably foreclosed. Thus, capital

punishment is awarded and invoked only if the facts and

material produced by the prosecution disdainfully and fully

establish that the option of imprisonment for life will not be

63
suffice and is wholly disproportionate and therefore the case

belongs to the ‘rarest of rare’ category.

11. On the question of deterrent effect of punishment, in

Santosh Kumar (supra) reference was made to Swamy

Shraddananda @ Murali Manohar Mishra v. State of

Karnataka7 (Swamy Shraddananda-I) and some other studies

to observe that:

“164. The issue of deterrence has also been
discussed in the judgment of Swamy
Shraddananda – I (supra), thus:

“68. It is noteworthy to mention here the Law
Commission in its Report of 1967 took the view
that capital punishment acted as a deterrent to
crime. While it conceded that statistics did not
prove these so-called deterrent effects, it also said
that figures did not disprove them either.”

Most research on this issue shows that the
relationship between deterrence and severity of
punishment is complicated. It is not obvious how
deterrence relates to severity and certainty.
Furthermore criminal policy must be evidence-led
rather than based on intuitions, which research
around the world has shown too often to be wrong.

In the absence of any significant empirical
attention to this question by Indian criminologists,
we cannot assume that severity of punishment
correlates to deterrence to an extent which
justifies the restriction of the most fundamental
7 (2007) 12 SCC 288

64
human right through the imposition of the death
penalty. The goal of crime reduction can be
achieved by better police and prosecution service
to the same or at least to a great extent than by
the imposition of the death penalty.”

It was also observed that:

“72. We must also point out, in this context, that
there is no consensus in the Court on the use of
“social necessity” as a sole justification in death
punishment matters. The test which emanates
from Bachan Singh (supra) in clear terms is that
the courts must engage in an analysis of
aggravating and mitigating circumstances with an
open mind, relating both to crime and the criminal,
irrespective of the gravity or nature of crime under
consideration. A dispassionate analysis, on the
aforementioned counts, is a must. The courts
while adjudging on life and death must ensure that
rigor and fairness are given primacy over
sentiments and emotions.”

12. In Santosh Kumar (supra) reference was made to

Panchhi and others v. State of Uttar Pradesh8 and

Vashram Narshibhai Rajpara v. State of Gujarat9 to state that

the brutality of the manner in which the crime was committed

may not be the sole ground for judging whether the case is one

of the ‘rarest of rare’. Every murder is perceived brutal and for

murder to be treated as the ‘rarest of rare’ case, additional

8 (1998) 7 SCC 177
9 (2002) 9 SCC 168

65
factors required to be considered are the mitigating and

aggravating circumstances featuring around the murder, which

would include the intensity of bitterness that had prevailed and

the escalation of simmering thoughts into a thirst for revenge or

retaliation. Reference was made to Om Prakash v. State of

Haryana10 , to hold:

“76. In Om Prakash v. State of Haryana, K.T.
Thomas, J. deliberated on the apparent tension
between responding to “cry of the society” and
meeting the Bachan Singh dictum of balancing the
“mitigating and aggravating circumstances”. The
court was of the view that the sentencing court is
bound by Bachan Singh and not in specific terms
to the incoherent and fluid responses of society:

7. It is true that court must respond to the cry of
the society and to settle what would be a deterrent
punishment for an abominable crime. It is equally
true that a large number of criminals go
unpunished thereby increasing criminals in the
society and law losing its deterrent effect. It is also
a truism as observed in the case of State of M.P.

v. Shyamsunder Trivedi that the exaggerated
adherence to and insistence upon the
establishment of proof beyond every reasonable
doubt, by the prosecution, ignoring the ground
realities, the fact situation and the peculiar
circumstances of a given case often results in
miscarriage of justice and makes the justice
delivery system a suspect; in the ultimate analysis,
the society suffers and a criminal gets
encouraged. Sometimes it is stated that only rights
of the criminals are kept in mind, the victims are
10 (1999) 3 SCC 19

66
forgotten. Despite this it should be kept in mind
that while imposing the rarest of rare punishment,
i.e., death penalty, the court must balance the
mitigating and aggravating circumstances of the
crime and it would depend upon particular and
peculiar facts and circumstances of each case.”

13. Constitutional Bench in Union of India v. V. Sriharan

alias Murugan and Others11 had examined several

questions/issues. On interpreting Sections 53 and 45 IPC it

was held that the imprisonment of life means imprisonment till

the end of life of the convict. However, appropriate government

in exercise of power under Sections 432 and 433 Cr.P.C. can

grant remission in the form of commutation. Life convict can be

also validly granted remission etc. by the President and the

Governor of the State as provided under Articles 72 and 161 of

the Constitution. The majority judgment authored by Mohd.

Ibrahim Kalifulla, J. answered in affirmative the question

“whether a special category of sentence can be considered in

substitute to death penalty for imposing sentence for life, i.e.

‘entirety of life’,” which can be the full life term or a specified

term exceeding 14 years without remission under Sections 432

11 (2016) 7 SCC 191

67
and 433 Cr.P.C., observing that the earlier decision in Swamy

Shraddananda (2) v. State of Karnataka12 [Swamy

Shraddananda (2)], accepting the said view was a well

thought out one. The majority in V. Sriharan (supra) observed:

“68. If one were to judge the case of the said
appellant in the above background of details from
the standpoint of the victim’s side, it can be said
without any hesitation that one would have
unhesitatingly imposed the death sentence. That
may be called as the human reaction of anyone
who is affected by the conduct of the convict of
such a ghastly crime. That may even be called as
the reaction or reflection in the common man’s
point of view. But in an organised society where
the Rule of Law prevails, for every conduct of a
human being, right or wrong, there is a well-set
methodology followed based on time tested, well-

thought out principles of law either to reward or
punish anyone, which were crystallised from time
immemorial by taking into account very many
factors, such as the person concerned, his or her
past conduct, the background in which one was
brought up, the educational and knowledge base,
the surroundings in which one was brought up, the
societal background, the wherewithal, the
circumstances that prevailed at the time when any
act was committed or carried out whether there
was any pre-plan prevalent, whether it was an
individual action or personal action or happened at
the instance of anybody else or such action
happened to occur unknowingly, so on so forth. It
is for this reason, we find that the criminal law
jurisprudence was developed by setting forth very
many ingredients while describing the various
crimes, and by providing different kinds of
12 (2008) 13 SCC 767

68
punishment and even relating to such punishment
different degrees, in order to ensure that the
crimes alleged are befitting the nature and extent
of commission of such crimes and the
punishments to be imposed meets with the
requirement or the gravity of the crime committed.

69. Keeping the above perception of the Rule
of Law and the settled principle of criminal law
jurisprudence, this Court expressed its concern as
to in what manner even while let loose of the said
appellant of the capital punishment of death also
felt that any scope of the appellant being let out
after 14 years of imprisonment by applying the
concept of remission being granted would not
meet the ends of justice. With that view, this Court
expressed its well-thought out reasoning for
adopting a course whereby such heartless,
hardened, money-minded, lecherous, paid
assassins though are not meted out with the death
penalty are in any case allowed to live their life but
at the same time the common man and the
vulnerable lot are protected from their evil designs
and treacherous behaviour.…”

14. Judgment in Santosh Kumar (supra) under the heading

‘Equal Protection Clause’ refers to Swamy Shraddananda (2)

(supra) in which the Court had noted and recorded with

extraordinary candour the “arbitrariness prevailing in the capital

sentencing process” in the following words:

“48. …. Coupled with the deficiency of the
criminal justice system is the lack of consistency in
the sentencing process even by this Court. It is
noted above that Bachan Singh laid down the
principle of the rarest of rare cases. Machhi Singh,

69
for practical application crystallised the principle
into five definite categories of cases of murder and
in doing so also considerably enlarged the scope
for imposing death penalty. But the unfortunate
reality is that in later decisions neither the rarest of
rare cases principle nor the Machhi Singh
categories were followed uniformly and
consistently.

In Aloke Nath Dutta v. State of W.B. [(2007) 12
SCC 230 : (2008) 2 SCC (Cri) 264 : (2006) 13
Scale 467] Sinha, J. gave some very good
illustrations from a number of recent decisions in
which on similar facts this Court took contrary
views on giving death penalty to the convict (see
SCC pp. 279-87, paras 151-78 : Scale pp. 504-10,
paras 154-82). He finally observed (SCC para

158) that “courts in the matter of sentencing act
differently although the fact situation may appear
to be somewhat similar” and further “it is evident
that different Benches had taken different view in
the matter” (SCC para 168). Katju, J. in his order
passed in this appeal said that he did not agree
with the decision in Aloke Nath Dutta [(2007) 12
SCC 230 : (2008) 2 SCC (Cri) 264 : (2006) 13
Scale 467] in that it held that death sentence was
not to be awarded in a case of circumstantial
evidence. Katju, J. may be right that there cannot
be an absolute rule excluding death sentence in all
cases of circumstantial evidence (though in Aloke
Nath Dutta [(2007) 12 SCC 230 : (2008) 2 SCC
(Cri) 264 : (2006) 13 Scale 467] it is said
“normally” and not as an absolute rule). But there
is no denying the illustrations cited by Sinha, J.
which are a matter of fact.

50. The same point is made in far greater
detail in a report called “Lethal Lottery, The Death
Penalty in India” compiled jointly by Amnesty
International India and People’s Union for Civil
Liberties, Tamil Nadu Puducherry. The report is

70
based on the study of the Supreme Court
judgments in death penalty cases from 1950 to
2006. One of the main points made in the report
(see Chapters 2 to 4) is about the Court’s lack of
uniformity and consistency in awarding death
sentence.

51. The truth of the matter is that the question
of death penalty is not free from the subjective
element and the confirmation of death sentence or
its commutation by this Court depends a good
deal on the personal predilection of the judges
constituting the bench.

52. The inability of the Criminal Justice System
to deal with all major crimes equally effectively and
the want of uniformity in the sentencing process by
the Court lead to a marked imbalance in the end
results. On the one hand there appears a small
band of cases in which the murder convict is sent
to the gallows on confirmation of his death penalty
by this Court and on the other hand there is a
much wider area of cases in which the offender
committing murder of a similar or a far more
revolting kind is spared his life due to lack of
consistency by the Court in giving punishments or
worse the offender is allowed to slip away
unpunished on account of the deficiencies in the
Criminal Justice System. Thus the overall larger
picture gets asymmetric and lop-sided and
presents a poor reflection of the system of criminal
administration of justice. This situation is matter of
concern for this Court and needs to be remedied.

53. These are some of the larger issues that
make us feel reluctant in confirming the death
sentence of the appellant.”

71

15. In V. Sriharan (supra), the majority judgment referring to

the above criticism, while fully endorsing the anguish, had

observed that the situation on the lack of uniformity and

inconsistency in awarding death sentence and its ill effects is of

serious concern. Thereafter it was noted that this Court in

several cases had imposed imprisonment till life or for a fixed

term exceeding 14 years without remission as a middle path

where life sentence means a person’s life span in incarceration,

rather than get nudged into endorsing the death penalty. The

Court would not violate the law by giving the aforesaid direction

by imposing life imprisonment with the stipulation by restraint or

limit to grant of remission by way of statutory executive action.

16. Thus, the majority judgment approved the ratio in Swamy

Shraddananda (2) (supra) that there can be special category

of sentence where the Court could specify that the life sentence

would exceed 14 years and would be beyond application for

remission. Earlier judgment of this Court in Sangeet and

Another v. State of Haryana13 that the Court cannot proscribe

13 (2013) 2 SCC 452

72
power of remission of the appropriate Government by awarding

sentences of 20-25 years, was over-ruled. The majority,

however clarified, that such directions in the judgment would

not in any manner restrict the right to claim remission,

commutation, clemency etc. as provided under Article 72 and

Article 161 of the Constitution.

17. A three judges bench in their decision dated 14 th February

2019 in Review Petition (Criminal) No. 308/2011 in Criminal

Appeal No. 379/2009 in M.D. Mannan @ Abdul Mannan v.

State of Bihar, while allowing the Review Petition, commuted

the death sentence with the direction that considering the

heinous nature of the crime committed, the petitioner therein

must undergo imprisonment for life, that is till his natural death

and no remission of sentence would be granted. In Md.

Mannan (supra) after referring to several cases including

Dagdu and Others v. State of Maharashtra14 and Mohinder

Singh v. State of Punjab15, on the doctrine of ‘rarest of rare’

and its application, it was held:

14 (1977) 3 SCC 68
15 (2013) 3 SCC 294

73
“22. The doctrine of ‘rarest of rare’ confines two
aspects and when both the aspects are satisfied
only then the death penalty can be imposed.
Firstly, the case must clearly fall within the ambit of
‘rarest of rare’ and secondly, when the alternative
option is unquestionably foreclosed. Bachan Singh
suggested selection of death punishment as the
penalty of last resort when, alternative punishment
of life imprisonment will be futile and serves no
purpose.”

18. In Santosh Kumar (supra), reference was made to the

48th Report of the Law Commission and the importance of

information relating to the characteristics and socio-economic

background of the offender which should be collected and

brought to the notice of the Court.

19. In Mulla v. State of Uttar Pradesh16, it was held that the

socio-economic factors relating to the crime and the criminal

should be taken into consideration, in the following words:

“80. Another factor which unfortunately has been
left out in much judicial decision-making in
sentencing is the social-economic factors leading
to crime. We at no stage suggest that economic
depravity justify moral depravity, but we certainly
recognize that in the real world, such factors may
lead a person to crime. The 48th Report of the
Law Commission also reflected this concern.

Therefore, we believe, socio-economic factors

16 (2010) 3 SCC 508

74
might not dilute guilt, but they may amount to
mitigating factor i.e. the ability of the guilty to
reform. It may not be misplaced to note that a
criminal who commits crimes due to his economic
backwardness is most likely to reform. This Court
on many previous occasions has held that his
ability to reform amounts to a mitigating factor in
cases of death penalty.

81. In the present case, the convicts belong to an
extremely poor background. With lack of
knowledge, on the background of the appellants,
we may not be certain as to their past, but one
thing which is clear to us is that they have
committed these heinous crimes for want of
money. Though we are shocked by their deeds,
we find no reason why they cannot be reformed
over a period of time.”

The socio-economic characteristics of the criminal

assume relevancy in light of administration of criminal justice

and particularly of capital punishment, with regard to which the

Law Commission, in its 262nd Report, had made the following

observations:

“7.1.6 Numerous committees reports as well as
judgments of the Supreme Court have recognized
that the administration of criminal justice in the
country is in deep crisis. Lack of resources,
outdated modes of investigation, over-stretched
police force, ineffective prosecution, and poor legal
aid are some of the problems besetting the
system. Death penalty operates within this context

75
and therefore suffers from the same structural and
systemic impediments. The administration of
capital punishment thus remains fallible and
vulnerable to misapplication. The vagaries of the
system also operate disproportionately against the
socially and economically marginalized who may
lack the resources to effectively advocate their
rights within an adversarial criminal justice
system.”

20. When we come to the facts of the present case, one has

to but agree that the offence or the crime was brutal, ruthless

and cruel as two innocent children aged 7 to 10 lost their lives,

and there is substantial medical and other evidence to show

that the young girl was mercilessly sexually abused and raped

by the appellant and Mohanakrishnan (since deceased).

Thereafter the children were administered poison and thrown

into a canal to die. The pain and trauma suffered by the small

children who were not at fault and the agony of the parents and

grandmother are immense, incalculable and would remain

forever. The punishment must be severe. Yet to award death

penalty we must examine and answer the second question, i.e.

balance out the aggravating circumstances by giving weightage

to the mitigating circumstances and decide whether

76
punishment of life imprisonment is foreclosed. Then and then

alone the case would fall under the ‘rarest of rare’ category.

While doing so, we should account for the majority dictum in V.

Sriharan (supra) that where life imprisonment is considered to

be disproportionate or inadequate, then the Court may direct

sentence for life imprisonment, without any right to remission

i.e. imprisonment for the entire course of life with no recourse

to remission, subject to the power that may be exercised under

Article 72 and 161 of the Constitution.

21. In Md. Mannan @ Abdul Mannan (supra) there is a

detailed reference to case law on whether death penalty should

be awarded in cases where prosecution had succeeded in

proving the guilt beyond a reasonable doubt by leading

circumstantial evidence. Reference was made to the judgment

of this Court in Ram Deo Prasad v. State of Bihar17 which had

made reference to earlier judgments in Santosh Kumar

(supra) and Ramesh and Others (supra) to observe that

quality of evidence was also a relevant factor in considering the

17 (2013) 7 SCC 725

77
question of death sentence. Judgment under challenge before

us has quoted from The Collector of Customs, Madras and

Others v. D. Bhoormall18 to following effect: –

“30. ……. One of them is that the prosecution or
the Department is not required to prove its case
with mathematical precision to a demonstrable
degree; for, in all human affairs absolute certainty
is a myth, and-as Prof. Brett felicitously puts it “all
exactness is a fake”. El Dorado of absolute proof
being unattainable, the law accepts for it
probability as a working substitute in this work-a-
day world. The law does not require the
prosecution to prove the impossible. All that it
requires is the establishment of such a degree of
probability that a prudent man may, on its basis,
believe in the existence of the fact in issue. Thus,
legal proof is not necessarily perfect proof; often it
is nothing more than a prudent man’s estimate as
to the probabilities of the case.”

22. In the present case the principle applicable to cases

based on circumstantial evidence is not required to be

examined and answered, but I would like to make some

comments on the evidence that should be excluded. This would

reveal the true importance and significance of the voluntary

confession made by the appellant.

18 (1974) 2 SCC 544

78

23. On the factual matrix of the present case, the High Court

had discarded and did not rely upon the testimonies of Kamala

Bai (PW-9), Vijayranganathan (PW-12), C. Manikandan (PW-

13), Jayakumar (PW-14) and Afsal (PW-16) (I have some

reservation on the High Court disregarding and not taking into

consideration the testimony of Kamala Bai (PW-9),

grandmother of the victims. However, for the purpose of the

present judgment I need not go into the said aspect as her

deposition would not directly implicate the appellant before us –

Manoharan). We have also not accepted R. Sounderrajan’s

(PW-24) version that he had seen Appellant-Manoharan and

Mohanakrishnan (since deceased) with the two children at

about 3 p.m. on 29.10.2010. The testimony of R. Sounderrajan

(PW-24) to this extent as a chance witness is debatable and

questionable. R. Sounderrajan (PW-24) also claims, and to this

extent we have no doubt, that R. Sounderrajan (PW-24) had

seen a school bag floating in the nearby canal (and another

bag in the vicinity) which he took out and thereafter had handed

over the bags to Chinnaswamy (PW-22) who had then

79
telephoned the school principal Anthony Raj (PW-16). Anthony

Raj (PW-16) had then informed Chinnaswamy (PW-22) that the

two children, to whom the school bags belonged, were missing.

R. Sounderrajan (PW-24) did not tell Chinnaswamy (PW-22)

and neither was Anthony Raj (PW-16) informed and told about

the chance meeting between R. Sounderrajan (PW-24) and

Appellant-Manoharan and Mohanakrishnan (since deceased)

at about 3:00 p.m. on 29.10.2010 and the conversation

amongst the three, in which the appellant and Mohanakrishnan

(since deceased) had stated that they were taking the children

for a picnic to Gurumurthi Hill.

24. I have some reservation on whether the hair was found

attached or inside the pink underwear (Exhibit M.O-1) found in

the van by Saravanan (PW-43), Assistant Director of the Mobile

Unit of the Tamil Nadu Forensic Science Department. The

Mahazar (Exhibit P-5) prepared by him and the Investigating

Officer Kanagasabapathy (PW-47) does not specifically state

that the hair found was stuck on the underwear. On the other

80
hand, it refers to “hair gathered” as is apparent from column 5

and 7 of the Mahazar (Exhibit P-5) which reads: –

“From whom was it seized
Produced from the Maruti Van TN37 BF-2796 after
search by Forensic Science Expert, which car was
used by Accused Mohanakrishnan to kidnap
Muskan and Rithik”

“Details of property seized
With words SBT Kida Wear 75cms” printed pink
Jatti with stains and hair gathered and entrusted
after keeping inside Angel Form Brassieres card
board box.”

25. However, in the report (Exhibit P-38) prepared by PW-43

which was then sent to the Investigating Officer (PW-47), for

subsequent forensic examination, the underwear was found

stuck with hair. Exhibit P-38 records: –

“a) A Pink coloured panty printed letters “SBT Kids
wear” “75cms” with pale brownish starchy like
stains with small hair pieces on its inner surface
was found beneath the back seat of the vehicle
was identified, collected. The place where the hair
pieces were seen were marked and pasted with
cellphone tape in order to safety transport the vital
cue materials for comprehensive Forensic
analysis.”

26. Radhika Balachandran (PW-48) Deputy Director,

Regional Forensic Science Laboratory, Coimbatore has

81
deposed that 5 strands of hair were sent for forensic

examination. However, only two strands of hair were sent by

PW-48 for DNA comparison to Lakshmi Balasubramanian (PW-

49), Deputy Director, DNA Division, Forensic Science

Department, Chennai. These two hairs strands, as per the DNA

report were of the Appellant-Manoharan.

27. Radhika Balachandran (PW-48) in her report (Exhibit-P

48) has opined that the hair strands were human pubic hair.

However, in her cross-examination before the High Court (this

witness was not examined in the trial court and the report was

taken on record under Section 293 of the Cr.P.C.) in response

to Court Question, PW-48 had stated:

“Court Question: What did you observe in the five
strands of hair found in item [8]?

A: They all were dark brown in colour, medullated
four were with shrunken root of which only two had
thin layer of tissue and the ends of the strands
were found tapering.

Court Question: Can pubic hairs fall of with root
during rubbing?

A: Pubic hairs can fall of on rubbing if they are in
the stag being shrunk and falling of naturally.

Court Question: Pubic hairs can also plucked with
roots?

82

A: Yes.”

28. Modi’s Textbook of Medical Jurisprudence and Toxicology

26th Edition at page 427 in table 13 has referred to

characteristics of human hair from various body parts. Pubic

hair is between 1-5 cm often curly and kinky, large by variation

along length, round or frayed relatively broad and irregular. Hair

in the Axilla region is also 1-5 cm broad, round and frayed and

is often circular. Further scalp hair have tampered tips, whereas

pubic hair have round or frayed tips. As per PW-48, the ends of

the strands were found tampered.

29. I would accept the prosecution case that hair belonging to

Appellant-Manoharan was found in the van but the forensic

report that this was the pubic hair of the Appellant-Manoharan

would be debatable. It would be also debatable whether the

hair was found stuck/attached on the underwear (M.O. -1)

which belonged to the deceased girl. Inspite of the aforesaid

reservation, I have no hesitation in accepting that the

prosecution case has been proved beyond doubt and for this

83
would also rely on the confessional statement made by the

appellant before the Magistrate under Section 164 Cr.P.C. The

contention that the confession should not be relied upon has

been rightly rejected. In the avowal recorded on 20 th November

2010, twenty days after the arrest of the appellant on 30 th

October 2010, the appellant was candid and forthcoming in

accepting his friendship with Mohanakrishnan (since

deceased), and that the girl was subjected to sexual assault

and was raped by Mohanakrishnan (since deceased) on the

rear seat of the van by tying her hands. The appellant, realising

that the boy would be unnerved and fret, had taken him away.

On return, the appellant too had sexually assaulted the

helpless girl and committed rape. Subsequently, he had bought

milk from the bakery and the two children were given milk

mixed with the cow dung powder that had poison. Concerned

that they would be exposed and caught, the appellant and

Mohanakrishnan (since deceased) had thrown the children in

the canal, where they got drowned and died.

84

30. Confession of an accused as to the offence made on oath

before the Magistrate under Section 164 Cr.P.C. is uncommon

and ‘rare’. Both the trial court and the High Court have referred

to the confession, but have not considered its implication and

effect on the question of punishment as a mitigating factor.

31. The trial court in its judgment, on the question of

sentence, has recorded as under:

“With regard to question of sentence as it required
section 235(2) Cr.P.C the accused simply stated
that nothing is to say about the sentence to be
awarded. Even after asking the accused
repeatedly by explaining that there is a possibility
for awarding maximum punishment prescribed in
law unless the court convinced with adequate
reasons. Then also the accused did not respond.

However the learned counsel appearing for the
accused advanced her argument by stating how
for the rulings relied by prosecution is not
applicable to the case on our hand and further
invites this court that the accused Manoharan is
aged about 25 hears, having aged parents and a
family and he is the 1st offender prayed for
leniency.”

The trial court also observed that, when the appellant was

produced before the court on 29th October, 2012 and had been

told about the charge proved against him and on being asked

85
whether he had understood the consequences, the appellant

had stated that he had nothing to say.

32. Judgment in Md. Mannan @ Abdul Mannan (supra)

highlights the importance of Section 235(2) of Cr.P.C., which

postulates that if the accused is convicted, the court must

proceed in accordance with the provisions of Section 360 to

hear the accused on the question of sentence and then pass

the sentence on the accused in accordance with law. This

provision was earlier examined in Santa Singh v. State of

Punjab19 wherein it was observed that hearing on the question

of sentence should not be rendered an idle formality by

confining the hearing merely to earlier submissions without

giving an opportunity to the parties, the State and the accused,

to produce material with regard to various factors on the

question of sentence.

33. In the present case, confession was not made at the

behest of the police/authorities or on inducement by the

prosecution to enable the prosecution to prove the case against

the appellant. Rather, we have already rejected the contention
19 (1976) 4 SCC 190

86
that the confession was extracted under compulsion,

inducement, threat or promise and therefore inadmissible.

Confession by the appellant was given voluntarily and after due

deliberation on 20th November, 2010, as the appellant was

given a day’s time to think and ponder when he had appeared

before the Magistrate on 19th November, 2010.

34. Confession of guilt is an acceptance of one’s sin. Though

psychologists are not clear as to how precisely guilt operates to

produce confession, one possibility is that it tends to cure self-

hostility. Pangs of conscience following the committal of an

offence would normally have a role to play when the person

confesses, for if a person does not feel the guilt, he would

normally not confess to an act which is regarded as evil. By

confessing, as an act of penance, a person may seek and beg

for forgiveness. However, to make a confession can be a

degrading and humiliating experience, yet the psychoanalytic

models suggest that this is the first step back into society. (See

‘The Value of Confession and Forgiveness’, Carl Jung).

87

35. In this case, it could be argued that the appellant was

driven by the hope that an earlier admission of guilt may lead to

a lighter sentence and that was one of the factors that had

prompted him to make the confession. However, to confess to

such acts of crime and misdeeds before all and everyone,

including the Magistrate could only mean that the appellant had

felt shame, remorse and alienation from the society. It is

probable, among other reasons, that the appellant had

confessed his guilt in order to seek forgiveness. Otherwise, I do

not see any cause for him to appear before the Magistrate and

on oath, disclose in detail and accept his direct involvement in

the crime. In Bishnu Prasad Sinha (supra), this Court referred

to the confession made by the appellant before the Judicial

Magistrate and also before Sessions Judge in a statement

under Section 313 Cr.P.C. and observed that this would show

repentance.

36. Confession of crime has been treated as a mitigating

circumstance by this Court in Gurdeep Singh alias Deep v.

88
State (Delhi Admn.)20, a case under the Terrorist and

Disruptive Activities (Prevention) Act, 1987 to observe: –

“25. Before concluding we would like to record our
conscientious feeling for the consideration by the
legislature, if it deems fit and proper. Punishment
to an accused in criminal jurisprudence is not
merely to punish the wrongdoer but also to strike a
warning to those who are in the same sphere of
crime or to those intending to join in such crime.
This punishment is also to reform such
wrongdoers not to commit such offence in future.

The long procedure and the arduous journey of
the prosecution to find the whole truth is achieved
sometimes by turning on the accused as
approvers. This is by giving incentive to an
accused to speak the truth without fear of
conviction. Now turning to the confessional
statement, since it comes from the core of the
heart through repentance, where such accused is
even ready to undertake the consequential
punishment under the law, it is this area which
needs some encouragement to such an accused
through some respite may be by reducing the
period of punishment, such incentive would
transform more such incoming accused to confess
and speak the truth. This may help to transform an
accused, to reach the truth and bring to an end
successfully the prosecution of the case.”

The above paragraph was quoted in Mohd. Maqbool

Tantray v. State of Jammu and Kashmir21, which too was a

case under the Terrorist and Disruptive Activities (Prevention)

20 (2000) 1 SCC 498
21 (2010) 12 SCC 421

89
Act, 1987 wherein the sentence was reduced from 14 years to

the period already undergone on consideration of the

confession.

37. It is correct that the appellant after nearly two years had

written the letter dated 25th July 2012 to the Additional Sessions

Judge to be read as his statement under Section 313 Cr.P.C.,

retracting the last part of his confession as to his involvement in

sexual assault, rape and throwing the children in the canal.

This letter does, however, substantially reiterate and accept the

first portion of the confession, including his presence in the van,

but states that the appellant had not raped the girl and had

remained standing. It was stated that thereafter the appellant

was dropped by Mohanakrishnan (since deceased) near a

bridge, who had driven off in the van with the children. Further,

the appellant’s statement under Section 164 Cr.P.C., as

recorded by the Magistrate, was incorrect and the police had

shown and played a video recording to the Magistrate.

90

38. Appellant’s partial retraction has been rightly disbelieved

for good reasons, including the statement of the appellant

under Section 313 Cr.P.C. in the Court accepting and admitting

that his confession was recorded by the Magistrate. The

retraction by itself, I would observe, should not be treated as

absence of remorse or repentance, albeit an afterthought or on

advice propelled by fear that the appellant in view of his

admission may face the gallows, and that the earlier confession

made seeking forgiveness would be the cause of his death. A

thought of doubt and attempt to retract had surfaced on

account of belief that the sense of remorse, repentance and

forgiveness would not be appreciated and given due regard,

cannot be ruled out. Benefit in this regard must go to the

appellant.

39. The other mitigating factors in favour of the appellant are

his young age, he was 23 years of age at the time of

occurrence and he belongs to a poor family. He has aged

parents and is a first-time offender as recorded in the

91
judgment/order of the trial court. Further, the appellant

Manoharan was not initially involved in the abduction and

kidnapping of the children. He was not the mastermind.

Mohanakrishnan (since deceased) had thought, conceived and

had single-handedly executed the plan to abduct the children.

Appellant did join him thereafter and was with Mohanakrishnan

(since deceased). Subsequently the devil in Mohanakrishnan

(since deceased) took over and he sexually assaulted and

raped the small girl, while the appellant kept quiet. Later the

appellant too sexually assaulted and committed rape.

Thereupon, poison was administered to the children before

throwing them into the canal. The offence committed was

heinous and deplorable.

40. I would, therefore, uphold and maintain conviction of the

appellant under Sections 302, 376(2)(f) and (g) and 201 IPC

and the sentences awarded under Sections 376(2)(f) and (g)

and 201 IPC. To this extent the appeal is dismissed. In view of

the aforesaid discussion and on balancing aggravating and

mitigating circumstances, in my opinion, the present case does

92
not fall under the category of ‘rarest of rare’ case i.e. there is no

alternative but to impose death sentence. It would fall within

the special category of cases, where the appellant should be

directed to suffer sentence for life i.e. till his natural death,

without remission/commutation under Sections 432 and 433

Cr.P.C. To this extent I would allow the appeal.

NEW DELHI; ………………………………..J.
AUGUST 01, 2019. (SANJIV KHANNA)

93

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