Bombay High Court
The State Of Maha., Thr. P.S.O., ... vs Shatrughna S/O Baban Meshram on 12 October, 2015
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL CONFIRMATION CASE NO. 01 OF 2015
The State of Maharashtra,
through Police Station Officer,
Police Station, Parwa, Taluka
Ghatanji, District Yavatmal. ... APPELLANT
VERSUS
Shatrughna Baban Meshram,
aged 21 years, Occupation
Labour, R/o Zatala, Talukaig
Ghatanji, District Yavatmal. ... RESPONDENT
....
Smt. Bharti Dangre, Public Prosecutor for the appellant/State.
Shri T.G. Bansod, Advocate for the respondent.
....
WITH
CRIMINAL APPEAL NO. 321 OF 2015
Shatrughna Baban Meshram,
aged 21 years, Occupation
Labour, R/o Zatala, Taluka
Ghatanji, District Yavatmal.
(In Central Jail, Nagpur). ... APPELLANT/ACCUSED
VERSUS
The State of Maharashtra,
through Police Station Officer,
Police Station, Parwa, Taluka
Ghatanji, District Yavatmal. ... RESPONDENT
....
Shri T.G. Bansod, Advocate for the appellant/accused.
Smt. Bharti Dangre, Public Prosecutor with Shri M.K. Pathan, Additional
Public Prosecutor for the respondent/State.
....
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CORAM : B.R. GAVAI AND
PRASANNA B. VARALE, JJ.
DATE OF RESERVING THE JUDGMENT : 29TH SEPTEMBER, 2015.
DATE OF PRONOUNCING THE JUDGMENT : 12TH OCTOBER, 2015.
JUDGMENT : (Per Prasanna B. Varale, J.)
The Confirmation Case No. 01 of 2015 arises out of the reference
by the learned Additional Sessions Judge, Yavatmal in Special Case (POCSO
Act) No. 11 of 2013 for confirmation of the death sentence awarded to
original accused.
2. The appellant/original accused has also preferred the Criminal
Appeal No. 321 of 2015 challenging the judgment and order dated 14 th
August, 2015 thereby convicting the appellant for the offences punishable
under Section 302 of the Indian Penal Code and sentencing to death, also
convicting for the offence punishable under Section 376-A of the Indian
Penal Code and sentencing to death, convicting for the offence punishable
under Section 6 of the Protection of Children from Sexual Offences Act, 2012
(POCSO) and sentencing to suffer Rigorous Imprisonment for life and to pay
fine of Rs.2,000/-, in default, to suffer further Rigorous Imprisonment for
three months.
3. On perusal of the material placed on record, the prosecution case
emerges as follows -
On the unfortunate day i.e. on 11th February, 2013, the victim who
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was a child of two years of age, was in the lap of her grandfather. The
appellant (original accused) is the son of the cousin brother of the
grandfather of the victim namely Pundlik. The accused approached the
house of Pundlik at about 07:30 p.m. He told the grandfather that the father
of the victim is back from his work and he has asked him (accused) to bring
the victim. The grandfather of the victim was not inclined to allow the child
to be taken by the accused on the ground that the father of the victim is yet to
come from work. In spite of such resistance, the accused took away the
victim with him. The father of the victim had been to attend some religious
function in the temple namely Datta Mandir. On his return, when he found
that the child was not in the house, he made an enquiry with the grandfather
i.e. Pundlik about the child. Pundlik informed that the accused took away
the child from his house. The father of the victim Maroti, grandfather
Pundlik and one Shrawan Meshram proceeded for the search of the child in
the village. They found the victim child was lying at a partially constructed
building of Anganwadi. The accused was also lying on the spot. Maroti,
Pundlik and Shrawan found that the victim had received severe injuries
including bites on lips and cheeks and swelling on her private part. They
immediately rushed to the private medical officer Dr. Jafar at Kurli by
arranging an auto rickshaw. Dr. Jafar declared that the victim was brought
dead. The victim was then brought back to village Zatala. In the meantime,
an information was received in the Police Station and API Shri Vanjari along
with his other staff members rushed to the village Zatala. He saw the dead
body of the victim and took it to Sub District Hospital, Ghatanji. Maroti,
father of the victim lodged a report at Police Station, Parwa and on his report,
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Crime No. 11/2013 was registered. As the investigating agency was set in
motion, Shri Vanjari carried out necessary formalities of the investigation
process, such as, effecting the arrest of the accused on the next day i.e. on
12th February, 2013, attending the spot of the incident and drawing the spot
panchnama. The clothes worn by the child victim were seized from the spot
along with the pieces of flesh and chappal of the accused as well earth from
the spot. Accordingly, seizure panchnama was drawn. An inquest
panchnama of the dead body was also drawn. The dead body was referred to
postmortem and the notes of autopsy surgeon were collected. The apparels
worn by the accused were also seized, the samples of blood of the victim
were also collected and viscera and the other material were forwarded to the
Chemical Analyzer. A request was also made to the Naib Tahsildar to
prepare the map of the spot. The Investigating Officer also recorded the
statements of the witnesses.
4. On completion of the investigation process, charge-sheet came to
be filed in the Court of learned Judicial Magistrate First Class, Ghatanji.
Since the case was exclusively triable by the learned Sessions Judge, the same
committed to the learned Additional Sessions Judge, Yavatmal. The accused
was charged for the offence punishable under Sections 376(1)(2)(f)(m), 376-
A, 302 of the Indian Penal Code and under Section 6 of the Protection of
Children from Sexual Offences Act, 2012. The accused pleaded not guilty and
claimed to be tried. His defence was of two folds; one of total denial and
other was of false implication and the defence theory put up was that the
father of the victim himself killed the victim so as to please the Goddess. In
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short, a case of human sacrifice was put up by the accused as defence. The
prosecution, in its support, examined 13 witnesses. The learned Additional
Sessions Judge, Yavatmal, on appreciation of the evidence, came to the
conclusion that the prosecution was successful in proving the incriminating
circumstances and also successful in establishing chain of proved
circumstances lending to no other conclusion than the guilt of the accused.
The learned Sessions Judge thus found that the accused is guilty of the
offences charged against him and further found that the case being a brutal
rape and murder of helpless minor victim child, the same falls in the category
of "rarest of rare" case warranting imposition of death sentence of the
offence punishable under Sections 376-A and 302 of the Indian Penal Code.
Since the death penalty was imposed, the learned trial Judge preferred the
matter to this Court for confirmation of the said sentence. The appellant also
assailed the said finding by way of an appeal assailing the order of
conviction. Both, Confirmation Case and the Appeal, are heard and decided
by us together.
5. Smt. Bharti Dangre, the learned Public Prosecutor, in support of
the judgment and order passed by the learned Additional Sessions Judge,
Yavatmal, submits that the learned Sessions Judge appreciated the oral
evidence as well as the scientific evidence in its proper perspective and
arrived at a just and proper conclusion. She further submits that considering
the peculiar facts, such as the victim being a minor child and hardly two
years of age, subjected to a brutal sexual exploitation resulting in death of the
child and the accused being the maternal uncle of the child, this is a fit case
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where no lesser punishment than the death penalty can be awarded to the
appellant/accused. The learned PP also relies on the various judgments of
the Apex Court as well as this Court in support of her submission.
6. Per contra, Shri Bansod, the learned Counsel for the respondent
(original accused) submits that the learned Sessions Judge utterly failed to
appreciate the evidence and was swayed away on the superficial
circumstances, such as the victim was a child. The learned Counsel further
submits that as the case is based on the circumstances, it was the first and
foremost duty of the prosecution to establish each and every circumstance
with clinching evidence against the accused. Shri Bansod also submits that
there are many missing links in the evidence brought by the prosecution. He
further submits that the learned Sessions Judge also failed to consider the
defence put up by the appellant/accused. The learned Counsel for the
appellant/accused then submits that assuming but not admitting that there
is some evidence against the appellant/accused, the same is not sufficient
enough to award a capital punishment to the appellant/accused. Shri
Bansod then submits that the appellant/accused was in his prime youth
when the unfortunate incident took place and it is alleged that the
appellant/accused is the author of the said crime. Considering these facts,
an opportunity ought to have been given to the appellant/accused to
rehabilitate and reform him in his life. In stead of adopting such an
approach, the learned Sessions Judge awarded the death penalty to the
appellant/accused. Thus, it is an alternative submission of the learned
Counsel for the appellant/accused that the appellant/accused be awarded a
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lesser punishment if his plea of acquittal is not accepted by this Court.
7. With the assistance of the learned Counsel, we have gone through
the material placed on record. As stated above, the prosecution has
examined 13 witnesses. For better appreciation, we would classify these
witnesses, such as the witnesses who support the prosecution case of the
accused and the deceased last seen together and the dead body of the
deceased being found seen thereafter, the panch witnesses, the witnesses on
scientific aspects and the police personnel carrying out various formalities of
the investigation as well the Investigating Officer.
8. In the first category of witnesses, PW-1 Maroti Pendor, father of
the victim, PW-2 Pundlik Masram, grandfather of the victim and PW-9
Chandrakant Bijapwar, owner of grocery shop would find their place. PW-3
Ravindra Masram and PW-4 Raju Dhadewar are the panch witnesses on
various panchnamas, such as spot panchnama, seizure of the clothes of the
victim, effecting arrest of the accused, seizure of the clothes of the accused,
seizure of viscera etc. PW-5 Ganesh Ghose, PW-8 Ramesh Yedme and PW-11
Prakash Uddhaorao Kshirsagar are the police personnel who took part in the
process of investigation, such as carrier of dead body, carrier of muddemal
property etc. PW-12 Ramesh Mendhe is the Naib Tahsildar who prepared
the map of the spot. PW-13 Panjab Vanjari, the API and is the Investigating
Officer. PW-6 Dr. Jafar and PW-7 Dr. Lingawar are the Medical Officers who
are on the scientific aspects such as medical examination of the victim and
medical examination of the accused. PW-10 is Dr. Gadge and through this
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witness, postmortem notes are proved.
9. Firstly, we would deal with PW-2 Pundlik, grandfather of the
victim child. PW-2 Pundlik states that PW-1 Maroti is his son-in-law;
whereas Vaishali is his daughter. He further states that the couple was
initially residing at a place Tekadi-Rampur, District Adilabad and four
months prior to the incident, they shifted to Zatala wherein PW-2 and his
family were residing. The couple started residing near the house of PW-2
Pundlik and was doing labour work. He further states that the victim
deceased Srushti was the daughter of PW-1 Maroti and Vaishali; whereas the
accused is the son of his cousin brother. He then states that on 11th February,
2013 at about 07:30 p.m., both the grand daughters namely Srushti and
Drushti were in his lap. The accused came there and informed that the
father of Srushti had come from work and asked him to bring Srushti. PW-2
Pundlik also states that in spite of his resistance on account that the father of
Srushti was yet to return back from his work, the accused paid no heed and
took away Srushti. He further states that after some time, he along with his
wife went to the house of PW-1 Maroti and asked as to whether Srushti was
brought to him by the accused. PW-1 Maroti replied in negative. Therefore,
Pundlik, PW-1 Maroti and one Shrawan took search of Srushti. When they
were on their way to water tank, one Vikas Masram informed them that he
saw accused with Srushti going towards Anganwadi. On receiving this
information, Pundlik, Maroti and Shrawan proceeded to the site of
construction of the Anganwadi and on reaching there, they found Srushti
and accused were lying in the premises of Anganwadi. He then states that
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the jeans pant of Srushti was lying aside; whereas T-shirt was on her person.
He further states that they found Surshti had sustained biting wounds on her
lips, cheeks, chest and hip and also found that there was bleeding from the
private part of Srushti. He also states that they immediately took Surshti to
their house and thereafter immediately she was taken to one Dr. Jafar of
village Kurli. Dr. Jafar declared her dead. Then they came back to their
house. The police personnel also reached their house and took the dead
body of Srushti to Ghatanji. Pundlik identified the accused who was present
in the Court. PW-2 Pundlik further states about drawing inquest panchnama
in his presence and another panch Arvind Sidam. He then states that on 13th
February, 2013, his statement was recorded by the police as well as on 08th
March, 2013 in the Court.
10. This witness was subjected to cross-examination. An attempt
was made to suggest that the witness is deposing false and also an attempt
was made to suggest that the victim Srushti was killed by him for getting
certain benefit as human sacrifice to please the Goddess. The witness has
flatly denied this suggestion. Though certain omissions were brought on
record, these omissions are not sufficient enough to discredit the witness or
falsify the version of this witness on the material aspect i.e. the accused took
away the victim in spite of his resistance and within a short span of time, the
victim found at a place and she was subjected to a violent sexual exploitation
and the accused was lying on the spot. Perusal of the inquest panchnama
shows that there were bite marks on the cheeks, lips, chest and on the
buttock.
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11. PW-1 Maroti is the father of the victim. Maroti states that the
victim child Srushti was his daughter and she was of two years of age. He
deposes that he was residing in a house near the house of his father-in-law
PW-2 Pundlik and on 11th February, 2013, there was a programme of
Mahaprasad in Datta Mandir and he had gone to the temple at about 07:00
p.m. and came back about 07:30 p.m. He further states that on finding that
Srushti was not in a house, he made enquiry with the father-in-law Pundlik
and he told that the accused took away Srushti to his house. PW-1 further
states that as the accused had not brought Srushti to him, a search was taken
in the village by himself, his father-in-law and one Shrawan. Then he states
that he saw his daughter Srushti lying on the spot i.e. a partially constructed
building of Anganwadi and the accused was also lying there and the pant of
the child victim was not on her person and the same was lying aside. He
further states that it was a jeans pant of blue colour and there were wounds
of bites on the lips and cheeks of his daughter and swelling on her private
part. He also states that he took the daughter from the spot to the house and
thereafter immediately by arranging an auto rickshaw took her to private
doctor at village Kurli. After examining his daughter, Dr. Jafar declared her
dead. He brought back the dead body of his daughter to his house. PW-1
Maroti further states that by approaching Parwa Police Station, he lodged the
report. On his oral report, offence was registered and a printed FIR was
prepared and the same bears his signature. He also states about showing the
spot to the police personnel, conducting the postmortem and thereafter
handing over the dead body to him by the police. He then states that his
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statement was recorded on 13th February, 2013 and he identified the jeans
pant (Article-1) and T-shirt (Article-2). He also identified the accused was
present in the Court.
12. This witness was also subjected to a detailed cross-examination.
Suggestions were given to this witness that the spot namely the said
Anganwadi was surrounded by various houses and it was in the middle of the
village. A suggestion was also given to this witness that he along with his
father-in-law killed his daughter as human sacrifice to please the Goddess
and the accused on coming to know this fact, threatened them to lodge
report against them. It was also suggested that to save themselves, PW-1
Maroti lodged a false report against the accused and he was beaten by PW-1
Maroti and others. These suggestions are flatly denied by the witness.
Certain omissions were brought on record in respect of beating of the
accused by Shrawan, Govardhan and Vikas.
13. Perusal of the version of this witness who was subjected to
detailed cross-examination, shows that this witness was not at all shattered
and stood firm on material aspect such as receiving an information from PW-
2 Pundlik that the accused took away the child Srushti and then finding the
child lying on the spot. He also stood firm on the aspect of reaching the spot,
finding that the jeans pant of the victim was not on her person but was lying
aside and the accused was also lying there and marks of violence on the body
of the child victim.
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14. PW-9 Chandrakant Bijapwar, was sought to be examined on the
aspect of the accused visiting his shop on 11th February, 2013 along with
Srushti and purchasing biscuits and chiwda, however this witness turned
hostile. It will be useful to note that to the cross-examination of this witness
by the learned APP, this witness admits that he was having good relations
with the accused and his family and also admits that on the day of his cross-
examination in the Court, he was accompanied by the relatives of the
accused.
15. PW-3 Ravindra Masram, PW-4 Raju Dhadewar, PW-5 Ganesh
Ghose, PW-8 Ramesh Yedme and PW-11 Prakash Kshirsagar are the panchas
and the police personnel. PW-12 Ramesh Mendhe is the Naib Tahsildar who
prepared the map of the spot. They support the case of the prosecution on
the role played by them and nothing damaging could be brought by the
defence in their cross-examination.
16. It will be useful to refer to the medical evidence. PW-6 Dr. Jafar is
the medical officer to whom PW-1 Maroti and PW-2 Pundlik approached
with the victim child. Dr. Jafar states that on 11th February, 2013, when he
was in his clinic, at about 09:30 p.m. to 10:00 p.m., three persons from Zatala
brought one girl child patient. He further states that the child was wrapped
in bed sheet, she was aged about 2 and ½ to three years and on her
examination, he found that she was dead. There were wounds of bites on her
mouth and thereafter those persons took away her dead body. He also states
that the police had recorded his statement. In the cross-examination, Dr.
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Jafar states that he had not seen the cutting marks on the lips of the
deceased. He further deposes in the cross-examination that he had seen the
wounds on the mouth of the deceased and merely he examined the heart
beats and pulse.
17. PW-10 is Dr. Gadge and he conducted the postmortem. He states
that on 12th February, 2013, he received a requisition letter and a letter for
video shooting of the process of postmortem and also received certain
queries. He further states that the postmortem examination was conducted
on 12th February, 2013 between 1505 to 1705 hours along with Dr. Major
Kuchewar, Dr. R.D. Meshram, Dr. R.R. Khetre and Dr. L.P. Durgawad. Dr.
Gadge. He then states that he found both upper and lower lips were missing
and there was evidence of perennial tear with merging of vaginal and anal
orifice, the details of which were referred in column Nos.17 and 21. He
further states that dried blood and dried blood stains and faecal matter over
genital and perennial region were found, limbs were straight and hands were
partly clenched. Dr. Gadge further states about the injuries found on the
dead body as under :-
"(1) Multiple abrasions over right zygomatic region of sizes
ranging from 0.5 cm x 0.5 cm to 0.3 cm x 0.2 cm reddish.
(2) Abrasion over left upper eyelid of size 0.5 cm x 0.5 cm
reddish.
(3) Abrasion over right cheek of size 4 cm x 4 cm reddish.
(4) Abrasion over left cheek of size 8.5 cm x 7 cm reddish.
(5) Evidence of missing both upper and lower lips exposing
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labial fat with clean cut margins seen periorally without
blood infiltration (postmortem in nature).
(6) Lacerated wound over chin, midline of size 3 cm muscle
deep with tissue missing, margins irregular and blood
infiltrated reddish.
(7) Bite mark over and around right nipple over a region of
size 5 cm x 5 cm, margins contused reddish.
(8) Bite mark over and around left nipple over a region of size
3 cm x 3 cm, margins contused reddish.
(9) Bite mark over abdomen, 1 cm right at the level of
umbilicus over a region of size, 4 cm x 3.5 cm, margins
contused reddish.
(10) Bite mark over abdomen in the midline, 5 cm below the
umbilicus, over a region of size 3 cm x 3 cm, margins
contused reddish.
(11) Bite mark over abdomen in the midline, 5 cm below the
umbilicus, over a region of size 3 cm x 3 cm, margins
contused reddish.
(12) Bite mark over lateral aspect of right shoulder, over a
region of size 5 cm x 3 cm, margins contused reddish.
(13) Bite mark over right buttock, over a region of size 3 cm x 3
cm, margins contused reddish.
(14) Bite mark over right buttock, over a region of size 3 cm x 3
cm, margins contused reddish, separated from injury
No.13 by 1.5 cm.
(15) Bite mark over right buttock, over a region of size 3 cm x
2.5 cm, margins contused, reddish, separated from injury
No.14 by 1 cm.
(16) Bite mark over left buttock, over a region of size 3.7 cm x 3
cm, margins contused reddish.
(17) Multiple lacerations over vaginal and anal region merging
vaginal and anal orifice (perennial tear at 3, 6 and 9 O'
clock positions), margins irregular, blood infiltrated,
reddish.
(18) Abrasion over left knee joint region, in anterior aspect of
size 1 cm x 0.5 cm reddish."
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PW-10 Dr. Gadge further states that the injury No.6 was caused by nibbling
by teeth and injury Nos.7 to 16 are caused by human bites and injury No.17 is
caused by forceful sexual assault. He also states that on internal
examination, he found that under scalp contusion over fronto-parietal
region of size 6 cm x 5 cm, irregular and reddish and under the scalp
contusion over left temporal region of size 2.5 cm x 2 cm, irregular and
reddish. No evidence of fracture to vault and base of skull. Ribs and
cartilages intact no injury. Haemotoma over left side of chest wall, anteriorly
corresponding to injury No.8 under column No.17 of size 4.5 cm x 3 cm with
blood infiltration in surround tissue, reddish. Dr. Gadge further states about
the evidence of tear (perforation) in victim rectum of size 3 cm x 2.5 cm,
margins irregular with blood infiltration present corresponding to injury
No.17 under column No.17 with evidence of faecal matter coming out
through the vent. He then states that the evidence of tear in the posterior
vaginal wall with merging of vaginal and anal canal (perennial tear) surface
ragged, margins irregular, blood infiltrated and reddish extending and
tearing (perforating) the rectum corresponding to injury No.17 under
column No.17. Dr. Gadge then states that the deceased died within three
hours from last meal. He further states that the viscera was preserved and
blood soaked gauged piece kept for D.N.A. analysis and comparison and skin
and tissue kept for D.N.A. analysis. He then states that the blood soaked
gauged piece kept for blood group, nail clippings kept for detection of foreign
blood group and the skin and tissues kept for histopathological examination.
Dr. Gadge then states that the cause of death is shock and haemorrhage
16 conf01.15
following perennial tear with multiple injuries. He further states that there
was forceful sexual assault on the child and the injury No.17 was caused by
forceful insertion of penis. PW-10 Dr. Gadge further deposes that the
material was sent for histopathological examination and also for DNA
analysis to rule out whether it is of the same deceased. He then submits that
according to the Exh.54, the DNA report shows the perfect matching that of
deceased.
18.
The witness was subjected to cross-examination. An attempt was
made to suggest that the injuries referred by the witness could not have been
caused by teeth bite. An attempt was also made to suggest that the
mentioning of injuries in column Nos.21 and 17 is a false opinion of the
witness. An attempt was also made to suggest that at the instance of the
Investigating Officer and the relatives of the complainant, the witness is
giving a false version. The suggestions are flatly denied. Perusal of the
evidence of this witness leaves us no doubt that the victim was subjected not
only to a forceful sexual violation but a brutal and beastly manner.
19. The accused was also subjected to medical examination. It will
be useful to refer to the evidence of PW-7 Dr. Lingawar. He states that on 12 th
February, 2013, while he was on duty and was attached to Primary Health
Centre, Parwa and Medical Officer, the accused was brought. Dr. Lingawar,
on examination the accused, states that there was injury of abrasion on the
tip of the glans penis of 5 mm x 3 mm size and the said injury was caused
within 24 hours and the accused was found capable for sexual intercourse.
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He further states that he collected the sample of blood, pubic hair, nails and
the sample was handed over to Head Constable after sealing the same. He
then states that a query letter was issued on 19th February, 2013 to him
through API about the injury on the penis of the accused. He further states
that he had opined that the sign of sexual intercourse within 24 hours was
present and the injury in the certificate could have been possible due to
sexual intercourse.
20.
The witness was subjected to cross-examination. In the cross-
examination, he states that the injury of abrasion is a superficial injury and
the healing period depends on the nature of abrasion. Though it was
suggested that he wrongly referred the age of injury, the suggestion was
denied. In the cross-examination, it is stated by the witness that the abrasion
could be possible due to sexual intercourse or for some other reasons. A
suggestion was also given to this witness that he had given a false opinion
and issued false injury report at the instance of the Investigating Officer and
the suggestion was denied.
21. PW-3 Ravindra Masram is the panch witness. He states that PSI
Vanjari had called him and one Yadao Todsam to act as a panch on the spot.
The spot panchnama (Exh.19) prepared by the police, bears his signature.
He further states that the seizure panchnama (Exh.20) also bears his
signature. He further states that from the spot, the police had seized the
pant, pair of chappal, pieces of flesh and earth from the spot. This witness
was subjected to cross-examination. In cross-examination, he states that he
18 conf01.15
had not received summons from police and was called in the police Station.
An attempt is made to suggest that the panchnama was already prepared and
he deposed falsely at the instance of the father of the victim, he flatly denied
the suggestion.
22. PW-5 Ganesh Ghose is the Police Constable attached to Parwa
Police Station at the relevant time. He states about receiving the duty pass
for referring dead body of the victim to conduct postmortem along with one
questionnaire. This witness also deposes about the letter issued by PI Amol
Malve to the hospital authorities for video shooting of the postmortem being
conducted by the hospital authorities. Then he refers to sealing of the
articles, such as viscera, clothes etc., being done by Dr. R.R. Khetre and the
articles handed over to him. He also deposes about the letter given by PSI
Vanjari to Head of the Department of Forensic Sciences for examination and
sealing the pieces of flesh and the earth seized from the spot. Though the
witness was subjected to cross-examination, nothing was elicited from this
witness so as to shake the version of this witness.
23. PW-4 Raju Dhadewar is also the panch witness. He states that he
and one Hadao Todsam were called by the police as panch. He further states
that the accused was arrested in their presence and the arrest panchnama
(Exh.23) prepared by the police, bears his signature. He further states that
the seizure panchnama (Exh.24) also bears his signature. PW-4 also states
that on 12th February, 2013 at 06:00 p.m., he and one Naresh were called as
panch and Head Constable Ramesh had brought the sample of blood, hair
19 conf01.15
and nail of the accused. A seizure panchnama (Exh.26) bears his signature.
This witness was subjected to cross-examination. In cross-examination, he
states that he does not always go to police station as witness. He further
states that it is false that the articles were brought in the police station.
Though it was suggested that the panchnama was not prepared in his
presence and he deposed falsely, he flatly denied the same.
24. PW-8 Ramesh Yedme is the Head Constable who took the
accused for medical examination and received the injury certificate from the
Medical Officer. He was also handed over the blood sample, pubic hair, nail
and stained blood by the doctor. This witness also deposes that these articles
were sealed. Nothing damaging was brought in the cross-examination.
25. PW-11 Prakash Kshirsagar is the Head Constable and is the
carrier of muddemal property to Chemical Analyser along with the letters
issued by PSI Vanjari.
26. PW-12 Ramesh Mendhe was working as Circle Officer at the
relevant time. He deposes that on the directions of Naib Tahsildar, he had
prepared the map of the spot by visiting the spot in presence of two panchas.
The said panchnama is at Exh.74. Perusal of the said document reveals that
the spot is the partially constructed building of the Anganwadi and the actual
spot is one of the corners of this partially constructed building.
27. Thus, on considering the evidence brought on record by the
20 conf01.15
prosecution, we have no hesitation to say that the prosecution has
established and proved that the child victim Srushti was subjected to a
forceful sexual violence. The death of the victim is homicidal. On
considering all the circumstances, such as the victim was lastly seen in the
company of the accused, within a short span the victim found dead
subjected to sexual violation, the accused who was lying near the victim,
Medico Legal Certificate proved by PW-7, we are of the considered view that
the accused and the accused alone is the author of the crime of rape and
murder of child victim Srushti.
28. Insofar as the aspect of confirmation of the death sentence is
concerned, it is the submission of Smt. Bharti Dangre, the learned PP that the
accused who is the maternal uncle of the victim, took away the child victim
from the custody of her grandfather on a pretext and then the victim was
subjected to a violent sexual assault. The learned PP further submits that the
act of the accused is not only cruel but showing the utmost perversity of the
psyche of the accused satisfying his lust and overpowering the helpless child
victim and such heinous act of the accused has shocked the conscious of the
society and for the said act, the only punishment is the death punishment.
The learned PP places heavy reliance on the judgments of the Apex Court as
well as this Court in the cases of Bachan Singh .v. State of Punjab (reported
in AIR 1980 SC, 898); Machhi Singh and others .v. State of Punjab (reported
in AIR 1983 SC 957); Laxman Naik .v. State of Orissa (reported in 1994 (3)
SCC, 381); Dhananjoy Chatterjee alias Dhana .v. State of West Bengal
(reported in 1994 (2) SCC, 220); Molai and another .v. State of Madhya
21 conf01.15
Pradesh (reported in AIR 200 SC, 177); Kunal Majumdar .v. State of
Rajasthan (reported in 2012 (9) SCC, 320); Rajendra Pralhadrao Wasnik .v.
State of Maharashtra (reported in 2012 (4) SCC, 37); Shankar Kisanrao
Khade .v. State of Maharashtra (reported in 2013 (5) SCC, 546); Gurvail
Singh alias Gala and another .v. State of Punjab (reported in 2013 (2) SCC,
713); Bhaikon alias Bakul Borah .v. State of Assam (reported in 2013 (9)
SCC, 769); Vasanta Sampat Dupare .v. State of Maharashtra (reported in
2015(1) SCC, 253); Sangeet and another .v. State of Haryana (reported in
2013 (2) SCC, 452); Sandeep .v. State of Uttar Pradesh (reported in 2012 (6)
SCC, 107); State of Maharashtra .v. Rakesh Manohar Kamble @ Niraj
Ramesh Wakekar and another (reported in 2014 All MR (Cri), 2043);
Purushottam Dashrath Borate and another .v. State of Maharashtra
(Criminal Appeal No. 1439 of 2013, decided on 08 th May, 2015); Swamy
Shraddananda alias Murali Manohar Mishra .v. State of Karnataka
(reported in 2008 (13) SCC, 767); and Deepak Rai .v. State of Bihar
(reported in 2013 (10) SCC, 421).
29. Per contra, Shri Bansod, the learned Counsel for the
appellant/accused submits that the appellant/accused is a young boy having
a poor family background and the case would not fall in the category of
"rarest of rare" cases. He submits that there is every possibility that the
appellant/accused could be rehabilitated and would not commit any offence
in future. He further submits that at the most, the appellant/accused can be
directed to serve the maximum term in jail without remission. Shri Bansod
also submits that the witnesses on which the prosecution relies are the
22 conf01.15
interested witnesses being the father and the grandfather of the victim. In
support of his submission, the learned Counsel for the appellant/accused
places heavy reliance on the judgments of the Apex Court in the cases of
Rameshbhai Chandubhai Rathod .v. State of Gujarat (reported in AIR 2011
SC, 903) and Neel Kumar alias Anil Kumar .v. State of Haryana (reported in
2012 (5) SCC, 766).
30. Before we deal with the aspect referred to above, it will not be out
of place to state that this Court recently was posed with the similar question
in the matter of State of Maharashtra .v. Rakesh Manohar Kamble @ Niraj
Ramesh Wakekar and another (cited supra) to which, one of us (Justice B.R.
Gavai) is a party.
31. As the victim in the case is a child, it will not be out of place to
quote the words of Kahlil Gibran in his famous work "The Prophet" as -
"Your children are not your children.
They are the sons and daughters of Life's longing for itself.
They come through you but not from you,
And though they are with you yet they belong not to you.
You may give them your love but not your thoughts,
For they have their own thoughts.
You may house their bodies but not their souls,
For their souls dwell in the houses of tomorrow, which you cannot
visit, not even in your dreams."
23 conf01.15
Here is the case wherein the victim, a minor child of 2 and ½ years, was
subjected to a violent sexual act in most gruesome and least to say in beastly
manner.
32. As stated above, this Court in somewhat the similar
circumstance, while considering the confirmation of death penalty, in depth
and detailed, considered the various aspects in the matter of State of
Maharashtra .v. Rakesh Manohar Kamble @ Niraj Ramesh Wakekar and
another (cited supra). It will not be out of place to refer the relevant
observations of this Court in the matter of State of Maharashtra .v. Rakesh
Manohar Kamble @ Niraj Ramesh Wakekar and another (cited supra). In the
said matter, the accused Rakesh and accused Amar asked for drinking water
to PW-1 Prabha and she gave water through window of the house. Accused
Rakesh asked PW-1 Prabha to open the door. As she paid no heed to his
demand, by giving blows on the door, he made PW-1 Prabha to open the
door. Accused Rakesh was behind the daughter of PW-1 Prabha, namely
Kanchan. PW-1 Prabha sensing danger, gave signal to daughter Kanchan to
run away. Thereafter Kanchan ran away. Accused Rakesh and Amar chased
her. Though Kanchan made an attempt to take shelter of one Bhimrao, they
led assault on Bhimrao and took away Kanchan towards the land owned by
one Mankar. When the witness PW-1 Prabha and other witnesses rushed
towards the said land, they found that Kanchan was lying in the land. She
was dead and having injuries on her cheek, head and breast. In the case of
Rakesh Kamble, this Court found that the deceased was last seen with the
24 conf01.15
accused persons in late night and the dead body was discovered in the next
morning. This Court, on appreciating the evidence of those witnesses who
heard the screams of the deceased for help, immediate disclosure of the
names of the accused by the mother to the police patil and finding the body
in the morning, held that the last seen theory was established by the
prosecution. In the present matter, the time gap between the deceased last
seen with the accused and finding the dead body of the deceased victim who
was subjected to sexual exploitation and the accused lying near the dead
body is very narrow and proximate.
33. In the present case, the evidence of the grandfather shows that
the victim was carried by the accused at 07:30 p.m. and within a short span of
lesser than an hour, the grandfather and the father found the dead body of
the victim. The material on record shows that on the very day i.e. on 11 th
February, 2013, PW-1 Maroti had lodged the report in the police station at
about 21:25 hours. This Court, in the matter of Rakesh Kamble, by referring
to various judgments of the Apex Court, observed thus -
"71. What is most important in the present case is
the time gap between the period when the accused were
last seen together with the deceased and finding of the dead
body of the deceased. From the evidence of the prosecution
witnesses, it can safely be concluded that the deceased was
last seen together with the accused between 3.00 to 3.30
a.m. in the midnight of 17 to 18 December, 2005. The dead
body was discovered immediately thereafter in the morning
after P.W.4 Sanjay Mankar had noticed blood stained
25 conf01.15
clothes of the deceased in his farm. It will be appropriate to
refer to the observations made by the Hon'ble Apex Court in
the case of State of Uttar Pradesh vs. Satish (cite supra)
which are as under:-
"22. The last-seen theory comes into play
where the time gap between the point of time when
the accused and the deceased were last seen alive
and when the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes impossible. It
would be difficult in some cases to positively
establish that the deceased was last seen with the
accused when there is a long gap and possibility of
other persons coming in between exists. In the
absence of any other positive evidence to conclude
that the accused and the deceased were last seen
together, it would be hazardous to come to a
conclusion of guilt in those cases. In this case there is
positive evidence that the deceased and the accused
were seen together by witnesses Pws 3 and 5, in
addition to the evidence of P.W.2."
(emphasis supplied)"
34. Shri Bansod, the learned Counsel for the appellant/accused
submits that the witnesses brought by the prosecution are the interested
witnesses being the father and grandfather of the victim. This Court also
considered that aspect in the matter of Rakesh Kamble wherein a similar
stand was taken by the defence. This Court observed thus -
"47. The another limb of attack on the evidence of these
witnesses is that they are the interested witnesses and as such
reliance could not be placed on the evidence of these witnesses.
It will be relevant to refer to paragraph no.39 of the Judgment of
the Apex Court in the case of Subal Ghorai and others vs. State of
26 conf01.15
West Bengal, reported in (2013) 4 Supreme Court Cases, 607 :
[2014 ALL SCR 184], which reads as under:
"39. It is true that the prosecution has relied on the
evidence of interested witnesses but, interested witness
is not necessarily a bad witness. In fact, if the witness is
related to the deceased, there is less chance of his
leaving aside the real assailants. The evidence of
interested witness has to be analysed with care. But,
once the court comes to the conclusion that it is truthful
and in accord with the relevant circumstances on
record, the court should not hesitate to accept it and
record conviction on the basis thereof. In this case, all
the eyewitnesses are consistent about the prosecution
case as regards assault on the deceased and setting on
fire of the houses of Dharas. We are, therefore, not
inclined to reject their evidence on the ground that they
are related to the deceased. As already noted, two of the
eye witnesses i.e. P.W.12 Jamini and P.W.13 Mandakini
are injured witnesses, whose presence at the scene of
offence cannot be doubted. They completely bear out
the prosecution case."
(emphasis supplied)
48. It can, thus, be clearly seen that the attack on the
ground that these witnesses are interested witnesses would also
be not sustainable."
35. In the present matter also, as we find that the version of the
witnesses namely the father and grandfather i.e. Maroti and Pundlik
respectively is truthful and reliable version, we are unable to accept the
submission of the learned Counsel for the appellant/accused. It is also not in
dispute that the present case is based on the circumstantial evidence. The
law is well settled on this aspect. It will not be out of place to refer the oftenly
quoted the judgment of the Apex Court on the circumstantial evidence i.e. in
27 conf01.15
the case of Sharad Birdichand Sarda .v. State of Maharashtra (reported in
2009 ALL SCR (O.C.C.), 281). The same is also referred by this Court in the
matter of Rakesh Kamble and the observations read thus -
"37. Undoubtedly, the present case is based on the
circumstantial evidence. The law on the aspect of conviction in
the case of circumstantial evidence has now been very well
crystalized. It will be relevant to refer paragraphs 152, 153 and
154 of the Judgment of the Apex Court in the case of Sharad
Birdhichand Sarda vs. State of Maharashtra, 116 : [2009 ALL
SCR (O.C.C.) 281] which read as under:-
"152. Before discussing the cases relied upon by the High
Court, we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this
Court is Hanumant V. State of Madhya Pradesh. This
case has been uniformly followed and applied by this
Court in a large number of later decisions up-to-date, for
instance, the cases of Tufail (Alias) Simmi .v. State of
Uttar Pradesh and Ramgopal v. State of Maharashtra. It
may be useful to extract what Mahajan, J has laid down
in Hanumant case:
It is well to remember that in cases where the evidence is
of a circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn should in the
first instance be fully established, and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be roved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused.
28 conf01.15
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may
be' established. There is not only a grammatical but a
legal distinction between 'may be proved' and 'must be
or should be proved' as was held by this Court in Shivaji
Sahabrao Bobade vs. State of Maharashtra where the
following observations were made:(SCC para 19, p.
807:SCC(Cri)p.1047).
Certainly, it is a primary principle that the accused must
be and not merely may be guilty before a court can
convict and the mental distance between 'may be' and
'must be' is long and divides vague conjectures from
sure conclusions.
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence."
36. We have already referred to the circumstances on which the
prosecution relies, we need not repeat the same. Suffice to say that these
circumstances are proved by the prosecution. The crucial question for our
consideration is now whether the death penalty awarded to the
appellant/accused needs to be confirmed or not. This aspect is also now
29 conf01.15
crystallized by the judgments of the Apex Court in the cases of Bachan
Singh .v. State of Punjab and Machhi Singh and others .v. State of Punjab
(cited supra) as -
"75. The Constitution Bench of the Hon'ble Apex Court
in the case of Bachan Singh vs. State of Punjab (supra) while
upholding the constitutionality of Section 302 of the Indian
Penal Code, insofar as it provides death sentence and section
354(3) of Cr.P.C. has observed thus :
195. In Jagmohan, this Court had held that this
sentencing discretion is to be exercised judicially on
well-recognised principles, after balancing all the
aggravating and mitigating circumstances of the crime.
By "well-recognised principles" the Court obviously
meant the principles crystallised by judicial decisions
illustrating as to what were regarded as aggravating or
mitigating circumstances in those cases. The legislative
changes since Jagmohan - as we have discussed already -
do not have the effect of abrogating or nullifying those
principles. The only effect is that the application of those
principles is now to be guided by the paramount
beacons of legislative policy discernible from Sections
354 (3) and 235 (2), namely : (1) The extreme penalty can
be inflicted only in gravest cases of extreme culpability :
(2) In making choice of the sentence, in addition to the
circumstances of the offence, due regard must be paid to
the circumstances of the offender also.
196. We will first notice some of the aggravating
circumstances which, in the absence of any mitigating
circumstances, have been regarded as an indication for
imposition of the extreme penalty.
197. Pre-planned, calculated, cold-blooded murder has
always been regarded as one of an aggravated kind. In
Jagmohan, it was reiterated by this Court that if a murder
is "diabolically conceived and cruelly executed", it would
justify the imposition of the death penalty on the
murderer. The same principle was substantially
reiterated by V. R. Krishna Iyer, J., speaking for the
Bench, in Ediga Anamma, in these terms :
30 conf01.15
"The weapons used and the manner of their use, the
horrendous features of the crime and hapless, helpless
state of the victim, and the like, steel the heart of the law
for a sterner sentence."
198. It may be noted that this indicator for imposing the
death sentence was crystallised in that case after paying
due regard to the shift in legislative policy embodied in
Section 354 (3) of the Code of Criminal Procedure, 1973,
although on the date of that decision (February 11, 1974),
this provision had not come into force. In Paras Ram's
case, also, to which a reference has been made earlier, it
was emphatically stated that a person who in a fit of anti-
social piety commits "bloodcurdling butchery" of his
child, fully deserves to be punished with death. In
Rajendra Prasad, however, the majority (of 2 : 1) has
completely reversed the view that had been taken in
Ediga Anamma regarding the application of Section 354
(3) on this point. According to it, after the enactment of
Section 354 (3), 'murder most foul' is not the test. The
shocking nature of the crime or the number of murders
committed is also not the criterion. It was said that the
focus has now completely shifted from the crime to the
criminal. "Special reasons" necessary for imposing death
penalty "must relate not to the crime as such but to the
criminal".
199. With great respect, we find ourselves unable to
agree to this enunciation. As we read Sections 354 (3)
and 235 (2) and other related provisions of the Code of
1973, it is quite clear to us that for making the choice of
punishment or for ascertaining the existence or absence
of "special reasons" in that context, the Court must pay
due regard-both-to the crime and the criminal. What is
the relative weight to be given to the aggravating and
mitigating factors, depends on the facts and
circumstances of the particular case. More often than
not, these two aspects are so intertwined that it is
difficult to give a separate treatment to each of them.
This is so because 'style is the man'. In many cases, the
extremely cruel or beastly manner of the commission of
murder is itself a demonstrated index of the depraved
character of the perpetrator. That is why, it is not
desirable to consider the circumstances of the crime and
the circumstances of the criminal in two separate water-
tight compartments. In a sense, to kill is to be cruel and
therefore all murders are cruel. But such cruelty may
vary in its degree of culpability. And it is only when the
culpability assumes the proportion of extreme depravity
that "special reasons" can legitimately be said to exist.
31 conf01.15
200. Drawing upon the penal statutes of the States in U.
S. A. framed after Furman v. Georgia, in general, and
clauses 2 (a), (b), (c), and (d) of the Indian penal Code
(Amendment) Bill passed in 1978 by the Rajya Sabha, in
particular, Dr. Chitale has suggested these "aggravating
circumstances" :
"Aggravating circumstances : A Court may, however, in
the following cases impose the penalty of death in its
discretion :
(a) if the murder has been committed after previous
planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed
forces of the Union or of a member of any police force or
of any public servant and was committed -
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be
done by such member or public servant in the lawful
discharge of his duty as such member or public servant
whether at the time of murder he was such member or
public servant, as the case may be, or had ceased to be
such member or public servant; or
(d) if the murder is of a person who had acted in the
lawful discharge of his duty under Section 43 of the Code
of Criminal Procedure, 1973, or who had rendered
assistance to a Magistrate or a police officer demanding
his aid or requiring his assistance under Section 37 and
Section 129 of the said Code."
201. Stated broadly, there can be no objection to the
acceptance of these indicators but as we have indicated
already, we would prefer not to fetter judicial discretion
by attempting to make an exhaustive enumeration one
way or the other.
202. In Rajendra Prasad, the majority said : "It is
constitutionally permissible to swing a criminal out of
corporeal existence only if the security of State and
society, public order and the interests of the general
public compel that course as provided in Article 19 (2) to
(6)." Our objection is only to the word "only". While it
may be conceded that a murder which directly threatens,
or has an extreme potentiality to harm or endanger the
security of State and society, public order and the
interests of the general public, may provide "special
reasons" to justify the imposition of the extreme penalty
on the person convicted of such a heinous murder, it is
not possible to agree that imposition of death penalty on
32 conf01.15
murderers who do not fall within this narrow category is
constitutionally impermissible. We have discussed and
held above that the impugned provisions in Section 302,
Penal Code, being reasonable and in the general public
interest, do not offend Article 19, or its 'ethos'; nor do
they in any manner violate Articles 21 and 14. All the
reasons given by us for upholding the validity of Sec. 302,
Penal Code, fully apply to the case of Section 354 (3),
Code of Criminal Procedure, also. The same criticism
applies to the view taken in Bishnu Deo Shaw v. State of
West Bengal, (1979) 3 SCC 714, which follows the dictum
in Rajendra Prasad (ibid).
203. In several countries which have retained death
penalty, pre-planned murder for monetary gain, or by an
assassin hired for monetary reward is, also, considered a
capital offence of the first degree which, in the absence
of any ameliorating circumstances, is punishable with
death. Such rigid categorisation would dangerously
overlap the domain of legislative policy. It may
necessitate, as it were, a redefinition of 'murder' or its
further classification. Then, in some decisions, murder
by fire-arm, or an automatic projectile or bomb, or like
weapon, the use of which creates a high simultaneous
risk of death or injury to more than one person, has also
been treated as an aggravated type of offence. No
exhaustive enumeration of aggravating circumstances is
possible. But this much can be said that in order to
qualify for inclusion in the category of "aggravating
circumstances" which may form the basis of 'special
reasons' in Section 354 (3), circumstance found on the
facts of a particular case, must evidence aggravation of
an abnormal or special degree.
204. Dr. Chitaley has suggested these mitigating factors
"Mitigating circumstances :- In the exercise of its
discretion in the above cases, the Court shall take into
account the following circumstances :-
(1) That the offence was committed under the influence
of extreme mental or emotional disturbance.
(2) The age of the accused. It 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.
33 conf01.15
(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."
205. We will do no more than to say that these are
undoubtedly relevant circumstances and must be given
great weight in the determination of sentence. Some of
these factors like extreme youth can instead be of
compelling importance. In several States of India, there
are in force special enactments, according to which a
'child' that is, 'a person who at the date of murder was
less than 16 years of age', cannot be tried, convicted and
sentenced to death or imprisonment for life for murder,
nor dealt with according to the same criminal procedure
as an adult. The special Acts provide for a reformatory
procedure for such juvenile offenders or children.
206. According to some Indian decisions, the
postmurder remorse, penitence or repentence by the
murderer is not a factor which may induce the Court to
pass the lesser penalty (e. g. Mominuddin Sardar). AIR
1935 Cal 591. But those decisions can no longer be held
to be good law in view of the current penological trends
and the sentencing policy outlined in Sections 235 (2)
and 354 (3). We have already extracted the views of
Messinger and Bittner (ibid), which are in point.
207. There are numerous other circumstances justifying
the passing of the lighter sentence; as there are
countervailing circumstances of aggravation. "We
cannot obviously feed into a judicial computer all such
situations since they are astrological imponderables in
an imperfect and undulating society." Nonetheless, it
cannot be over-emphasised that the scope and concept
of mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the
courts in accord with the sentencing policy writ large in
Section 354 (3). Judges should never be blood-thirsty.
Hanging of murderers has never been too good for them.
Facts and figures albeit incomplete, furnished by the
Union of India, show that in the past, Courts have
inflicted the extreme penalty with extreme infrequency -
a fact which attests to the caution and compassion which
they have always brought to bear on the exercise of their
sentencing discretion in so grave a matter. It is,
34 conf01.15
therefore, imperative to voice the concern that courts,
aided by the broad illustrative guidelines indicated by us,
will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the
highroad of legislative policy outlined in Sec. 354 (3), viz.,
that for persons convicted of murder, life imprisonment
is the rule and death sentence an exception. 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 save in the rarest of rare cases
when the alternative option is unquestionably
foreclosed."
77. The Apex Court in the case of Machhi Singh and
others vs. State of Punjab (supra) has observed thus;
32. The reasons why the community as a whole does not
endorse the humanistic approach reflected in "death
sentence in no case" doctrine are not far to seek. In the
first place, the very humanistic edifice is constructed on
the foundation of "reverence for life" principle. When a
member of the community violates this very principle by
killing another member, the society may not feel itself
bound by the shackles of this doctrine. Secondly, it has to
be realised 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 to 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
35 conf01.15
crime, or the anti-social or abhorrent nature of the
crime, such as for instance :
I Manner of Commission of Murder
When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting, or dastardly manner so
as to arouse intense and extreme indignation of the
community. For instance.
(i) When the house of the victim is set aflame with the
end in view to roast him alive in the house,
(ii) When the victim is subjected to inhuman acts of
torture or cruelty in order to bring about his or her death.
(iii) When the body of the victim is cut into pieces or his
body is dismembered in a fiendish manner.
II Motive for commission of murder.
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; (c) a murder is committed in the course
for betrayal of the motherland.
III Anti-social or socially abhorrent nature of the crime.
(a) When murder of a member of a Scheduled Caste or
minority community etc., is committed not for personal
reasons but in circumstances which arouse social wrath.
For instance when such a crime is committed in order to
terrorize such persons and frighten them into fleeing
from a place or in order to deprive them of, or make
them surrender, lands or benefits conferred on them
with a view to reverse past injustices and in order to
restore the social balance.
(b) In cases of 'bride burning' and what are known as
'dowry-deaths' or when murder is committed in order to
remarry for the sake of extracting dowry once again or to
marry another woman on account of infatuation.
IV Magnitude of crime.
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.
36 conf01.15
V Personality of victim of murder.
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.
33. In this background the guidelines indicated in
Bachan Singh's case (supra) 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's
case :
(i) The extreme penalty of death need not he inflicted
except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances
of the 'offender' also require to be taken into
consideration along with the circumstances of the
'crime';
(iii) Life imprisonment is the rule and death sentence is
an exception. In other words death sentence must be
imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided and
only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances
of the crime and all the relevant circumstances;
(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.
34. 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
37 conf01.15
circumstances which speak in favour of the offender?
This Court, in the judgment of Rakesh Kamble by referring the judgments of
the Apex Court, observed thus -
"76. It can, thus, be seen the Constitution Bench of the
Apex Court clearly held that in finding out presence or absence
of special reasons the court must pay due regard both to the
crime and the criminal. It has been held that what is the relative
weight to be given to the aggravating and mitigating factors,
depends upon the facts and circumstances of the particular
case. It has further been held that in many cases the extremely
cruel or beastly manner of the commission of murder is itself a
demonstrated index of the depraved character of the
perpetrator. It has been held that only when the culpability
assumes the proportion of extreme depravity that special
reasons can legitimately be said to exist.
78. It has, thus, been held that when community's
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 Apex Court has
further held that the factors that are to be taken into
consideration while considering as to whether the death
sentence is to be inflicted or not, are the manner of commission
of murder, motive for commission of murder, anti-social or
socially abhorrent nature of the crime and magnitude of crime
and personality of victim of murder. It has been further held
that life imprisonment is the rule and death sentence is an
exception. It has been further held that the balance sheet of
38 conf01.15
aggravating and mitigating circumstances has to be drawn, full
weightage is to be given to mitigating circumstances and a just
balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised. It has
been further held that while taking decision question may be
asked and answered as to whether there is something
uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence.
Another question that is required to be answered is, 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."
37. By applying yardstick set by the Apex Court in the case of Bachan
Singh .v. State of Punjab and Machhi Singh and others .v. State of Punjab
(cited supra) and the observations of this Court in the matter of Rakesh
Kamble if the present matter is considered, in our opinion, in the guidelines
of aggravating circumstances, there is a mention of clause (b) which deals
with the murder which involves exceptional depravity. In the light of this
clause, if the present matter is seen, the record reveals that the victim is a
child of two and half years of age. The victim was subjected to a forceful
sexual exploitation. The medical evidence shows that the death is caused
due to the forceful intercourse. In our opinion, the present case also covers
clause (a) of "aggravating circumstances" wherein it is referred that if a
murder is committed after previous planning and involves extreme brutality.
In the present matter, a child was taken from the custody of the grandfather
and in spite of his resistance, a child was subjected to sexual violence and
39 conf01.15
then was done to death. In our opinion, the act of the appellant/accused
falls in clauses (a) and (b) of the "aggravating circumstances". We would also
take into consideration the mitigating circumstances referred to in the
judgment of the Apex Court in the case of Bachan Singh .v. State of Punjab
(cited supra). In our opinion, the only mitigating circumstance on which the
appellant/accused seeks benefit is clause (2) i.e. the accused is a young boy.
Even though the said mitigating circumstance of being at young age is
available to the appellant/accused while balancing the aggravating and
mitigating factors, we are of the opinion that the said mitigating
circumstance would not be of any help to the appellant/accused.
38. In our opinion, as the Apex Court observed in Machhi Singh and
others .v. State of Punjab (cited supra), the act of the appellant/accused is of
such a nature wherein the collective conscience is so shocked that it will
expect the holders of the judicial power centre to inflict death penalty. The
Apex Court further observed that 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. (emphasis supplied). The Apex Court then quoted
certain instances. Under the caption of manner of commission of murder,
the Apex Court refers that 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. The Apex Court then
also refers to the category of personality of victim of murder. When it refers
to the victim of murder is (a) an innocent child who could not have or has not
40 conf01.15
provided even an excuse, much less a provocation, for murder. In the
present case, there is absolutely no doubt in our mind that the murder is
committed in extremely brutal and dastardly manner. While considering the
aspect of the personality of the victim, the record clearly reveals that the
victim is an innocent child of two and half years who hardly could have either
provided even an excuse or a provocation and was a helpless victim of the
lust and the appellant/accused not only ravished the girl with a violent sexual
attack but also acted in beastly manner. The medical evidence has shown
that the victim received bite wounds on the parts of her body namely the
cheeks, chest and buttock. The material also shows that the body was lying
on the spot having the jeans pant removed from the person of the victim.
The inquest panchnama shows that the victim was subjected to sexual
violence and the victim had received wounds and bites on cheeks, chest and
buttock. The version of the witnesses namely Maroti and Punclik, the
scientific evidence in the form of postmortem report, leaves no doubt that
the accused acted in absolute pervert, inhuman and beastly manner.
39. In the matter of Rakesh Kamble, wherein the victim was a girl of
19 years of age, this Court by considering the cruel and gruesome act of the
appellant/accused, posed certain questions and arrived at a conclusion that
the case would surely fall in the category of "rarest of rare" cases. This Court
observed thus -
"99. Would the society not expect the accused who have
committed such terror and in extreme brutal, dastardly,
41 conf01.15
gruesome, cruel manner committed rape of helpless victim and
killed her for no fault of her, to be hanged. Would the society
not expect, the holders of the judicial powers centre, to award
proportionate sentence to the accused who have no respect for
human values and have treated a young girl of 19 years in the
most brutal, cruel and dastardly manner. Would the Society not
expect such depraved act to be dealt with in a stern manner. We
also cannot ignore the recent amendments brought to the
Indian Penal Code on account of huge public hue and cry that
arose on account of dastardly act in the heinous and gruesome
rape and murder of Nirbhaya. The amendment as a matter of
fact echo's the sentiments of the Society at large. The sentiment
of the Society is glaring explicit, that such heinous crime on
hapless women are required to be dealt with an iron hand. We
have, therefore, no hesitation to hold that, in the perception of
the Society it would surely be a "rarest of rare" case wherein the
death sentence is required to be imposed."
In the present case, as we have stated above, the victim was of two and half
years of age, as such, the heinous and gruesome rape and murder of the child
victim at the hands of the appellant/accused, needs to be dealt with the
deterrent punishment like death sentence. It will not be out of place to refer
to certain judgments of the Apex Court. The Apex Court in the matter of
Laxman Naik .v. State of Orissa (cited supra) has held that the death sentence
imposed by the trial Court and confirmed by the High Court was justified.
The facts of the case were the victim was a child of seven years of age and the
accused was her uncle. After committing rape on the victim, the accused
committed murder of the victim. The Apex court referred to the evidence
relating to the injuries on the deceased as under -
42 conf01.15
"16. The search party which discovered the dead body of
the deceased in jungle, noticed that her clothes were soaked
with blood and there were multiple injuries on the person of the
deceased as are described by Dr Pushp Lata PW-11 in her post-
mortem report Ex. 11 as well as in her statement made in the
Court. There was abrasion on the and fifth lumbar vertebra, as
well as on left index finger, back of forearm, right middle finger.
There was lacerated wound in the vagina extending towards
rectum and bruises over neck, right and left sternomastoid
muscles. On dissecting the underlined tissues of the neck, the
doctor noticed extravasation of blood into subcutaneous tissues
as well as in the underlying sternomastoid muscles. The larynx
and trachea were congested containing frothy mucous. Bloody
froths were coming out from the mouth and nostrils. This
evidence eloquently speaks that the innocent, helpless soul was
first subjected to brutal and forcible sexual intercourse and then
mercilessly done to death by throttling so that there remains no
direct evidence against the culprit."
The Apex Court then on the backdrop of the evidence of Medical Officer,
observed thus -
"28. The evidence of Dr Pushp Lata, PW 12, who
conducted the post-mortem over the dead body of the victim
goes to show that she had several external and internal injuries
on her person including a serious injury in her private parts
showing the brutality which she was subjected to while
committing rape on her. The victim of the age of Nitma could
not have even ever resisted the act with which she was
subjected to. The appellant seems to have acted in a beastly
43 conf01.15
manner as after satisfying his lust he thought that the victim
might expose him for the commission of the offence of forcible
rape on her to the family members and others, the appellant
with a view to screen the evidence of his crime also put an end
to the life of innocent girl who had seen only seven summers.
The evidence on record is indicative of the fact as to how
diabolically the appellant had conceived of his plan and
brutally executed it and such a calculated, cold-blooded and
brutal murder of a girl of a very tender age after committing
rape on her would undoubtedly fall in the category of rarest of
the rare cases attracting no punishment other than the capital
punishment and consequently we confirm the sentence of
death imposed upon the appellant for the offence under
Section 302 of the Penal Code. As regards the punishment
under Section 376, neither the learned trial Judge nor the High
Court have awarded any separate and additional substantive
sentence and in view of the fact that the sentence of death
awarded to the appellant has been confirmed we also do not
deem it necessary to impose any sentence on the appellant
under Section 376."
(emphasis supplied).
40. The Apex Court in the matter of Rajendra Pralhadrao Wasnik .v.
State of Maharashtra (cited supra), wherein the victim was a child of three
years of age, by referring to various judgments including the judgment of the
Apex court in the case of Machhi Singh and others .v. State of Punjab and
Bachan Singh .v. State of Punjab (cited supra), observed that the Court has to
strike a balance between aggravating and mitigating circumstances. It will
not be out of place to state that in the case of Rajendra Pralhadrao Wasnik .v.
State of Maharashtra (cited supra), the victim was subjected to sexual
44 conf01.15
violence and there were bite marks on chest left side around nipple elliptical
with diameters 1 ½" x ¼" x muscle-deep. The Apex Court in the said case
observed thus -
"37. When the Court draws a balance sheet of the
aggravating and mitigating circumstances, for the purposes of
determining whether the extreme sentence of death should be
imposed upon the accused or not, the scale of justice only tilts
against the accused as there is nothing but aggravating
circumstances evident from the record of the Court. In fact,
one has to really struggle to find out if there were any mitigating
circumstances favouring the accused.
38. Another aspect of the matter is that the minor child
was helpless in the cruel hands of the accused. The accused
was holding the child in a relationship of "trust-belief" and
"confidence", in which capacity he took the child from the
house of PW 2. In other words, the accused, by his conduct, has
belied the human relationship of trust and worthiness. The
accused left the deceased in a badly injured condition in the
open fields without even clothes. This reflects the most
unfortunate and abusive facet of human conduct, for which the
accused has to blame no one else than his own self."
41. In the present case also, the accused is the maternal uncle of the
victim child. The Apex Court recently in the matter of Purushottam
Dashrath Borate and another .v. State of Maharashtra (cited supra), wherein
the victim deceased who was serving in a private company and was
subjected to rape and murder at the hands of the security guard and was
45 conf01.15
awarded death sentence on consideration of the submission that the
appellant/accused is a person of young age, observed that such
compassionate grounds are present in most of the cases and are not relevant
for interference in awarding death sentence. The Apex Court further
observed that the principle that when the offence is gruesome and was
committed in a calculated and diabolical manner, the age of the accused may
not be a relevant factor.
"15.
In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the crime; the
conduct of the criminal and the defenceless and unprotected
state of the victim. Imposition of appropriate punishment is
the manner in which the Courts respond to the society's cry for
justice against the criminals. Justice demands that Courts
should impose punishment befitting the crime so that the
Courts reflect public abhorrence of the crime. The Courts must
not only keep in view the rights of the criminal but also the
rights of the victim of crime and the society at large while
considering imposition of appropriate punishment."
The Apex Court also made it clear that lack of criminal antecedents also
cannot be considered as mitigating circumstances, particularly taking into
consideration, the nature of heinous offence and cold and calculated manner
in which it was committed by the accused persons.
42. The Apex Court in the matter of Vasanta Sampat Dupare .v. State
of Maharashtra (cited supra), wherein the victim was a girl of four years of
46 conf01.15
age and the appellant/accused, a neighbour luring the victim for giving her
chocolate, raped her and done her to death by hit of stones. The Apex Court
on the backdrop of the medical evidence, namely the victim was subjected to
forceful sexual intercourse, the deceased was last seen with the accused and
the immediate lodgement of report by the father of the girl, lending credence
to the prosecution case, observed thus -
"60. In the case at hand, as we find, not only was the
rape committed in a brutal manner but murder was also
committed in a barbaric manner. The rape of a minor girl
child is nothing but a monstrous burial of her dignity in the
darkness. It is a crime against the holy body of a girl child and
the soul of society and such a crime is aggravated by the
manner in which it has been committed. The nature of the
crime and the manner in which it has been committed speaks
about its uncommonness. The crime speaks of depravity,
degradation and uncommonality. It is diabolical and barbaric.
The crime was committed in an inhuman manner.
Indubitably, these go a long way to establish the aggravating
circumstances.
61. We are absolutely conscious that mitigating
circumstances are to be taken into consideration. The learned
Counsel for the appellant pointing out the mitigating
circumstances would submit that the appellant is in his mid
fifties and there is possibility of his reformation. Be it noted,
the appellant was aged about forty-seven years at the time of
commission of the crime. As is noticeable, there has been no
remorse on the part of the appellant. There are cases when
this Court has commuted the death sentence to life finding
that the accused has expressed remorse or the crime was not
47 conf01.15
premeditated. But the obtaining factual matrix when unfolded
stage by stage would show the premeditation, the proclivity
and the rapacious desire. The learned Counsel would submit
that the appellant had no criminal antecedents but we find
that he was a history-sheeter and had a number of cases
pending against him. That alone may not be sufficient. The
appalling cruelty shown by him to the minor girl child is
extremely shocking and it gets accentuated, when his age is
taken into consideration. It was not committed under any
mental stress or emotional disturbance and it is difficult to
comprehend that he would not commit such acts and would
be reformed or rehabilitated. As the circumstances would
graphically depict, he would remain a menace to society, for a
defenceless child has become his prey. In our considered
opinion, there are no mitigating circumstances.
62. As we perceive, this case deserves to fall in the
category of the rarest of rare cases. It is inconceivable from the
perspective of the society that a married man aged about two
scores and seven makes a four-years minor innocent girl child
the prey of his lust and deliberately causes her death. A
helpless and defenceless child gets raped and murdered
because of the acquaintance of the appellant with the people
of the society. This is not only betrayal of an individual trust
but destruction and devastation of social trust. It is perversity
in its enormity. It irrefragably invites the extreme abhorrence
and indignation of the collective. It is an anathema to the
social balance. In our view, it meets the test of the rarest of the
rare case and we unhesitatingly so hold."
48 conf01.15
43. In view of the aforesaid discussion, we uphold the order of
conviction and sentence as recorded by the learned trial Judge and confirm
the death sentence awarded by him to the appellant/accused.
In view of the judgment and order passed in aforesaid reference,
no orders are required to be passed in Criminal Appeal No. 321 of 2015 filed
by the appellant/accused. In the result, the Criminal Appeal No. 321 of 2015
is dismissed.
JUDGE JUDGE
*rrg. `
