State vs Mukesh Kumar
2013 Latest Caselaw 5283 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment reserved on:10.10.2013
                        Judgment delivered on:19.11.2013
+      DEATH SENTENCE REF. 6/2010
       STATE                                    ..... Petitioner
                   Through     Ms.Richa Kapoor, APP.

                  versus
       MUKESH KUMAR                                         ..... Respondent
                  Through                   Mr.Manu Sharma, Mr.Abhir Datt
                                            and Mr.Ali Jethhmalani,
                                            Advocates.

+      CRL.A. 96/2011
       MUKESH KUMAR                                         ..... Appellant
                      Through               Mr.Manu Sharma, Mr.Abhir Datt
                                            and     Mr.Ali      Jethhmalani,
                                            Advocates.

                             versus

       STATE                                               ..... Respondent
                             Through        Ms.Richa Kapoor, APP.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 Sunita (PW-10) the mother of the victim Neha had made a

complaint in Police Station Okhla Industrial Area on 12.06.2005 at

about 01:30 PM which was to the effect that her daughter aged three

years named Neha had been taken away by the appellant Mukesh on the

pretext of giving her toffee; this was in the morning at 08:30 AM; since

then Neha had not returned and inspite of frantic efforts made by her

and her husband to search for her daughter, she was not traceable.

2 On this complaint of Sunita (Ex.PW-12/A), the rukka (Ex.PW-

12/B) was dispatched and was received by ASI Shanti (PW-4) who

registered the formal FIR under Section 363 of the IPC. Inspector Sunil

Kumar (PW-12) along with PW-10 reached the house of the

complainant. They met Manoj Thakur, the father of the victim. The

appellant was also found present at the spot. He was interrogated. He

made a disclosure statement (Ex.PW-10/C). He disclosed that he had

taken baby Neha to the empty Container Depot, Badarpur near

Tughlakabad Railway Station where he had committed rape on her and

later on killed her.

3 PW-12 along with the father of the victim Manoj Thakur,

constable Jai Prakash (PW-6A), HC Shokender (PW-9) accompanied by

the public witness Rajesh (PW-2) reached the spot and at the pointing

out of the appellant container No. PCIU 3286726 was checked; naked

body of the victim Neha was found lying there; near the body, a blue

coloured „T‟ shirt, a blue underwear, blue chappal and frock with blood

were lying.

4 Inspector Sunil Kumar the then SHO (PW-12) was informed who

also reached the spot. Crime team was summoned of whom SI R.S.

Naruka (PW-8) was In-charge. Photographs were taken by HC Ram Pal

(PW-5) negatives of which have been proved as Ex PW-5/A/1-15 and

positives were proved as Ex PW-5/B/1-15 vide memo Ex.PW-6/A. No

finger prints were found at the spot.

5 The „T‟ shirt, underwear, chappal and tagri as also the hair

sample of the victim and her two blood samples were also taken into

possession vide a separate memo Ex.PW-2/A. The appellant also got

recovered the weapon of offence i.e. the blood stained knife which was

recovered from near the railway line Tughlakabad Railway Station and

was seized and taken into possession vide memo Ex.PW-2/B.

6 Scaled site plan was prepared by SI Mahesh Kumar (PW-11), the

draftsman proved as Ex.PW-11/A.

7 The dead body was sent to the mortuary. On the following day

i.e. 13.06.2005, the post mortem on the victim was conducted. The

following injuries were noted upon her person.

"1. Linear abrasion of size 4 cm with contusion 1x1 cm on left side chin.

2. Multiple linear cut marks, horizontally placed of size 6 to 18 cm on anterior chest wall situated 5 cm below nipple skin deep with clotted blood.

3. Incised wound of size 5 x2 xm x bone deep with clotted blood at right side of injury no.2 on anterior chest wall.

4. Linear cut wound on thoraeo abdominal region anteriorly 10 cm in length situated 4 cm below injury no.2.

5. Incised wound of size 19 x9 cm x abdominal cavity on anterior abdominal wall extending from 4 cm below xiphisternum to 1 cm above anal opening involving vaginal structures and exposing abdominal contents. There were tears in the stomach of size 5 x 4cm on anterior superior surface with spilling of contents. Small and large intestine along with mesentry and omentum were found cut at multiple places with gangrenous changes of intestine with mesenteric ihaemetomos. Urinary bladder and vaginal vault involving public symphasis were splitted into fragments with clotted blood.

There was haemoperitoneum with clotted blood about 500 ml. The blood sample and gauge piece along with two anal and vaginal swabs were preserved, sealed and handed over to IO. The time since death was about 24 to 28 hours. The cause of death in this case was haemorrhagic shock due to ante mortem injury no.5 which was sufficient to cause death in ordinary course of nature. Injury no.5 was caused by sharp edged weapon. The post mortem report is Ex. PW-3/A which bears my signatures at point A."

8 Dr Sanjeev Lalwani (PW-3) had also given his opinion on the

knife which was allegedly used in the crime; the sketch of the knife

having a blade of 10 cms was prepared by the doctor and it was opined

vide opinion Ex.PW-3/A that this weapon could have caused the injuries

suffered by the victim.

9 Exhibits which included the vaginal swab, her anal swab, her

blood sample as also the blood samples of the accused were sent to the

CFSL and the CFSL vide its report Ex.PW-7/I opined blood group „B‟

on the „T‟ shirt of the victim; this was also the blood group of the

accused. Semen stains were also detected on the „T‟ shirt and vaginal

swab of the victim as also on the underwear of the accused.

10 This was the sum total of evidence both oral and documentary

collected by it.

11 In his statement recorded under Section 313 of the Code of

Criminal Procedure (hereinafter referred to as the „Cr.PC‟), the accused

pleaded innocence. He admitted that although he had taken baby Neha

with him in the morning at 08:00 AM but thereafter dropped her back at

her house at 09:30 AM; he has been falsely implicated in the present

case.

12      No evidence was led in defence.

13      On the basis of the aforenoted evidence collected by the

prosecution, the appellant was convicted under Section 302 of the Indian

Penal Code (hereinafter referred to as the „IPC‟) for having committed

the murder of the victim; the motive attributed upon the appellant was

the act of rape which he had committed and in order to save himself

from the crime, he had killed baby Neha and having committed the

offence in a shocking and brutal fashion, the trial Judge had thought it a

fit case to be categorized under the head of „rarest of rare‟; the accused

had accordingly been sentenced to death.

14 Needless to state that under the provisions of Section 366 of the

Cr.PC, death sentence is required to be confirmed and for the said

purpose, the present death reference has been preferred by the State.

15 Conversely the appellant is also aggrieved by the judgment. He is

assailing his conviction.

16 Arguments have been addressed by the learned public

prosecutor. It is pointed out that in no manner does the evidence

marshalled by the trial Judge call for any interference; the trial Judge has

rightly relied upon the testimony of the mother who had last seen the

accused with the deceased which had been fortified by the testimony of

the public witness (PW-2); submission being that this fact that the

accused had taken the deceased with him at 08:00 AM has also been

admitted by him in his statement recorded under Section 313 of the

Cr.PC but he had stated that he had left the victim back at her house at

09:30 AM which has not been substantiated; if this was the position, the

parents would not have been frantically searching for their daughter and

after their search when they could not locate their daughter, the mother

had ultimately lodged the complaint in the police station at 01:30 PM.

Further submission being that act of rape committed upon the victim

(which has been fortified by the report of the CFSL) substantiates the

motive on the part of the appellant which was to kill the victim as he had

committed this untoward act upon her. The act of rape has been proved

by the fact that semen stains were detected not only on the vaginal swab

and the „T‟ shirt of the victim but also on the underwear of the accused.

Further submission being that the CFSL in its report had categorically

stated that the seals were intact when the exhibits were received in the

CFSL and as such there was no possibility of tampering of the exhibits.

On the point of sentence, it has been submitted by the learned public

prosecutor that this is one of the „rarest of rare‟ case as admittedly the

victim was a child aged three years; she was helpless; the post-mortem

shows that she has been ripped apart right from the vagina up to the

abdomen and the body was in fact found in two parts. Nothing could be

more „rare‟ than the manner in which crime has been committed which

was a gruesome act on the part of the appellant for which he deserves no

leniency.

17 Arguments have been refuted by the learned counsel for the

appellant not only on the merits of the case but also on the point of

sentence. Arguments have been addressed in detail. Written submissions

have also been filed. Submission of the learned counsel for the appellant

being that this is admittedly a case of circumstantial evidence; there is

no eye-witness to this version. The circumstance of „last seen‟ which has

been projected by the prosecution is weak; testimony of PW-10 Sunita

who is the mother of the victim is shaky and there are several

contradictions in her version. This circumstance also cannot be believed

for the reason that it has been admitted by the appellant in his answer to

question No 3 in his statement under Section 313 of the Cr.PC that

although he had taken Neha in the morning at 08:00 AM but he has

satisfactorily explained that he had left her back at her house at 09:30

AM. Apart from the version of PW-10, the testimony of PW-2 who was

a neighbour is also not worthy of any credence as in his cross-

examination he has admitted that PW-10 had told him that the appellant

had taken Neha on the pretext of giving her toffee; submission being

that the testimony of PW-2 has to be rejected outright as he is only a

witness of hearsay. Reliance has been placed upon

MANU/DE/1770/2009 Arvind @ Chotu & Ors. Vs. State (Delhi High

Court) to support his stand that the theory of „last seen‟ has to be

disbelieved where there is nothing to show that the deceased was at the

place from where the dead-body was recovered. Reliance has also been

placed upon (2005) 11 SCC 133 Murlidhar Vs. State of Rajasthan (SC)

to support a submission that where the provisions of Section 106 of the

Evidence Act are pressed, the prosecution must show that the facts were

"especially within the knowledge of the accused" in order to shift the

burden of proving its case and where this itself is lacking, provisions of

this Section would not apply. The circumstance of „last seen‟ is thus a

weak evidence. If this circumstance is ignored, there is no other

evidence with the prosecution to nail the appellant. The recovery of the

dead-body which has been alleged to be at the instance of the accused

also does not fall within the parameters of Section 27 of the Indian

Evidence Act as Ajay Pratap Singh (PW-6) who was working in the

container department at the relevant time has in his examination-in-chief

clearly stated that the police was informed by him intimating that the

dead-body of a girl was lying in the container depot; as such the version

of the prosecution that the dead-body was recovered pursuant to the

disclosure statement of the appellant is a false version; he was also not

declared hostile by the public prosecutor. Further submission being that

the recovery of the so called knife is also liable to be dis-believed as the

recovery had been effected from the railway siding of Tughlakabad

Railway Station which is a public place and at the time of its seizure no

blood has also been noted upon it. To support this submission, reliance

has been placed upon the landmark judgment of the Privy Council

reported as AIR (34) 1947 PC 67 Pulukuri Kottaya & Ors. Vs. Emperor

as also the judgment of the Apex Court reported as (2002) 2 SCC 426

State of Haryana Vs. Ram Singh. Submission being that where there are

interested witnesses who are associated with the recovery, a doubt is

created on such a recovery and benefit of this suspicion must accrue in

favour of the accused. Reliance has also been placed upon (1997) 3

SCC 759 Rahim Beg Vs. State of UP as also another judgment of the

Apex Court (2005) 5 SCC Raja Ram Vs. State of Rajasthan to support a

submission that a witness who did not support the prosecution case and

the prosecutor has declared him hostile, such a witness if relied upon by

the defence, would bind the prosecution. The scientific evidence is also

to be discarded for the reason that there is no link evidence evidencing

the fact that after the seizure of the sample exhibits, the same were

deposited in the malkhana and there is no evidence forthcoming on this

score. No witness has also come into the witness box to establish the

fact that exhibits have in fact been sent to the CFSL; submission being

that the exhibits had been sent to the CFSL on 24.08.2005 and had been

examined almost one year later i.e. July, 2006; there is every possibility

of the tampering of the exhibits and as such no reliance can be placed

upon the report of the CFSL which is also liable to be discarded. The „T‟

shirt of the victim when seized did not evidence any stains of semen but

how semen was detected in the report of the CFSL remains unexplained.

Reliance has also been placed upon (1991) 1 SCC 286 Kishore Chand

Vs. State of HP. Submission being that in a serious offence like murder,

great care and circumspection have to be adduced by the investigating

agency and in the absence of an honest, sincere and dispassionate

investigation, the benefit must accrue in favour of the accused. Reliance

has also been placed upon (2010) 1 SCC 249 Sanatan Naskar Vs. State

of West Bengal to support a stand that answers given by the accused in

his statement under Section 313 of the Cr.PC are not strict evidence and

such a statement cannot be considered in isolation but in the totality of

the evidence collected by the prosecution. Applying this analogy even

assuming that there was certain informations elicited by the accused in

this statement under Section 313 of the Cr.PC, such statements not being

an evidence in the strict sense cannot be used by the prosecution for any

purpose. No explanation has been given by the prosecution for the delay

in compliance with the provisions of Section 157 of the Cr.PC; there is

delay of 11 days which has also been noted by the trial Judge. On all

counts, the version of the prosecution suffers from various infirmities

and benefit of doubt accordingly has to accrue in favour of the appellant;

he is entitled to an acquittal.

18 In the alternate, on the point of sentence it has been submitted

that even presuming that the conviction of the appellant calls for no

interference; it not being a „rarest of rare‟ case, the lesser punishment of

life imprisonment should have been inflicted and not the death penalty.

The mitigating factors in favour of the appellant have been highlighted

which are that the accused was young at the time of the incident being

22 years of age; he did not abscond; even as per the prosecution, he had

taken the victim to buy sweets; it was not a pre-ordained crime. To

establish this argument, reliance has been placed upon the landmark

judgment of the Apex Court reported as (1980) 2 SCC 684 Bachan

Singh Vs. State of Punjab as also the subsequent judgment of the

Supreme Court in (2009) 5 SCC 749 Ramsh Bhai Chandubhai Rathod

Vs. State of Gujarat as also (2011) 7 SCC 437 State of Maharashtra Vs.

Goraksha Ambaji Adsul and (2012) 4 SCC 257 Ramnaresh Vs. State of

Chhatisgarh.

19 In rejoinder the submissions have been refuted; on the delay in

sending the FIR to the senior officer, it has been pointed out that it is

only a procedural lapse, if any and would not affect the merits of the

case which otherwise stands fully established.

20 We have heard the arguments of the learned counsel for the

parties and appreciated their respective submissions.

21 This case is based on circumstantial evidence. There is no eye-

witness.

22 The law on the circumstantial evidence is settled. In 2010 (2)

SCC 583 Aftab Ahmad Anasari v. State of Uttaranchal etc. the Hon‟ble

Apex Court has made the following observations:-

"In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court."

23 Unless and until all links in the chain stand complete, the

conviction of the appellant cannot be ordered. It is on this touch stone

that the evidence collected by the prosecution has to be viewed and

appreciated.

24.(i) Circumstance of 'last seen'

The strongest circumstance relied upon by the prosecution is the

circumstance of „last seen‟ and to advance this proposition reliance has

been placed upon the versions of PW-10 Sunita the mother of the victim

and PW-2 Rajesh the neighbour.

25 PW-10 is the mother of the three years old victim. She has on

oath deposed that her husband and the accused Mukesh were both

working in the barber shop of Jaleshwar (PW-1). The accused was well

known to them; he had some time ago left the job. On the fateful day

which was in the monsoon in the year 2006, the accused came to her

house at 08:00 AM in the morning. He asked her for a sum of

Rs.1,500/-; she refused; he took her daughter Neha on the pretext of

giving toffee to her despite protest raised by PW-10. The accused

exhorted that he will bring Neha back after giving her toffee. Neha did

not return. PW-10 asked PW-2 to visit the shop of her husband to

inquire about the accused and her daughter; PW-2 came back along with

her husband and they kept searching for Neha but she could not be

found. PW-10 met the accused on the way; he was drunk; on query he

replied that he had left Neha at the house. Since Neha could not be

located, the police was informed.

26 In her cross-examination, she reiterated that the accused had

come to her house at 08:00 AM in the morning; she had told her

neighbour Rajesh (PW-2) that her daughter had been taken by the

accused and had not turned up till 09:00 AM; when she met Mukesh at

about 11:00 AM, he was in a drunk condition; the police came to their

house at 12:00 noon.

27 This version of PW-10 clearly and categorically establishes that

the accused had taken Neha at 08:00 AM in the morning of fateful day

on the pretext of giving her toffee; when she did not return back PW-10

asked PW-2 to find out about the whereabouts of the appellant and to

inform her husband; inspite of search, Neha could not be located; when

PW-10 met the accused at about 11:00 AM, he was in an intoxicated

condition and informed her that he had already left Neha but Neha could

not be found; police complaint was lodged. Nothing has been elicited in

her cross-examination to discredit or shake this version. The witness

stood firm on her ground. In fact in the statement of the accused

recorded under Section 313 of the Cr.PC in answer to question No. 3, he

admitted that although he had taken Neha with him in the morning but

he had dropped her back at 09:30 AM. No further explanation has been

tendered by the appellant on this count. Since he had taken Neha from

the custody of her mother, it is not his version that he had returned her

back to the custody to her mother. No satisfactory explanation has been

furnished by the accused on this count. Once he had admitted the taking

away of Neha he had to show when, how, what time and in whose

custody he left her back. He has failed to do so. This fact was especially

within his knowledge; Section 106 of the Evidence Act lays down the

rule what when the accused does not throw light upon the facts which

are especially within his knowledge, the Court can consider it as his

failure to adduce an explanation and is an additional link which

completes the chain of circumstantial evidence.

28 In AIR 2007 SC 144 State of Rajasthan Vs. Kashi Ram the Apex

Court, in this context, has held as under:-

"The principle is well settled. The provisions of Section 106 of the Evidence

Act, 1872 itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain".

29 The version of PW-10 was sought to be corroborated by PW-2,

the neighbour who deposed that on the fateful day, Neha had been taken

by the appellant and when she did not return, he was asked by PW-10 to

look for her. In his cross-examination this witness has however stated

that this information about the appellant having taken Neha with him

was told to him by PW-10; admittedly he being a hearsay witness, the

trial Court had rightly not relied upon his version. However the version

of PW-2 to the extent that he had gone looking for Neha at the asking of

PW-10 remains unchallenged.

30 Jaleshwar (PW-1) was the person who was running the barber

shop where both, the father of the victim namely Manoj Thakur and the

appellant were working. He knew the appellant Mukesh who had been

asked to leave the job as his work was dissatisfactory. PW-1 has also

corroborated the versions of PW-10 and PW-2 to the extent that PW-2

had come to his shop inquiring from him about the whereabouts of the

appellant; the father of the victim who was present in shop also left the

shop looking for his daughter.

31 The post mortem conducted on 13.06.2005 had related the time

of death back to 12.06.2005 between 08:00 AM to 12:00 noon;

proximity of time also stood established.

32 In 2007(2) ACR 1994 (SC) State of Goa Vs. Sanjay Thakaran &

Anr. it was held as under:-

"The circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material

consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused."

33 The time gap between the accused having last been seen in the

company of the deceased and detection of the crime was also a material

consideration as a circumstance against the accused. This evidence thus

clearly establishes the circumstance of „last seen‟.

34.(ii) Recovery of dead body

The second circumstance relied upon by the prosecution is the

recovery of the dead body which had been allegedly effected pursuant to

the disclosure statement made by the appellant.

35 On the identification of PW-10, the appellant has been arrested.

This was on the same day i.e. on 06.03.2008. His arrest memo Ex.PW-

10/A shows his time of arrest as 04:15 PM. His personal search Ex.PW-

10/B was conducted. He made a disclosure statement Ex.PW-10/C and

pursuant to this disclosure, he had led the police party comprising of

Inspector Sunil Kumar (PW-12), HC Shokender (PW09), constable Jai

Prakash (PW-6A) to a PRC container depot, Badarpur Railway line

where on his pointing out in container No. PCIU 3286726 the naked

body of victim Neha was found; her mouth was towards the floor of the

container. Further version of the prosecution being that the in-charge

container depot Ajay Pratap Singh (PW-6) was also present.

36 The vehement submission of the learned counsel for the

appellant has been that the version of PW-6 demolishes this

circumstance as in his examination-in-chief he has made a clear and

categorical statement that the police was informed by him; submission

being that no cross-examination has been effected of this witness by the

learned public prosecutor; in his cross-examination, PW-6 had stated

that he had informed the police at 02:10. Submission being reiterated

that the police had been informed of the dead body lying in the container

depot at 02:10 PM, the question of the recovery of the dead body which

was made between 04:00-05:00 PM in the evening (pursuant to the

disclosure statement of the appellant) is an eye-wash and has no

evidentiary value; it does not fit within the parameters of Section 27 of

the Indian Evidence Act.

37 The version of the police witnesses on this score i.e. testimonies

of PW-12, PW-9 & PW-6A has been consistent. They have all deposed

that it was at the pointing out of the accused that the dead body of the

victim was recovered from the container depot; the accused had led the

police party to this container depot. PW-6 was also present and his

statement was recorded. These testimonies reflect the version of the

prosecution that the testimony of PW-6 was recorded after the recovery

had been effected.

38 To better appreciate this circumstance, the case diaries of the

case have been requisitioned and perused by the Court to arrive at a final

finding in this matter. They have been examined. The case diaries show

that two DDs had been recorded on 12.06.2005; the first DD related to

investigation carried out up to 05:00 PM and the second DD related to

the details of the investigation carried out after 05:00 PM up to 11:45

PM. On a perusal of these entries, it is noticed that in the first DD (in

which investigation was carried out up to 05:00 PM) the details of the

recovery of the dead-body having been effected from the container

depot pursuant to the disclosure statement of the accused has been

recorded. This is clear from a perusal of these notings. In the second DD

entry (which related to investigation after 05:00 PM), the Investigating

Officer has recorded that the statements of the witnesses were recorded

subsequently which included the statement of Ajay Pratap Singh

(PW-6).

39 This sets the controversy at rest. The entry in these case diaries

show that the statement of Ajay Pratap Singh (PW-6) had been recorded

after 05:00 PM and as such his deposition that he had informed the

police at 02:10 PM about the dead-body of the victim lying in the

container depot is wholly incorrect.

40 Under Section 172 of the Cr.P.C., the Court has the unfettered

power to examine the entries in the case diary which is maintained by

the Investigating Officer. This is a very important safeguard. The

legislature has reposed complete trust in the court which is conducting

the inquiry or the trial. It has empowered the Court to call for any such

relevant case diary, if there is any inconsistency or contradiction arising

in the context of the case diary the Court can use the entries for the

purpose of contradicting the Police Officer. This is based on the premise

that ultimately there can be no better custodian or guardian of the

interest of justice than the Court trying the case. No Court will deny to

itself the power to make use of the entries in the diary to the advantage

of the accused by contradicting the Police Officer with reference to the

contents of the diary.

41 In AIR 1989 SC 144 Mukund Lal v. Union of India & Anr., , the

Supreme Court while upholding the constitutional validity of Section

172(3) of the Cr.P.C. had inter alia held:

"The public interest requirement from the stand point of the need to ensure a fair trial for an accused is more than sufficiently met by the power conferred on the Court, which is the ultimate custodian of the interest of justice and can always be trusted to be vigilant to ensure that the interest of accused persons standing the trial, is fully safeguarded. This is a factor which must be accorded its due weight. There would be no prejudice or failure of justice to the accused person since the Court can be trusted to look into the police diary for the purpose of protecting his interest."

42 There is no doubt that PW-6 had not been cross-examined by the

public prosecutor conducing the trial in the court below; this is a lapse

on his part; whether it was inadvertent or intentional is a question mark?

However the benefit of this lapse does not accrue to the appellant.

43 PW-2 is an independent witness. He was the neighbour of the

victim. He was also a witness to the recovery. Nothing has been elicited

in the cross-examination of PW-2 which could shake his testimony. He

had signed the memos; the pointing out memo has been proved as

Ex.PW-2/C; the dead body of the victim was seized vide memo

Ex.PW-6/A; the container was also seized vide memo Ex.PW-7/X1.

44 The accused in his statement under Section 313 of the Cr.PC in

answer to question No. 20 has also stated that the police had arrested

him on the same day at 10:30 AM. The fact of his arrest thus stands

admitted. For the sake of argument, even if it is presumed that the

appellant had been arrested at 10:30 AM, the version of the prosecution

is that the recovery had been effected thereafter i.e. between 04:15 PM

to 05:00 PM which again would be after his disclosure statement had

been recorded. Since the version of PW-6 has been dis-believed, even if

the arrest time is taken as 10:30 AM, this would in no manner advance

the version of the appellant.

45 This circumstance also stands established.

46.(iii) Recovery of weapon of offence

The recovery of the knife at the instance of the accused is the

third circumstance; the accused had allegedly got it recovered pursuant

to his disclosure statement. As noted supra, the disclosure statement of

the accused was recorded in the evening of 12.06.2005; he had led the

police party i.e. PW-12, PW-9 & PW-6A and the independent witness

PW-2 to the spot. After the dead body was recovered, he had also led the

investigating team to the railway siding of Tughlakabad from where a

blood stained knife was recovered. The same was taken into possession

vide memo Ex.PW-2/B. This memo has been signed by PW-2 the

independent witness apart from the police witnesses. The post mortem

doctor (PW-3) had examined this knife and as per his opinion (Ex.PW-

3/A), he had opined that injuries No. 2, 3, 4 & 5 caused upon the victim

could have been caused by this weapon of offence. This weapon had

also been sent to the CFSL. Blood could not be detected on this exhibit

and as such the vehement argument of the learned counsel for the

appellant on this score is that this reveals that this was a planted

recovery as if blood had been noted on the knife when it was seized,

there is no explanation as to why it could not be detected at the time

when it was examined by the CFSL.

47 To examine this point, certain dates are relevant. The seizure of

the knife had been effected on 12.06.2005. The post mortem doctor had

examined it on 13.06.2005 i.e. one day after the date of the incident. It

was noted to have blood like stains on it. After examination it was

resealed with the seal of the AIIMS Hospital. It was received in the

CFSL on 24.08.2005 but was finally examined in the department only

on 06.07.2006 i.e. after a gap of 11 months. In this period of time, the

possibility of the blood stains having disappeared from the knife cannot

be ruled out. This argument is thus futile.

48      This circumstance also stands established.

49 (iv) Scientific Evidence

The scientific evidence collected by the prosecution is in the

nature of the CFSL report proved in the testimony of the scientific

expert Dr. A.K. Shrivastava examined as PW-13. He was an M.Sc. in

Botany and had undergone training of forensic biology and serology. He

has on oath deposed that on 24.08.2005, 14 sealed parcels were received

in his office along with the forwarding letter. He had examined them;

this report recites that these 14 parcels of case FIR No. 545/2005, PS

Okhla Industrial Area were „duly received‟ in his office; the description

of the parcels and condition of the seals satisfied that the seals were

intact as per the forwarding letter. Out of the 14 parcels examined, seven

parcels were those which had been sealed by the Investigating Officer

having the seal of AM. These exhibits included the „T‟ shirt of the

victim; the underwear of the accused, his blood sample as also a black

filamentous material described as „hair‟. The remaining parcels were

sealed with the seal of the „Department of forensic Medicine, AIIMS,

New Delhi‟ and included the vaginal swab of the deceased, her anal

swab, her underwear and blood sample. In the statement recorded under

Section 313 of the Cr.PC, the accused in response to question No. 13

had also admitted that his underwear has been seized and his blood

sample had also been taken by the doctor.

50 The FSL report (Ex.PW-7/I) had detected semen stains on the „T‟

shirt and on the vaginal swab of the victim of blood group „B‟ which

were also detected on the underwear of the appellant. Merely because

semen was not noticed by the naked eye on the „T‟ shirt at the time of its

seizure does not rule out the possibility of semen to be detected on its

chemical examination.

51 The submission of the appellant that there was possibility of

tampering of samples is wholly excluded by what has been noted supra.

14 parcels had been received in the CFSL of which seven parcels were

duly sealed by the Investigating Officer having the seal of AM and the

balance seven parcels having the seal of AIIMS. The CFSL in its report

specifically recites that the seals were intact when the parcels were

received in the department. Possibility of tampering is thus excluded.

52 This piece of evidence was another nail in the coffin of the

accused.

53 (v) Medical Evidence

The medical evidence was the post-mortem report which has

been proved by PW-3. This report has opined the time of death between

08:00 AM to 12:00 noon of 12.06.2005 which was the probable time of

the murder of the victim. Besides matching in time, the injuries as

depicted in the post mortem could have been caused by the weapon

(Ex.P8) which had been got recovered by the accused at his instance.

This was another piece of corroborative evidence.

54 (vi) Motive

The motive of the crime appears to be the fact that the appellant

had murdered baby Neha in order to hide his crime which was the crime

of rape which he had committed.

55 Record thus establishes the version of the prosecution. Evidence

both oral and documentary has established that Neha had been taken

away by the appellant at about 08:00 AM in the morning of 12.06.2005

inspite of protests by her mother (PW-10) on the pretext that the accused

would buy her toffee but when she did not return to the house; PW-10

informed her neighbour Rajesh (PW-2) who went to inform her husband

at the barber shop of PW-1 where the accused till sometime ago was

also a co-worker. Inspite of frantic search, the child could not be found.

At about 11:00 AM when PW-10 met the accused who was in a state of

intoxication while admitting that he had taken Neha at 08:00 AM he

informed PW-10 that he had dropped Neha at the house at 09:30 AM.

However this was false as the search for the child had continued;

obviously for the reason that the child had not been dropped back to the

house. The child had been taken from the custody of PW-10 but it is not

the case of the accused that he had put her back in the custody of her

mother. Once he has taken the child from the custody of her mother, it

was his bounden duty to have explained to whom, how and in what

circumstances he had left her back. He had failed to do so. His answers

in his statement under Section 313 of the Cr.PC were false and

misleading. The post mortem report also establishes that the victim

stood killed between 08:00 AM to 12 noon. At 11 AM when PW-10 met

the accused who was in a drunk state, he had already committed the

offence. At 01:30 PM, PW-10 went to the local police station to lodge

her complaint. She had named the appellant. On her statement, the rukka

was taken at 02:15 PM and the FIR under Section 363 of the IPC was

registered. It was only later when the dead body of the victim was

recovered, the offence was converted from Section 363 of the IPC to

Section 302 of the IPC. The argument of the learned counsel for the

appellant that there was delay in sending the FIR to the senior officer

and there has been a non-compliance of Section 157 of the Cr.PC which

is essentially a safeguard to ensure that no manipulation is carried out in

the FIR, would not be prejudicial to the accused as it is the case of the

accused himself that he has already stood arrested on the same day and

as such non-compliance of this provision even if presuming it to be a

correct argument not having prejudiced the accused would not in any

manner advance his defence.

56 In (1985) 4 SCC 80 Pattipati Venkaiah Vs. State of Andhra

Pradesh, the Apex Court while commenting on the delay in sending the

FIR to the concerned Court had noted that mere delay in the absence of

prejudice to the accused cannot be conclusive that the investigation was

tainted and the prosecution case is unsupportable. In the instant case,

initially the FIR had been registered under Section 363 of the IPC and it

was only later on after the dead body was recovered that it was

converted to an offence under Section 302 of the IPC. In fact no cross-

examination has been effected on this score upon any of the witnesses of

the prosecution.

57 The prosecution has been able to prove its case to the hilt. The

conviction of the appellant in no manner calls for no interference. We

are not inclined to interfere with the impugned judgment.

58 On sentence:

On the point of sentence, learned counsel for the parties have

been heard. The judgments relied upon by the respective counsel and the

law laid down by the Apex Court in cases where death penalty has been

ordered have also been perused.

59 Judgments relied upon by the learned counsel for the appellant Learned counsel for the appellant has relied upon the landmark

judgment of the Constitution Bench in (1980) 2 SCC 684 Bachan Singh

Vs. State of Punjab. In Bachan Singh, the constitutional validity of

death penalty for murder as provided in Section 302 of the IPC as also

the sentencing procedure as contained in Section 354 (3) of the Code

was considered. In one part of the judgment, it was observed that judges

should not be blood thirsty. Relevant observations of the Apex Court

made therein read as under:-

"Judges should never be bloodthirsty. 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, 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 Section 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."

60 (1983) 3 SCC 470 Machhi Singh & Ors. v. State of Punjab was

a three Judge Bench judgment of the Apex Court wherein in a family

feud 17 murders were committed in quick succession in five incidents

on the same night. The death sentence in that scenario had been

confirmed.

61 In (2009) 5 SCC 740 Rameshbhai Chandubhai Rathod Vs. State

of Gujarat, the Apex Court while maintaining the conviction of the

appellant for double murder of the victims had converted the death

sentence awarded to the appellant to one of life imprisonment. The

Court had also considered the fact that the appellant was languishing in

jail for more than six years.

62 In (2011) 7 SCC 437 State of Maharashtra Vs. Goraksha Ambaji

Adsul, a Division Bench of the Apex Court had converted the death

penalty to life imprisonment and had noted that impersonal

circumstances and family nagging was a mitigating factor in favour of

the appellant.

63 In (2012) 4 SCC 257 Ram Naresh and Others Vs. State of

Chattisgarh, the conviction for gang rape and murder was based on the

sole testimony of the eye-witness. Conviction was maintained but the

accused persons being in the age group of 21-30 years was noted to be a

mitigating factor in favour of the appellants; the Apex Court did not

think it to be a fit case falling within the exception of the term "rarest of

rare" and had accordingly reduced the sentence to one of life

imprisonment; this was for a specified term of 21 years.

64 Judgments relied upon the learned public prosecutor

Conversely the judgments relied upon by the learned public

prosecutor are cases where the death penalty had been confirmed.

65 In (1991) 1 SCC 752 Jumman Khan Vs. State of Uttar Pardesh,

the Supreme Court had confirmed the death penalty awarded to the

appellant for rape and murder of a six year old child noting it to be a

reprehensible and gruesome murder to satisfy his lust.

66 In (1991) 5 SCC 1 Jai Kumar Vs. State of Madhya Pradesh, rape

of a pregnant woman followed by the murder of her eight year child had

led to the confirmation of the death sentence of the accused.

67 In (1994) 3 SCC 381 Laxman Naik Vs. State of Orissa, the

accused who was the guardian of the helpless victim i.e. his seven year

old niece and being a cold blooded, brutal and diabolical murder, the

death penalty had been confirmed.

68 In (1994) 2 SCC 220 Dhananjoy Chatterjee Vs. State of West

Bengal, the death penalty of the 27 year old accused was confirmed for

rape of a school girl of 18 years.

69 In (1996) 6 SCC 250 Kamta Tiwari Vs. State of Madhya

Pradesh, the Court had noted that no mitigating circumstance could be

found in favour of the appellant as the perpetrator of the crime was in

fact the guardian, being in a position of trust, which he had totally

betrayed.

70 In (2007) 4 SCC 713 Shivu & Anr. Vs. Registrar General, High

Court of Karnataka, the death sentence awarded by the trial Court and

confirmed by the High Court was up-held by the Apex Court. In this

case, the accused was aged 20-22 years and he had committed the

offence of murder and rape of an 18 year old girl.

71 In (2008) 11 SCC 113 Bantu Vs. State of Uttar Pradesh, the

offence was an act of rape and murder of a five year old child which

included insertion of a wooden stick in her vagina to the extent of 33

cms to masquerade the crime as an accident. This had weighed in the

mind of the Court while confirming the death penalty.

72 In (2008) 15 SCC 269 Shaivaji Vs. State of Maharashtra, the

depraved act of father in raping and murdering his nine year old child

had led to confirmation of the death sentence.

73 In (2010) 9 SCC 1 Atbir Vs. Govt. of NCT of Delhi where 37

injuries had been inflicted on the body of three innocent persons and

being a case of triple murder, the death penalty stood confirmed.

74 In (2011) 5 SCC 317 Mohd. Mannan Vs. State of Bihar, a 42

years old man had raped and killed a seven year old child after inflicting

several atrocities upon her which was evident from the injuries suffered

by her; the death sentence stood confirmed.

75 In (2012) 4 SCC 37 Rajendra Prathaadrao Wasnik Vs. State of

Maharashtra where the father had raped his own child, the death

penalty awarded was confirmed.

76 The legal proposition emanating from the legislations and

enunciated in these judgments has been appreciated.

77 The Code of Criminal Procedure, 1973 (Cr.P.C.) has

incorporated Section 354 (3) where imprisonment for life for capital

offences is the rule and death penalty is to be accorded as an exception

for which special reasons have to be stated. This provision marks a

significant shift in the legislative policy underlying the Code of 1908

which was in force immediately before 01.04.1974 and according to

which both the alternative sentences of death and imprisonment of life

were provided for murder and other capital offences. Now according to

this changed legislative policy which is patent on the face of Section 354

(3), the normal punishment for murder is imprisonment for life and

death penalty is an exception.

78 Section 354 (3) of the Code of Criminal Procedure, 1973 reads

herein as under:

"354. Language and contents of Judgment.

(1).........

(2)..........

(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence."

79 The legislative policy discernible from Section 235(2) of the

Cr. P.C. reads as follows:

"235. Judgment of acquittal or conviction.

(1)......

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance

with the provisions of section 360, hear the accused on the question of sentence, and

then pass sentence on him according to law."

80 These provisions first came up for interpretation and

consideration in the case reported as AIR 1976 SC 230 Balwant Singh

Vs. State of Punjab.

81 The scope and implications of Section 354(3) were summed up

as follows:

"Under this provision the court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances. It is necessary nor is it possible to make a catalogue of the special reasons which may justify the

passing of the death sentence in a case."

82 Section 235 (2) provides for a bifurcated trial and specifically

gives the accused a right of a pre-sentence hearing, at which stage, he

can bring on record material or evidence, which may not be strictly

relevant to or connected with the particular crime under inquiry, but

nevertheless, have consistently been held by the Courts to be the policy

underlined in Section 354(3), having a bearing on the choice of

sentence.

83 Justice V.R. Krishan Iyer, speaking for the Bench, in the case

reported in AIR 1974 SC 799, Ediga Anamma Vs. State of A.P. had

observed that „pre-planned‟, „calculated‟, „cold-blooded‟ murder is an

aggravating circumstance; the „weapon used and the manner of use, the

horrendous features of the crime and hapless and the helpless state of the

victim and the like‟; steel the heart of the law for a sterner sentence.

84 In (1979) 3 SCC 646 Rajendra Prasad Vs. State of U.P. the

Supreme Court had reversed this view taken in Ediga Anamma (supra).

After the enactment of Section 354(3) „murder most foul‟ was not the

test. The shocking nature of the crime or the number of murders was

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".

85 Thus the theory of the aggravating and the mitigating

circumstances depending on the facts of the particular cases had taken

birth. However, more often these two aspects were so intertwined that it

became difficult to give a separate treatment to each of the them.

86 In Bachan Singh (supra) the suggestions given by Dr.Chitale

(relying upon the statute of States in USA framed after the judgment

reported in 33 L Ed 2d 346 titled Furman Vs. Georgia) had been

approved by the Apex Court and the following list were indicators of the

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 CrPC, 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."

87 The mitigating circumstances suggested by Dr. Chitale also met

the approval of the Apex Court and were recited as follows:

"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.

(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 unpaired his capacity to appreciate the criminality of his conduct."

88 The Apex Court in this case had noted that the discretion to be

exercised by the judge in the matter of sentence would be after the

balancing of both the aggravating and the mitigating circumstances of

the crime. The relevant facts and circumstances impinging on the nature

and circumstances of the crime could be brought on record at the pre-

conviction stage but while making a choice of the sentence under

Section 302 of the IPC the court would be concerned with the

circumstances connected with the particular crime under inquiry as also

the criminal.

89 Thus the Apex Court had ruled that the legislative policy

discernible from Section 235(2) read with Section 354(3) was that in

fixing the degree of punishment or making the choice of sentence for

various offences, including the one under Section 302 IPC, the Court

should not confine its consideration principally or merely to the

circumstances connected with the particular crime, but also give a due

consideration to the circumstances of the criminal.

90 Attuned to this legislative policy the following propositions were

cast.

"(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.

(b) While considering the question of sentence to be imposed for the offence of murder under Section 302, Penal Code, the court must have regard to

every relevant circumstance relating to the crime as well as the criminal. If the court finds, but no otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.

91 After the judgment of Bachan Singh (supra) there have been a

plethora of cases laying down the considerations to be followed by the

Courts while imposing punishment for a conviction under Section 302

IPC. The Courts have time and again noted that there is little agreement

amongst penologists and jurists as to what information about the crime

and criminal is relevant and what is not relevant for fixing the dose of

punishment. Further, criminal cases do not fall into set behavioristic

patterns; there are infinite, unpredictable and unforeseeable variations;

two cases are not exactly identical; each case is having its own

distinctive features. A standardisation of the sentencing process which

leaves little room for judicial discretion would in fact tend to sacrifice

justice at the altar; such a mechanical standardization was not

appreciated. The Apex Court has gone on to note that the sentencing

discretion is a policy which belongs to the sphere of legislation and

where the Parliament as a matter of sound legislative policy has not

deliberately restricted, controlled or standardised the sentencing

discretion any further than that which has been encompassed within the

broad contours delineated in Section 354(3), the Court would not by

overlapping its bounds rush to do what the Parliament in its wisdom,

warily did not do.

92 Thus what has been consistently followed by the superior courts

is that keeping in view the paramount beacons of the legislative policy

as contained in Section 354(3) and Section 235(2) of the Cr.P.C., the

extreme penalty of death may be inflicted only in the gravest cases of

extreme culpability. In making the choice of the sentence, in addition to

the circumstances of the offence, due regard must be paid to the

circumstances of the offender also.

93 No straightjacket formula can be laid down. Each case has to be

tested on its own facts. What can however be culled out is that for

persons convicted of murder, life imprisonment is the rule and death

sentence is an exception. It is only in the case of "rarest of rare" that the

alternative option of taking human life is permitted for which special

reasons have to be recorded.

94 In a recent judgment of the Apex Court delivered as recently as

on 08.10.2013 "Sushil Sharma Vs. the State NCT of Delhi, a three Judge

Bench of the Apex Court had an occasion to consider the law on

sentencing in capital offences. While tracing the history of the

aforenoted pronouncement, it had noted that mere brutality of the

murder or the number of persons killed or the manner in which the body

is disposed of may not always be the persuasive factor to impose death

penalty. Depending upon the peculiar facts of the case even where the

murder has been brutal, the option for life imprisonment has been

exercised. In one case, time spent by the accused in the death cell had

also been taken into consideration along with the other circumstances to

commute his sentence into life imprisonment. Where the accused had no

criminal antecedents and where there was no evidence to show that the

accused was beyond reformation and rehabilitation or that he would

revert back to similar crimes in future, the Courts time and again have

leaned in favour of life imprisonment. In such cases, the doctrine of

proportionality and the theory of deterrence have to be given a back

seat. The theory of reformation and rehabilitation has prevailed over the

idea of retribution. He was sentenced by the Apex Court wherein the

caution sounded by the Constitution Bench in Bachan Singh being that

judges should never be bloodthirsty but wherever necessary in the

interest of the society in the rarest of rare case, the tough option of death

penalty may be exercised must be kept in mind.

95 In Sushil Sharma (supra) the Apex Court while endeavoring to

strike a balance between the aggravating and the mitigating

circumstances of the said case had noted the following facts:-

"We must now examine the present case in light of our observations in the preceding paragraphs. The appellant was the State President of the Youth Congress in Delhi. The deceased was a qualified pilot and she was also the State General Secretary of Youth Congress (Girls Wing), Delhi. She was an independent lady, who was capable of taking her own decisions. From the evidence on record, it cannot be said that she was not in touch with people residing outside the four walls of her house. Evidence discloses that even on the date of incident at around 4.00 p.m. she had contacted PW-12 Matloob Karim. She was not a poor illiterate hapless woman. Considering the social status of the deceased, it would be difficult to come to the conclusion that the appellant was in a dominant position qua her. The appellant was deeply in love with the deceased and knowing full well that the deceased was very close to PW-12 Matloob Karim, he married her hoping that the deceased would settle down with him and lead a happy life. The evidence on record establishes that they were living together and were married but unfortunately, it appears that the deceased was still in touch with PW-12 Matloob Karim. It appears that the appellant was extremely possessive of the deceased. The evidence on record shows that the appellant suspected her fidelity and the murder was the result of this possessiveness. We have noted that when the appellant was taken

to Lady Hardinge Mortuary and when the dead body was shown to him, he started weeping. It would be difficult, therefore, to say that he was remorseless. The fact that he absconded is undoubtedly a circumstance which will have to be taken against him, but the same, in our considered view, would be more relevant to the issue of culpability of the accused which we have already decided against him rather than the question of what would be the appropriate sentence to be awarded which is presently under consideration. The medical evidence does not establish that the dead body of the deceased was cut. The second post-mortem report states that no opinion could be given as to whether the dead body was cut as dislocation could be due to burning of the dead body. There is no recovery of any weapon like chopper which could suggest that the appellant had cut the dead body. It is pertinent to note that no member of the family of the deceased came forward to depose against the appellant. In fact, in his evidence, PW-81 IO Niranjan Singh stated that the brother and sister-in-law of the deceased stated that they were under the obligation of the appellant and they would not like to depose against him. Murder was the outcome of strained personal relationship. It was not an offence against the Society. The appellant has no criminal antecedents. He is not a confirmed criminal and no evidence is led by the State to indicate that he is likely to revert to such crimes in future. It is, therefore, not possible in the facts of the case to say that there is no chance of the appellant being reformed and rehabilitated. We do not think that that option is closed. Though it may not be strictly relevant, we may mention that the appellant is the only son of his parents, who are old and infirm. As of today, the appellant has spent more than 10 years in death cell. Undoubtedly, the offence is brutal but the brutality alone would not justify death sentence in this case. The above mitigating circumstances persuade us to commute the death sentence to life imprisonment. In several

judgments, some of which, we have referred to hereinabove, this Court has made it clear that life sentence is for the whole of remaining life subject to the remission granted by the appropriate Government under Section 432 of the Cr.P.C., which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive checks in Section 433-A of the Cr.P.C. We are inclined to issue the same direction.

96 In view of the aforentoed pronouncements including the most

recent one of Sushil Sharma (supra), what can be said is that both the

aggravating and mitigating circumstances of the case must be

considered and a right balance should be struck.

97 It is, therefore, necessary to see whether the circumstances of the

crime in the instant case are such that there is no alternative but to

impose the death sentence upon the appellant and what would be the

special reasons for imposing such a sentence.

98 In this case the aggravating circumstance is the fact that there

was a hapless and helpless child aged around three years who was the

victim of the crime. She was done to death by cutting her open, splitting

her body in almost two parts with a knife after committing rape

upon her. The next aggravating circumstance urged by the learned

public prosecutor which also finds favour with this Court is that the

accused had taken the victim promising her to buy a toffee; there was a

trust reposed in the appellant but he had betrayed this trust.

99 The mitigating circumstances pleaded in favour of the accused

are that he is young in years; he was aged 22 years at the time of the

incident. The second circumstance is that the accused had taken the

victim promising her a toffee; this was not extraordinary; he had on

earlier occasions also been visiting their house as is evident from the

version of PW-10. However, something obviously went amiss on that

day; his mind-set got perverted; it led him to commit this dastardly act.

The accused was in a state of inebriation when he met PW-10 at around

noon on the same day. This is evident from the versions of PW-2 &

PW-10. This act may thus not qualify as a pre-ordained or a pre-planned

act. The post mortem report reveals that injury No.5 was the fatal injury;

it was sufficient to cause death in the ordinary course of nature. It was

caused by a sharp edged weapon. This injury was in the abdominal

cavity which had ruptured the stomach and the intestines. There is no

evidence to suggest that the body of the victim was intentionally ripped

apart to qualify as a diabolic act which has been the thrust of the

argument of the learned Prosecutor to seek a death penalty. The weapon

is a knife having a blade of 10 cms; it may well qualify as a kitchen

knife. The accused also did not run away. Admittedly the accused also

has no criminal antecedents; he was known to the parents of the victim

and was living in the same vicinity. These facts are relevant, adding to

his mitigating circumstances.

100 In this background the question which arises is whether the

presence of such an accused in the largesse of society is so abhorrent

that it is necessary that his life must be wiped out? Conversely, if there

is a possibility of his rehabilitation the rehabilitative theory pre-

supposing that such a person be given a chance to reform himself must

prevail.

101 The aforenoted situation persuades us to commute the death

sentence to life imprisonment. The death sentence is accordingly

commuted to life imprisonment.

102 Learned public prosecutor in this context has relied upon (2001)

4 SCC 458 Subhash Chander Vs. Kishan Lal, AIR 2008 SC 3040

Swamy Shraddanand @ Murli Manohar Mishra Vs. State of Karnataka

& (2010) 1 SCC 58 Sebastian Vs. State of Kerala; submission being that

even if the Court thinks it to be a fit case to commute the death sentence

to life imprisonment, it should be up to the last breath of his life and he

should remain in jail for his entire life.

103 In Subhash Chander (Supra), the accused had murdered the

entire family of the appellant. In Swamy Shraddanand (supra), the

accused had killed the deceased in a planned and cold blooded manner

and had devised the plan so that the victim could not know till the very

end even for a moment that she was betrayed by the one she had trusted

the most. In Sebastina (supra), the accused was a pedophile.

104 This factual scenario may not strictly apply to the present case.

We are accordingly not inclined to issue any such direction.

Accordingly while maintaining the conviction of the appellant under

Section 302 of the IPC we commute his death sentence to a sentence of

life imprisonment.

105 Death Reference is answered accordingly. Appeal is also

disposed of in the above terms.

INDERMEET KAUR, J

KAILASH GAMBHIR, J NOVEMBER 19, 2013/A