Delhi High Court

State vs Ranjeet on 7 May, 2010

Author: Pradeep Nandrajog

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on: 28th April, 2010
                       Judgment Pronounced on: 7th May, 2010

+                      DEATH REF. 01/2010

In the matter of:-

DEATH REFERENCE 01/2010 pertaining to Sessions Case
No.6/2008.

In Re :

STATE
                       Through : Ms.Richa Kapoor, A.P.P.
                                 and Mr.M.N.Dudeja, A.P.P.

                       AND

RANJEET                                         ....Accused
                       Through : Mr.Rajesh Mahajan, Advocate.


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT

1.     Whether the Reporters of local papers may be allowed to
       see the judgment?

2.     To be referred to the Reporter or not?

3.     Whether the judgment should be reported in the
       Digest?

PRADEEP NANDRAJOG, J.

1. The post-mortem report Ex.PW-5/B of deceased

Rakhi aged 5 years, proved at the trial by the author thereof

Dr.S.Lal PW-5, not only proves that Rakhi was raped but also

the fact that she was strangulated to death. A vaginal tear

extended to the anus of the unfortunate young girl. 15 other

injuries, most of them around the neck, had tell tale sign of

nail marks evidencing the young girl being manually

strangulated. Muddy water had reached the bronchiole,

establishing that the young girl had died due to asphyxia not

resulting from manual strangulation but from drowning.

Indeed, Sh.Rajesh Mahajan learned counsel for the accused

Ranjeet did not dispute that Rakhi was raped and an attempt

was made to manually strangulate her to death and when the

body became lifeless, not realizing that there was some life in

Rakhi, her body was thrown in muddy water and the final

cause of death of Rakhi was by drowning.

2. What was debated before us was whether it stands

proved that the appellant is the rapist and the murderer of

Rakhi as held by the learned Trial Judge and if yes, whether

the appropriate sentence should be death penalty.

3. Vide impugned judgment and order dated

10.2.2010, Ranjeet has been convicted for the offence of

having kidnapped Rakhi from near her house at around 9:00

PM on 3.9.2007 and thereafter committing rape upon Rakhi

followed by murdering her. Vide order dated 3.3.2010,

Ranjeet has been sentenced to death.

4. Accordingly, the learned Trial Judge has made a

reference to this Court in compliance with Section 366 Cr.P.C.

5. As per the mandate of law we had perused the

entire evidence with the assistance of learned counsel for the

parties when the Reference was heard on 28.4.2010 and thus

would be deciding the Reference noting the arguments

advanced, uninfluenced by the findings returned by the

learned Trial Judge, of course, we would be reflecting upon the

reasoning of the learned Trial Judge as and when appropriate

and if required to be so done. Indeed, in a case where penalty

imposed is to hang the convict by the neck till he is dead i.e.

death sentence, it is the duty of the Appellate Court to re-

peruse the entire evidence and return reasoned findings.

6. The first document available which leads to the

proof of Rakhi missing is Ex.PW-6/A; a PCR form filled up by

Const.Anju Bala PW-6. The PCR form is in four parts and thus

has been filled up at four different points of time; fairly close to

each other. As deposed to by Const.Anju Bala PW-6, she was

posted as a constable in the Police Control Room (HQ) from

8:00 PM on 3.9.2007 to 8:00 AM the next day and on 3.9.2007

at 9:06 PM she received a call from telephone No.9971247091.

The caller disclosed his name as Suresh and informed her that

his daughter Rakhi aged 5 years, shallow colour, wearing a

white vest and a black underwear but without footwear was

missing from 7:45 PM, which time she inadvertently recorded

in the PCR form Ex.PW-6/A as 8:45 PM. It may be noted that

the first entry in the PCR form Ex.PW-6/A, apart from recording

as afore-noted, further records that the address of the

informant was Gali No.17, Gopal Pur in front of STD booth. She

further deposed that a police control room van reached the

place and a personnel in the van confirmed to her that

aforesaid information was correct. It may be noted that the

second entry in the PCR form Ex.PW-6/A records the time as

9:26 PM and arrival of the PCR van at the spot and that the

information received and as recorded initially at the police

control room is correct. There is another entry, being the third

which is a very cryptic entry. It records that ASI Shiv Kumar

had reached the spot at 9:36 PM. The last entry records in

Devnagari script: Paune saat se laapata hai.

7. Unfortunately, neither the Public Prosecutor, nor the

counsel for the accused questioned Const.Anju Bala as to on

what basis and on whose information she wrote at the bottom

of the form by way of the third entry therein that the child was

missing since 6:45 PM.

8. For record it may be noted that the police control

room conveying to the police station Timarpur the said

information of Rakhi being missing stands recorded vide DD

No.65B, Ex.PW-10/A, proved by the author thereof HC Ranbir

Singh PW-10, which records that the police control room has

informed that Rakhi daughter of Suresh aged 5 years was

missing since 8:45 PM from Gali No.17 Gopal Pur in front of the

STD booth. That the child was wearing a white coloured vest

and a black coloured underwear.

9. The second document which leads to the proof of

Rakhi being missing and additionally throws light on the

accused i.e. Ranjeet is the statement Ex.PW-1/A made by

Suresh Shah, the father of Rakhi, and as recorded by ASI Shiv

Kumar PW-18. It stands recorded in the statement Ex.PW-1/A

that Suresh Shah is a rickshaw puller and resides as a tenant

in the house of Zora Singh along with his family. Rakhi aged 5

years was his third daughter. Today evening at 7:45 PM when

he was returning after plying rickshaw he saw Ranjeet with his

daughter in his lap. He asked where was he taking his

daughter. Ranjeet responded that he was taking her for a

stroll. He went to his house at 9:00 PM and learnt from his wife

that his daughter Rakhi was missing. He saw Ranjeet when

Ranjeet reached his room and asked him where was Rakhi.

Ranjeet replied that he had left Rakhi who may have gone to

the house of her Naani. He and his wife went to the house of

Rakhi's Naani who also resides in Gopal Pur but learnt that

Rakhi had not gone there. He and his wife returned to their

house and found Ranjeet missing and thus he informed the

police.

10. Making an endorsement Ex.PW-18/A beneath the

statement Ex.PW-1/A, and as recorded therein, ASI Shiv Kumar

PW-18 dispatched the rukka at 11:50 PM, recording therein

that the time of the occurrence was 7:45 PM. Const.Bikker

Singh PW-17 took the rukka to the police station where HC

Dharam Singh PW-7 recorded the FIR Ex.PW-7/A and made a

recording vide DD No.3A of FIR being registered. He made an

endorsement Ex.PW-7/B on the rukka recording that he had

entered DD No.3A at 00.10 hours on 4.9.2007 i.e. 10 minutes

past midnight in the intervening night of 3rd and 4th September

2007.

11. We may note at the outset that Const.Anju Bala, HC

Ranbir Singh, ASI Shiv Kumar, Const.Bikker Singh and HC

Dharam Singh have deposed the relevant facts to prove the

PCR form Ex.PW-6/A, DD No.65B Ex.PW-10/A, the statement

Ex.PW-1/A, the endorsement Ex.PW-18/A beneath the

statement Ex.PW-1/A, the endorsement Ex.PW-7/B on the

endorsement Ex.PW-18/A and DD No.3A as also the FIR Ex.PW-

7/A being recorded/prepared at the time mentioned therein.

None of them have been cross-examined on said aspect.

However, we would be failing not to note that an argument

was predicated upon the contents of the CDTS Trained Expert

Report Ex.PW-9/A; with respect to the contents of said report

that it was apparent that the FIR was ante timed. We would be

highlighting the submission as we proceed along and reach the

stage of our narratives pertaining to Ex.PW-9/A. Submissions

were made that the FIR was ante timed based on the

testimonies of Rajjo PW-2, Paramshila PW-3 and Deepak PW-

11, which we shall be noting at the appropriate stage.

12. It may be noted here itself, an argument which we

would be dealing at the appropriate stage, that with reference

to the fourth entry in the PCR form Ex.PW-6/A where it was

recorded: Paune saat se laapata hai, it was argued that

somebody must have said that and in all probability that

somebody has to be Suresh Shah and this means that Rakhi

was missing since 6:45 PM and thus Suresh Shah could not

have seen her with Ranjeet at 7:45 PM as stands recorded in

the statement Ex.PW-1/A of Suresh Shah.

13. It is apparent that if Rakhi had to be found out,

Ranjeet had to be traced. As deposed to by ASI Shiv Kumar

PW-18, Suresh Shah told him that Ranjeet used to drive trucks

of kilns in the area of Mukherjee Nagar and suggested that

they should look for Ranjeet in that area and accordingly he

i.e. ASI Shiv Kumar PW-18 accompanied by Suresh Shah PW-1

and Const.Bikker Singh PW-17 proceeded to Mukherjee Nagar

where trucks used to be parked and as deposed to by the

three, Ranjeet was spotted near jhuggi of Nand Lal in

Mukherjee Nagar and was apprehended and immediately

arrested as per arrest memo Ex.PW-1/B, which records the

time of arrest as 1:30 AM i.e. the middle of the intervening

night of 3rd and 4th September 2007 and thus the date

mentioned on the arrest memo is 4.9.2007. Further, as

deposed to by ASI Shiv Kumar, Const.Bikker Singh and Suresh

Shah; on being interrogated by ASI Shiv Kumar, Ranjeet made

a disclosure statement Ex.PW-1/D, not only admitting to the

crime but disclosing that after raping Rakhi at a secluded place

near Gopal Pur cut he pressed the mouth of Rakhi and threw

her in a water pond having water and also threw her

underwear which he had removed before raping her and that a

towel which he was wearing when he raped Rakhi got stained

with blood which he could get recovered from his house and

that he could also get recovered the underwear of Rakhi and

could lead them to the place where he had thrown the dead

body of Rakhi.

14. Thus, through the mouth of Ranjeet facts came to

the knowledge of ASI Shiv Kumar which showed that two more

cognizable offences of rape and murder were committed and

hence the information was passed on by him to the police

station, a fact deposed to by ASI Shiv Kumar and confirmed by

Insp.Ram Pal Singh PW-19, who immediately proceeded to

Gopal Pur for the reason as per the departmental instructions

issued in the National Capital Territory of Delhi, cognizable

offence of murder has to be investigated by an officer not

below the rank of Inspector. Needless to state, in the FIR

which had stood registered for the offence punishable under

Section 363 IPC, Section 201 IPC, Section 376 IPC and Section

302 IPC were added.

15. Indeed, as deposed to by Insp.Ram Pal Singh, ASI

Shiv Kumar, Const.Bikker Singh and Suresh Shah, Ranjeet led

the four to a pond near Gopal Pur at a distance of about 20 to

25 meters from the turning from Gopal Pur towards Ring Road.

As recorded in the pointing out memo Ex.PW-1/E the dead

body of Rakhi was recovered on the pointing out of the spot by

Ranjeet. The body was fished out from the pond. Thereafter,

Ranjeet pointed to a spot a little away from the pond, where

from a pink coloured underwear Ex.P-1 was seized as entered

in the memo Ex.PW-1/F. As deposed to by Insp.Ram Pal Singh

he drew up the memos and as deposed to by ASI Shiv Kumar

and Suresh Shah they signed as witness since they had

witnessed the recovery of the dead body of Rakhi as also that

of the underwear Ex.P-1. As deposed to by Insp.Ram Pal Singh

he summoned the Crime Team.

16. Insp.Sube Singh PW-9 was posted as in-charge

Mobile Crime Team, North District, and as deposed to by him

he reached Gopal Pur and saw the dead body of a young girl

near a pond and he inspected the spot and got the scene

photographed and finally prepared the 'CDTS Trained Expert

Report' Ex.PW-9/A. Photographer Const.Ramesh PW-8 who

was a part of the Crime Team took photographs Ex.PW-8/A1 to

Ex.PW-8/A5, and as deposed to by him, negatives thereof were

Ex.PW-8/B1 to Ex.PW-8/B5. The photographs are obviously

hazy since they were shot in the darkness of the night. A flash

was used and over exposure to the light has resulted. This is

visible to whosoever sees the photographs, but what needs to

be noted is that the photograph Ex.PW-1/A5 shows the pond

adjacent to where the dead body of Rakhi was lying. The other

photographs of Rakhi show her without an underwear and only

with a vest.

17. Relevant would it be to note, since an argument

was advanced with reference to the contents of Ex.PW-9/A,

that against Column No.2 where it is printed: 'FIR/DD No.' it

has been written 65. Against Column No.8 where it is printed:

'Date and Time of Examination' it stands recorded: 4.9.07 -

2:30 AM to 3:30 AM. The argument advanced relatable to this

document was that where was the question of the FIR being

registered till 3:30 AM as claimed by the prosecution for the

reason had it been so, the Crime Team which filled up the form

Ex.PW-9/A would have so done after inspecting the spot and

since time recorded in the Form when the team remained at

the spot is 2:30 AM to 3:30 AM it was apparent that the Form

was filled up after 3:30 AM. Learned counsel highlighted that

since only DD entry was referred to in the Form it had to be

inferred that the FIR was ante timed.

18. As deposed to by Const.Bikker Singh PW-17,

Insp.Ram Pal Singh handed over the dead body of Rakhi to him

for being taken to the Subzi Mandi mortuary and thus he

parted company. Insp.Ram Pal Singh, ASI Shiv Kumar and

Suresh Shah, as deposed to by the three, came to the room on

rent with Ranjeet, which happened to be in the same building

in which Suresh Shah resided and as recorded in the pointing

out-cum-recovery memo Ex.PW-1/G Ranjeet picked up a towel

Ex.P-2 which was hung on a peg on the wall inside the room

and handed over the same to Insp.Ram Pal Singh stating that

this was the towel which he was wearing when he raped Rakhi.

19. Though referred to as a towel, Ex.P-2 would be

better described in vernacular. It is a gamcha, a multipurpose

piece of cloth which can be used as a male wrap-around, a

towel, a sheet spread and if needed after folding, as a head

rest.

20. As deposed to by Insp.Ram Pal Singh he filled up

the inquest papers, which we note have not been exhibited but

are to be found at pages No.409 and 413 of the Trial Court

Record. Since an argument was advanced in relation to the

contents thereof, it may be noted that in the brief facts

pertaining to the inquest it was written that as per the

confession of Ranjeet he had raped and strangulated Rakhi

and on the other document pertaining to the inquest against

Column No.12 where it was indicated that information be

sought as to in what manner or by what weapon or instrument

marks or injuries appear to have been committed, it stands

written: 'Strangulation by hand.' The argument was that

Insp.Ram Pal Singh having not sought an opinion whether

death could be by drowning suggested that he was not even

aware that the body was fished out from a pond and thus his

claim of being present when the pointing out-cum-recovery

memo Ex.PW-1/E and other relatable memos were drawn is

suspect.

21. As noted in para 1 above, post-mortem on the

dead body of Rakhi was conducted by Dr.S.Lal PW-5, who, as

deposed to by him handed over the vest of Rakhi as also her

blood sample on a gauze with vaginal and rectal swabs to the

investigating officer.

22. Ranjeet was taken to Aruna Asaf Ali Hospital where

Dr.Preeti PW-4 examined him at 9:30 AM on 4.9.2007, as

recorded on the MLC Ex.PW-4/A. She noted no external injury

on Ranjeet and hence so wrote on the MLC Ex.PW-4/A. As

deposed to by Dr.Preeti PW-4 she seized the undergarments

which Ranjeet was wearing and handed over the sealed packet

to the investigating officer. As per endorsement Ex.PW-5/A at

the rear of the MLC Ex.PW-4/A, and as deposed to by Dr.S.Lal

PW-5, Ranjeet was produced before him at 11:00 AM and after

examining Ranjeet he wrote his observations and opinion

pertaining to the physical examination of Ranjeet vide

endorsement Ex.PW-5/A. He wrote in the endorsement that

there were multiple reddish bluish bruises intermingling with

each other, forming a large wound on the gluteal region of

Ranjeet as also linear reddish bluish bruise of size 6 cm x 1 cm

over back of right lower chest. He opined, a fact deposed to

by him, that he found nothing which was suggestive or

determinative of the incapacity of Ranjeet to indulge in sexual

intercourse. Relevant would it be to note qua said injuries that

on being cross-examined Dr.S.Lal stated that it was correct

that said injuries could be possibly caused by a linear object

i.e. a 'danda'.

23. The various exhibits which were seized as afore-

noted i.e. the underwear Ex.P-1 of Rakhi, the towel Ex.P-2 got

recovered by Ranjeet, the vest of Rakhi, her blood sample on a

gauze and her vaginal and anal swab as also the

undergarments of Ranjeet which Dr.Preeti claims to have

handed over to the investigating officer as per memo Ex.PW-

4/B were sent for forensic examination and as per report Ex.PX

human blood group whereof was 'A' were detected on the

blood stained gauze i.e. was the blood group of Rakhi; human

blood of same group was detected on the towel Ex.P-2 as also

the vest (stated to be that of Ranjeet). On the underwear,

stated to be that of Ranjeet, only human blood could be

detected and not the group thereof. No blood could be

detected on the underwear Ex.P-1 and the vest of Rakhi.

Semen could be detected only on the underwear of Ranjeet.

24. The controversy pertaining to the underwear and

the vest alleged to be worn by Ranjeet when he was

apprehended may be noted. Neither the vest nor the

underwear of Ranjeet were produced in Court and identified as

the ones which were seized.

25. Suresh Shah PW-1 deposed facts in complete

conformity with his statement Ex.PW-1/A and no

improvements, contradictions or embellishments were pointed

out to us between his testimony in Court and the statement

Ex.PW-1/A. Inter alia he deposed that at 7:45 PM on 3.9.2007

he saw Ranjeet carrying his daughter slightly away from his

house and that he parked his rickshaw in a garage and

returned to his house at 9:00 PM. In addition to the facts

disclosed in his statement Ex.PW-1/A he proved by deposing

that he witnessed the arrest of Ranjeet who made a disclosure

statement Ex.PW-1/D and pursuant thereto led the police to a

pond near Gopal Pur Road cut and pointed out the place

wherefrom the dead body of his daughter was recovered as

also pointed out the place wherefrom the underwear Ex.P-1 of

his daughter was recovered and that thereafter he led the

police to his house and got recovered the towel Ex.P-2. He

affirmed his signatures on all pointing out cum recovery

memos. During cross-examination he clarified that apart from

himself and Ranjeet there were 10-15 other tenants in the

building owned by Zora Singh. He clarified that the distance

between his house and the garage where he parked his

rickshaw was a 10-15 minutes walk. He stated that the towel

Ex.P-2 was hung on a peg outside the room of Ranjeet. On

being questioned as to who all were present at the place

where the dead body of his daughter was found he replied that

no public person and none of his relatives was present.

26. Smt.Rajjo PW-2 the mother-in-law of Suresh

deposed that on 3.9.2007 her son-in-law Suresh came to her

house searching for his daughter. During cross-examination

she stated that she reached the house of Suresh at 8:00 PM by

which time the police came. It may be noted that the learned

Trial Judge has noted his observations qua Smt.Rajjo by

recording that she is hard of hearing and is understanding the

questions with great difficulty and that she does not

understand Hindi properly.

27. Smt.Paramshila PW-3, wife of Suresh deposed that

on the 3rd of a month in the year 2007 which month she could

not recollect by the English calendar but was the month of

Bhadrapad her daughter Rakhi went missing at around 8:00

PM. Her husband came home at 9:00 PM and told her that

Rakhi was with Ranjeet. Around same time Ranjeet returned

and upon inquiry from her husband replied that Rakhi may

have gone to her Naani's house. She and her husband went to

her mother's house who told them that Rakhi had not come to

her house. They returned to their house and saw Ranjeet

missing. The husband informed the police. On being cross-

examined she deposed that Rakhi was playing outside at 7:30

PM and she alone searched for Rakhi till 3:00 AM and since

Rakhi could not be found, as advised by her brother she slept.

28. Dr.Preeti PW-4 proved the MLC Ex.PW-4/A and

stated that she handed over the undergarments of Ranjeet to

Const.Jogender after duly sealing the same. Dr.Preeti has not

been cross-examined. Dr.S.Lal PW-5 proved the post-mortem

report Ex.PW-5/B of Rakhi and his endorsement Ex.PW-5/A at

the back of Ranjeet's MLC Ex.PW-4/A and during cross-

examination stated that injuries noted by him on Ranjeet could

possibly be caused by a 'danda'. Const.Anju PW-6 proved the

PCR form Ex.PW-6/A with the clarification as noted in para 6

above. HC Ranbir Singh PW-10 deposed that he recorded DD

No.65B, Ex.PW-10/A when he received wireless message from

the PCR of Rakhi D/o Suresh missing. He has not been cross-

examined. HC Dharam Singh PW-7 deposed that he received

the tehrir and registered the FIR Ex.PW-7/A at 12:10 midnight

and hence recorded the date 4.9.2007. He deposed that the

endorsement Ex.PW-7/B on the tehrir was in his handwriting.

Relevant would it be to note that no suggestion regarding ante

timing of the FIR was given to HC Dharam Singh and the only

suggestion given was that he did not register the FIR, a fact

denied by him. Const.Ramesh PW-8 deposed that he took the

photographs, negatives whereof were as noted in para 16

above. Insp.Subey Singh PW-9 proved the report Ex.PW-9/A,

contents whereof and the controversy relating thereto have

been noted in para 17 above.

29. Const.Bikker Singh PW-17, ASI Shiv Kumar PW-18

and Insp.Rampal Singh PW-19 deposed facts pertaining to the

investigation conducted and various exhibits seized and as

noted by us in paragraphs 9 to 23 above and in spite of cross-

examination nothing could be brought out to demolish their

credibility.

30. Deepak PW-11, brother of Paramshila deposed that

he saw Rakhi's dead body on the bank of the pond in Gopal

Pur near ring road and identified the dead body as that of his

niece.

31. It is time to note the submissions urged by learned

counsel for Ranjeet.

32. It was firstly urged that not only in the PCR form

Ex.PW-6/A but even in Suresh Shah's statement Ex.PW-1/A a

positive statement stands recorded that the underwear which

Rakhi was wearing was black in colour but the underwear Ex.P-

1 is pink in colour and hence it is apparent that the underwear

has been planted. Counsel urged that this shows a tainted

investigation and hence a benefit of doubt needs to be

extended to the accused.

33. Second submission urged was by picking on the

fourth recording in the PCR form Ex.PW-6/A where after

recording that ASI Shiv Kumar had reached the spot at 9:36 PM

it stands recorded in Hindi: 'paune saat se laapata hai'.

Counsel urged that it was apparent that somebody said said

fact to the PCR operator who could not have otherwise

recorded the same. Hyperlinking this to the admission of

Smt.Rajjo, who during cross-examination stated that she

reached the house of her son-in-law by which time it was 8:00

PM and police had arrived, learned counsel submits that what

emerges is that Rakhi was found missing at 6:45 PM and said

information had been conveyed to the police and thus the

police reached the house of Suresh Shah by 8:00 PM by which

time the relatives of Rakhi had searched for her long enough

and panic had set in. Further hyperlinking the submission by

referring to the testimony of Suresh Shah and his admissions

in cross-examination wherein Suresh Shah stated that he was

near his house at 7:45 PM when he saw his daughter Rakhi in

the lap of Ranjeet and that he parked his rickshaw in his

garage which was at a distance of 10-15 minutes walk from his

house, learned counsel urged that if this be so, Suresh Shah

would be back at his house by around 8:05-8:10 PM (travelling

time on rickshaw being far less than time consumed to cover a

distance while walking) and this probablizes the time of 8:00

PM disclosed by Smt.Rajjo; in any case urged the counsel that

the first information given to the police by Suresh Shah of

Rakhi missing is admittedly at 9:06 PM, the time recorded on

the PCR form Ex.PW-6/A. It was urged that the statement of

Paramshila that she searched for her daughter till 3.00 AM and

then slept shows that by said time Rakhi's body was not found.

The sum total of all aforesaid submissions, urged the counsel,

was that in all probability Rakhi's absence was detected by

around 6:45 PM and somebody truthfully said said fact to ASI

Shiv Kumar who conveyed the same to Const.Anju Bala and

hence the recording on the PCR form: 'paune saat se laapata

hai'. Further extending this submission, learned counsel urged

that everything contemporaneously recorded at the police

station pertaining to FIR being registered at 10 minutes past

12 in the midnight of the intervening night of 3rd and 4th

September, 2007 is suspect qua the timing thereof and thus

there are reasonable grounds to suspect the FIR being ante

timed. Counsel very heavily relied upon the 'CDTS Trained

Expert Report', Ex.PW-9/A wherein against column 8 the time

during which the crime team remained at the spot was

recorded as 2:30 AM to 3:30 AM and the date as 4.9.2007 and

against column No.2 where reference to FIR/DD No. had to be

entered, the FIR No. was not written and only the number of

the DD entry with letter 'B' missing and only the number 65

stood written. Thus, the argument was as noted in para 17

above. Another facet emerging from the testimonies and

falling in the cauldron of the submission that the recording of

the documents and the FIR was ante timed was the submission

that Suresh Shah stated during cross-examination that when

Rakhi's body was found no public person or his relative was

present, but Deepak PW-11, brother-in-law of Suresh Shah

claimed to be present when dead body of Rakhi was

discovered. Relatable submission thereto was that it was

apparent that the dead body of Rakhi has been noticed by

somebody else and hence Deepak reached the pond on

getting said information and thus the possibility of the police

otherwise getting to know about Rakhi's dead body lying in the

pond but putting source of knowledge thereof in the mouth of

Ranjeet.

34. The third submission urged was that in the inquest

papers, though not proved but at page No.409 and 413 of the

Trial Court record, Insp.Rampal Singh had indicated that the

information which he sought was whether Rakhi was

strangulated by hand and not the information whether she

died due to drowning. The exact submission urged was as

noted in para 20 above.

35. The fourth submission urged was that it was a case

of an over-zealous investigation and said over-zealousness

could have possibly tainted the investigation. The act of over-

zealousness was, apart from the argument of an underwear of

Rakhi being planted, injuries caused to Ranjeet after 9:00 AM

and before 11:00 AM on 4.9.2007 evidenced, as per the

learned counsel, by the fact that in the MLC Ex.PW-4/A when

Dr.Preeti examined Ranjeet at 9:30 AM no injuries were noted

by her on Ranjeet and by 11:00 AM when Dr.S.Lal examined

Ranjeet, injuries as noted in para 22 above were detected by

Dr.S.Lal with a clarification that the said injuries could be

possibly caused by beating with a stick. Counsel urged that by

inflicting the injuries on the gluteal region and the chest of

Ranjeet it is apparent that the investigating officer was

wanting to create injuries on such part of the body of Ranjeet

wherefrom it could possibly be argued that they were the

result of the victim fending of the sexual assault on her.

36. Pertaining to the recovery of the towel Ex.P-2 it was

urged that it is against natural conduct of a person who has

raped and murdered a girl to return to his room in a building

where 10-15 other tenants are residing. Nobody would like to

be seen near his house and that too with a towel wrapped

around having blood stains thereon, urged the counsel. It was

additionally urged that the place wherefrom the towel was

recovered has been discrepantly disclosed by the witnesses to

the recovery; whereas Suresh Shah claims that it was picked

up from a peg outside the room of Ranjeet, other witnesses

have deposed that it was picked up from within the room.

37. The last but one submission urged by the learned

counsel for the appellant was that neither the underwear nor

the vest of the appellant was produced in the Trial Court. The

rule of evidence being that the seizures of articles need to be

proved by producing such articles before the Court, the same

not having been done in the instant case, the semen and the

blood detected on the underwear and the vest respectively of

the appellant are of no incriminating value. It was urged that

in the absence of any semen or blood being detected on the

underwear and the vest of the deceased Rakhi as also on the

anal and vaginal swab of Rakhi, it was apparent that no semen

was ejaculated and even on said account presence of semen

on the underwear of Ranjeet was doubtful. The last

submission was that if Ranjeet is found guilty, it is not a case

where the sentence of death should be inflicted.

38. The first submission with respect to the colour of

the underwear Ex.P-1 being pink and it being disclosed by

Suresh Shah that his daughter was wearing a black underwear

does not lead to any inference that the over-zealous

investigating officer planted the underwear Ex.P-1. Had he

wanted to plant one, what prevented him from not planting a

black coloured underwear? Obviously nothing. Now, a father

who is peddling a rickshaw and sees his child in the company

of his neighbour may not exactly remember the colour of the

underwear his child was wearing and perhaps may be guided

by some faint impression in the mind that probably the colour

was of a particular kind and hence would so state. We find

that Suresh Shah has not been cross-examined on this aspect

of the controversy and thus we see no scope for any further

debate. Of course, if Suresh Shah had been quizzed on the

issue and had volunteered an answer, then one could have

debated on the issue with the focus being the answer or the

explanation furnished by Suresh Shah.

39. The second submission, as noted in para 33 above,

has various facets, some of which are directly hyperlinked to

the other and some independent of each other, but all falling

in the cauldron of whether the FIR was ante timed for the

reason Rakhi was actually missing since 6:45 PM and was

never last seen with Ranjeet at 7:45 PM as claimed by Suresh

Shah and thus a story had to be cooked up and probably

before a story could be cooked up the dead body of Rakhi was

noticed by somebody and information thereof was given to the

police and only thereafter, working backward by planting first

a suspect and then giving him colour of an accused the record

was fabricated.

40. While briefly noting the deposition of the police

witnesses, we have already noted that HC Ranbir Singh PW-10

who has recorded DD No.65B at 9:24 PM on 3.9.2007 has not

been cross-examined. Similarly, testimony of Const.Anju Bala

PW-6 of having recorded at 9:06 PM on the PCR form Ex.PW-

6/A that a person called Suresh Shah has rung up to inform

that his daughter was missing since 7:45 PM has not been

challenged during cross-examination as also her clarification

that by mistake she wrote the time 8:45 PM. Similarly, HC

Dharam Singh PW-7 who has proved the FIR Ex.PW-7/A has not

been challenged with respect to his testimony that he

registered the FIR at 10 minutes past 12:00 midnight.

41. Having not challenged the testimony of the

aforenoted three police officers, we see no debate on the issue

of the FIR being ante timed.

42. But since submissions were made on the debate

and as recorded in para 33 above, we would be fair to the

accused by dealing with the same. The recording 'paune saat

se laapata hai' at the end of the PCR form Ex.PW-6/A is

undoubtedly to be found on the form Ex.PW-6/A. Let us

explain the format of the form. The form is divided into 4

distinct components. The first component requires the person

at the police control room briefly penning the information

conveyed when the Police Control Room No.100 is rung up.

The second component requires the person at the police

control room to briefly record information conveyed over the

wireless by the PCR van in charge which reaches the place of

the incident. The third component requires information to be

filled up that what has been received at the police control

room has been passed on to the police station concerned. The

fourth component requires report received by the police officer

of the local police station who has reached the spot and as

conveyed to the police control room.

43. It is in the fourth component of the PCR form

Ex.PW-6/A that it stands recorded 'paune saat se laapata hai'.

As noted in para 7 above, nobody has questioned Const.Anju

Bala as to under what circumstances she wrote the said words

in part 4 of the PCR form. Everybody, including ourselves,

were left to guess as to what was intended to be meant or

conveyed when Const.Anju Bala wrote the said words. But

there is some probable cue to unravel the mystery. Suresh

Shah has claimed that he saw his daughter in the lap of

Ranjeet at 7:45 PM and in vernacular it would be 'paune aath'.

In vernacular 6:45 PM would be 'paune saat'. There is some

phonetic similarity between 'aath' and 'saat'. The issue of

phonetic similarity has to be considered not in the context of

the speaker and the listener being face to face i.e. within

audible distance of each other, for in said situation,

phonetically similar words can be discerned by the ear. The

issue of phonetic similarity, in the instant case, has to be

considered with reference to the situation of information being

conveyed over the wireless. Have we not experienced

humming sound over wireless sets intermingling with the

words spoken through the wireless? Yes we have. It is thus

possible that the words 'paune aath se laapata hai' being

heard and hence written as 'paune saat se laapata hai'. It is

settled law that where the attention of a witness is not drawn

to a discrepant fact stated by the witness or recorded by the

witness thereby denying the witness an opportunity to explain,

no brownie points can be claimed by the opposite side.

44. If the first limb of the second submission is

answered as above, it is apparent that the second limb by way

of hyperlinking to the first would have no hyperlink as was

urged and as noted in para 33 above. But with or without a

hyperlinking, from the observations recorded by the learned

Trial Judge while recording the testimony of Smt.Rajjo which

have been noted by us in para 26 above it is apparent that

Rajjo is a rustic lady and had a language problem. She

understood neither English nor Hindi. Thus, her statement

that she was in the house of her son-in-law at 8:00 PM by

which time the police had arrived cannot be stretched to mean

that information of Rakhi being missing was with the police

who for mala fide reasons chose not to enter the same in the

daily diary register. Not only that no such suggestion has been

given to HC Ranbir Singh PW-10 the scribe of DD 65B or to any

other police officer associated with the investigation. Lastly,

Rajjo is the only witness who has not deposed in sync with

other witnesses who have deposed to on the said issue being

Suresh Shah PW-1, Smt.Paramshila PW-3, Const.Bikker Singh

PW-17 and ASI Shiv Kumar PW-18, all of whom have

consistently deposed that ASI Shiv Kumar and Const.Bikker

Singh reached the house of Suresh Shah in Gali No.17, Gopal

Pur post 9:30 PM after DD No.65B was registered at the police

station at 9:24 PM. The next hyperlink with reference to

Suresh Shah saying that the distance of his garage where he

used to park his cycle rickshaw from his house was 10-15

minutes walk and if Suresh Shah had seen Ranjeet with Rakhi

at 7:45 PM when he passed by near his house and was

proceeding to his garage, he ought to have returned by 8:05

or 8:10 PM and his claim of returning at 9:00 PM is obviously to

fill up the time gap and this extra time was used to spin a

fabricated story is premised on three assumptions being (i)

that the journey time till the garage on the rickshaw would be

about 5 minutes and (ii) Suresh Shah just parked his rickshaw

in the garage and spent the least possible time in the garage

and immediately walked back to his house and lastly (iii)

Suresh Shah was keeping a record of the time as a time

keeper would do. All three assumptions cannot be assumed

for the reason in a given circumstance the only assumption

which a Court may assume is that normal course of conduct or

events was followed. Suresh Shah is a rickshaw puller and

would be referring to the time in an un-officious manner. In

crowded streets in Delhi we have seen pedestrians move

ahead of crawling traffic. After parking a vehicle people have

been seen standing at the parking place having polite

conversation. People do stop by on the way to their house to

have a smoke or chat with a friend on the street. That apart,

no suggestion has been given to Suresh Shah that after

parking his rickshaw he immediately returned to his house and

spent no time on any other activity. The next hyperlink sought

to be created with reference to the CDTS Trained Expert

Report, Ex.PW-9/A, is with reference to the fact that in the said

report reference is made to the daily diary entry No.65 and not

the FIR. The document records the fact that the crime team

remained at the spot from 2:30 AM to 3:30 AM i.e. during the

intervening night of 3rd and 4th September 2007. But from said

fact it cannot be inferred that it establishes the FIR not being

registered till 3:30 AM. It assumes importance that Insp.Subey

Singh PW-9, the author of the report has not been put any

question as to under what circumstances he filled up column

No.2 of the form by recording the DD number. To explain what

possibly has happened it needs to be understood that where a

crime is detected and tehrir sent for FIR to be registered, in

the tehrir itself request is made to the duty officer to send the

crime team and the crime team leaves with a copy of the DD

entry and thus enters the DD number in the CDTS form

ignoring the fact that by the time the crime team has

completed its investigation at the spot, the FIR has been

registered. Sometimes, as in the instant case, when events

happen with quick succession, one forgets that with the

passage of time, it may have happened that the FIR was

registered. The omission in the instant case has to be, in all

probability, in the latter category because in the instant case

the FIR has been registered for the offence of kidnapping at 10

past 12:00 in the midnight and in the tehrir on basis whereof

the FIR has been registered there is no request to send any

crime team because obviously there was no requirement of

the crime team to be sent. This requirement arose when

Ranjeet was apprehended at around 1:30 in the middle of the

night and he made a disclosure. It is around this time, as

deposed to by ASI Shiv Kumar that the offence of rape and

murder surfaced and hence the requirement of the crime team

to reach the place where the crime was committed. What

appears to have happened is that the duty officer handed over

a copy of DD No.65B to Insp.Subey Singh who innocently

recorded on the CDTS Trained Expert Report Form that his

report pertained to the matter under investigation relatable to

DD No.65B. The last hyperlink that Suresh Shah stated that no

public person or relative was present when dead body of Rakhi

was recovered at the pointing out of Ranjeet but his brother-in-

law Deepak PW-11 claimed of being present at the spot and

hence there is a possibility that the dead body was noted by

somebody else and information was given to the police and

the word spread of Rakhi being found and this leading Deepak

to the pond wherefrom Rakhi's dead body was recovered, is

again a submission of building a castle with straws. Deepak

has simply deposed: Rakhi was daughter of my sister whose

age was 5 years. On 4.9.2007 I saw dead body of Rakhi lying

on the bank of a pond in Gopal Pur near ring road and I

identified the dead body. My statement to this effect is Ex.PW-

11/A which bears my signatures at point 'A'. Now, Deepak has

not stated that he accompanied the police to the spot to which

the police was led by Ranjeet. He does not depose to any

pointing out or Rakhi's body being fished out from the pond.

He only claims that he saw the dead body of Rakhi on the bank

of a pond. From the testimony of Paramshila, sister of Deepak

it is apparent that Deepak was with her for Paramshila has

deposed that her brother had advised her to go to sleep when

everybody was looking around for Rakhi. It is apparent that

Deepak was comforting his sister in her house. The house is in

Gopal Pur. Rakhi's dead body was recovered from a pond in

Gopal Pur at the spot where the road from Gopal Pur made a

cut into ring road. Information reaching Deepak who was in

the house of his sister that Rakhi's dead body was found is a

probable fact and this made him move towards the pond and

reach the pond. The last limb of this submission that

Paramshila's claim of searching for Rakhi till 3:00 AM also

establishes that Rakhi's body was discovered late and

everything was ante timed is rejected for the reason

Paramshila is a rustic housewife of a rickshaw puller and we

find nothing absurd in her being a little gibberish on the issue.

All other persons i.e. Suresh Shah, ASI Shiv Kumar,

Const.Bikker Singh and Insp.Rampal Singh have all deposed in

unison and in harmony with each other. The credibility of their

testimonies on this issue cannot be rendered nugatory by

reacting it with the blemished testimony of Paramshila.

45. We conclude this discussion by once again noting

that the scribe of DD No.65B HC Ranbir Singh, the scribe of the

FIR HC Dharam Singh, as also the scribe of the PCR form

Const.Anju Bala have not been challenged on their testimony

that they recorded DD No.65B, the FIR and the PCR form at the

time as mentioned in the respective documents.

46. The third submission pertaining to the inquest

papers and as recorded in para 34 above has to be rejected for

the reason as held in the decision reported as 2007 (15) SCC

372 Ravi Vs. State and the decision reported as 2010 (2) SCC

583 Aftab Ahmad Ansari Vs. State of Uttaranchal, the purpose

of inquest is to ascertain prima facie nature of death and to

find out whether there are injuries on the dead body as also

the cause of death. Inquest panchnama cannot be treated

akin to statements of witnesses wherein facts seen by the

witness have to be narrated. The purpose of an inquest

proceedings is to find out whether the death was homicidal or

not and not for making a note in regard to identifying facts

relating thereto. In the disclosure statement Ex.PW-1/D it

stands recorded that the appellant told ASI Shiv Kumar that

after raping Rakhi he strangulated her and threw the body in

the pond. Obviously, this has led Insp.Rampal Singh to have

sought an opinion from the doctor who was to conduct post-

mortem on the dead body of Rakhi, whether she was

strangulated. We read no further into this controversy for the

law on the subject has been herein before noted.

47. The fourth submission that the investigating officer

has been over-zealous is on the fact brought out and as noted

in para 35 above. The first facet of Rakhi's underwear Ex.P-1

being planted has already been dealt with and rejected by us

in para 38 above and we need not reiterate our reasoning.

The second facet was of the injuries on the person of Ranjeet

which were not in existence when Dr.Preeti examined Ranjeet

at 9:30 AM and surfaced when Dr.S.Lal examined Ranjeet at

11:00 AM. The facet of the argument is as noted in para 35

above.

48. It is obvious that the thrust of the argument is that

Insp.Rampal Singh was wanting to create some injuries on the

appellant and connect the same as possibly sustained when

Rakhi was raped. The argument ignores that the purpose of

getting Ranjeet medically re-examined was the omission by

Dr.Preeti in not recording any opinion qua the capacity of

Ranjeet to indulge in sex. The MLC Ex.PW-4/A penned by

Dr.Preeti is silent on a very vital and important aspect i.e.

proof of the potency of Ranjeet and for this purpose Ranjeet

was got re-examined by a doctor. It is unfortunate that in the

interregnum Ranjeet was subjected to some third degree

treatment by the police and for which we leave it open for

Ranjeet to take resort to a civil action.

49. The submission pertaining to the recovery of the

towel Ex.P-2 and as noted in para 36 above has two facets. In

para 19 above we have explained that Ex.P-2 is actually a

gamcha, a multipurpose clothing which can be used as per the

need of the owner, as a towel, as a male wrap around and as a

head rest. Humble folks are often seen with a gamcha

wrapped around with the same frequency with which we see

humble folks with tehmads wrapped around. Ranjeet moving

around with a gamcha would not be something unnatural to

attract the attention of anybody, but moving around with a

gamcha which got stained with blood would certainly be

something which may attract the attention of people around

and thus if Ranjeet's gamcha got stained with blood it would

become his compulsion to change the same and this would be

the explanation of his compulsion to return to his room after

the crime was committed. We find nothing unnatural in this

conduct of Ranjeet. Of the three persons who have deposed to

the recovery of Ex.P-2, two of them namely, Insp.Rampal Singh

and ASI Shiv Kumar have deposed in harmony that the

gamcha was recovered at the pointing out by Ranjeet from a

peg inside his tenanted room and only Suresh Shah has

deposed at variance that the exhibit was picked up on being

pointed out by Ranjeet from a peg outside the room. This in

our opinion is not such material contradiction which renders

the recovery of the exhibit as a doubtful recovery.

50. The last but one submission noted in para 37 above

is well accepted by us pertaining to the underwear of the

appellant and thus we hold that the incriminating evidence

used by the learned Trial Judge pertaining to the underwear of

the appellant which was seized by Dr.Preeti is to be excluded.

But from the fact that neither blood nor semen was detected

on the vaginal swab and anal swab of Rakhi, no inference

either way can be drawn for the reason the post-mortem

report of Rakhi carries tell tale evidence of her being brutally

raped. The tear in her vagina extends to the anus. It is

possible that the ejaculation took place not when the male sex

organ of Ranjeet was inside the vagina of Rakhi, but when it

was pulled out.

51. Having dealt with the submissions urged, running

through the evidence led we find that at the instance of Suresh

Shah a cryptic information stood recorded at the police control

room at 9:06 PM that Rakhi was missing which was conveyed

to the local police station at 9:24 PM. ASI Shiv Kumar

accompanied by Const.Bikker Singh reached Gali No.17, Gopal

Pur where Suresh Shah resided who told them by around 9:30

or 9:40 PM that he had seen his daughter in the lap of Ranjeet

who was his neighbour at around 7:45 PM and he rang up the

police when on returning to his house at 9:00 PM he did not

see Rakhi and the appellant informed him that she may be

with her Naani and the visit to the Naani's house in the same

colony resulted in information that Rakhi had not gone to the

house of her Naani and simultaneously Ranjeet went missing.

This information stands recorded in the statement Ex.PW-1/A

which as per the endorsement Ex.PW-18/A was dispatched

from the spot at 11:50 in the night. As held in the decision

reported as 2007 (15) SCC 79 Ram Pal Vs. State of UP, prompt

lodging of FIRs lends credence to the evidence of the lodger of

the information for the reason it gives least possible time for a

false story to be cooked up. No motive of false implication has

surfaced for Suresh Shah to falsely state before ASI Shiv

Kumar that he had seen his daughter in the lap of Ranjeet.

Thereafter, ASI Shiv Kumar has promptly got lodged the FIR at

10 minutes past 12:00 which fact has emerged with pristine

truth through the testimony of HC Dharam Singh PW-7. The

subsequent events unfolded with unimaginable speed in the

natural setting of events. Suresh Shah told ASI Shiv Kumar

that Ranjeet could be possibly located where trucks were

parked in Mukherjee Nagar since Ranjeet used to drive trucks

of brick kiln owners. Ranjeet was located by around 1:30 in

the night. The fact that the crime team reached the place

where Rakhi's dead body was found proved through the

testimony of Insp.Subey Singh shows that by that time

Ranjeet's disclosure statement had already been recorded in

which he has disclosed that he had raped Rakhi and after

strangulating her had thrown her body in a pond in Gopal Pur

adjoining the cut where Gopal Pur road intersected ring road.

The photographer of the crime team Const.Ramesh has taken

five photographs which show the photographs being taken in

pitch dark. We have, while narrating the events and

reproducing the summary of the evidence and while dealing

with the arguments advanced, returned a finding that the

evidence led is credible and variations here and there are

explainable and not of a kind which discredits the case of the

prosecution. What is most crucial and clinching against

Ranjeet is proof of the fact that Rakhi was found missing at

9:00 PM and prior thereto at 7:45 PM was seen in the company

of Ranjeet. Her dead body was admittedly recovered at

around 1:30 in the night. It was pitch dark at that time. By

7:45 PM it gets pitch dark in Delhi in the month of September,

the month when the crime was committed. Thus, Rakhi was

seen with Ranjeet when it was dark; the time was 7:45 PM and

her body was recovered within less than 6 hours thereof and

during all these 6 hours it was dark. The body was inside a

shallow pond having muddy water and the pond was at a

distance of about 20-25 meters from the cut where Gopal Pur

road intersected ring road. The body inside the pond could

thus not be visible to a person moving either on ring road or

on Gopal Pur road. Knowledge of Ranjeet that dead body of

Rakhi was in the pond could possibly not be the source of

somebody else telling him so. So proximate is the time that

one automatically reaches the irresistible conclusion that

Ranjeet was the culprit. Further, Ranjeet's knowledge that

Rakhi was attempted to be manually strangulated evidenced

by his disclosure statement in which it stands recorded that

Ranjeet told ASI Shiv Kumar that he strangulated Rakhi and

then threw her body in the pond is a fact which stands

confirmed when post-mortem was conducted on the body of

Rakhi, meaning thereby, Ranjeet having knowledge of the

physical condition of Rakhi's dead body would make applicable

Section 27 of the Evidence Act not only to the recovery of the

dead body of Rakhi and knowledge of the appellant of the

place where the dead body was but also the knowledge of the

appellant about the condition of the dead body. After all, a

dead body is nothing but an object. In the decisions reported

as AIR 1947 PC 67 Pullukuri Kottaya & Ors. Vs. Emperor, 1989

Cri. LJ (NOC) 200 (Gauhati) Chakidhar Paharia Vs. State of

Assam, 1986 Cri. LJ 220 Parimal Banerjee Vs. State & Anr. and

AIR 1963 SC 1074 Ram Lochan Ahir Vs. State of West Bengal

recovery of dead body at the instance of an accused from a

place hitherto fore not in the knowledge of the police have

attracted the applicability of Section 27 of the Evidence Act to

the confessional statements made by accused to a police

officer. Thus we see no escape from the conclusion that the

learned Trial Judge has rightly returned a verdict of guilt.

52. Concurring with the judgment and order dated

10.2.2010 holding Ranjeet guilty of the charge of having

kidnapped Rakhi, of the charge of having raped Rakhi and of

the charge of having murdered Rakhi, we express our

disagreement with the order on sentence dated 3.3.2010.

53. No doubt, every rape is detestable and as against

many other penal offences manifests depravity; no doubt rape

of a minor girl invites greater repulsion; no doubt rape

followed by murder aggravates the meanness and the

depravity of the act, but the moot question would be whether

it should invite the extreme penalty required to be inflicted in

the rarest of the rare case. The power of the State to put to

death its citizen who has committed a penal offence has to be

tampered with the mercy power of the State to give an

opportunity to a deviant citizen to reform himself. Only when

the crime is so abhorrent that the collective conscious of the

society seeks retribution, personal predilections of a Judge

have no place in a sentencing policy.

54. The learned Trial Judge has referred to the various

decisions in the order on sentence and we certainly find no

uniformity in the sentence imposed by various Judges in India

while imposing the capital sentence.

55. A coordinate division Bench of this Court, of which

one of us; namely Pradeep Nandrajog, J. was a member of, had

put in a tabular form various decisions highlighting the

aggravating and the mitigating circumstances. The said

decision was in Death Reference No.1/2008 State Vs. Raj

Kumar Khandelwal decided on 8.5.2009. In para 80 the chart

was summarized as under:-

56. 1. CIRCUMSTANCES PERSONAL TO THE OFFENDER-

Sr. MITIGATING FACTORS AGGRAVATING FACTORS No.

1. Lack of prior criminal record. Previous convictions.

Re Butters' [2006] EWHC 1555 Re Miller, [2008] EWHC 719 (QB), (QB), [2006] All ER (D) 128 (Jul) [2008] All ER (D) 357 (Apr)

Williams v. Ozmint, 494 F.3d 478, 2007 U.S. App. LEXIS 17934

2. Character of the offender as Future danger/threat of perceived in the society by accused, menace to the men of social standing. society considering aspects like criminal tendencies, Reyes V. The Queen, [2002] UKPC 11, [2002] 2 AC 235 drug abuse, lifestyle, etc.

Bachan Singh v State of Punjab Renuka Bai @ Rinku @ Ratan and (1982) 3 SCC 24 Anr. v. State of Maharashtra;

AIR2006SC3056

Re Miller, [2008] EWHC 719 (QB), [2008] All ER (D) 357 (Apr)

3. The age of the offender i.e. Abuse of a position of trust;

too young or old. offender in a dominating position to the victim. Ediga Anamma v. State of Andhra Pradesh AIR1974SC799 Machhi singh vs. State of Punjab [1983] 3 SCC 470 Roper v. Simmons 543 U.S. 551

4. Mental condition of accused: Anti-social or socially Anxiety, depressive state, abhorrent nature of the emotional disturbance which crime; When offence is lower the degree of committed in culpability. circumstances which arouse social wrath. Offence is of Ediga Anamma v. State of Andhra Pradesh AIR1974SC799 such a nature so as to shake the confidence of R v Chambers, 5 Cr App R (S) 190, people.

[1983] Crim LR 688,

Bheru Singh S/o Kalyan Singh Vs. Atkins v. Virginia 536 U.S. 304 State of Rajasthan; (1994) 2 SCC

467, [1994] 1 SCR 559

Machhi singh vs. State of Punjab [1983] 3 SCC 470

5. Probability of the offender's rehabilitation, reformation and readaptation in society.

Re Miller, [2008] EWHC 719 (QB), [2008] All ER (D) 357 (Apr)

2. PRE-OFFENCE CONDUCT OF THE OFFENDER- IN

PARTICULAR THE MOTIVE OF THE OFFENCE

Sr. MITIGATING FACTORS AGGRAVATING FACTORS No.

   1.     A belief by the offender that When                the         murder      is
          the murder was an act of committed                      for    a   motive
          mercy.                                 which evince total depravity
                                                 and meanness for instance
          Janki   Dass   v.    State    (Delhi
          Administration) 1994 Supp, (3)         Motive of the crime being
          SCC 143                                financial gain.

                                                 Machhi singh vs. State of Punjab
                                                 [1983] 3 SCC 470

                                                 Williams v. Ozmint, 494 F.3d 478,
                                                 ; 2007 U.S. App. LEXIS 17934


   2.     That the accused believed Significant                     degree          of

that he was morally justified planning or premeditation. in committing the offence.

Holiram Bordoloi v. State of Assam

Bachan Singh v State of Punjab AIR2005SC2059

(1982) 3 SCC 24 In Re Rock, [2008] EWHC 92 (QB), [2008] All ER (D) 290 (Feb)

3. Offence at the spur of the moment/ lack of premeditation.



           A. Devendran v. State of Tamil
          Nadu AIR 1998 SC 2821

          Re Rahman, [2008]         EWHC 36
          (QB), [2008] All ER (D) 50 (Jan)




   4.     The offender was provoked
          (for example by prolonged
          stress)      in    a     way      not
          amounting to a defence of
          provocation.

          Re Rahman, [2008]         EWHC 36
          (QB), [2008] All ER (D) 50 (Jan)




   5.     That      the     accused       acted
          under        the       duress      of
          domination          of      another
          person.



                  3. CONTEMPORANEOUS                  CONDUCT           OF       THE

                  OFFENDER WHILE COMMITTING THE OFFENCE

  Sr.         MITIGATING FACTORS                    AGGRAVATING FACTORS
  No.

   1.     Intention to cause serious Magnitude                  of     the    crime-

bodily harm rather than to number of victims. kill.

Machhi singh vs. State of Punjab [1983] 3 SCC 470

Williams v. Ozmint, 494 F.3d 478, ; 2007 U.S. App. LEXIS 17934

2. The fact that the offender Brutal Manner of killing- in

acted to any extent in self- an extremely brutal, defence. grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

Holiram Bordoloi v. State of Assam AIR2005SC2059

Bheru Singh S/o Kalyan Singh Vs. State of Rajasthan; (1994) 2 SCC 467,

State of Maharashtra Vs. Haresh Mohandas Rajput; (2008) 110 BOMLR 373

Machhi singh vs. State of Punjab [1983] 3 SCC 470

Re Miller, [2008] EWHC 719 (QB), [2008] All ER (D) 357 (Apr)

3. Mental or physical suffering inflicted on the victim before death.

In Re Rock, [2008] EWHC 92 (QB), [2008] All ER (D) 290 (Feb)

4. The use of duress or threats against another person to facilitate the commission of the offence.

4. POST OFFENCE CONDUCT OF THE OFFENDER

CONDUCT OF OFFENDER CONDUCT OF OFFENDER

1. Guilty Plea/ Voluntary Concealment, destruction or
surrender. dismemberment of the body.

In Re Rock, [2008] EWHC 92 (QB), State of Maharashtra Vs. Haresh
[2008] All ER (D) 290 (Feb) Mohandas Rajput; (2008) 110
BOMLR 373

2. Genuinely remorseful. Lack of any actual remorse.

In Re Butters' [2006] EWHC 1555 Holiram Bordoloi v. State of
(QB), [2006] All ER (D) 128 (Jul) Assam AIR2005SC2059

In Re Rock, [2008] EWHC 92 (QB),
[2008] All ER (D) 290 (Feb)

5. ROLE OF THE VICTIM IN COMMISSION OF THE

CRIME

Sr. MITIGATING FACTORS AGGRAVATING FACTORS
No.

1. That the victim provoked or That the victim was
contributed to the crime. particularly vulnerable
because of age or disability
Kumudi Lal v. State of U.P.,
AIR1999SC1699 (victim is an innocent child,
helpless woman or old or
infirm person).

Bheru Singh Vs. State of Rajasthan;
(1994) 2 SCC 467, [1994] 1 SCR

State of Maharashtra Vs. Haresh
Mohandas Rajput;
(2008)110BOMLR373

Machhi singh vs. State of Punjab
[1983] 3 SCC 470

2. Victim was a peace officer/
The fact that the victim was
providing a public service or
performing a public duty.

Roberts v Louisiana (1977) 431 US

3. The attacking and
overpowering a sovereign
democratic institution by
using powerful arms and
explosives and imperiling the
safety of a multitude of
peoples' representatives,
constitutional functionaries
and officials of Government
of India and engaging into a
combat with security forces
is a terrorist act of gravest
severity.

Navjot Sandhu @ Afsan Guru v.
State (2003) 6 SCC 641

6. NATURE OF THE EVIDENCE

Sr. MITIGATING FACTORS AGGRAVATING FACTORS
no.

1. In cases of circumstantial In cases of direct evidence evidence the guilt, not being the guilt being established established beyond beyond reasonable doubt.

reasonable doubts, a lenient

view should be taken;

Conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.

Swamy Sharaddananda @ Murali Manohar Mishra Vs. State of Karnataka; AIR 2007 SC 2531

Shivu & Anr. Vs. R.G. High Court of Karnataka & Anr.; 2007 CriLJ 1806

57. In the decision reported as 2001 (2) SCC 28

Mohd.Chaman Vs. State (NCT of Delhi) for a similar offence of

a depraving rape of a minor girl aged 1½ years followed by the

victim being murdered the Supreme Court did not concur that

it was an extreme rarest of the rare variety case and hence

sentence of death was reduced to imprisonment for life. It was

held that the solitary stray conduct of Mohd.Chaman, though

serious, heinous, dirty and perverted was not to warrant a

conclusion that he was such a dangerous person that to spare

his life would endanger the community.