Telangana High Court
The State Of Telangana vs Shaik Babu on 28 April, 2023
Bench: P Naveen Rao, Juvvadi Sridevi
HIGH COURT FOR THE STATE OF TELANGANA
*****
R.T.No.1 of 2020 and Crl.A.No.293 of 2020
R.T.No.1 of 2020
Between:
State of Telangana
...Petitioner
and
Shaik Babu and others
...Respondents
CRIMINAL APPEAL No.293 of 2020
Between:
Shaik Babu and others
... Appellants
and
State of Telangana
... Respondent
DATE OF JUDGMENT PRONOUNCED: 28th April, 2023
SUBMITTED FOR APPROVAL:-
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
1 Whether Reporters of Local newspapers may
Yes/No
be allowed to see the Judgment?
2 Whether the copies of judgment may be
Yes/No
marked to Law Reporters/Journals
3 Whether their Lordships wish to see the fair
Yes/No
copy of the Judgment?
________________
P. NAVEEN RAO, J
___________________
JUVVADI SRIDEVI, J
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
* THE HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
* THE HON'BLE SMT JUSTICE JUVVADI SRIDEVI
+ R.T.No.1 of 2020 and Crl.A.No.293 of 2020
% Date: 28th April, 2023
R.T.No.1 of 2020
Between:
State of Telangana
...Petitioner
and
Shaik Babu and others
...Respondents
CRIMINAL APPEAL No.293 of 2020
Between:
Shaik Babu and others
... Appellants
and
State of Telangana
... Respondent
! Counsel for the appellants : Mr.T.Pradyumna Kumar Reddy, learned
senior counsel, appearing for Mr. Mohd. Muzaffer Ullah Khan, learned counsel
for the appellants/A1 and A3 and Mr. K.S.Rahul, learned counsel for
appellant/A2 in Crl.A.No.293 of 2020.
^ Counsel for the Respondents : Sri C.Pratap Reddy, learned Public
Prosecutor for respondent in Crl.A.No.293 of 2020.
>HEAD NOTE:
? Cases referred
1. AIR 1974 SC 799
2. (2003) 8 SCC 551
3. 2023 SCC Online SC 50
4. 2022 SCC Online SC 1396
5. (2021) 5 SCC 626
6. 2023 SCC Online SC 158
7. (2023) 1 SCC 83
8. 2009 SCC Online GUJ 12076
9. Judgment dated 11.12.2020 in Criminal Appeal No.1959 of 2019
10. (2018) 1 SCC 742
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
11. (1980) 2 SCC 684
12. (1983) 3 SCC 470
13. Decided on 21.02.2019 in Criminal Appeal Nos.1110-1111 of 2015
14. 2019 SCC OnLine TS 2090
15. (2018) 14 SCC 111
16. (2019) 9 SCC 689
17. (2022) 10 SCC 321
18. AIR 1984 Supreme Court 1622
19. 2023 Live Law (SC) 168
20. (2019) 10 SCC 623
21. (2018) 6 SCC 610
22. 2022 LiveLaw Ker 560
23. AIR 2010 SC 1974
24. (2017) 4 SCC 393
25. (2011) 7 SCC 130
26. (2017) 6 SCC 1
27. (2010) 13 SCC 657
28. (2013) 5 SCC 546
29. (2009) 6 SCC 498
30. (2012) 8 SCC 43
31. (2013) 3 SCC 294
32. (1998) 7 SCC 177
33. (2011) 13 SCC 706
34. (2001) 9 SCC 615
35. (2003) 8 SCC 93
36. (2005) 10 SCC 322
37. (2009) 15 SCC 551
38. (2019) 7 SCC 1
39. (2013) 2 SCC 713
40. (2019) 16 SCC 278
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
REFERRED TRIAL No.1 of 2020
AND
CRIMINAL APPEAL No.293 of 2020
COMMON JUDGMENT: (Per Hon'ble Smt. Justice Juvvadi Sridevi)
Death and if not life, death or life, life and if not death, is the
swinging progression of the criminal jurisprudence in India, as far
as the capital punishment is concerned. All murders shock the
community; but certain murders shock the conscience of the Court
as well as the community. The distinguishing aspect of the latter
category is that there is shock coupled with extreme revulsion.
However, Section 354(3) of the Code of Criminal Procedure, 1973,
(for short, 'Cr.P.C.') mandates that 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. In the words of Justice Krishna Iyer in Ediga Anamma
Vs. State of Andhra Pradesh1, the unmistakable shift in the
legislative emphasis is that life imprisonment for murder is the rule
and capital sentence is an exception to be resorted to, for the
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
reasons to be stated. It is obvious that the disturbed conscience
of the state on the vexed question of legal threat to life by way of
death sentence has sought to express itself legislatively, the
stream of tendency being towards cautious, partial abolition and a
retreat from total retention. It is interesting to note that the
requirement for reasons to be stated for awarding any sentence for
a term of years found legislative expression in Cr.P.C. for the first
time in the year 1973. In the case of death sentence, there must
be special reasons. That shows the paradigm shift to life
imprisonment as the rule, and death, as the exception.
2. The above preliminary discussion on death sentence has
special significance as far as the facts of the present case are
concerned. Hovering between life and death, the appellants, i.e.,
Shaik Babu (A1), Shaik Shabuddin (A2) and Shaik Maqdhoom (A3)
filed Criminal Appeal No.293 of 2020, under Section 374(2) of
Cr.P.C., challenging the judgment, dated 30.01.2020, passed in
Special Sessions Case No.117 of 2019 by the Principal Sessions
Judge, Adilabad, FAC Special Judge for trial of cases under
SCs/STs (POA) Act-cum-V Additional Sessions Judge, Adilabad,
Designated as Special Judge for speedy trial and disposal of the
subject case; while the trial Court which awarded death penalty to
AIR 1974 SC 799
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A1 to A3 submitted the proceedings to this Court vide Referred
Trial No.1 of 2020, under Section 366(1) of Cr.P.C., for
confirmation of the death sentence imposed against A1 to A3.
Vide impugned judgment, the trial Court has convicted and
sentenced A1 to A3 as under:
Offence convicted for Sentence imposed
Section 302 r/w 34 of IPC
Death sentence, and to pay fine of
and r/w Section 3(2)(v) of
Rs.5,000/-, in default, to undergo
SCs/STs (POA) Amendment
simple imprisonment for three months.
Act, 2015
Section 376D r/w 34 of IPC Life imprisonment, and to pay fine of
and r/w 3(2)(v) of SCs/STs Rs.2,000/-, in default, to undergo
(POA) Amendment Act, 2015 simple imprisonment for two months.
Rigorous imprisonment for three years
Section 3(1)(w)(i) of SCs/STs and to pay fine of Rs.1,000/-, in
(POA) Amendment Act, 2015 default, to undergo simple
imprisonment for one month.
Offence convicted for Sentence imposed
Rigorous imprisonment for three years
and to pay fine of Rs.1,000/- each, in
Section 404 r/w 34 of IPC
default, to undergo simple
imprisonment for one month
3. Since both these cases arise out of the same judgment, they
are heard together and are being disposed of by way of this
common judgment. Also, in view of the dicta of the Hon'ble Apex
Court in Bhupinder Sharma Vs. State of Himachal Pradesh2
wherein it was held that the mandate of not disclosing the
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RT No.1/2020 & Crl.A.No.293/2020
identities of the victims of sexual offence under Section 228A of
the IPC ought to be observed in spirit by the Court, we are thus
not disclosing the name of the victim and instead referring to her
as the "deceased" throughout this common judgment.
4. We have heard Mr.T.Pradyumna Kumar Reddy, learned
senior counsel, appearing for Mr. Mohd. Muzaffer Ullah Khan,
learned counsel for the appellants/A1 and A3 and Mr. K.S.Rahul,
learned counsel for A2; and Sri C.Pratap Reddy, learned Public
Prosecutor representing the respondent/State in Criminal Appeal
No.293 of 2020. Learned Public Prosecutor had also assisted this
Court to arrive at an appropriate decision in R.T.No.1 of 2020. We
have perused the entire record.
5. Briefly stated, the case of the prosecution is thus:
On 24.11.2019, at about 08:00 PM, the de facto
complainant/Teku Gopi (PW.1) went to Lingapur Police Station and
lodged a report stating that on that day, at about 06:30 AM, he
along with his wife (deceased) went to Modiguda, Khairguda
villages for selling utensils. He dropped the deceased at Yellapatar
village for selling bowls and at about 02:00 PM, he returned to
Yellapatar village and when he called the deceased on her mobile
No.8331065878, it was found switched off. Then he searched for
(2003) 8 SCC 551
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RT No.1/2020 & Crl.A.No.293/2020
the deceased at Yellapatar village and Ramnaik Thanda village and
its surroundings, but he did not find the deceased. He did not find
the deceased even in the house. On enquiry, his relatives
informed him that his wife had not come to their house also.
Hence, PW.1 requested the police for taking necessary action.
6. Based on the said complaint, PW.24-Sub Inspector of Police
registered a case in Crime No.49 of 2019 under the head "Woman
Missing", examined PW.1, LW.20-U.Raj Kumar PC-3574 (scribe of
the complaint) and recorded their statements, collected the
photograph of the missing woman, visited Yellapatar and Ramnaik
Thanda villages along with other police personnel and made
enquiries about the missing woman. While so, on the next day i.e.
25.11.2019, at about 09:30 AM, PW.1 went to Lingapur Police
Station and lodged another complaint under Ex.P2 stating that on
25.11.2019 at about 06:00 AM, while he along with the villagers of
Ramnaik Thanda was searching for the deceased, at about 09:00
AM, some of the villagers informed him that they saw a dead body
in a pool of blood; on that information, he went to the spot and on
observation, found the dead body as that of his wife. He also
stated in the said complaint that the blouse of his wife was open,
saree was pushed above the knees and legs were widened. He
also stated that on the previous night, while he and his relatives
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were enquiring, he came to know through the villagers that A1 to
A3 were not present in the village and thus expressed suspicion
against A1 to A3 that they might have committed rape and murder
of his wife.
7. Based on the Ex.P2 complaint, PW.24 altered the section of
law to Sections 376D, 302 r/w 34 of IPC and Section 3(2)(v) of
SCs/STs (POA) Act, 1989. In view of the gravity of the offence
and consequent upon his appointment as Investigation Officer,
PW.25-Sub Divisional Police Officer took up further investigation of
the case, visited the scene of offence i.e., outskirts of Yellapatar
village, observed the dead body, got photographed the dead body
and also the scene of offence by PW.9-photographer, examined
the relatives of the deceased, recorded their statements,
conducted inquest panchanama over the dead body of the
deceased in the presence of PW.12-Rathod Vasanth Rao, LW.24-
Rathod Sheela and LW.26-jadhav Tukaram, drafted rough sketch
of the scene of offence in the presence of PW.12 and LW.24 and
seized a bag containing 23 items i.e. 6 basins, weighing scale with
50 grams iron bar, 23 grams bronze bar and 10 grams bronze bar,
six steel bowls, six steel tiffin boxes, eight aluminium tumblers,
two steel tumblers, nine steel tea glasses, one steel box, two
aluminium vessels, two aluminium kadas, one steel jaali plate,
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RT No.1/2020 & Crl.A.No.293/2020
plastic box containing multi colour beeds, six steel spoons, steel
tea craft, five tea strainers, two steel strainers, one thick pink
colour sweater, one cover containing hairs, one small air pump,
one scarf, nylon bag containing sticker packets, boxes, balloon
packets and hair pins, empty plastic tin, empty cement bag,
chappal, piece of blue colour bangle, red colour cloth, blood
stained earth and control earth.
8. On referral by the Investigation Officer, PW.18-Dr.Upendra
Jadhav and LW.34-Dr. Rathnamala, Medical Officers of
Government Hospital, Utnoor, conducted Postmortem Examination
over the dead body of the deceased and preserved vaginal swabs.
The Investigation Officer further seized the blood stained clothes of
the deceased i.e. saree, blouse, torn panty piece under a cover of
panchanama in the presence of PWs.13 and 14. Thereafter, the
Investigation Officer obtained caste certificate of the deceased
from the Tahsildhar concerned, according to which, the deceased
belonged to SC-Beda Budugajangam community.
9. On 27.11.2019, at about 09.00 AM, a team consisting of
LW.40-K.Venugopal HC-604, LW.41-T.Santhosh PC-1347 and
LW.42-Mohammad Ifthekar Ali PC-3173 apprehended A1 to A3 at
Adilabad cross roads of Asifabad and on their production, the
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Investigation Officer interrogated them in the presence of PW.15-
Arram Nithin Kumar and LW.30-Mohammad Yunis, wherein, A1 to
A3 have confessed to have committed the offence. Pursuant to
their confession, one blood stained knife used in the commission of
offence, blood stained jeans pant, shirt, underwear of A1 were
seized from A1; one mobile of ITEL company of the deceased,
blood stained pant, shirt, underwear were seized from A2; and
Rs.200/-, blood stained pant, shirt and underwear were seized
from A3, under cover of three different panchanamas. Thereafter,
the Investigation Officer affected the arrest of A1 to A3, got
conducted their potency test by PW.19-Dr.Vidyasagar, Medical
Officer of Asifabad Government Hospital, who certified that there
was nothing to suggest that A1 to A3 were incapable of performing
sexual act. Later, A1 to A3 were produced before the Court
concerned for judicial remand. Subsequently, the Investigation
Officer collected the DVD of confession of A1 to A3 and seizure of
articles from the accused from LW.22-Shaik Saleem who recorded
the confession and seizure panchanama.
10. Subsequently, the Investigation Officer obtained the caste
certificate of A1 to A3 from PW.17-Tahsildhar, according to which,
A1 to A3 belonged to Shaik BC-E community. On 28.11.2019, the
Investigation Officer visited Ramnaik Thanda, examined the
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witnesses, recorded their statements, obtained preliminary
Postmortem Examination report from the Medical Officers
concerned and sent the material objects to Forensic Science
Laboratory for examination and report. Later, on 01.12.2019, A1
to A3 were taken for police custody for further investigation, they
were sent to Forensic Science Laboratory, Hyderabad, where blood
samples of A1 to A3 for DNA profile comparison were taken. On
the requisition issued by the Investigation Officer, PW.22-
N.Srinivasa Rao, Nodal Officer of BSNL, Hyderabad, issued certified
copies of CDRs and CAF with certificate, according to which, SIM
Card 8331065878, which was in the name of PW.11-Kadam
Krishna, was used by the deceased in her mobile and same were
tallied with mobile that was seized from A2. The Investigation
Officer also collected the CDR and CAF details of SIM card used by
PW.1/de facto complainant in his mobile. On 13.12.2019, the
Investigation Officer received FSL Report and also DNA report,
which established that the seminal stains on the saree of the
deceased were matching with DNA profile of A1 and A2 and the
DNA profile of source on glass slides is matching with that of A3.
Later, PW.18-Dr.Upender Jadhav and LW.34-Dr.Rathnamala, who
conducted postmortem examination over the dead body of the
deceased, issued Final Opinion stating that the cause of death of
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the deceased was 'due to shock and hemorrhage as a result of cut
throat injury' and there is evidence of recent vaginal sexual
intercourse.
11. As per the prosecution, the investigation established that
PW.1/de facto complainant is the husband of the deceased; they
belonged to SC-Beda Budagajangam community; they are eking
out their livelihood by selling utensils/bowls in the villages; on
24.11.2019, PW.1 left his wife at Yellapatar village and went away;
while the deceased was going towards Ramnaik Thanda by walk,
A1 to A3, who belonged to BC-E Shaik community, followed the
deceased and when she reached the fields of LW.19-Jadav
Gnaneshwar, dragged her forcibly to the side of the road and when
A1 attempted to commit rape on her, the deceased resisted and
tried to escape; there upon, A1 to A3 dragged the deceased into
the bushes, committed rape on her forcibly, one by one, by
cooperating with each other, and after committing rape, A1 to A3,
apprehending danger to their lives in case of the deceased
revealing the matter to others, decided to kill her and accordingly,
A1 attacked the deceased with a knife brought along with him and
when he tried to stab her, she resisted; in that process, the
deceased suffered stab injuries on her both hands; then A2 and A3
caught hold the hands and legs of the deceased, thereupon A1 cut
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the throat of the deceased with knife and caused her
instantaneous death; thereafter, A2 had taken away the mobile of
the deceased while A3 had taken away Rs.200/- of the deceased
and all of them fled away from that place; thus, A1 to A3
committed offences punishable under Sections 376D, 302, 404
read with 34 of IPC and Section 3(1)(w-1) and Section 3(2)(v) of
SC/ST (POA) Act, 1989.
12. The trial Court, which was designated as a Special Court for
speedy trial and disposal of the subject case vide G.O.Rt.No.647,
dated 11.12.2019, has taken the charge sheet on file for the
offences under Sections 376D, 302, 404 read with 34 of IPC and
Section 3(1)(w-1) and Section 3(2)(v) of SC/ST (POA) Act, 1989
against A1 to A3, vide Special Sessions Case No.117 of 2019.
13. On appearance of A1 to A3 before the trial Court, they were
furnished with the copies of documents under section 207 of
Cr.P.C. and on hearing both sides, the trial Court framed charges
for the offences punishable under sections 376D, 302 read with 34
of IPC and Section 3(1)(w-1) and Section 3(2)(v) of SCs/STs
(POA) Act, 1989, against A1 to A3 and also Section 404 read with
34 of IPC against A2 and A3, read over and explained the contents
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of the charges to them in vernacular language for which, they
pleaded not guilty and claimed to be tried.
14. In order to bring home the guilt of accused, the prosecution
examined PWs.1 to 25 and got marked Exs.P.1 to P.32, besides
MOs.1 to 21, which are detailed below in tabular format.
Oral evidence adduced by the prosecution
PW.1/Teku Gopi He is the de-facto complainant.
PW.2/Teku Gangaram He is a relative of the deceased and a circumstantial
witness.
PW.3/Rathod Shravan He is a circumstantial witness.
PW.4/Ade Madhukar He is another circumstantial witness, who was
working in the land beside the scene of offence on
the date of offence.
PW.5/Athram Laxman He is another circumstantial witness who saw A1 to
A3 following the deceased before the offence.
PW.6/Jadhav Ganesh He is a circumstantial witness, who is a owner of
kirana shop who observed the clothes of A1 to A3
having blood stains when they came to his shop.
PW.7/Shaik They are circumstantial witnesses, who disclosed
Shamshoddin that A1 to A3 were not present since afternoon of
And 24.11.2019 in the village.
PW.8/Varkade Datha
PW.9/Athram Madhav He is the photographer who took the photographs of
Rao the dead body of the deceased.
PW.10/Shaik Saleem He is the videographer who videographed the
confessional statement of A1 to A3.
PW.11/Kadem Krishna He is the brother by courtesy to the deceased, who
brought SIM No.8331065878 and gave to the
deceased for usage.
PW.12/Rathod Vasanth He is a panch witness for inquest panchanama,
Rao crime details form, rough sketch and scene of
offence panchanama.
PW.13/Kallem Thirupathi They are the panch witnesses for seizure of blood
And stained clothes of the deceased at Government
PW.14/Patri Srinivas Hospital, Utnoor.
PW.15/Arram Nithin He is a panch witness for confession and seizure
Kumar panchanama of A1 to A3.
PW.16/J. Narayana He is the Tahsildar who issued Caste Certificate of
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the deceased.
PW.17/M.Madhukar He is the Tahsildar, who issued Caste Certificates of
A1 to A3.
PW.18/Dr.Upender He is the doctor who conducted autopsy over the
Jadhav dead body of the deceased and issued Preliminary
PME Report and Final Opinion.
PW.19/Dr.Vidyasagar He is the doctor who conducted Potency Test of A1
to A3 and issued Report.
PW.20/Dr.Shaik Haseena She is Assistant Director of Serology Department
Parvin who conducted chemical examination and issued
Serology Report.
PW.21/Dr.G.Pandu He is the Assistant Director of DNA Department who
conducted chemical examination (DNA profile
comparison) and issued DNA Report with
Electropherogram.
PW.22/N.Srinivas Rao He is the Sub-Divisional Engineer of BSNL who
issued certified copies of CDRs and CAF of SIM
No.8331065878.
PW.23/Pawar Santhosh He is a police constable who was a member of ID
party team, who apprehended A1 to A3.
PW.24/N.Venkatesh He is the SI of Police, who is the first investigation
officer and who issued FIR in this case.
PW.25/A.Sathyanarayana He is the investigation officer, who completed the
investigation and laid charge-sheet before the Court
concerned.
Documentary Evidence adduced by the prosecution
Ex.P1 Complaint, dated 24.11.2019 lodged by PW.1
Ex.P2 Complaint, dated 25.11.2019 lodged by PW.1
Ex.P3 13 photographs
Ex.P4 Corresponding DVD
Ex.P5 Certificate under Section 65B of Evidence Act
Ex.P6 DVD
Ex.P7 Certificate under Section 65B of Evidence Act
Ex.P8 Inquest Panchanama
Ex.P9 CDF Panchanama
Ex.P10 Rough sketch
Ex.P11 Seizure panchanama at scene of offence
Ex.P12 Seizure panchanama of blood stained clothes of the deceased
Ex.P13 Portion of confession-cum-seizure panchanama of PW.1
Ex.P14 Portion of confession-cum-seizure panchanama of PW.2
Ex.P15 Portion of confession-cum-seizure panchanama of PW.3
Ex.P16 Caste verification report of the deceased
Ex.P17 Caste verification report of A1 to A3.
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Ex.P18 Postmortem Examination Report
Ex.P19 Final opinion
Ex.P20 Potency Certificate of A1
Ex.P21 Potency Certificate of A2
Ex.P22 Potency Certificate of A3
Ex.P23 Serology Report
Ex.P24 DNA report with Electropherogram
Ex.P25 Customer Application Form of PW.11
Ex.P26 Certified copy of CDR of Mobile No.8331065878
Ex.P27 Certification under Section 65-B(4)(c) of Evidence Act
Ex.P28 First Information Report
Ex.P29 Section Alteration Memo
Ex.P30 Memorandum issued by S.P., Adilabad
Ex.P31 Attested copy of letter of advice
Ex.P32 Attested copy of letter of advice
Material Objects marked in this case
MO.1 Black and red colour ITEL company mobile
MO.2 Blood stained brown colour saree
MO.3 Blood stained rose colour blouse
MO.4 Bangle piece
MO.5 One white chappal
MO.6 Red colour cloth
MO.7 Control earth
MO.8 Blood stained earth
MO.9 One bag containing 22 items
MO.10 Blood stained white colour torn panty piece
MO.11 Knife
MO.12 Blood stained pant
MO.13 Blood stained shirt
MO.14 Underwear
MO.15 Blood stained yellow colour shirt
MO.16 Blood stained brown colour pant
MO.17 Black and pink colour dots underwear
MO.18 Blood stained white colour lining shirt
MO.19 Blood stained light green colour pant
MO.20 Brown colour full underwear
MO.21 Cash of Rs.200/-
15. After the closure of prosecution evidence, when A1 to A3
were examined under Section 313 of Cr.P.C., with reference to the
incriminating material appearing against them, they denied the
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same. No evidence, either oral or documentary, has been adduced
on behalf of A1 to A3.
16. The trial Court, after adverting to the various contentions
raised on behalf of both sides and after elaborately discussing the
evidence on record, held that prosecution proved the guilt of A1 to
A3 beyond all or any reasonable doubt for the offences they were
charged with and awarded capital punishment to A1 to A3, holding
that the crime committed by them satisfies the test of 'rarest of
rare' case. Aggrieved by the same, A1 to A3 preferred Criminal
Appeal No.293 of 2020 and the trial Court submitted the matter to
this Court vide R.T.No.1 of 2020, for confirmation of death
sentence.
17. Mr. T.Pradyumna Kumar Reddy, learned senior counsel, has
not only argued on the merits of the case, but has also argued
with regard to the sentence imposed by the trial court. As far as
the merits of the case are concerned, Mr. T.Pradyumna Kumar
Reddy vehemently submitted that the trial Court committed a
serious error in holding that A1 to A3 are guilty of the offence of
committing rape and murder of the deceased. He would submit
that in the course of trial, the prosecution failed to lead any
credible evidence to connect A1 to A3 with the alleged crime. He
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would submit that the trial Court ought not to have accepted the
evidence of PWs.2 to 8, who are interested witnesses. The Court
below ought to have discarded the evidence of discovery of
weapon and blood stained clothes of A1 to A3, as the prosecution
has not been able to prove the authorship of concealment. Relying
on the judgments of the Hon'ble Apex Court in Boby Vs. State of
Kerala3 and Ramanand alias Nandlal Bharti Vs. State of Uttar
Pradesh4, learned senior counsel would submit that the whole
prosecution case is based on circumstantial evidence and in a case
of circumstantial evidence, the prosecution is required to establish
the continuity in the links of the chain of the circumstances, so as
to lead to the only and inescapable conclusion of the accused being
the assailant, inconsistent or incompatible with the possibility of
any other hypothesis compatible with the innocence of the
accused. He would further submit that there are material
contradictions in the evidence of PWs.12 to 15, who are witnesses
to inquest, seizure and confessional panchanamas. Further, the
confession allegedly made by A1 to A3 with regard to the
commission of the subject offence is hit by Section 26 of Evidence
Act, which mandates that no confession by the accused whilst in
the custody of police shall be proved, unless it is made in the
2023 SCC Online SC 50
2022 SCC Online SC 1396
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immediate presence of a Magistrate. Further, Ex.P23-Serology
Report and Ex.P.24-DNA report are not connecting A1 to A3 with
the subject offence and hence, the same cannot be relied upon.
Relying on the judgment of the Hon'ble Apex Court in Shivaji
Chintappa Patil Vs. State of Maharashtra5, learned senior
counsel would submit that though false explanation or non-
explanation by an accused in his/her statement under Section 313
of Cr.P.C. can be used as an additional circumstance when the
prosecution has proved the chain of circumstances leading to no
other conclusion than that of the guilt of the accused, however, it
cannot be used as a link to complete the chain of circumstances.
He would further submit that the prosecution failed to establish
that Rs.200/- said to have been recovered from A3 belonged to
the deceased. Learned senior counsel further submitted that since
PW.20-FSL Analyst admitted in her evidence that whether the
semen found on the material objects deposed by her was a mixed
one or pertaining to a single person and blood grouping was also
not done, her evidence has to be discarded. A1 to A3 appearing at
the cross roads in the same blood stained clothes nearly after
three days of the offence does not sound credible. Mere detection
of blood on the clothes of A1 to A3 is not conclusive proof to
connect A1 to A3 with the subject offence. Further, relying on the
(2021) 5 SCC 626
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decision of the Hon'ble Apex Court in Ram Gopal S/o. Masharam
Vs. State of Madhya Pradesh6, the learned senior counsel would
submit that the 'last seen theory' is not proved in this case. The
only observation made was that the deceased went towards
Ramnaik Thanda and A1 to A3 also went towards Ramnaik Thanda,
but however, the deceased and A1 to A3 were not seen going
together towards Ramnaik Thanda by any of the prosecution
witness. Therefore, since the deceased and A1 to A3 were not
spotted together, the 'last seen theory' is not proved and thus, the
onus still remains upon the prosecution to establish the link and
does not shift to A1 to A3. Further, placing reliance on the
judgment of the Hon'ble Apex Court in Rahul Vs. State of Delhi7,
a decision of Hon'ble Gujarat High Court in Premjibhai
Bachubhai Khasiya Vs. State of Gujarat and another8 and a
decision of the Hon'ble Karnataka High Court in Sri Paramesha
Vs. State of Karnataka9, learned senior counsel contended that
DNA evidence is in the nature of opinion evidence as envisaged
under Section 45 of Evidence Act and like any other opinion
evidence, its probative value varies from case to case and that if
the DNA report is the sole piece of evidence, even if it is positive,
2023 SCC Online SC 158
(2023) 1 SCC 83
2009 SCC Online GUJ 12076
Judgment dated 11.12.2020 in Criminal Appeal No.1959 of 2019
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
it cannot conclusively fix the identity of the miscreant, but, if the
report is negative, it would conclusively exonerate the accused
from the involvement or charge and that it is highly unsafe to rely
upon the sole DNA test to convict the person on the basis of the
said test. He would also contend that no permission was obtained
from A1 to A3 in the instant case to collect blood samples from
them to conduct DNA test. Relying on the decision of the Hon'ble
Apex Court in Asharfi Vs. State of Uttar Pradesh10, learned
senior counsel argued that Section 3(2)(v) of SC/ST (POA) Act can
only be pressed into service only if it is proved that the rape has
been committed on the ground that the deceased belonged to
Scheduled Caste community and in the absence of evidence
proving intention of A1 to A3 in committing the offence upon the
deceased only because she belonged to Scheduled Caste
community, their conviction under the said penal provision cannot
be sustained. Lastly, learned senior counsel would submit that
howsoever unnatural one may find the conduct of A1 to A3 after
the alleged crime, the same, by itself, is not sufficient to convict
A1 to A3 for an offence like rape coupled with murder. Contending
so, learned senior counsel prayed that the impugned judgment of
conviction and death penalty may be set aside and A1 to A3 may
be acquitted of the charge of murder.
(2018) 1 SCC 742
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
18. As regards the imposition of capital punishment against A1
to A3, the learned senior counsel, relying on the case of Bachan
Singh Vs. State of Punjab11, argued that imposition of life
imprisonment is the rule, and the imposition of death penalty is an
exception. According to Bachan Singh's case (11 supra), capital
punishment can be imposed only in cases, which are considered to
be 'rarest of the rare'. However, the present case does not fall
within the said category. While selecting a sentence where various
sentences are available and while imposing a sentence, the Court
cannot confine its consideration 'principally or merely' to the
circumstances of the crime and in fact, the Court is required to
consider both the circumstances of the crime and the position of
the criminal. While considering both these circumstances, the trial
Court is required to weigh "the aggravating and the mitigating
circumstances" of the case. Placing reliance on the case of
Machhi Singh v. State of Punjab12, learned senior counsel
would contend that the test laid down in the said case, viz., (a)
manner of commission of murder, (b) motive for commission of
murder, (c) if the nature of the crime is anti-social or socially
abhorrent, (d) the magnitude of the crime, and (e) to consider the
personality of victim of murder, needs to be applied to the present
(1980) 2 SCC 684
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
case. According to the learned senior counsel, all the above five
factors have to be seen holistically, rather than selecting one of
them and by overemphasizing its importance. Learned senior
counsel further contended that although it is unfortunate that a
helpless woman was allegedly raped by A1 to A3 one after the
other and murdered, the act is not 'an extremely brutal' or
'grotesque' or 'abhorrent' or 'diabolical' or 'revolting' or 'committed
in a dastardly manner which would arouse intense or extreme
indignation of the community'. Furthermore, the alleged crime is
neither anti-social, nor socially abhorrent. Similarly, the
magnitude of the crime is limited to an individual, and does not
involve the elimination of a family, or a large number of persons of
a particular community or locality. Therefore, the magnitude of
the crime is a limited one. Thus, even if one were to consider the
aggravating factors of the case, even then, the subject case does
not fall within the ambit of being 'rarest of the rare' case.
Moreover, A1 to A3 did not pre-plan the alleged rape or murder of
the deceased. Thus, according to the learned senior counsel,
these are mitigating factors in favour of the A1 to A3.
19. Per contra, Mr. C.Pratap Reddy, learned Public Prosecutor
has raised counter-arguments, both with regard to the merits of
(1983) 3 SCC 470
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
the case and with regard to the capital punishment imposed upon
A1 to A3. As regards the merits of the case, learned Public
Prosecutor would contend that the discrepancies pointed out by
the learned senior counsel appearing for A1 to A3 with regard to
the evidence adduced by the prosecution are minor discrepancies,
which, in any event, are not fatal to the case of prosecution. The
prosecution has a watertight case against A1 to A3. There is
ample evidence on record which establishes that A1 to A3, with a
premeditated mind of committing rape on the deceased, followed
her till she was found alone. After that, they dragged her to the
road side forcibly and attempted to commit rape on her, but when
she resisted, A1 to A3 dragged her into the nearby bushes and
committed rape on her forcibly, one after the other, by cooperating
with each other, by closing the mouth of deceased and also
holding her hands tightly. The medical evidence on record reveals
that the deceased suffered several external injuries such as
abrasions, contusion, nail scratch marks on several parts of her
body and that her both side ribs were fractured. Further, in order
to save their skin, the accused brutally murdered the deceased by
cutting her throat with a knife. There is also evidence on record to
show that after commission of all the above atrocities on the
deceased, A2 had taken away her mobile phone and A3 had taken
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
away cash of Rs.200/- from her. There is medical evidence and
other oral and documentary evidence to substantiate that the
subject death was caused by A1 to A3 and none else. A1 to A3
were apprehended on 27.11.2019 and they confessed the
commission of the subject offences. Pursuant to the confession A1
to A3, MOs.11 to 21 were seized from their possession in the
presence of panch witnesses. The investigation officer, during the
course of investigation, also seized MOs.1 to 10 from the crime
scene. There is Serology Report under Ex.P23 and DNA Report
with Electropherogram under Ex.P24, apart from other oral and
documentary evidence, which connects A1 to A3 with the subject
death of the deceased. The confession made by A1 to A3 and
recovery of material objects pursuant to their confession
clinchingly prove the guilt of A1 to A3 beyond all reasonable doubt
of the offences with which they were charged.
20. As far as the imposition of the capital punishment is
concerned, learned Public Prosecutor has vehemently argued that
an innocent and helpless woman was raped by A1 to A3, one after
the other, and was brutally murdered by cutting her throat
apprehending that she would disclose the incident to others. A1 to
A3 have committed the crime in order to satisfy their lust. A
brutal murder of a woman after subjecting her to gang rape shocks
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the conscience of the Court as well as the society at large.
Therefore, the case falls within the category of the 'rarest of the
rare' case. Hence, the harshest punishment has rightly been
imposed by the trial Court. In the rarest of the rare cases, the
punishment should be so deterrent as to set an example for others
in order to deter them from committing a similar offence. A1 to
A3 deserves no mercy from the Court. The trial Court was justified
in imposing the capital punishment upon A1 to A3. According to
the learned Public Prosecutor, before the Court proceed to make a
choice whether to award death sentence or life imprisonment, the
Court is to draw up a balance-sheet of aggravating and mitigating
circumstances attending to the commission of the offence and then
strike a balance between those aggravating and mitigating
circumstances. Two questions are to be asked and answered: (i)
is there something uncommon about the crimes which regard the
sentence of imprisonment for life inadequate; (ii) Whether there is
no alternative punishment suitable, except death sentence. Where
a crime is committed with extreme brutality and the collective
conscience of the society is shocked, Courts must award death
penalty, irrespective of their personal opinion as regards
desirability of death penalty. By not imposing a death sentence in
such cases, the Courts may do injustice to the society at large.
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Contending so, learned Public Prosecutor prayed to confirm the
capital punishment imposed against A1 to A3. In support of his
submissions, the learned Public Prosecutor had relied on the
following decisions.
1. Dattatraya @ Datta Ambo Rokade Vs. State of Maharashtra13
2. Polepaka Praveen Vs. State of Telangana14
3. State of Uttar Pradesh Vs. Mahipal15
4. Ravishankar @ Baba Vishwakarma Vs. State of Madhya Pradesh16
5. Pappu Vs. State of Uttar Pradesh17
21. We have given our thoughtful consideration to the
submission of both sides, perused the impugned judgment and we
have examined the record.
22. There is no dispute that the whole prosecution case is based
on circumstantial evidence. In a case based on circumstantial
evidence, the settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved, and such
circumstances must be conclusive in nature. Moreover, all the
circumstances should be complete and there should be no gap left
in the chain of evidence. Further, the proved circumstances must
be consistent only with the hypothesis of the guilt of the accused
and totally inconsistent with his innocence. The question whether
Decided on 21.02.2019 in Criminal Appeal Nos.1110‐1111 of 2015
2019 SCC OnLine TS 2090
(2018) 14 SCC 111
(2019) 9 SCC 689
(2022) 10 SCC 321
PNR, J & JS, J
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chain of circumstances unerringly established the guilt of the
accused needs careful consideration. The proof of a case based on
circumstantial evidence, which are usually called 'five golden
principles', have been stated by the Apex Court in Sharad Birdhi
Chand Sarda Vs. State of Maharashtra18, which reads as
follows:-
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established, as distinguished
from 'may be' established.
(2) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and
tendency;
(4) They should exclude every possible hypothesis except
the one to be proved; and
(5) There must be a chain of evidence complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.
23. As regards the question as to whether the subject death of
the deceased is homicidal, there is oral evidence of PW.18-doctor
who conducted Post-mortem Examination over the dead body of
the deceased. He deposed that on 25.11.2019, on the requisition
of SDPO, Asifabad, he along with Dr. Rathnamala conducted post-
AIR 1984 Supreme Court 1622
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mortem over the dead body of deceased, during which they found
the following ante-mortem external injuries:
1. Eye was partially opened;
2. Lips cyanosed, tongue protruded out, tongue bite mark
measuring 4 x 1 cm;
3. Abrasion of 5 x 2 cm over chin;
4. Incised injury of 6 x 3 cm deep over front of neck above the
thyroid cartilage with underlying trachea and right carotid
artery cut open and blood clot present over the neck;
5. Contusion of 8 x 4 cm over upper chest in the sternal region;
6. Multiple abrasions of 3 x 1 cm., over jaw;
7. Multiple nail scratch mark of 2 x 0.5 cm., over upper chest;
8. Incised injury of 8 x 1 cm over right palm;
9. Incised injury of 4 x 2 cm., over left index finger;
10. Abrasion of 5 x 2 cm., over back of chest;
11. Abrasion of 2 x 1 cm., over right and left knee;
12. Fracture of 3rd, 4th and 5th right side ribs;
13. Fracture of 6th and 7th left side ribs; and
14. Hyoid bone intact.
PW.18 further deposed that they preserved vaginal smear and
swab for semen and spermatozoa and DNA profile and handed
over the same to escort constable for its deposit before FSL,
Hyderabad for analysis; that they issued Ex.P18-preliminary post-
mortem examination report; that the approximate time of death is
24 to 28 hours prior to post-mortem; that after receipt of FSL and
DNA report, they issued Ex.P.19-Final opinion, according to which,
the cause of death was 'shock and hemorrhage as a result of cut
throat injury'. PW.18 further deposed that there was evidence of
recent vaginal sexual intercourse. PW.18 also deposed that the
above injuries were possible with a sharp edged weapon and the
fractures of right and left side ribs were possible if a person is
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attacked forcibly. In addition to the oral evidence of PW.18 and
Exs.P18 and P19, the prosecution relied upon uncontroverted
Ex.P8-Inquest Panchanama, wherein, in column No.IX, it was
opined that the 'death was due to cutting throat with knife and
committing rape'. We also opine that the injuries found on the
dead body of the deceased as possible with an object like MO.11-
knife and when a person was attacked forcibly. The nature of
injuries found on the dead body of the deceased clearly rules out
any natural, accidental or suicidal death. There cannot be any
better opinion than the one expressed by PW.18 as to the cause of
death of the deceased. From all the above, we conclude that the
death of the deceased is homicidal.
24. Now the question that requires answer is as to whether the
prosecution was able to prove beyond all or any reasonable doubt
that A1 to A3 have caused the subject death of the deceased after
having committed rape on her, one after the other. To answer the
said question, we need to analyse the evidence on record.
25. It is the case of prosecution that the deceased used to sell
utensils by going in the streets; on 24.11.2019, while the
deceased was proceeding towards Ramnaik Thanda by walk on her
work, A1 to A3, with an evil eye on her, followed her and when she
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reached the fields of one Jadhav Gnaneshwar at the outskirts of
Ramnaik Thanda, they dragged her to the road side and when A1
attempted to commit rape on her, she resisted and tried to escape
from them and as such, A1 to A3 dragged her into the nearby
bushes and committed rape on her, one by one, by cooperating
with each other; thereafter, the accused, suspecting that they
would be imprisoned if she discloses the matter to anybody, killed
her by slitting her throat with MO.11/knife; thereafter, A2 had
taken away the mobile phone of deceased, while A3 had taken
away cash of Rs.200/- of deceased. As already stated supra, in
order to prove its case, the prosecution has examined as many as
25 witnesses and marked as many as 32 documents and 21 case
properties.
26. PW.1-Teku Gopi is the husband of the deceased. He
deposed that they belong to SC Beda Budagajangam community.
On 24.11.2019, at about 6:30 AM, he dropped his wife (deceased)
at Yellapatar village for selling utensils and at about 02:00 PM,
when he called his wife on her mobile No.8331065878, it was
found switched off. As such, he enquired about her in Yellapatar
village, Ramnaik Thanda and surrounding villages, but could not
trace her whereabouts. Then, he along with his relatives went to
Lingapur Police Station and lodged Ex.P1 report. On the next day,
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while they were again searching for his wife, at about 06:00 AM,
the villagers of Yellapatar expressed suspicion over A1 to A3 for
missing of his wife and at about 09:00 AM, some of the villagers of
Ramnaik Thanda informed them about their finding a dead body on
the right side of road. Thereupon, he went there and identified the
dead body as that of his wife. The blouse of his wife was opened,
saree was pushed up to knee level and legs were widened. He
also noticed knife injuries on neck and both hands and her throat
was also cut and on seeing the dead body, it appeared that she
was raped and murdered. Thereupon, he again went to Lingapur
Police Station on 25.11.2019 and lodged Ex.P.2 report and based
on the information given by the villagers, he mentioned in Ex.P.2
report that A1 to A3 were in the habit of misbehaving with women
and later compromising the dispute by paying money to victims.
PW.1 further deposed that through the villagers of Ramnaik
Thanda, he came to know that A1 to A3 were even absconding
from the village from 04:00 PM on 24.11.2019, i.e., the date of
offence and hence, he suspected that A1 to A3 might have raped
and killed his wife. He also deposed that the utensils bag was at
the dead body, but the mobile of his wife was missing and on his
identification in the Court, the mobile phone, blood stained brown
colour saree and Rose colour blouse of his wife were marked as
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MOs.1 to 3 respectively. Though PW.1 was cross-examined at
length, nothing was elicited to discredit his testimony in his
examination-in-chief.
27. PW.2-Teku Gangaram is the paternal uncle of PW.1. He
deposed that on 24.11.2019 at about 06:00 PM, on coming to
know about the missing of the deceased, he along with others
went to Lingapur Police Station, met PW.1 at about 08:00 PM, and
from there, they along with police went in search of the deceased,
but they could not trace her out on that day. On the next day,
while they were again searching for the deceased, at about 09:00
AM, the villagers of Ramnaik Thanda informed them about their
finding a dead body of a woman in the bushes beside the road in
between Ramnaik Thanda and Yellapatar villages. On such
information, they went there, identified the dead body as that of
the deceased. PW.2 further deposed that the blouse on the dead
body was opened, saree was disrobed up to knee level, legs were
widened, there were injuries on neck, both hands and her throat
was also cut. PW.2 also deposed that on observation of scene, it
appeared that the deceased was raped and murdered. As the
villagers informed him that three Muslim persons were not found in
the village, he suspected that those three persons might have
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committed the subject offences. PW.2 withstood his cross-
examination and his evidence has remained unshaken.
28. PW.3-Rathod Shravan, who is alleged to have firstly seen the
dead body of deceased, has deposed that on 24.11.2019 at about
08:30 PM, PW.1, his relatives and police came to their village
Ramnaik Thanda in search of the wife of PW.1 and he too followed
them, but they could not find the deceased. As such, they
continued searching for her on the next day, i.e., on 25.11.2019,
during which, he found one dead body in the bushes on the right
side of road leading to Yellapatar village. Immediately, he
informed the same to the villagers, PW.1 and his relatives, who
were also searching in the places nearby and the relatives of PW.1
identified the dead body as that of the deceased. According to
PW.3, he too noticed that the throat of deceased was cut, legs
were in widened position, bleeding injuries were found on her
hands, clothes were also drenched and on observation of the
scene, it appeared that the deceased was raped and murdered.
He further deposed that A1 to A3 were absconding from the village
from the afternoon of 24.11.2019 and as such, they suspected
that A1 to A3 might have raped and murdered the deceased. This
witness also withstood in his cross-examination.
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29. PW.4-Ade Madhukar, who was allegedly working in the
adjacent field on the date of the subject offence, deposed in his
evidence that on 24.11.2019, while he along with his wife and two
labourers were picking up cotton in their fields, at about 10:30 AM,
they heard shrieks of one lady, as such they went towards that
side, but could not find anybody and hence they returned to their
work spot. This witness had categorically deposed in his evidence
that at that time, they saw A1 to A3 going from Ramnaik Thanda
to Yellapatar village. Later at about 06:00 or 07:00 PM, PW.1
came to their village, enquired about his wife by stating that she
was missing. On the next day i.e., on 25.11.2019 at about 09:00
AM, he came to know through the villagers that a female dead
body was found in the cotton fields of Jadhav Gnaneshwar. Then
he went to the scene of offence and saw the dead body of the
deceased. This witness also categorically deposed in his evidence
that the blouse of the dead body was opened, saree was disrobed
up to knees, legs were widened, throat was also cut and bleeding
injuries were found on both the hands. He further deposed that on
seeing the dead body, it appeared that the said person was raped
and murdered. On recollection of memory, PW.4 confirmed that
the sounds heard by him on the previous day came from the scene
of offence. He too suspected that A1 to A3 might have committed
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the offence, as he saw them going from Ramnaik Thanda to
Yellapatar village. Nothing was elicited to discredit the testimony
of this witness in his cross-examination.
30. PW.5-Athram Laxman, who alleged to have seen A1 to A3
following the deceased, has supported the case of prosecution and
deposed that on one Sunday, at about 09:00 AM, while he was
crossing Yellapatar village on his motorcycle along with his sister
Thirthana Bai, he saw A1 to A3 going towards Ramnaik Thanda by
walk, and after crossing two fields, he noticed that the deceased
was also walking towards Ramnaik Thanda by carrying utensils bag
on her head. He further deposed that he returned to village at
about 05:00 PM and at about 08:30 PM, PW.1 along with police
came to their village and enquired the villagers about the wife of
PW.1, who was missing from afternoon. On the next day at about
10:00 AM, he came to know through the villagers that the dead
body of a lady was found, immediately he went to the spot and
identified it as that of the deceased. This witness too noticed that
the blouse of the dead body was opened, saree was removed up to
knees, both the legs were in 'V' shape, the throat was cut and
bleeding injuries were there on both the hands and on observation
of the same, it appeared that the deceased was raped and
murdered. PW.5 has also deposed that he too suspected that A1
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to A3 might have committed the offence, as they were absconding
from the village from the date of offence. Nothing contra was
elicited from this witness from what he has deposed in his
examination-in-chief.
31. PW.6-Jadhav Ganesh deposed in his evidence that on
24.11.2019 at about 11:30 AM, when he was at his kirana shop,
A1 to A3 went to his shop, sat on the bench, later A2 took water
from the pot, drank it. At that time he observed some blood stains
on the clothes of A1 to A3. Later at about 04:00 p.m., PW.1 came
to his shop and enquired about the missing of his wife. On
25.11.2019 at about 09:30 AM, he came to know that the dead
body of the deceased was found near the cotton fields of one
Jadhav Gnaneshwar and on that information, he went there, saw
the dead body, noticed knife injuries on her neck and hands, her
blouse was open, saree was pushed up to the knees, both the legs
were in 'V' shape and her throat was also cut. PW.6 also deposed
that on observation of the dead body, it appeared that she was
raped and murdered. This witness also deposed that as he saw
blood stains on the clothes of A1 to A3 on the previous day, he
suspected that A1 to A3 might have committed the offence. This
witness withstood his cross-examination.
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32. PW.7-Shaik Shamshoddin deposed in his evidence that on
24.11.2019, between 08:00 and 08:30 AM, PW.1 and some police
personnel came to their village and enquired about the wife of
PW.1, then he stated that he saw her between 07:00 and 07:30
AM, while was selling utensils in their village. He accompanied
them in search of her, but could not trace her out. On the next
day, i.e., on 25.11.2019, he came to know that a female dead
body was found. Immediately, he went to the spot and saw the
dead body with knife injuries on her neck and hands and that her
blouse was open, saree was removed up to the knees and both the
legs were in 'V' shape and her throat was also cut and bleeding
injuries were present on her both hands. This witness too deposed
that on observation of the scene, it appeared that the deceased
was raped and murdered. This witness was declared hostile and
was cross-examined by the additional public prosecutor, during
which, he admitted that he stated before the police that he
suspected A1 to A3, as they were found missing from the village
from 24.11.2019 onwards. Nothing was elicited in the cross-
examination of this witness to discredit his testimony in chief
examination.
33. PW.8-Varkade Datha deposed in his evidence that about one
month back at about 07:30 AM, he saw the deceased while selling
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utensils in their village of Yellapatar. On that day, at about 09:00
PM, the Sub Inspector of Police along with PW.1 came to their
village, enquired about the deceased stating that she was missing.
They all searched for the deceased, but could not find her on that
day. On the next day at about 10:00 AM, he came to know that a
dead body was found by the side of road at Ramnaik Thanda.
Thereupon, he went there and identified the dead body as that of
the deceased. He too noticed knife injuries on the neck and hands
of deceased, her blouse was open, saree was removed up to knees
and both the legs were in 'V' shape and her throat was cut. He too
deposed that it appeared from the scene that the deceased was
raped and murdered. PW.8 also deposed that as A1 to A3 were
absconding from the village since the date of incident, he
suspected that A1 to A3 might have committed the offence.
34. PW.9-Athram Madhav Rao has deposed that on 25.11.2019,
on the instructions of Sub Inspector of Police, Lingapur, he
photographed the dead body of deceased and handed over the
photos and DVD thereof to the police. Ex.P.3 is the photographs
and Ex.P.4 is the corresponding DVD. He also deposed that he
issued Ex.P5-Certificate under Section 65B of Evidence Act
(authenticity of electronic record).
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35. PW.10-Shaik Saleem has deposed that on 27.11.2019, in
between 09:00 AM and 10:00 AM, on the instructions of the DSP
Asifabad, he came to DSP Office, Asifabad, where two panchas and
A1 to A3 were present. The panch witnesses have taken A1 to A3
aside, one by one, and enquired and he recorded the said
proceedings and handed over the DVD under Ex.P6 to the DSP and
also issued Ex.P7-Certificate under section 65B of Evidence Act.
36. PW.11-Kadem Krishna deposed in his evidence that the
deceased is his sister by courtesy. About one year back, he gave
his BSNL SIM card bearing No.8331065878 to PW.1, who in turn
gave it to deceased and she used the same till her death.
37. PW.12-Rathod Vasanth Rao has deposed in his evidence that
on 25.11.2019 at about 10:30 AM, he along with his colleague
Jadhav Tukaram came to the scene of offence situated in between
Ramnaik Thanda and Yellapatar village on a call given by the DSP,
Asifabad. There, he saw the dead body with knife injuries on her
neck, hands and chest and abrasions on the back. He also noticed
that her blouse was opened, saree was removed up to the knees
and both the legs were widened. Her throat was also cut and
bleeding injuries were there on her both hands. From the scene, it
appeared that she was raped and murdered. The DSP conducted
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Ex.P.8-Inquest Panchanama in their presence and he along with
R.Sheela and Jadhav Tukaram signed on that panchanama. PW.12
further deposed that the police also conducted CDF panchanama in
their presence, during which, he observed the scene, the police
drew rough sketch and he along with two others signed Ex.P.9-
CDF panchanama and Ex.P.10-rough sketch. The police also seized
the bangle piece, one white colour chappal, one red colour cloth,
control earth, blood stained earth and one bag containing utensils
and other items such as tiffin box, spoons, hairs in a polythene
bag, small air pump, one sweater and other items (total 22 in
number) under Ex.P11-Panchanama and they signed the said
panchanama. On identification of those items by PW.12, the same
were marked as MOs.4 to 9 respectively.
38. PW.13-Kallem Thirupathi has deposed in his evidence that on
25.11.2019 in between 04:30 and 05:00 PM, the police called him
and one P.Srinivas to Government Hospital, Utnoor, where, the
police seized one blood stained blouse, blood stained saree and
blood stained white colour torn panty piece of deceased under the
cover of Ex.P12-Panchanama and he identified the same. MO.10 is
the blood stained white colour torn panty piece. He along with
Srinivas signed the slips and panchanama.
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39. PW.14-Patri Srinivas deposed in his evidence that on
25.11.2019, between 04:30 and 05:00 PM, police called him and
PW.13 to Government Hospital, Utnoor. There, the police seized
one blood stained blouse, blood stained saree and blood stained
white colour torn panty piece under cover of Ex.P.12-Panchanama
and he identified the same. Police kept the said clothes in a
polythene cover, sealed it and affixed slips containing his
signatures and the signatures of PW.13 to it.
40. PW.15-Arram Nithin Kumar deposed in his evidence that on
27.11.2019 at about 09:30 AM, on the instructions of RDO,
Asifabad, he along with Mohd.Younus went to SDPO Office,
Asifabad, and by the time they reached there, A1 to A3 were
present with the police and on the request of DSP, when he
enquired A1 to A3, they disclosed their identity particulars. Later,
he took A1 aside and on enquiry, A1 told him that on 24.11.2019
at about 07:00 and 07:30 AM, on seeing the deceased, who was
selling utensils in Yellapatar village, they (accused) decided to rape
her, as such they waited for opportunity and when the deceased
started going towards Ramnaik Thanda, they followed her till 600
meters and when the deceased reached an isolated area, they
pulled her towards the bushes, but the deceased raised cries, as
such he (A1) threatened her with a knife and all of them (A1 to
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A3) committed rape on her, one by one. After committing rape, as
they were afraid of the deceased disclosing the matter to anybody,
decided to kill her and as such, A1 cut the throat of deceased with
a knife, while A2 and A3 caught hold of her hands and legs, and
when the deceased resisted, A1 stabbed on her hands. Thereafter,
A2 took the cell phone, while A3 took Rs.200/- of the deceased
and later, all of them fled away from the village. PW.15 further
deposed that A1 also disclosed that on 27.11.2019, the police
apprehended all of them at Asifabad cross roads. PW.15 also
deposed that A1, having confessed the offence, handed over
MO.11-knife stating that it was used by him for commission of
offence and as such, the police seized the same under cover of
panchanama. The relevant portion of confession-cum-seizure
panchanama of A1 is marked as Ex.P.13. PW.15 further deposed
that at the time of confession, A1 was wearing the same clothes,
which were worn by him at the time of commission of offence and
the said clothes were having blood stains and the police seized the
said clothes also i.e., MO.12-blood stained pant, MO.13-blood
stained shirt and MO.14-underwear. PW.15 further deposed that
the police seized MOs.11 to 14 under a cover of panchanama
before them and he along with Mohd.Younus and A1 signed on the
same. PW.15 further deposed that then he took A2 aside and on
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enquiry, A2 also narrated the same facts as narrated by A1 and
that A2 had taken the mobile of deceased, removed the SIM and
threw it away. At the time of confession, A2 was wearing yellow
colour shirt, brown colour pant and black with pink colour dots
underwear, which were worn by him at the time of commission of
offence and as such the police seized MO.1-mobile and also the
said clothes i.e., MOs.15 to 17 from A2 under a cover of
confession-cum-seizure panchanama and he along with
Mohd.Younus and A2 signed it and Ex.P.14 is the relevant portion
of confession-cum-seizure panchanama of A2. PW.15 further
deposed that then he took A3 aside and on enquiry, A3 also
narrated the same facts as stated by A1 and A2 and that he had
taken away Rs.200/- from the blouse of deceased, and that at the
time of confession, A3 were also wearing the same clothes which
he worn at the time of commission of offence and as such the
police seized the said clothes i.e., white colour with white lining
shirt, light green colour pant and brown colour full underwear from
A3. On identification of the same by PW.15, the clothes were
marked as MOs.18 to 20 and the cash of Rs.200/- as MO.21.
PW.15 further deposed that he along with Mohd.Younus and A3
signed on it and Ex.P.14 is the relevant portion of confession-cum-
seizure panchanama of A3.
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41. PW.16-J.Narayana/Tahsildar has deposed that on
26.11.2019, on the requisition of DSP, Asifabad, he along with the
concerned VRO enquired with the villagers about the caste of the
deceased and issued Ex.P.16-Caste Verification Report according
to which, the deceased belongs to SC-Beda Budagajangam caste.
42. PW.17-M.Madhukar/Tahsildar deposed in his evidence that
on 26.11.2019, on the requisition of DSP, Asifabad, he verified
about the caste of A1 to A3 with the VRO concerned and issued
Ex.P17-Caste Verification Report and according to which, A1 to A3
belong to BC-E Shaik caste.
43. PW.19-Dr.Vidyasagar deposed in his evidence that on
27.11.2019 at about 04:00 PM, on the requisition of police, he
conducted Potency Test of A1 to A3 and issued certificates and as
per his opinion, there is nothing to suggest that A1 to A3 are not
capable of performing sexual act and Exs.P20 to P22 are the
Certificates issued by him to that effect.
44. PW.20-Dr.Shaik Haseena Parvin, Assistant Director of
Serology Department of FSL, Hyderabad, deposed in her evidence
that on 30.11.2019, she received requisition from the
Superintendent of Police, Asifabad, to conduct Serological
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examination along with 15 sealed cloth parcels and one sealed
card board box containing seals, which were intact, through
R.Uddav Singh, Head Constable of Lingapur police station. The
items so received are 1) soil etc., with dark brown stains, 2) soil
etc., 3) brown colour synthetic saree with yellow and black colour
border and design with dark brown stains; 4) torn pink colour
polyester blouse with dark brown stains; 5) torn light green colour
mill made underwear with dark brown stains; 6) All metal knife
measuring 29½ cms with rust and dark brown stains; 7) A blue
colour jeans pant with dark brown stains; 8) A green and black
colour checks design full sleeved cotton shirt with faint dark brown
stains; 9) A blue colour mill made underwear with company make
CRITO; 10) A brown colour cotton pant; 11) An yellow colour full
sleeved cotton shirt; 12) A black colour mill made full size
underwear with pink and green colour; 13) A torn grayish green
colour terry cotton pant; 14) A white colour polyester full sleeved
shirt with violet colour stripes design; 15) A brown colour mill
made underwear; 16) Eight glass slides with blood and dried
smear on each one; and 17) Three cotton swabs with dark brown
stains. PW.20 further deposed about the methods of test i.e.,
Biochemical test and Immunological test conducted by her.
According to PW.20, she examined the above items 1 to 17 and as
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per Serology Report, human semen and spermatozoa were
detected on item no.3 i.e., saree of deceased, item no.12 i.e.,
underwear of A2, item no.15 i.e., underwear of A3, item no.16 i.e.,
on glass slides and item no.17 i.e., cotton swabs and that blood
was detected on item no.1 i.e., soil, items 3 to 8 i.e., saree,
blouse, underwear of deceased, knife, jeans pant and shirt of A1.
According to PW.20, the origin of blood stains found on the items
1, 3, 4, 5 and 7 i.e., soil, saree, blouse, underwear of deceased
and jeans pant of A1 is of human. She also deposed that blood
was not detected on items 9 to 15 i.e., underwear of A1 and the
clothes i.e., pant, shirts and underwear A2 and A3 and that semen
and spermatozoa were not detected on items 4 and 5 i.e., blouse
and underwear of deceased, items 7 to 11 i.e., jeans pant, shirt
and underwear of accused no.1, pant and shirt of A2, and items 13
and 14 i.e., pant and shirt of A3 and that origin of blood stains on
items 6 and 8 could not be determined and that blood group of
seminal stains on items 3, 12 and 15 could not be determined and
that blood was not detected on item no.2 which was received as
control for item no.1. She further deposed that she issued
Ex.P.23-Serology report.
45. PW.21-Dr. G. Pandu, Assistant Director of DNA Department
of FSL, Hyderabad, deposed in his evidence that on 06.12.2019,
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he received requisition from Superintendent of Police, Asifabad, for
conducting DNA examination by producing A1 to A3. Accordingly,
he collected blood samples from A1 to A3 as items 1 to 3 and also
cloth parcels containing saree and torn underwear of deceased,
plastic jars containing four glass slides with dried smear on each
and three cotton swabs as items 4 to 7 respectively from Serology
section and he extracted DNA from items 1 to 7, subjected it to
Autosomal STR analysis by using global filer kit. There is no
amplifiable DNA yield from source of item no.5 (victim underwear)
and item no.7 (cotton swabs). He compared the DNA profiles
obtained from items 4 and 6 with DNA profiles obtained from items
1 to 3 and the allelic pattern of items 4 and 6 matches with the
allelic pattern of items 1 to 3. He concluded that the Autosomal
SRT analysis indicates that the seminal stains on item no.4 (saree
of victim) is matching with the DNA profiles of A1 and A2 and they
conclusively prove that they are of same biological origin. The DNA
profile of source of item no.6 (glass slides) is matching with the
DNA profile of A3 and it conclusively proves that they are of same
biological origin. He issued DNA report with Electropherogram,
which is marked as Ex.P.24.
46. PW.22-N. Srinivasulu, Sub Divisional Engineer, BSNL Office,
has deposed that on 11.12.2019, he received requisition from
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Additional Superintendent of Police, Asifabad, to furnish certified
copy of CDRs and Customer Application Form of mobile
No.8331065878 for the period from 22.11.2019 to 24.11.2019 and
accordingly he issued the same and as per him, the said number
stands in the name of PW.11/Kadem Krishna and he also furnished
the certified copy of CDRs of said mobile and it also stands in the
name of PW.11/Kadem Krishna. During that period, the cell phone
was within the purview of Usegaon and Jainoor village. He also
issued certificate under section 65B(4)(c) of Indian Evidence Act.
The above three certificates were marked as Exs.P.25 to P.27
respectively.
47. PW.23-Pawar Santhosh, Police Constable, deposed in his
evidence that on 25.11.2019 at about 12.00 Noon, the DSP formed
one ID party team consisting of himself, HC-604 and PC-3173 to
apprehend A1 to A3 and accordingly they started searching for
them; on 27.11.2019 at about 8:30 AM, they received information
about the presence of A1 to A3 near Wankidi road towards
Adilabad cross roads of Asifabad. Immediately their team reached
the spot, identified A3 and on seeing them A3 tried to escape from
that place. Then they apprehended A1 to A3 and produced them
before DSP, Asifabad.
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48. PW.24-N.Venkatesh, Sub Inspector of Police, Lingapur Police
Station, has deposed that on 24.11.2019 at about 08:00 PM, he
received complaint from PW.1, based on which he registered a
case in Crime No.49 of 2019 under the head 'woman missing',
issued Ex.P28-FIR, recorded statement of PW.1, collected the
photographs of deceased from PW.1, prepared look out notice,
forwarded it to all police stations in the State. Later, he along with
his staff, PW.1 and his relatives went to Yellapatar and Ramnaik
Thanda villages, searched and enquired about the missing woman
till 10:00 PM, but could not find her out. On 25.11.2019, he
deputed a team for searching that woman, while so at about 09:30
AM, PW.1 came to police station along with a complaint stating
that his wife's dead body was traced at the outskirts of Ramnaik
Thanda. Based on it, he altered the section of law to 376D, 302,
404 r/w 34 IPC and sections 3(2)(v) of SCs/STs (POA) Act and
filed Ex.P29-Section Alteration Memo before the Judicial Magistrate
of First Class, Utnoor. As the offence is a grave one and the
missing woman belongs to SC community, he flashed radio
message to Superintendent of Police and on receipt of mail
informing that DSP, Asifabad, was appointed as Investigation
Officer, he handed over the CD file to him and as per his
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instructions, he visited scene of offence by informing the
photographer.
49. PW.25-A.Satyanarayana, DSP, Asifabad, deposed in his
evidence that on 25.11.2019 at about 09:30 AM, on receipt of
information from PW.24 about tracing of dead body of the
deceased, he rushed to Lingapur police station, by then he was
appointed as Investigating Officer in this case through Ex.P.30
memo, as such he received CD file from PW.24, went to scene of
offence i.e., in between Ramnaik Thanda and Yellapatar village
along with CI of Police and other staff, saw the dead body of
deceased and PW.1 identified the dead body. He examined PWs.1,
2 and other witnesses. He conducted Inquest Panchanama, CDF
and also drew Rough Sketch in the presence of PW.12 and two
others viz., Rathod Sheela and Jadhav Tukaram and seized MOs.4
to 9 in their presence under Ex.P11-Panchanama and later he went
to Government Hospital, Utnoor and at about 04.45 PM, seized
MO.2/blood stained brown colour saree, MO.3/blood stained rose
colour blouse, MO.10/blood stained white colour torn panty piece
before panch witnesses, i.e., PWs.13 and 14 under Ex.P12. He
collected Ex.P3/photographs, Ex.P4/DVD, Ex.P9/65B Certificate
from PW.9 and formed a special team consisting of PW.23 and two
others for apprehending the accused. PW.25 further deposed that
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by issuing requisitions, he collected Ex.P16/Caste Certificate of
deceased from PW.16 and Ex.P17/Caste Certificate of A1 to A3
from PW.17, according to which, the deceased belongs to SC-Beda
Budagajangam community, while A1 to A3 belong to BC-E Shaik
Muslim community. On 27.11.2019 at about 09:30 AM, PW.23
and other two police personnel produced A1 to A3 before him
stating that at about 09:00 AM, they apprehended them at
Adilabad cross road of Asifabad. Thereupon, he secured the
presence of PW.15 and one Mohd.Younus as panch witnesses,
PW.10/videographer and on his request, PW.15 and Mohd.Younus
enquired A1 to A3, one by one, and all the accused confessed to
have committed the offence. Later, A1 produced one blood
stained knife and also blood stained blue colour jeans pant, blood
stained green black colour checks shirt and blood stained blue
colour CRITO company underwear, which were worn by him at the
time of offence. Similarly A2 and A3 also produced their clothes
i.e., pant, shirts and underwear, which were worn by them at the
time of offence. A2 also produced MO.1/mobile stating that it was
stolen by him from the deceased, while A3 also produced
MO.21/Cash of Rs.200/- stating that he had stolen it from the
deceased at the time of offence. Accordingly, he seized the knife,
clothes of accused, mobile and cash under cover of three separate
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panchanamas before the panch witnesses under video coverage by
PW.10. After getting conducted potency test of A1 to A3 at
Government Hospital, Asifabad, effected their arrest and produced
them before Judicial Magistrate of First Class, Utnoor, for judicial
remand. He collected Potency Test Certificates of A1 to A3 under
Exs.P20 to P22 from PW.19. Later, he examined some other
witnesses also, obtained preliminary PME report under Ex.P18 from
PW.8 and another doctor, forwarded material objects preserved by
the team of doctors to FSL through Superintendent Of Police,
Asifabad, through Ex.P31/Letter of advice. On 06.12.2019, as per
the orders of Court in Crl.M.P.No.558 of 2019, he produced A1 to
A3 before Telangana State Forensic Science Laboratory,
Hyderabad, for collecting blood samples to conduct DNA
comparison through Ex.P32/Letter of Advice. On 08.12.2019, he
submitted requisition to PW.22/Nodal officer to furnish certified
copy of CAF and CDRs of mobile of the deceased, collected Exs.P25
to P27 and on comparison, Exs.P25 and P26 tallied with the IMEI
number of mobile of deceased, which was recovered from A2. On
the same day, he submitted another requisition to the Nodal
Officer of Reliance Jio to furnish CAF and CDRs for the mobile
No.9502721152 of PW.1 and the same were received. On
13.12.2019, on receipt of DNA and Serology reports, he submitted
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report to PW.18 and another doctor Rathnamala and obtained
Ex.P19/Final opinion from them about the cause of death, which
was "due to shock and hemorrhage as a result of cut throat injury
and there is evidence of recent vaginal sexual intercourse." He
further deposed that on completion of investigation and collecting
all the documents, laid charge-sheet against A1 to A3 for the
offences punishable under Sections 376D, 302, 404 r/w 34 IPC and
Sections 3(1)(w-i) and 3(2)(v) of SCs/STs (POA) Act.
50. While the case of prosecution is that it is A1 to A3 who raped
and murdered the deceased, the case of A1 to A3 is total denial.
The evidence on record establishes the presence of deceased at
Yellapatar village on 24.11.2019 for selling utensils and later, she
was found dead in the fields at the outskirts of Ramnaik Thanda.
PWs.4 to 6 are circumstantial witnesses. According to PW.4, on
24.11.2019 at about 10.30 AM, while he along with his wife and
other labourers was picking up cotton in their fields, they heard
the shrieks of a lady from the nearby fields, as such they went
towards that place but they could not find anything, as such they
returned to his field and at that time he saw A1 to A3 going from
Ramanik Thanda side towards Yellapatar village. On the next day,
PW.4, on coming to know about the tracing of dead body of the
deceased, he went to the spot and observed that the same was
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the place from which, he heard the shrieks on the previous day.
PW.5 deposed that on one Sunday at about 9.00 AM, while he was
going to Pamulawada from Yellapatar village, he saw A1 to A3
going towards Ramnaik Thanda by walk. He even deposed that
after crossing two fields, he saw the deceased going towards
Ramnaik Thanda by carrying utensils bag on her head. PW.6
testified in his evidence that on 24.11.2019 at about 11.30 AM,
when he was at his kirana shop, A1 to A3 came to his shop and at
that time, he saw blood stains on the clothes of A1 to A3. Since
the evidence of PWs.4 to 6 remained unshaken in their cross-
examination, no adverse interest could be attributed to them and
their evidence can be safely relied upon. A cumulative reading of
the evidence of PWs.4 to 6 makes it clear that on 24.11.2019 at
about 09:00 AM, PW.5 saw A1 to A3 going towards Ramnaik
Thanda following the deceased; at about 10:30 AM, PW.4 heard
the shrieks of a lady from the nearby fields of Ramnaik Thanda
and within no time he even saw A1 to A3 coming from that side;
and at 11:30 AM, PW.6 saw A1 to A3 at his shop in blood stained
clothes. In Ex.P18-PME Report also, the approximate time of
death of deceased was mentioned as 24 to 28 hours prior to post
mortem examination, which tallies with the time of shrieks heard
by PW.4. The timings narrated by PWs.4 to 6 do not give any
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scope even to draw a presumption that there was any chance for
A1 to A3 to go anywhere in the meanwhile. Thus, the above chain
of events firmly establishes the presence of A1 to A3 around the
deceased, all the while, till her death. Further, A1 to A3 being
found in blood stained clothes by PW.6 within no time, forms a
strong incriminating circumstance against A1 to A3, proving their
involvement in the crime. Thus, the prosecution prima facie
discharged its burden with regard to the complicity of A1 to A3 in
the commission of the subject offence. Now the onus shifts to A1
to A3 to rebut the case of prosecution by offering plausible
explanation or by adducing cogent and convincing evidence that
they were not present around the deceased at that time. Under
these circumstances, the examination of A1 to A3 under Section
313 of Cr.P.C., assumes importance.
51. Learned senior counsel for A1 to A3, relying on Shivaji
Chintappa Patil's case (13 supra), argued that that though false
explanation or non-explanation by an accused in his statement
under Section 313 of Cr.P.C. can be used as an additional
circumstance when the prosecution has proved the chain of
circumstances leading to no other conclusion than that of the guilt
of the accused, however, it cannot be used as a link to complete
the chain of circumstances. It is settled law that statements of the
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accused in course of examination under Section 313 of Cr.P.C.,
since not on oath, do not constitute evidence under Section 3 of
Evidence Act, yet, the answers given by the accused are relevant
for finding out the truth and examining the veracity of the
prosecution case. In a very recent judgment in Premchand Vs.
State of Maharashtra19, the Hon'ble Apex Court, while
summarizing the settled principles with regard to Section 313 of
Cr.P.C., held as follows:
"Judicial experience has shown that more often than not, the time
and effort behind such an exercise put in by the trial court does
not achieve the desired result. This is because either the accused
elects to come forward with evasive denials or answers questions
with stereotypes like 'false', 'I don't know', 'incorrect', etc. Many a
time, this does more harm than good to the cause of the accused.
For instance, if facts within the special knowledge of the accused
are not satisfactorily explained, that could be a factor against the
accused. Though such factor by itself is not conclusive of guilt, it
becomes relevant while considering the totality of the
circumstances. A proper explanation of one's conduct or a version
different from the prosecution version, without being obliged to
face cross- examination, could provide the necessary hint or clue
for the court to have a different perspective and solve the
problem before it."
52. In the instant case, the trial Court has put as many as 51
questions to the accused in the process of examining them under
Section 313 of Cr.P.C. For almost all the questions, the accused
answered either 'false' or 'don't know' or 'they forced me to say
like that'. However, A1, in his examination under section 313 of
Cr.P.C., submitted that he was residing in Dhannora village along
2023 Live Law (SC) 168
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with his wife, but admits his coming to Yellapatar village on the
date of offence for getting ration. This admission of A1 further
fortifies the above evidence of PWs.4 to 6. A2, in his examination
under Section 313 of Cr.P.C., submitted that he was in the house
of his sister at Himayath Nagar of Sengam village. However, A2
did not choose to get her sister examined before the Court. Had
A2 got examined her sister before the Court, her evidence would
have thrown some light with regard to the presence of A2. He did
not choose to do so. Further, A3 submitted that he was engaged
in digging of well on that day. All the accused even pleaded that
they would adduce evidence of the villagers to prove their
contentions and the trial Court even adjourned the case twice
enabling the accused to produce evidence on their behalf, but they
failed to adduce any such evidence and finally reported no
evidence on their behalf. The accused could not examine even
anyone of their family members. This failure on the part of the
accused clearly shows that their above explanations are nothing
but evasive and false. Further, we find that the trial Court had
used the factor of non-explanation under Section 313 of Cr.P.C.,
only as an additional link to fortify the finding that the prosecution
had established chain of events unquestionably leading to the guilt
of the accused and not as a link to complete the chain. The trial
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
Court held that "the failure of accused to adduce any evidence
coupled with the self admission of A1 that he came to Yellapatar
village on that day for ration becomes an additional circumstance
to the above established circumstantial evidence of the
prosecution."
53. Learned senior counsel for A1 to A3 would submit that the
'last seen theory' was not proved in this case; the only observation
made was that the deceased went towards Ramnaik Thanda and
A1 to A3 also went towards Ramnaik Thanda; however, the
deceased and A1 to A3 were not seen going together by any of the
prosecution witness; therefore, since the deceased and A1 to A3
were not spotted together, the 'last seen theory' is not proved.
We are not impressed with the said submission. The law with
regard to 'last seen theory' is well settled. The last seen theory
comes into play where the time-gap between the point of time
when the accused and the deceased were last seen alive and when
the deceased is found dead is so small that the possibility of any
person other than the accused being the author of the crime
becomes impossible. Once the theory of 'last seen together' is
established by the prosecution, the accused is expected to offer
some explanation as to when and under what circumstances he
had parted the company of the deceased. It is true that the
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RT No.1/2020 & Crl.A.No.293/2020
burden to prove the guilt of the accused is always on the
prosecution, however in view of Section 106 of the Evidence Act,
when any fact is within the knowledge of any person, the burden
of proving that fact is upon him. Of course, Section 106 of
Evidence Act is certainly not intended to relieve the prosecution of
its duty to prove the guilt of the accused, nonetheless it is also
equally settled legal position that if the accused does not throw
any light upon the facts which are proved to be within his special
knowledge, in the light of Section 106 of the Evidence Act, such
failure on the part of the accused may be used against the
accused, as it may provide an additional link in the chain of
circumstances required to be proved against him. In the case
based on circumstantial evidence, furnishing or non-furnishing of
explanation by the accused would be a very crucial fact, when the
theory of "last seen together" as propounded by the prosecution
was proved against him.
54. In Rajender vs. State (NCT of Delhi)20, the Hon'ble Apex
Court observed as under:
"It is crucial to note that the reasonableness of the explanation
offered by the accused as to how and when he/she parted
company with the deceased has a bearing on the effect of the last
seen in a case. Section 106 of the Evidence Act, 1872 provides
that the burden of proof for any fact that is especially within the
knowledge of a person lies upon such person. Thus, if a person is
last seen with the deceased, he must offer an explanation as to
(2019) 10 SCC 623
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
how and when he parted company with the deceased. In other
words, he must furnish an explanation that appears to the court
to be probable and satisfactory, and if he fails to offer such an
explanation on the basis of facts within his special knowledge, the
burden cast upon him under Section 106 is not discharged.
Particularly in cases resting on circumstantial evidence, if the
accused fails to offer a reasonable explanation in discharge of the
burden placed on him, such failure by itself can provide an
additional link in the chain of circumstances proved against him.
This, however, does not mean that Section 106 shifts the burden
of proof of a criminal trial on the accused. Such burden always
rests on the prosecution. Section 106 only lays down the rule that
when the accused does not throw any light upon facts which are
specially within his/her knowledge and which cannot support any
theory or hypothesis compatible with his innocence, the court can
consider his failure to adduce an explanation as an additional link
which completes the chain of incriminating circumstances."
55. Further, in Satpal Vs. State of Haryana21, the Hon'ble
Apex Court observed as under:
"We have considered the respective submissions and the evidence
on record. There is no eyewitness to the occurrence but only
circumstances coupled with the fact of the deceased having been
last seen with the appellant. Criminal jurisprudence and the
plethora of judicial precedents leave little room for reconsideration
of the basic principles for invocation of the last seen theory as a
facet of circumstantial evidence. Succinctly stated, it may be a
weak kind of evidence by itself to found conviction upon the same
singularly. But when it is coupled with other circumstances such as
the time when the deceased was last seen with the accused, and
the recovery of the corpse being in very close proximity of time,
the accused owes an explanation under Section 106 of the
Evidence Act with regard to the circumstances under which death
may have taken place. If the accused offers no explanation, or
furnishes a wrong explanation, absconds, motive is established,
and there is corroborative evidence available inter alia in the form
of recovery or otherwise forming a chain of circumstances leading
to the only inference for guilt of the accused, incompatible with any
possible hypothesis of innocence, conviction can be based on the
same. If there be any doubt or break in the link of chain of
circumstances, the benefit of doubt must go to the accused. Each
case will therefore have to be examined on its own facts for
invocation of the doctrine."
(2018) 6 SCC 610
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
56. In view of the afore-stated legal position, it is discernible
that though the 'last seen theory', as propounded by the
prosecution in a case based on circumstantial evidence, may be a
weak kind of evidence by itself, to base conviction solely on such
theory, when the said theory is proved coupled with other
circumstances such as the time when the deceased was last seen
with the accused and the recovery of the corpse being in very
close proximity of time, the accused does owe an explanation
under Section 106 of the Evidence Act with regard to the
circumstances under which death might have taken place. If the
accused offers no explanation or furnishes a wrong explanation,
absconds, motive is established and some other corroborative
evidence in the form of recovery of weapon etc. forming a chain of
circumstances is established, the conviction could be based on
such evidence. In the instant case, PW.5 deposed in his evidence
that on 24.11.2019 at about 09:00 AM, he saw A1 to A3 going
towards Ramnaik Thanda following the deceased; PW.4 deposed
that at about 10:30 AM, he heard shrieks of a lady from the
nearby fields; and PW.6 deposed that at 11.30 AM, he saw A1 to
A3 at his shop in blood stained clothes. On the next day, i.e., on
25.11.2019 at 09:00 AM, the dead body of the deceased was
found. Therefore, the time gap between the period when the
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
deceased was last seen being followed by A1 to A3 and the
recovery of the corpse of the deceased, being quite proximate, the
non-explanation of A1 to A3 with regard to the circumstance under
which and when they have departed the company of the deceased
was a very crucial circumstance proved against them. When the
prosecution established the facts from which, a reasonable
inference can be drawn that A1 to A3 have raped the deceased
and thereafter murdered her, A1 to A3 should have, by special
knowledge regarding those facts, offered an explanation which
might drive the Court to draw a different inference. They did not
do so. Since the burden of proving the facts especially known to
them was on A1 to A3 as per Section 106 of Evidence Act and
since they did not discharge the same, an adverse inference can
be drawn against A1 to A3. Thus, a comprehensive study of the
above circumstances clinchingly point towards the involvement of
A1 to A3 in the commission of offence. The sequence of
circumstances from the evidence of PWs.4 to 6 also formed a
complete chain of events without any gap, all clinchingly pointing
towards the complicity of A1 to A3 in the commission of the
subject offence. Thus, we are in agreement with the finding
recorded by the trial Court that from the evidence of PWs.4 to 6,
the prosecution was able to link A1 to A3 with the offence properly
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
and there are no other adverse circumstances to break the chain
and there is also no room for any other hypothesis and that the
prosecution amply established that all the circumstances are
undoubtedly pointing to the guilt of A1 to A3 only.
57. Learned senior counsel for A1 to A3 argued that PWs.2 to 8
are interested witnesses and their evidence cannot be relied upon.
We do not see any merit in the said submission. True it is, PW.2 is
a relative of PW.1 and PWs.3 to 8 deposed in their evidence that
they know PW.1. However, it is settled law that a close relative,
who is a natural witness, cannot be regarded as an interested
witness. The term 'interested' postulates that the person
concerned must have direct interest in seeing that the accused
person is somehow or the other convicted, either because of some
animus with accused or for some reason. 'Interested witness' is a
witness who is vitally interested in securing conviction of a person
due to previous enmity. In the instant case, nothing has been
elicited from the cross-examination of PWs.2 to 8 that they were
inimical to A1 to A3. Merely knowing PW.1 cannot make PWs.2 to
8 partisan witnesses rather they would be natural witnesses.
58. Learned senior counsel further contended that the confession
allegedly made by A1 to A3 with regard to the commission of the
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RT No.1/2020 & Crl.A.No.293/2020
subject offence is hit by Section 26 of Evidence Act, which
mandates that no confession by the accused whilst in the custody
of police shall be proved, unless it is made in the immediate
presence of a Magistrate and that Court below ought to have
discarded the evidence of discovery of weapon and blood stained
clothes of A1 to A3, as the prosecution has not been able to prove
the authorship of concealment. We do not find any force in the
said submission. It has to be seen that the confession by A1 to
A3, though made in the presence of police, but was not made to
the police but was evidently made to independent panch
witnesses, i.e., PW.15 and two other independent witnesses.
Further, the trial Court has not taken the entire confession of A1 to
A3 into consideration, but it has taken the relevant portion of
confession of A1 to A3, which led to recovery of material objects
from them and which is valid under Section 27 of Evidence Act.
Under Section 27 of Evidence Act, the 'fact discovered' should be
there in the information received from an accused person while in
custody of police officer. It is this 'information' which gets
confirmed by the subsequent recovery. Thus, whatever
information given by the accused consequence of which a fact is
discovered, only such information is protected by Section 27 of the
Indian Evidence Act. In the instant case, the confessions made by
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RT No.1/2020 & Crl.A.No.293/2020
A1 to A3 to PW.15 to the extent of recovery of MO.1/mobile,
MO.11/knife, MOs.12 to 20/clothes of accused and MO.21/cash are
admissible in evidence and can be accepted. Further, there is no
rigid rule postulated in Section 27 of Evidence Act that material
object(s) cannot be directly collected from the accused and should
be collected from anywhere else. The words "discovery of material
objects on confession of accused‟ do not necessarily mean that the
said discovery has to be made from somewhere else. A holistic
reading of Section 27 of Evidence Act makes it clear that any
discovery in pursuance of confession amounts to discovery of fact.
In the instant case, as per the evidence of PW.15, A1 to A3
confessed to him about the commission of offence one by one and
pursuant to their confession, they produced the material objects,
which mean that discovery of material objects was made in
consequence of the information given by A1 to A3. Resultantly,
recoveries made pursuant to disclosure statements of A1 to A3 are
duly proved by the prosecution and there is no substantial reason
to discard the same. Further, recovery of MO.1/mobile and
MO.21/cash of Rs.200/- and other articles such as MO.11/knife
and blood stained clothes of accused, at the behest of accused, is
a strong incriminating circumstance against them, which they
could not rebut by offering plausible explanation as to how they
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RT No.1/2020 & Crl.A.No.293/2020
came into possession of the said articles, particularly the articles
belonging to the deceased. Thus, we concur with the finding
recorded by the Court below that through the evidence of PW.15,
the prosecution successfully established the recoveries made
pursuant to the confession of A1 to A3 to PW.15.
59. Learned senior counsel for A1 to A3 further argued that no
permission was obtained from A1 to A3 to collect blood samples
from them to conduct DNA test; that by compelling A1 to A3 to
give blood samples for DNA test, the right against self-
incrimination protected to them under Article 20(3) of the
Constitution of India are violated; that DNA report is not a
conclusive proof to hold that A1 to A3 are guilty of the offence
alleged against them; and that Serology report and DNA report are
not connecting A1 to A3 with the subject offence and hence, the
same cannot be relied upon. In our opinion, there is no force in
the said submissions. In a recent judgment in Das @ Anu Vs.
State of Kerala22, the Hon'ble Kerala High Court held that the
protection guaranteed under Article 20(3) of the Constitution of
India does not extend to protecting an accused from being
compelled to give his blood sample during the course of
investigation of a criminal case. In a criminal case, especially in a
2022 LiveLaw Ker 560
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
case involving sexual offence, drawing of blood sample from the
body of the accused would not violate his right against self-
incrimination protected under Article 20(3). The right against self-
incrimination is just a prohibition on the use of physical or oral
compulsion to extort testimonial evidence from a person, not an
exclusion of evidence taken from his body when it may be
material. Though Section 53A of Cr.P.C. only refers to
examination of the accused by a medical practitioner at the
request of the police officer, the Court also, in appropriate cases,
can give a direction to the Police Officer to collect the blood sample
of the accused and conduct DNA test for the purpose of further
investigation under Section 173(8) Cr.P.C. There is no testimonial
compulsion in the process of taking a sample of blood by a
qualified and registered medical practitioner, and in no case, it
could be said that by this process, the accused is forced to tender
evidence against himself nor by this process accused is being
compelled to be a witness against himself. That apart, as per
Section 53A of Cr.P.C, the police have got enough power to send
the accused to a qualified medical practitioner for the purpose of
taking samples. The examination of the person of the accused is
contemplated as an aid to the investigation of the trial to ascertain
facts which may afford evidence as to the commission of the
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
offence under investigation. This view is further fortified in Selvi
and others Vs. State of Karnataka23, wherein, the Hon'ble Apex
Court held that taking and retention of DNA samples which are in
the nature of physical evidence, does not face constitutional
hurdles in the Indian context. The Hon'ble Apex Court, in Sunil
Vs. State of Madhya Pradesh24, held that a positive result of
DNA test would constitute clinching evidence against the accused
in a prosecution for rape.
60. Here, it is apt to state that recent advancement in modern
biological research has regularized forensic science resulting in
radical help in the administration of justice. DNA Technology, as a
part of forensic science and scientific discipline, not only provides
guidance to the investigation but also supplies the Court, accrued
information about the tending features of the identification of
criminals. After the amendment of Criminal Procedure Code, by
the insertion of Section 53A by Act 25 of 2005, DNA profiling has
now become a part of the statutory scheme. Section 53A relates
to the examination of a person accused of rape by a medical
practitioner. DNA profiling test is now specifically included by way
of explanation to Section 53 of Cr.P.C. Thus, Section 53A included
in the Code of Criminal Procedure by way of the Amendment Act of
AIR 2010 SC 1974
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
2005, makes the DNA profiling of the accused and the victim
permissible in cases of rape. The observation to this effect has
been made by the Hon'ble Apex Court in Krishan Kumar Malik
Vs. State of Haryana25 in the following words.
"Now, after the incorporation of Section 53A in the Code of
Criminal Procedure with effect from 23.06.2006, it has become
necessary for the prosecution to go in for DNA test in such type of
cases facilitating the prosecution to prove its case against the
accused."
61. True it is, DNA test cannot be said to be conclusive proof
with regard to the allegations made against the accused, but
however, it is an important piece of corroborative evidence and if a
positive result of DNA test comes out against the accused, it would
constitute clinching evidence against him for proceeding further.
In the instant case, the evidence of PW.21, who collected blood
samples of A1 to A3 and conducted DNA test, establishes that on
comparison of DNA profiles obtained from the saree of deceased
and glass slides with that of DNA profiles of A1 to A3 collected by
him, the allelic pattern matched with each other. It is also his
conclusive evidence that the Autosomal SRT analysis indicates that
the seminal stains on the saree of victim are matching with the
DNA profiles of A1 and A2 and they are of same biological origin
and that the DNA profile obtained from glass slides match with the
(2017) 4 SCC 393
(2011) 7 SCC 130
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
DNA profile of A3 and they are of same biological origin and the
same is established from Ex.P24-DNA report issued by him.
Further, the evidence of PW.20, who conducted serological
examination, establishes the presence of semen and spermatozoa
on the saree of deceased, underwear of A2 and A3 and glass slides
and cotton swabs of deceased drawn and preserved by PW.18 at
the time of post-mortem. The accused failed to elicit anything
material from the evidence of PWs.20 and 21 to show that the
samples were not authentic or that they were tampered in any
manner. Hence, there is nothing to discredit the evidence of
PWs.20 and 21. Therefore, we concur with the finding of the trial
Court that the evidence of PW.21 coupled with his report under
Ex.P24, is a strong piece of evidence incriminating A1 to A3 in the
subject offence.
62. Further, the prosecution has relied upon the evidence of
PWs.19 to 21 in order to establish that A1 to A3 are the persons
who committed rape on the deceased and committed her murder.
PW.19, the doctor who conducted potency test on A1 to A3,
deposed that A1 to A3 are capable of performing sexual act.
Nothing is elicited from him to show that the potency test so
conducted is not scientifically approved and reliable and potency
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RT No.1/2020 & Crl.A.No.293/2020
cannot be decided through the test conducted by him. Hence, the
evidence of PW.19 can be relied upon.
63. Learned senior counsel for A1 to A3 argued that as PW.20
admitted that whether the semen found on the material objects
deposed by her was mixed one or pertaining to a single person and
blood grouping was also not done, her evidence has to be
discarded. This is a case of gang rape. Therefore, grouping of
semen, admittedly, may not be possible. Merely because of this
trivial reason, the entire evidence of PW.20, which consistently
establishes the presence of semen and spermatozoa on the saree
of deceased and on the clothes of A1 to A3 and glass slides cannot
be discarded.
64. In Dattatraya @ Datta Ambo Rokade's case (13 supra)
relied by the learned Public Prosecutor, the Hon'ble Apex Court
held that the DNA profile of semen detected on the underwear
(Bermudas) of the accused, the bedsheet, vaginal swab and anal
swab of the victim are identical and from one and the same source
of male origin and that the DNA analysis establishes beyond
reasonable doubt that the victim was raped by the accused-
appellant.
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
65. In Mukesh and another Vs. State (NCT of Delhi) and
others26, popularly known as NIRBHAYA CASE, the Hon'ble Apex
Court held that the evidence of DNA analysis is unimpeachable
evidence as to the involvement of the offending bus in the
commission of offence and also strong unimpeachable evidence
connecting the accused with the crime.
66. Further, the evidence of PW.9 establishes that he took
photographs of the dead body of deceased and handed over the
same to police. PW.11 deposed in his evidence that he gave his
mobile to PW.1 for temporary usage and PW.1, in turn, gave it to
the deceased and she was using the same till her date of death.
The evidence of PW.22 corroborates the evidence of PW.11, as the
evidence of PW.22 establishes that the mobile and SIM, which
were used by the deceased, stand in the name of PW.11. This
evidence, coupled with the evidence of PW.15 who deposed that
the said mobile of deceased was recovered from A2, fortifies the
case of prosecution in proving the guilt of accused. Through the
evidence of PW.12, the prosecution has established the conducting
of inquest over the dead body under Ex.P.8, conducting of CDF
panchanama, rough sketch under Exs.P.9 and P.10 and seizure of
MOs.4 to 9 from the scene. The evidence of PW.12 remained
(2017) 6 SCC 1
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
unshaken in the cross-examination. The evidence of PWs.13 and
14 establishes the seizure of clothes of deceased. Through the
evidence of PWs.16 and 17, the prosecution could establish that
the deceased belongs to SC-Beda Budagajangam community and
A1 to A3 belong to BC-E Shaik community. As already held supra,
the evidence of PW.18 medical officer establishes not only the
cause of death as shock and hemorrhage as a result of cut throat
injury and there was recent vaginal sexual intercourse on the
deceased, but also establishes that there were some other injuries
such as contusion on chest, multiple abrasions on jaw, multiple
nail scratch marks on upper chest, incised injuries on right palm,
index finger and abrasions on the back of chest and right and left
knee and also fractures of right and left side ribs, which all firmly
establish that there was strong resistance from the deceased
during commission of offence by the accused against her. Further,
it is apt to note that very case of prosecution as well as the
evidence of above referred independent prosecution witnesses
referred is that the accused were absconding from the village from
the date of offence and on that reason also, they entertained
suspicion against A1 to A3. In view of this evidence, the accused
cannot be expected to have the opportunity of changing their
dresses and as such they would have continued in the same
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RT No.1/2020 & Crl.A.No.293/2020
clothes till their date of arrest by the police. Furthermore, the
above discussed circumstances also clinchingly establish the guilt
of A1 to A3.
67. Learned senior counsel, relying on Asharfi's case (10
supra), argued that in the absence of evidence proving intention of
A1 to A3 in committing the offence upon the deceased only
because she belonged to Scheduled Caste community, their
conviction under Section 3(2)(v) of SCs/STs (POA) Act, is
unsustainable. While there cannot be any dispute with regard to
the legal preposition laid down by the Hon'ble Apex Court in this
regard in Asharfi's case (10 supra), we do not propose to examine
the said contention since the Court below did not award any
punishment for the said penal provision. The trial Court held that
"since the maximum punishment prescribed thereunder is only life,
a separate is also though framed for it, but as this court has
already awarded capital punishment of death for the major offence
i.e., section 302 IPC and life imprisonment under section 376-D
IPC against the accused 1 to 3 covering this offence also, no
punishment for this offence, in separate, is awarded".
68. Learned senior counsel for A1 to A3 pointed out certain
minor contradictions in the case of prosecution. However, we are
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RT No.1/2020 & Crl.A.No.293/2020
of the view that those minor contradictions do not go to the root of
the matter and destroy the whole prosecution which is firmly made
out against A1 to A3. In Sunil Kumar Sambhudayal Gupta and
others Vs. State of Maharashtra27, the Hon'ble Apex Court held
as follows:
"While appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions had been of
such magnitude that they may materially affect the trial. Minor
contradictions, inconsistencies, embellishments or improvements
on trivial matters without effecting the core of the prosecution
case should not be made a ground to reject the evidence in its
entirety. The Trial Court, after going through the entire evidence,
must form an opinion about the credibility of the witnesses and
the appellate Court in normal course would not be justified in
reviewing the same again without justifiable reasons."
69. Exaggerated devotion to the rule of benefit of doubt must
not nurture fanciful doubts or lingering suspicion and thereby
destroy social defence. Justice cannot be made sterile on the plea
that it is better to let hundred guilty escape than punish an
innocent. Letting guilty escape is not doing justice according to
law. A reasonable doubt is not an imaginary, trivial or merely
possible doubt, but a fair doubt based upon reason and common
sense. It must grow out of the evidence in the case. Vague
hunches cannot take place of judicial evaluation. A judge does not
preside over a criminal trial, merely to see that no innocent man is
punished, but he also presides to see that a guilty man does not
(2010) 13 SCC 657
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
escape. Both are public duties. Doubts would be called
reasonable if they are free from a zest for abstract speculation.
Law cannot afford any favourite other than truth.
70. On a meticulous analysis of the evidence on record, we have
no hint of hesitation to hold that the prosecution has established
by leading cogent and convincing evidence that on 24.11.2019,
while the deceased was going towards Ramnaik Thanda, A1 to A3
followed her and when she reached the fields in the outskirts of
Ramnaik Thanda village, dragged her in to the bushes, committed
rape on her one by one and thereafter, apprehending danger to
their lives in the event of her disclosing the same to anybody, A1
committed her murder by cutting her throat brutally with
MO.11/knife and thereafter, A2 and A3 dishonestly took away the
mobile phone and cash of Rs.200/- from the deceased. The cruel
and barbaric acts of A1 to A3 do attract the offences with which
they were charged. All the circumstances, being of a definite
tendency, are unerringly pointing towards the guilt of A1 to A3.
The circumstances, taken cumulatively, form a chain so complete
that there is no escape from the conclusion that within all human
probability, the crime was committed by A1 to A3 and none else.
All the necessary ingredients of Sections 376D, 302, 404 read with
34 of IPC and Section 3(1)(w-1) and Section 3(2)(v) of SC/ST
PNR, J & JS, J
RT No.1/2020 & Crl.A.No.293/2020
(POA) Act, 1989 are made out against A1 to A3 and the trial Court
is justified in convicting A1 to A3 of the said offences. There is
nothing to take a different view. Accordingly, we uphold the
conviction recorded against A1 to A3 of the offences under
Sections 376D, 302, 404 read with 34 of IPC and Section 3(1)(w-
1) and Section 3(2)(v) of SC/ST (POA) Act, 1989.
71. This takes us to the most crucial question as to whether the
trial Court is legally justified in imposing capital punishment
against A1 to A3 holding that the crime committed by them
satisfied the test of 'rarest of rare case'.
72. Imposition of capital punishment has taxed the imagination
of the judicial mind, inasmuch as it has moral implications, legal
consequences, and societal effects. Therefore, the world over the
common man, the Legislators and the Judges are divided over the
issue whether, in fact, death penalty should continue to be inflicted
by way of punishment upon an accused or not.
73. There have been rival views on imposition of death penalty
on an accused by 'the abolitionists of capital punishment' and
'rententionists of capital punishment'. It is the constant effort of
the abolitionists of death penalty to discontinue the practice of
sentencing an accused to death. They plead that to give life or to
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RT No.1/2020 & Crl.A.No.293/2020
take away life is a divine function, which cannot be bestowed upon
mere mortals. Moreover, there is no empirical data to prove that
imposition of death penalty, indeed, leads to decline in the
commission of the offence for which, death penalty has been
prescribed as one of the punishments. Thus, according to
abolitionists of capital punishment, the argument of deterrent
effect of the capital punishment is a highly misplaced and
presumptive argument. The abolitionists further argue that the
modern civilization has travelled far away from the primitive idea
when Hammurabi, the first lawgiver of the West, had prescribed
the punishment as "an eye for an eye, a tooth for a tooth".
Therefore, punishment is no longer meant to be retributive in
nature. Merely because the life of a victim has been lost, it would
not justify in depriving the life of the criminal. For revenge, in
whatever disguise, cannot be claimed by a modern civilized
society. The abolitionists further claim that the philosophy behind
'punishment' is to reform the criminal. By imposing the capital
punishment, both the society and the State admit their failure in
reforming the offender. However, every effort should be made by
the society and the State to reform the criminal while he is
incarcerated. They further plead that the imposition of the death
penalty is highly disproportionate to the offence. For, while the
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deceased might have died an instantaneous death or might have
suffered certain trauma prior to his death, but by keeping the
prisoner on death row for number of years, the pain and agony
brought about by the frightful thought that he may die tomorrow,
inflicts unimaginable pain and agony on the accused. Therefore,
death penalty is cruel and unusual punishment and such
punishment cannot be sanctified by a Constitution, which values
the dignity of life. The abolitionists further claims that even a
prisoner has a right to live with dignity. Although his personal
liberty may be cribbed, cabined and confined, but nonetheless, his
right to breathe his life as an individual should continue to exist. It
is also their theory that considering the futility of imposing the
capital punishment, majority of the countries in the world do not
have capital punishments in their statutes and therefore, our
country needs to re-think about the imposition of the capital
punishment and to realign itself with the majority of the nations of
the world. According to the abolitionists of capital punishment,
India is a vibrant Democratic Republic, which is known for its
liberalism, and for its human rights record and the existence of
capital punishment in the Penal Code, 1860, is a blotch on the
pristine image of the nation as the largest democracy in the world.
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74. Contrary to the view of the abolitionists of capital
punishment, the retentionists of capital punishment have stressed
on the fact that those who violate the law in such a gruesome
manner that shocks the conscience of the society, those who defy
the command of the law, those who rattle the society from within,
deserve no mercy. The society has a right to deny life to those
who continue to pose a danger to the wellbeing and to the
tranquility of the society at large. They equally argue that the
punishment prescribed should be so harsh, as to deter the
potential offender from committing the crime. Therefore, the
prescription of the death penalty is a preventive measure taken by
the society, rather than a curative one. Therefore, imposition of
capital punishment is justified, even if it is the harshest
punishment that can be inflicted upon a human being.
75. However, in the Indian context, the debate with regard to
the imposition or non-imposition of death penalty is a futile
discussion. For, death penalty has been prescribed as a
punishment, not only under Penal Code, 1860, but even under
special laws like the Protection of Children from Sexual Offences
Act, 2012. Despite the challenge to the constitutional validity of
Section 302 IPC, the Hon'ble Apex Court has upheld its
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constitutional validity. Therefore, to listen to the abolitionists of
death penalty is to waste ones time.
76. To kill is to be cruel and, therefore, all murders are cruel.
But such cruelty may vary in its degree of culpability. And it is
only when the culpability assumes the proportion of extreme
depravity that "special reasons" can legitimately be said to exist.
The 'rarest of rare dictum' breathes life in "special reasons" under
Section 354(3) of Cr.P.C. and entrenches the policy that life
imprisonment is the rule and death punishment is an exception. It
is a settled law of interpretation that exceptions are to be
construed narrowly. That being the case, the 'rarest of rare'
dictum places an extraordinary burden on the Court, in case it
selects death punishment as the favoured penalty, to carry out an
objective assessment of facts to satisfy the exceptions ingrained in
the 'rarest of rare' dictum. A case, in order to belong to a 'rarest
of rare' category, must conform to the highest standards of judicial
rigor and thoroughness, as the said norm is an exceptionally
narrow exception. A conclusion as to the rarest of rare aspect with
respect to a matter shall entail identification of aggravating and
mitigating circumstances, relating to both the 'crime' and the
'criminal'. The expression "special reasons" in the context of this
provision, obviously means "exceptional reasons" founded on the
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exceptionally grave circumstances of the particular case relating to
crime as well as the criminal. Thus, in essence, the 'rarest of rare'
dictum imposes a wide-ranging embargo on awarding death
punishment, which can only be revoked if the facts of the case
successfully satisfy double qualification, i.e., (i) that the case
belongs to rarest of rare category; and (ii) the alternative option of
life imprisonment will just not suffice the facts of the case.
Nevertheless, to impose or not to impose death penalty or is an
existentialist question faced by the Courts. However, in a series of
cases, the Hon'ble Apex Court has resolved this dilemma. Two of
such cases, i.e., Bachan Singh's case (11 supra) and Machhi
Singh's case (12 supra), which were decided as long back as in
the years 1980 and 1983, still govern the field.
77. In Bachan Singh's case (11 surpa), the Hon'ble Apex Court,
while upholding the constitutional validity of death penalty in
India, held that under Section 354(3) of Cr.P.C., imprisonment for
life is the rule and death sentence is the exception. The Court held
that it is not possible to lay down standards and norms for
imposition of death penalty, as the degree of culpability cannot be
measured in each case; Secondly, criminal cases cannot be
categorised, there being infinite unpredictable and unforeseeable
variations; Thirdly, on such categorisation, the sentencing process
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will cease to be judicial; and Fourthly, such standardisation or
sentencing discretion is a policy matter belonging to the legislature
beyond the Court's function. The relevant discussion reads thus:
"As we read Sections 354(3) and 235(2) and other related
provisions of the 1973 Code, it is quite clear to us that for
making the choice of punishment or for ascertaining the
existence or absence of "special reasons" in that context, the
court must pay due regard, both to the crime and the criminal.
What is the relative weight to be given to the aggravating and
mitigating factors, depends on the facts and circumstances of the
particular case. More often than not, these two aspects are so
intertwined that it is difficult to give a separate treatment to each
of them. This is so because "style is the man". In many cases,
the extremely cruel or beastly manner of the commission of
murder is itself a demonstrated index of the depraved character
of the perpetrator. That is why, it is not desirable to consider the
circumstances of the crime and the circumstances of the criminal
in two separate watertight compartments. In a sense, to kill is to
be cruel and therefore all murders are cruel. But such cruelty
may vary in its degree of culpability. And it is only when the
culpability assumes the proportion of extreme depravity that
"special reasons" can legitimately be said to exist."
78. The Hon'ble Apex Court also emphasised the need for
principled sentencing without completely trammelling the
discretionary powers of the Judges. The Court also held that
aggravating and mitigating circumstances would have to be viewed
from the perspective of both the crime and the criminal.
Therefore, the courts need to perform a balancing act between the
aggravating and the mitigating circumstances surrounding a case,
without fettering judicial discretion. The Hon'ble Apex Court has
illustrated some of the aggravating circumstances such as (i) pre-
planned manner of the execution of the crime; (ii) calculated cold-
blooded murders; (iii) murders diabolically conceived and cruelly
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executed; (iv) the weapon used and the manner of their use; and
(v) the horrendous feature of the crime and the helpless state of
the victim. However, the Hon'ble Apex Court has emphasised that
the list of aggravating and mitigating circumstances provided in
the said decision are not exhaustive and the scope of mitigating
factors in death penalty must receive a liberal and expansive
construction by the Courts. Paragraph 209 of the said judgment
reads as follows:
"209. There are numerous other circumstances justifying the
passing of the lighter sentence; as there are countervailing
circumstances of aggravation. 'We cannot obviously feed into a
judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating
society.' Nonetheless, it cannot be overemphasised that the
scope and concept of mitigating factors in the area of death
penalty must receive a liberal and expansive construction by the
courts in accord with the sentencing policy writ large in Section
354(3). Judges should never be 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."
79. In the same decision, Quoting Dr. Chitale, the Hon'ble Apex
Court has given illustrations for "the aggravating circumstances"
as under:--
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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 Cr. P. C, 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.
80. The Hon'ble Apex Court has illustrated as to what would be
the "mitigating circumstances" which would be kept in mind as
under:--
1) That the offence was committed under the influence of extreme
mental or emotional disturbance.
2) The age of the accused. If the accused is young or old, he shall not
be sentenced to death.
3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy
the conditions 3 and 4 above.
5) That in the facts and circumstances of the case the accused
believed that he was morally justified in committing the offence.
6) That the accused acted under the duress or domination of another
person.
7) That the condition of the accused showed that he was mentally
defective and that the said defect unpaired his capacity to
appreciate the criminality of his conduct.
81. Further, in Machhi Singh's case (12 supra), the Hon'ble
Apex Court held that when the murder is committed in an
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extremely brutal, grotesque, diabolical, revolting, or dastardly
manner so as to arouse intense and extreme indignation of the
community, it would be a rarest of rare cases. The Court
summarised the findings in Bachan Singh's case (11 supra) and
held as follows:-
"38. In this background the guidelines indicated in Bachan Singh
case will have to be culled out and applied to the facts of each
individual case where the question of imposing of death sentence
arises. The following propositions emerge from Bachan Singh
case :
(i) The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the
"offender" also require to be taken into consideration along with
the circumstances of the "crime".
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed only
when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the
crime, and provided, and only provided, the option to impose
sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the
crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating circumstances
have to be accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating circumstances
before the option is exercised.
82. Moreover, in the said case, the Hon'ble Apex Court had laid
down five "tests" which should be applied while considering the
possible imposition of the death penalty. They are as under:--
1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting, or dastardly manner so as to
arouse intense and extreme indignation of the community.
2) When the murder is committed for a motive which evinces total
depravity and meanness; e.g. murder by hired assassin for
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money or reward, or cold-blooded murder for gains of a person
vis-à-vis whom the murderer is in a dominating position or in a
position of trust; or murder is committed in the course of
betrayal of the mother land.
3) When murder of a member of a Scheduled Caste or minority
community etc., is committed not for personal reasons but in
circumstances which arouse social wrath; or in cases of 'bride
burning' or 'dowry deaths' or when murder is committed in order
to remarry for the sake of extracting dowry once again or to
marry another woman on account of infatuation.
4) When the crime is enormous in proportion. For instance when
multiple murders, say of all or almost all the members of a
family or a large number of persons of a particular caste,
community, or locality, are committed.
5) When the victim of murder is an innocent child, or a helpless
woman or old or infirm person or a person vis-à-vis whom the
murderer is in a dominating position, or a public figure generally
loved and respected by the community.
83. The Hon'ble Apex Court had also opined that the court is
required to take a holistic view while considering these factors, and
should not choose merely one test to be applied while ignoring the
other factors. The Hon'ble Apex Court had clearly opined that "if
upon taking an overall global view of all the circumstances in the
light of the aforesaid propositions and taking into account the
answers to the questions posed by way of the test, for the rarest
of the rare case, the circumstances of the case are such the death
sentence is warranted, the court would proceed to do so".
84. In Shankar Kisanrao Khade Vs. State of Maharashtra28,
the Hon'ble Apex Court looked at the manner in which the
aggravating and mitigating circumstances are to be weighed and
(2013) 5 SCC 546
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how the 'rarest of rare test' is to be applied while awarding death
sentence. It was held as follows:-
"52. Aggravating circumstances as pointed out above, of course,
are not exhaustive so also the mitigating circumstances. In my
considered view, the tests that we have to apply, while awarding
death sentence are "crime test", "criminal test" and the "R-R test"
and not the "balancing test". To award death sentence, the "crime
test" has to be fully satisfied, that is, 100% and "criminal test"
0%, that is, no mitigating circumstance favouring the accused. If
there is any circumstance favouring the accused, like lack of
intention to commit the crime, possibility of reformation, young
age of the accused, not a menace to the society, no previous track
record, etc. the "criminal test" may favour the accused to avoid
the capital punishment. Even if both the tests are satisfied, that
is, the aggravating circumstances to the fullest extent and no
mitigating circumstances favouring the accused, still we have to
apply finally the rarest of the rare case test (R-R test). R-R test
depends upon the perception of the society that is "society-
centric" and not "Judge-centric", that is, whether the society will
approve the awarding of death sentence to certain types of crimes
or not. While applying that test, the court has to look into variety
of factors like society's abhorrence, extreme indignation and
antipathy to certain types of crimes like sexual assault and murder
of intellectually challenged minor girls, suffering from physical
disability, old and infirm women with those disabilities, etc.
Examples are only illustrative and not exhaustive. The courts
award death sentence since situation demands so, due to
constitutional compulsion, reflected by the will of the people and
not the will of the Judges."
85. In Santosh Kumar Satishbhushan Bariyar Vs. State of
Maharashtra29, the Hon'ble Apex Court held as follows:-
"157. The doctrine of proportionality, which appears to be the
premise whereupon the learned trial Judge as also the High Court
laid its foundation for awarding death penalty on the appellant
herein, provides for justifiable reasoning for awarding death
penalty. However, while imposing any sentence on the accused
the court must also keep in mind the doctrine of rehabilitation.
This, considering Section 354(3) of the Code, is especially so in
the cases where the court is to determine whether the case at
hand falls within the rarest of the rare case.
158. The reasons assigned by the courts below, in our
opinion, do not satisfy Bachan Singh test. Section 354(3) of the
Code provides for an exception. General rule of doctrine of
(2009) 6 SCC 498
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proportionality, therefore, would not apply. We must read the
said provision in the light of Article 21 of the Constitution of
India. Law laid down by Bachan Singh interpreting Section 354(3)
of the Code should be taken to be a part of our constitutional
scheme.
159. Although the Constitution Bench judgment of the
Supreme Court in Bachan Singh did not lay down any guidelines
on determining which cases fall within the "rarest of rare"
category, yet the mitigating circumstances listed in and endorsed
by the judgment give reform and rehabilitation great importance,
even requiring the State to prove that this would not be possible,
as a precondition before the court awarded a death sentence. We
cannot therefore determine punishment on grounds of
proportionality alone. There is nothing before us that shows that
the appellant cannot reform and be rehabilitated.
***
162. Further indisputably, the manner and method of disposal
of the dead body of the deceased was abhorrent and goes a long
way in making the present case a most foul and despicable case
of murder. However, we are of the opinion, that the mere mode
of disposal of a dead body may not by itself be made the ground
for inclusion of a case in the "rarest of rare" category for the
purpose of imposition of the death sentence. It may have to be
considered with several other factors."
86. In Ajay Pandit Vs. State of Maharashtra30, the Hon'ble
Apex Court held that awarding death sentence is an exception, not
the rule, and only in the rarest of the rare cases, the Court should
award death sentence. It was held as follows:-
"47. Awarding death sentence is an exception, not the rule, and
only in the rarest of rare cases, the court could award death
sentence. The state of mind of a person awaiting death sentence
and the state of mind of a person who has been awarded life
sentence may not be the same mentally and psychologically.
The court has got a duty and obligation to elicit relevant facts
even if the accused has kept totally silent in such situations. In
the instant case, the High Court has not addressed the issue in
the correct perspective bearing in mind those relevant factors,
while questioning the accused and, therefore, committed a gross
error of procedure in not properly assimilating and
understanding the purpose and object behind Section 235(2)
CrPC."
(2012) 8 SCC 43
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87. In Mohinder Singh Vs. State of Punjab31, the Hon'ble
Apex Court held that when a case clearly falls within the ambit of
"rarest of rare" and when the alternative option is unquestionably
foreclosed, then only death penalty can be imposed. It was held
as follows:-
"22. The doctrine of "rarest of rare" confines two aspects and
when both the aspects are satisfied only then the death penalty
can be imposed. Firstly, the case must clearly fall within the ambit
of "rarest of rare" and secondly, when the alternative option is
unquestionably foreclosed. Bachan Singh suggested selection of
death punishment as the penalty of last resort when, alternative
punishment of life imprisonment will be futile and serves no
purpose.
23. In life sentence, there is a possibility of achieving deterrence,
rehabilitation and retribution in different degrees. But the same
does not hold true for the death penalty. It is unique in its
absolute rejection of the potential of convict to rehabilitate and
reform. It extinguishes life and thereby terminates the being,
therefore, puts an end to anything to do with life. This is the big
difference between two punishments. Thus, before imposing death
penalty, it is imperative to consider the same. The "rarest of rare"
dictum, as discussed above, hints at this difference between death
punishment and the alternative punishment of life imprisonment.
The relevant question here would be to determine whether life
imprisonment as a punishment would be pointless and completely
devoid of any reason in the facts and circumstances of the case.
As discussed above, life imprisonment can be said to be
completely futile, only when the sentencing aim of reformation
can be said to be unachievable. Therefore, for satisfying the
second aspect to the "rarest of rare" doctrine, the court will have
to provide clear evidence as to why the convict is not fit for any
kind of reformatory and rehabilitation scheme."
88. In Panchhi Vs. State of Uttar Pradesh32, the Hon'ble Apex
Court held that brutality of the manner in which a murder was
perpetrated may be a ground, but not the sole criterion for judging
(2013) 3 SCC 294
(1998) 7 SCC 177
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whether the case is one of the 'rarest of rare case'. It was
observed as follows:-
"20. ... No doubt brutality looms large in the murders in this case
particularly of the old and also the tender-aged child. It may be
that the manner in which the killings were perpetrated may not
by itself show any lighter side but that is not very peculiar or
very special in these killings. Brutality of the manner in which a
murder was perpetrated may be a ground but not the sole
criterion for judging whether the case is one of the "rarest of
rare cases" as indicated in Bachan Singh case."
89. There is a catena of judgments, wherein, the Hon'ble Apex
Court took various factors into consideration qua the rule that life
imprisonment is a rule and death sentence is an exception. To
quote some:
90. In Rajesh Kumar Vs. State33, the accused was convicted of
assault and murder of two helpless children in the most gruesome
manner. The Hon'ble Apex Court held that death sentence could
not be inflicted, reiterating that life imprisonment was the rule and
death sentence an exception, only to be imposed in the "rarest of
rare cases" and for "special reasons" when there were no
mitigating circumstances.
91. In Bantu Vs. State of Madhya Pradesh34, the Hon'ble
Apex Court found that there was nothing on record to indicate that
the appellant had any criminal antecedents nor could it be said
(2011) 13 SCC 706
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that he would be a grave danger to the society at large, despite
the fact that the crime committed by him was heinous. It was
held as follows:-
"8. However, the learned counsel for the appellant submitted that
in any set of circumstances, this is not the rarest of the rare case
where the accused is to be sentenced to death. He submitted that
age of the accused on the relevant day was less than 22 years. It
is his submission that even though the act is heinous, considering
the fact that no injuries were found on the deceased, it is probable
that death might have occurred because of gagging her mouth
and nosetrix [nostril] by the accused at the time of incident so
that she may not raise a hue and cry. The death, according to
him, was accidental and an unintentional one. In the present case,
there is nothing on record to indicate that the appellant was
having any criminal record nor can it be said that he will be a
grave danger to the society at large. It is true that his act is
heinous and requires to be condemned but at the same time it
cannot be said that it is the rarest of the rare case where the
accused requires to be eliminated from the society. Hence, there
is no justifiable reason to impose the death sentence."
92. In Amit Vs. State of Maharashtra35, the Hon'ble Apex
Court took into consideration the prior history of the appellant
therein and noted that there was no record of any previous
heinous crime and also there was no evidence that he would be a
danger to society, if the death penalty was not awarded to him.
The relevant finding is extracted below.
"10. The next question is of the sentence. Considering that the
appellant is a young man, at the time of the incident his age was
about 20 years; he was a student; there is no record of any
previous heinous crime and also there is no evidence that he will
be a danger to the society, if the death penalty is not awarded.
Though the offence committed by the appellant deserves severe
condemnation and is a most heinous crime, but on cumulative
facts and circumstances of the case, we do not think that the case
falls in the category of rarest of the rare cases."
(2001) 9 SCC 615
(2003) 8 SCC 93
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93. In Rahul Vs. State of Maharashtra36, the Hon'ble Apex
Court noted that there was no adverse report about the conduct of
the appellant therein, either by the jail authorities or by the
probationary officer and that he had no previous criminal record or
at least nothing was brought to the notice of the Court. It was
observed as follows:-
"4. We have considered all the relevant aspects of the case. It is
true that the appellant committed a serious crime in a very
ghastly manner but the fact that he was aged 24 years at the
time of the crime, has to be taken note of. Even though, the
appellant had been in custody since 27-11-1999 we are not
furnished with any report regarding the appellant either by any
probationary officer or by the jail authorities. The appellant had
no previous criminal record, and nothing was brought to the
notice of the Court. It cannot be said that he would be a menace
to the society in future. Considering the age of the appellant and
other circumstances, we do not think that the penalty of death
be imposed on him."
94. In Haru Ghosh Vs. State of West Bengal37, the Hon'ble
Apex court commuted death sentence to life imprisonment in the
case of a dastardly murder of two helpless persons for no fault of
theirs. The Court, however, in commuting death sentence, took
into consideration the following factors viz., (i) There was no pre-
meditation on the part of the accused; (ii) The act was on the spur
of the moment; (iii) The accused was not armed with any weapon;
(iv) It was unknown under what circumstances the accused had
(2005) 10 SCC 322
(2009) 15 SCC 551
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entered the house of the deceased and what prompted him to
assault the boy; and (v) The cruel manner in which the murder
was committed could not be the guiding factor and the accused
himself had two minor children.
95. In Accused 'X' Vs. State of Maharashtra38, the Hon'ble
Apex Court has opined as follows:
"It is established that sentencing is a socio-legal process wherein
a judge finds an appropriate punishment for the accused
considering factual circumstances and equities. Sentencing in
India, is a midway between judicial intuition and strict application
of rule of law. In light of the fact that the legislature provided for
discretion to the Judges to give punishment, it becomes
important to exercise the same in a principled manner. In India,
sentencing is mostly led by "guideline judgments" in the death
penalty context, while many other countries like United Kingdom
and United States of America, provide a basic framework in
sentencing guidelines. A strict fixed punishment approach in
sentencing cannot be acceptable, as the Judge needs to have
sufficient discretion as well".
The Supreme Court may not lay down a "definitive sentencing
policy", which is rather a legislative function. However, the courts
in India have addressed this problem in a principled manner
having regard to judicial standards and principles. These
judicially set principles not only serve as instructive guidelines,
but also preserve the required discretion of the trial Judges while
sentencing. Such an effort has already been initiated by the
Supreme Court, in Sunil Dutt Sharma, (2014) 4 SCC 375, when
the sentencing guidelines evolved in the context of death penalty
were applied to a lesser sentence as well. However, achieving
sentencing uniformity may not only require judicial efforts, but
even the legislature may be required to step in.
In any case, considering that a large part of the exercise of
sentencing discretion is principled, a Judge in India needs to keep
in mind broad purposes of punishment, which are deterrence,
incapacitation, rehabilitation, retribution and reparation
(wherever applicable), unless particularly specified by the
legislature as to the choice. The purposes identified above, mark
a shift in law from crime-oriented sentencing to a holistic
approach wherein the crime, criminal and victim have to be taken
into consideration collectively.
(2019) 7 SCC 1
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96. Therefore, while choosing appropriate sentence to be
awarded to an accused in a case, the above noted principles
enunciated by the Hon'ble Apex Court have to be kept in mind.
97. Unfortunately, in the instant case, an innocent and helpless
woman was gang raped by A1 to A3 and thereafter, mercilessly
killed by slitting her throat with a knife. No doubt, the same is
henious, which shocks the conscience of society. For, the loss of
the deceased is irreparable to her husband and her children. Such
persons, if not incapacitated, would continue to be threat to the
society at large. Thus, the Court should fulfil the cry for justice of
the family of the deceased and should also protect the society from
such a looming danger. However, simultaneously, the Court
should objectively weigh the evidence to see if the imposition of
the death penalty is the only option for the Court, or a punishment
can be chosen which would incapacitate the culprits, would deter
others from committing such a crime in future, would permit the
society to reform the culprit, and would still fulfill the need of
justice of the society.
98. In the instant case, although a murder has been committed
by A1 to A3, it appears to us that it was not a pre-planned murder.
In fact, there is no evidence to show that A1 to A3 had a pre-
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meditated mind to commit the murder of the deceased. The fact
that A1 to A3 have followed the deceased till reaching an isolated
area and pulled her towards the bushes and when A1 tried to
commit rape on her and when the deceased raised cries, A1 to A3
dragged her into the bushes and committed rape on her forcibly,
clearly indicates that A1 to A3 followed the deceased with an
intention to satisfy their lust, i.e., to commit rape on her and not
to commit her murder. Hence, the element of "pre-planning" is
conspicuously missing in the instant case. Even according to
prosecution, after committing rape on the deceased, the accused,
apprehending that they would be in trouble if the deceased
discloses the incident to someone, murdered the deceased.
Hence, the intention of accused in committing the subject murder
was to protect themselves from the consequences that would
follow, in case the deceased discloses the incident to someone.
Hence, their action cannot be categorised as "extremely brutal" or
"grotesque" or "diabolical" or "revolting" or "carried out in a
dastardly manner so as to arouse intense and extreme indignation
of the community". Furthermore, the subject murder was neither
"murder by hired assassins for money or reward" nor would
"arouse social wrath". It is neither "enormous in proportion" nor
was "committed in betrayal of mother land". Similarly, the
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RT No.1/2020 & Crl.A.No.293/2020
magnitude of the crime is limited to an individual and does not
involve the elimination of a family, or a large number of persons of
a particular community or locality. Thus, the case does not fulfil
the tests prescribed in Bachan Singh's case (11 supra) and
Machhi Singh's case (12 supra). Therefore, the case does not fall
within the extreme category of "rarest of the rare".
99. Furthermore, admittedly A1 to A3 are middle aged persons,
viz., 30, 40 and 35 years old as on the date of commission of the
subject offence. Undoubtedly, they belong to a backward caste,
i.e., BC-E Shaik Community. Undoubtedly, all of them were
working as coolies, they are poor. In their examination under
Section 313 of Cr.P.C., A1 stated that he has wife, four children
and his mother; A2 stated that he has wife, four children and his
parents; and A3 stated that he has wife, four children and old aged
parents. Further, there is nothing on record to indicate that A1 to
A3 were having past criminal record, nor it can be said that they
would be a grave danger to the society at large. True it is, the
offence committed by A1 to A3 is heinous and requires to be
condemned, but at the same time, it cannot be said that it is a
'rarest of rare' case, where A1 to A3 should be altogether
eliminated from the society.
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100. Further, even though A1 to A3 are in custody since
27.11.2019, we are not furnished with any report by the jail
authorities suggesting that A1 to A3 are beyond reformation.
Hence, the prosecution has not produced any evidence to show
that A1 to A3 are beyond reformation. Moreover, by asking to
confirm the death sentence, the society and the State admit that
they are incapable of reforming A1 to A3. The State and the
society must try their level best to reform an accused. By
throwing a young life into the mouth of death, the society and the
State abdicate their primary duty to reform the offender. Hence,
while awarding appropriate punishment to A1 to A3 for the subject
offence committed by them, which is undoubtedly heinous, a via-
media has to be discovered to reform them, so also to protect the
society from them.
101. Section 302 of IPC merely prescribes either life
imprisonment or death. However, keeping in mind the nuances
and the varied circumstances of the case, the Hon'ble Apex Court
has laid down other categories of punishment available to the
Courts. Thus, presently, it is not only mere life imprisonment for
fourteen years nor the extreme death penalty that can be imposed
on an accused, but they are other categories of judicial sentencing.
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RT No.1/2020 & Crl.A.No.293/2020
In Gurvail Singh @ Gala vs. State of Punjab39, the Hon'ble
Apex Court held that although, in practical terms, life
imprisonment means the imprisonment for fourteen years, but the
same can be extended by judicial sentencing to thirty years, with
or without parole. Moreover, in Nand Kishore Vs. State of
Madhya Pradesh40 the Hon'ble Apex Court held that an accused
can be sentenced to imprisonment with or without the benefit of
remission. Therefore, while imposing a punishment, the Court has
four different options with regard to the punishment to be inflicted
upon an accused convicted under Section 302 IPC. The two new
terms of punishment prescribed by the Hon'ble Apex Court balance
the conflict between the rights of the accused and cry for justice
by the society. Furthermore, these two newly created options
equally balance the reformative theory of punishment on one side,
and of the right of the society to be protected from a potential
menace. Hence, while selecting the punishment, the other options
available between life imprisonment and death sentence, should
also be considered by the Court. Furthermore, it may be beneficial
for the criminal justice system to select a via-media between life
and death, to incarcerate the accused either for thirty years
without parole, or for the rest of his life without remission. By
(2013) 2 SCC 713
(2019) 16 SCC 278
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selecting such a middle path, the criminal justice system
acknowledges both the significance of a life and simultaneously
protects the society from volatile and dangerous persons.
Moreover, it gives a chance to the society and the State to try to
reform an accused to the best of the ability of the society and the
State. Neither the society, nor the State should readily admit that
it has failed to reform a person. The endeavour of the society, and
the State should be to recondition the psychology of an accused,
and to make him a productive member of the society at large.
Even while a prisoner is incarcerated, he can be reformed to the
extent that he can be employed within the jail administration and
can become a role model for the other under-trial convict
prisoners. Further, the via-media also permits the Court to
balance the twin aspects of Article 21 of the Constitution of India,
viz., while it limits the personal liberty of the accused, it does not
deprive the accused of his life. Therefore, such a term of
punishment would, indeed, be in consonance with Article 21 of the
Constitution of India - an Article which has been held to be the
heart and soul of the Constitution of India.
102. In Pappu's case (17 supra) relied by the learned Public
Prosecutor, the appellant therein has been accused of enticing a
seven year old girl to accompany him on the pretext of picking
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lychee fruits; having thereafter committed rape upon the child;
having caused her death; and having dumped the dead body near
a bridge on the riverbank, after having dragged the dead body
over a distance of one and one-quarter kilometres. The Hon'ble
Apex Court, discussing the law governing imposition of capital
punishment in great detail, commuted the death sentence awarded
to the appellant therein for the offence under Section 302 IPC into
that of imprisonment for life, with the stipulation that the appellant
shall not be entitled to premature release or remission before
undergoing actual imprisonment for a period of 30 (thirty) years.
103. In Ravishankar's case (16 supra) relied by the learned
Public Prosecutor, the appellant therein was convicted and
sentenced to death for kidnapping a 13 year old girl, raping her
and murdering her by throttling. However, the Hon'ble Apex Court
modified the death sentence to life imprisonment for entire life
without remission, by giving benefit of the mitigating circumstance
of residual doubt.
104. In Mahipal's case (15 supra) relied by the learned Public
Prosecutor, the appellant therein was sentenced to death by the
trial Court for the offence under Section 302 of IPC for causing
death of two minor children for ransom. However, the High Court
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acquitted the appellant of all the charges levelled against the
appellant. The Hon'ble Apex Court reversed the judgment of the
High Court but however, modified the death sentence imposed by
the trial Court to that of life imprisonment.
105. In Polepaka Praveen's case (14 supra) relied by the
learned Public Prosecutor, the accused therein was charged with
offences under Sections 302, 449, 376A, 376AB, 363, 379 of IPC,
and under Sections 5(i) r/w Section 6 and 5(m) r/w Section 6 of
the Protection of Children from Sexual Offences Act, 2012, for
causing murder of a nine month old girl, after committing rape on
her. The trial Court imposed death penalty. However, this Court,
after drawing a balance-sheet of aggravating and mitigating
circumstances, reduced the sentence for the offence under Section
302 IPC from one of capital punishment to life sentence, with the
rider that the appellant shall not be granted any remission and
shall not be released till his last breath.
106. In view of the foregoing discussion, we are of the view that
the trial Court is not justified in awarding death sentence to A1 to
A3 in the facts and circumstances of the case treating this case as
a 'rarest of rare' case. Considering the overall aggravating and
mitigating circumstances, we are of the view that sentencing A1 to
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RT No.1/2020 & Crl.A.No.293/2020
A3 to undergo life imprisonment with a rider to remain in custody
till their last breath, without remission, would be an appropriate
sentence in the present case. We, accordingly, pass the following
order.
1. The conviction of A1 to A3 of the offences under
Sections 302 r/w 34 of IPC and r/w Section
3(2)(v) of SCs/STs (POA) Amendment Act, 2015,
376-D r/w 34 of IPC and r/w Section 3(2)(v) of
SCs/STs (POA) Amendment Act, 2015 and Section
3(1)(w)(i) of SCs/STs (POA) Amendment Act,
2015; and the conviction of A2 and A3 of the
offence under Section 404 r/w 34 of IPC, are
maintained.
2. The sentence of death penalty awarded by the trial
Court to A1 to A3 of the offence under Section 302
of IPC is commuted to imprisonment for life, with
a rider that A1 to A3 shall remain in custody till
their last breath, without remission.
3. The other sentences imposed by the trial Court for
the other offences mentioned hereinabove are
maintained.
4. The fine amount of Rs.26,000/- imposed by the
trial Court and the default sentences are also
maintained.
5. All the sentences shall run concurrently.
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RT No.1/2020 & Crl.A.No.293/2020
6. The Criminal Appeal filed by A1 to A3 is partly
allowed to the extent indicated above.
7. The Referred Trial is answered accordingly.
Miscellaneous petitions, if any, pending in Criminal Appeal
No.293 of 2020 shall stand closed.
___________________
JUSTICE P.NAVEEN RAO
______________________
JUSTICE JUVVADI SRIDEVI
28th April, 2023
Note:-
Mark L.R. Copy
(B/O)
Bvv
