Telangana High Court
The State Of Telangana vs Dinesh Kumar Dharne on 31 July, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
* THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
+REFERRED TRIAL NO.1 OF 2021
AND
CRIMINAL APPEAL NO.448 OF 2023
% Dated 31.07.2024
Between:
#Dinesh Kumar Dharne,
S/o. Kashiram Dharne,
Age: 23 years, Occ: Centering Work,
R/o. Aryamithra Labour Camp, Road No.13, Alkapuri Township.
Native of Ward No.10, Kalimati Village, Bahela Police Station, Lanji
Balaghat, Madhya Pradesh State.
...Appellant/Accused
VERSUS
$. The State of Telangana, Rep. by Public Prosecutor, High Court for
the State of Telangana, Hyderabad.
...Respondent/Complainant
! Legal Aid Counsel for the appellant : Ms.Zainab Khan
^ Counsel for the respondent : Smt.Shalini Saxena,
Additional Public Prosecutor
< GIST : ---
>HEAD NOTE : ---
? Cases referred 1. 2016 (12) SCC 251
2. (2015) 16 SCC 492
3. (1980) 2 SCC 684
4. (1983) 3 SCC 470
5. 2005 (3) SCC 114
6. 1194 SCC (Crl.) 358
7. (1999) (9) SCC 581)
8. 1994 (3) SCC 381
9. 1992 (3) SCC 204
10. 2022 Live Law (S.C.) 390
11. (1980) 2 S.C.C. 684
12. (1983) S.C.C. 470
13. A.I.R. 1973 S.C.947
14. 2018 SCC Online MP 952
15. 2015 SCC Online Bom 380
16. 2014 SCC Online Bom 409
17. (2009) 6 SCC 498
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IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
REFERRED TRIAL NO.1 OF 2021
AND
CRIMINAL APPEAL NO.448 OF 2023
Between:
Dinesh Kumar Dharne,
S/o. Kashiram Dharne,
Age: 23 years, Occ: Centering Work,
R/o. Aryamithra Labour Camp, Road No.13, Alkapuri Township.
Native of Ward No.10, Kalimati Village, Bahela Police Station,
Lanji Balaghat, Madhya Pradesh State
...Appellant/Accused
VERSUS
The State of Telangana, Rep. by Public Prosecutor, High Court
for the State of Telangana, Hyderabad.
....Respondent/Complainant
COMMON JUDGMENT PRONOUNCED ON: 31.07.2024
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
1. Whether Reporters of Local newspapers may : Yes
be allowed to see the Judgments?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether His Lordship wishes to see the fair : Yes
copy of the Judgment?
_________________________
JUSTICE P.SAM KOSHY
___________________________________
JUSTICE SAMBASIVARAO NAIDU
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THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
REFERRED TRIAL No.1 OF 2021
AND
CRIMINAL APPEAL No.448 OF 2023
COMMON JUDGMENT (Per The Hon'ble Sri Justice Sambasivarao Naidu)
This referred trial arose with the letter received from
Metropolitan Sessions Judge, Ranga Reddy District, dated
19.02.2021, whereunder he sought confirmation of death
sentence imposed in a sessions case vide S.C.No.592 of
2018 against the sole accused. Since the accused also filed
an appeal, challenging the said Judgment, we have heard
the learned Additional Public Prosecutor and counsel to
whom the criminal appeal was referred by the legal-aid
committee, together and disposing them under this
Judgment.
2. Before discussing the grounds under which the
appellant/accused sought for setting aside the Judgment,
his conviction and sentence and also the letter from trial
Court, it is just required to examine the contents of charge
sheet filed against the appellant, charges framed against
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him, details of the evidence as well as arguments advanced
by prosecution and defense.
3. The appellant herein has been prosecuted by
the State, through police, Narsingi, with an allegation that
he kidnapped a girl of five (5) years, committed rape on her
and killed her. Thereby committed the offences under
Section 363, 366, 376(A), 302 of Indian Penal Code (for
short 'IPC') and under Section 5(l)(m) and Section 6 of
Protection of Children from Sexual Offences Act, 2012 (for
short 'POCSO Act').
4. The following is the case of prosecution in brief:
PW1 Smt.Ambika Mishra and PW2 Mr.Saradi
Prasanna Mishra is wife and husband and hails from
Ender Village of Odissa State. They have got two(2)
children, a girl aged about five(5) years and a boy aged
about two(2) years. They, in search of their livelihood,
migrated to Hyderabad and were working with Arya Mithra
Constructions, Alkapuri, Hyderabad.
5. The appellant hails from Kalimati Village of
Madhya Pradesh and he too came to this State for eking
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livelihood and was working for the same construction
company.
6. The prosecution has alleged that on 12.12.2017
at about 12:00 in the noon, the appellant took the
daughter of PWs 1 and 2 who (hereinafter be referred as
'SM') on the pretext of giving chocolate towards a kirana
shop. Later, he alone returned to the labour camp where
all these workers were provided accommodation. When
PW1 enquired him about her daughter, the appellant told
her that he left SM at labour camp and she might be
playing somewhere. PW1 and her family members
searched for the girl in the colony, but could not found her.
Therefore, PW1 approached police and presented a report,
narrating the above events, sought the help of police. The
said complaint was registered as a case in Crime No.818 of
2017 for the offence under Section 363 IPC, by PW11 who
took up the initial investigation. He has examined PWs 1
and 2, collected the photographs of SM and visited the
surrounding places of labour camp. In view of the specific
allegation and suspicion raised by PW1 in her report, the
police took the appellant to police station at 11:00 p.m., on
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the same day and produced him before PW15/Inspector of
Police, Narsingi. The appellant was interrogated in the
presence of PW8 and one Dara Narender (LW10). The
appellant said to have confessed the commission of kidnap,
rape and murder of victim/SM and lead the police to the
place where he committed rape on SM and where he killed
her.
7. The police have found the dead body of SM with
multiple injuries on her head and on private parts. They
have observed the scene of offence in the presence of same
witnesses and prepared a mahazar and a sketch. The
police after completing inquest on the dead body, referred
the same to Osmania General Hospital for post mortem.
They have obtained photographs at the scene of offence
with the help of clues team. They have collected blood
stains from the clothes of SM and other incriminating
material including gunugu flowers which were there at the
scene of offence also found in his pant at the time of his
confession. The appellant was arrested, referred for
medical examination and was produced before Court for
judicial custody.
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8. PW14 who conducted post mortem on the dead
body of SM opined that she died due to crush injury to the
head with evidence of forcible sexual intercourse. The
other findings of the Medical Officer will be discussed in
the later portion of this Judgment.
9. PW13, the Asst. Director of Telangana State
Forensic Science Laboratory opined that the DNA profile of
seminal stains on the frock of SM and DNA profile of
seminal stains collected from appellant on cotton swabs
are matching and it conclusively proves that they are of
same biological origin. PW16 who took up the investigation,
having completed the same filed charge sheet against the
appellant.
10. The special Court took cognizance of the said
charge sheet and after furnishing copies of police report
along with all enclosures, examined the appellant and
framed charges under Section 363,376(AB), 302 IPC and
under Section 5(l)(m) r/w Section 6 of POCSO Act. The
appellant denied the said charges.
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11. In order to prove the said charges, the
prosecution has examined PWs 1 to 16 and marked Exs.P1
to P13, MOs 1 to 12. After the examination of all the
witnesses, the appellant was examined under Section 313
Cr.P.C., regarding the incriminating evidence placed
against him. He has denied the said evidence. He did not
choose to examine any witness. He has denied the
allegations and pleaded before the trial Court that he was
falsely implicated in this case.
12. The learned District Judge heard the arguments
advanced by prosecution and counsel for the appellant,
came to conclusion that the prosecution was able to prove
the guilt of the appellant under Section 363,376(AB), 302
IPC, convicted him under Section 235(2) Cr.P.C. The
appellant is sentenced to undergo rigorous imprisonment
for six (6) years and fine of Rs.1,000/- for the offence under
Section 363 IPC, and was sentenced to death by hanging
under two counts, subject to confirmation by High Court.
13. The letter received from the trial Court for
confirmation of the said sentence is registered as Referred
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Trial No.1 of 2021. The appellant filed appeal under
Section 374(2) Cr.P.C., on various grounds.
14. The appellant, being aggrieved by the above
Judgment filed appeal under Section 374 (2) Cr.P.C., on
various grounds and the same was registered as Criminal
Appeal No.448 of 2023.
15. The appellant has claimed that the impugned
Judgment is contrary to the facts of the case, law and
evidence and the conviction of the appellant is untenable.
The prosecution was not above to prove his guilt beyond all
reasonable doubt, the case of the prosecution is based on
circumstantial evidence. The prosecution placed heavy
reliance on the testimony of PW3, who is said to have last
seen the deceased victim girl with the Appellant at her tea-
stall. The said testimony of PW3 was used by the
prosecution to buttress their application of the "Last Seen
Theory" to convince the learned trial Judge of the
appellant's guilt. The learned trial Judge erred in not
taking into consideration that, though the appellant was
alleged to have been last seen with the deceased victim girl
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by PW3 at about 12:30 P.M. to 01:00 P.M. on 12.12.2017,
the body of the victim girl was discovered only at around
04:00 A.M. on 13.12.2017. As per the evidence of PW5, a
huge time gap between the two events weakens the "Last
Seen Theory", which cannot be found to be conclusively
applicable in the present case to convict the appellant
beyond all reasonable doubt for the offences alleged. While
considering whether the "Last Seen Theory" could be
applied to conclusively establish the guilt of an accused,
the Hon'ble Apex Court in Rambraksh v. State of
Chhattisgarh 1 reported in 2016 (12) SCC 251, wherein it
was held that it is trite law that a conviction cannot be
recorded against the accused merely on the ground that
the accused was last seen with the deceased. In other
words, a conviction cannot be based on the only
circumstance of last seen together. Normally, last seen
theory comes into play where the time gap, between the
point of time when the accused and the deceased were
seen last alive and when the deceased is found dead, is so
small that possibility of any person other than the accused
being the perpetrator of the crime becomes impossible. To
1 2016(12) SCC 251
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record a conviction, the last seen together itself would not
be sufficient and the prosecution has to complete the chain
of circumstances to bring home the guilt of the accused".
16. The testimony and evidence of PW4 is replete
with inconsistencies and appears to have been constructed
with the sole intention to corroborate the testimony of
PW3, who is his wife and through whom the prosecution
has built the "Last Seen Theory" to convict the appellant.
There is no clarity as to the distance between the scene of
the alleged offence and the place where PW4 was carrying
out curing work, and further, the alleged hearing of a small
girl crying between 12:00 PM to 12:30 PM does not fit into
the chain of events, as PW3 has stated in her testimony
that the appellant had allegedly brought the deceased
victim girl to her tea-stall at about 12:30 PM to 01:00 PM.
17. The appellant has further averred that the trial
Court ought to have observed the inconsistencies in the
version of the prosecution in respect of the alleged murder
weapon said to have been used by the appellant, as the
same has been inconsistently described as "cement
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boulder" in some testimonies and as "brick"/"stone" in
other testimonies and as such, the exclusion of the alleged
weapon as a part of the evidence casts a cloud over the
manner in which the investigation has been conducted.
18. It is further averred that the appellant made a
confession before PW8, who was the mediator, but in the
presence of police. The learned trial Court erred in holding
the confession of the appellant made in the police custody
as admissible, as the said confession allegedly resulted in
the discovery of an unknown fact i.e., the location of the
body of the deceased victim girl. Therefore, the learned trial
Court ought to have considered that the said fact would
have been discovered in the regular course of the
investigation, as and when the body of the deceased victim
girl would be discovered. The appellant has claimed that at
the time of discovering the body of the deceased victim girl,
there is no conclusive evidence that only the appellant was
aware of the location, which was nevertheless accessible to
the public at large.
19. The Court below ought to have considered
whether the appellant was capable of reform and whether
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the appellant has previously engaged in acts of a heinous
nature before imposing the sentence of death. The Court
below failed to take into earnest consideration the socio-
economic conditions as well as the state-of-mind of the
appellant before imposing the sentence of death and failed
to consider that the appellant has no previous criminal
record and the likelihood of the appellant being a grave
threat to the society at large was only a conjecture of the
prosecution, as nothing has been placed on record to
evince his criminal antecedents. The imposition of the
death sentence by the Court below is contrary to the ratio
laid down by the Hon'ble Apex Court in Kalu Khan v.
State of Rajasthan 2, where it was held that life
imprisonment would serve the object of reformation,
retribution and prevention. The trial Court erred in holding
that the case of the appellant belongs to the "rarest of the
rare" category and ought to have followed the principle laid
down by the Hon'ble Apex Court in Bachan Singh v.
State of Punjab 3, wherein it was held that "life
imprisonment is the rule and death sentence an
2 (2015) 16 SCC 492
3 (1980) 2 SCC 684
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'exception". The trial Court has been largely influenced by
the nature and brutality of the alleged crime while
awarding the extreme sentence of death penalty and ought
to have considered that the brutality of the alleged crime
alone is not sufficient to impose the sentence of death and
as such, the present case does not fall under the definition
of the "rarest of rare cases. The Court below ought to have
weighed the "aggravating" and "mitigating" circumstances
of the case by taking into consideration the test laid down
by the Hon'ble Apex Court in Machhi Singh v. State of
Punjab 4, 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 the
victim of murder. The above factors have to be viewed in
tandem and the trial Court ought not to have
overemphasized and singled out one such factor. Therefore,
on all these grounds he prayed for setting aside the
Judgment and conviction.
4 (1983) 3 SCC 470
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20. Learned counsel for the appellant Ms.Zainab
Khan submitted arguments on various grounds, and it
appears that she took pains to collect number of
Judgments on the aspect of "rarest of rare cases" and the
view of Hon'ble Supreme Court and various High Courts.
She took us to various citations and tried to argue that the
trial Court failed to appreciate the oral evidence in a proper
way and missed the omissions, contradictions and
discrepancies elicited during the cross examination of all
the witnesses. She has submitted when the prosecution
want to prove the case on the basis of circumstantial
evidence, the chain of all circumstances must be complete
and as there is no eye witness to the alleged offence, the
prosecution sought to rely on the evidence of PWs 1 and 3
to prove that the deceased was last seen with appellant.
There are glaring discrepancies in the evidence of PWs 1
and 3 and even if entire evidence of PW1 is accepted she
did not state before the Court that she saw the appellant
taking SM and it is the evidence of PW1 that appellant
called her children to accompany him and sent her son to
get money and took SM, so PW1 never saw the appellant
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taking her daughter. She has also argued that PW3 stated
before the Court that she saw the appellant in the company
of SM and the dead body of SM was found at 04:00 a.m.,
on the next day, therefore, the last seen theory cannot be
accepted.
21. The learned counsel next argued on the
information reflected in Ex.P2, the alleged confession of the
appellant. She has argued that initially the report of PW1
was registered as case in Crime No.813 of 2017 under
Section 363 IPC. Therefore, till the appellant said to have
confessed the offence, there was no occasion for the police
or panch witnesses to know the actual incident, but
surprisingly Ex.P2 depicts the penal provisions under
Section 363, 366, 376(A), 302 IPC and Section 5 r/w 6 of
POCSO Act at the beginning itself, therefore, it is quite
clear that the panchanama has been prepared to involve
the appellant.
22. The next attack of the learned counsel is on the
failure of police to seize the material object with which the
appellant is said to have killed the victim. The learned
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counsel has argued that the evidence of the witnesses is
not clear whether the appellant used brick, boulder or
some other thing to kill the girl, there was no explanation
for non-seizure of the said material object, because the
Investigation Officer deposed that they have not seized the
cement brick/boulder. The learned counsel has also
argued that the prosecution is not clear about the exact
location where the offence took place. The place where the
police conducted Ex.P2 panchanama is quite visible to the
passers-by, therefore, no one can commit such acts of rape
and murder in a broad day light, thereby it is highly
impossible and cannot be believed.
23. The learned counsel for the appellant has also
submitted that the trial Court failed to put appropriate
questions under Section 235(2) of Cr.P.C. after recording
the finding that the appellant was found guilty. The Judge
though gave a finding that he found the appellant herein
guilty, did not try to elicit all the details from the appellant
about his social status, responsibilities and without giving
any opinion that there is no chance of the appellant
realising the mistake and without considering his previous
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history and though there is no past criminal history
imposed major punishment, thereby, even if the Court
found the appellant guilty, he can be awarded lesser
punishment. Therefore, on all these grounds, the learned
counsel for the appellant sought for setting aside the
judgment against the appellant. If not, he is entitled for the
alternative punishment.
24. The learned Assistant Public Prosecutor
supported the findings of the trial Court and also the
capital punishment - awarded to the appellant. While
placing reliance on the Judgment between Mohd. Firoz vs
State of Madhya Pradesh, she prayed for dismissal of the
appeal filed by the appellant and prayed for confirmation of
death penalty.
25. In the above referred Judgment, the Hon'ble
Supreme Court made the following observations:
41. Once the theory of "last seen together" was
established, the accused was expected to offer some
explanation as to under which circumstances, he had
parted the company of the victim. It hardly needs to be
reiterated that in the criminal jurisprudence, the entire
burden of proving the guilt of the accused rests on the
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prosecution, nonetheless if the accused does not throw
any light upon the facts which are proved to be within his
special knowledge in view of Section 106 of the Evidence
Act, such failure on the part of the accused may also
provide an additional link in the chain of circumstances
required to be proved against him. Of course, Section 106
of the Evidence Act does not shift the burden of the
prosecution on the accused, nor requires the accused to
furnish an explanation with regard to the facts which are
especially within his knowledge, nonetheless furnishing
or non-furnishing of the explanation by the accused
would be a very crucial fact, when the theory of "last
seen together" as propounded by the prosecution is
proved against him, to know as to how and when the
accused parted the company of the victim.
42. In Rajender v. State (NCT of Delhi) [Rajender v. State
(NCT of Delhi), (2019) 10 SCC 623 : (2020) 1 SCC (Cri) 63]
, this Court has succinctly dealt with the doctrine of "last
seen together" in the light of Section 106 of the Evidence
Act. The relevant observations read as under : (SCC p.
632, para 12)
"12.2.4. Having observed so, 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 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
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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."
26. Before analyzing the allegations/charges framed
against the appellant and before appreciating the evidence
on record, it is just and necessary to first examine the
social status, life style of the parents of the victim and
about the circumstances under which PW1 approached the
police with Ex.P1 complaint. PWs.1 and 2 hails from a
lower middle class family, who are not well versed with the
Court or police station proceedings. By the time they
approached the police, they were in deep shock as to how
their little girl was missing from the locality.
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27. PWs.1 and 2 actually hail from Orissa State and
they came to Hyderabad along with their two children, who
were aged about 5 years and 2 years respectively. They
have no prior acquaintance with the present appellant.
They do not have any motive to file any false case against
him. Similarly, they may not have made any such false
allegation against the appellant if the actual culprit is some
other person. PW1, the poor mother of 5 years old girl, who
was found missing after she was seen in the company of
appellant, having exhausted all the attempts to find out the
girl, lodged a complaint with specific allegation that the
appellant took the victim to a kirana shop on the pretext of
giving chocolates. There is no dispute about the missing of
the girl in the afternoon time on 12-12-2017. The parents
have again saw the dead body of the victim with multiple
injuries and the posture of the dead body suggests rape
followed by murder.
28. In order to prove charges leveled against the
appellant, the prosecution has examined PWs.1 to 16 and
marked Exs.P1 to P13. According to the evidence of PW1,
on 12-12-2017, at about 12.30 Noon, while her children
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were paying in front of the house, the appellant who was
her neighbour lured her children by saying that he would
give chocolates and took the victim after sending the son of
PW1 into the house on the pretext of getting money and
took the victim along with him. When PW1 came out, the
appellant and victim were not there. It is her further
evidence that her daughter did not return, but she saw the
appellant at his room, thereby, she enquired from him
about her daughter, but the appellant told her he do not
know anything about the girl. As they could not find her in
spite of extensive search, they proceeded to police station
and presented Ex.P1 raising suspicion against the
appellant.
29. PW2 is her husband, though he did not see the
appellant taking the victim, he was told by his wife about
the above referred incident. PW3 is another independent
witness, who had no motive to speak false against the
appellant. According to the evidence of PW3, who was
running a Tea Stall in the vicinity, she has got
acquaintance with the appellant. PW.2 and the appellant
used to visit her Tea Stall. PW.3 categorically stated before
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the Court that on 12-12-2017 in between 12.30 noon to
1.00 p.m., the appellant brought the victim to her Tea Stall
and after purchasing chocolates, he left the place and on
the next day, she came to know that the appellant
kidnapped the victim girl, committed rape on her and killed
her. PW4 is the husband of PW.3 and he has corroborated
with PW.3 in all material particulars.
30. Ex.P1 is the complaint lodged by PW1. As per
its report, there is a clear mention about PW.1 seeing the
appellant luring her daughter to give chocolates. Even
though, so many suggestions were given to PW1 that she
did not state before police that the appellant called her
children and sent her son to get the money, and when her
son came to the house, she enquired him about the victim
and she was told by her son that she is waiting outside the
house but when she came out her daughter was not there
etc., these alleged omissions were not proved through the
cross-examination of PW11 who has examined PWs 1 and
2 during investigation.
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31. The evidence of PWs.1 to 3 which was tested by
lengthy cross-examination proved that the appellant herein
took SM while she was playing in front of the house, PW3
saw the appellant along with the victim in the afternoon on
12-12-2017 when they went to her tea stall. PW1 found the
appellant later in the same location. As per the evidence
placed on record, all the workers were provided
accommodation in a labour camp at Alkapuri. Therefore,
the question of victim lost the way while playing in the
camp does not arise. Both PWs.1 and 2 deposed that the
Contractor provided accommodation and appellant used to
stay in their neighbouring shed/hut. As per the evidence
of PW11, after registering the complaint, he has examined
both PWs.1 and 2 and later he has handed over the case
dairy to PW15, who proceeded with the further
investigation. The learned counsel who defended the
appellant before the trial Court did not cross-examine
PW11 on the omissions, but tried to enquire PW15 whether
PW1 stated about her noticing the appellant taking the
victim. In fact in the complaint which was presented to
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police on the same day at 6.00 p.m., PW1 specifically
mentioned that the appellant took her daughter.
32. The evidence of PW4 goes to show that on 12-
12-2017 at about 12.00 Noon to 12.30 p.m., while he was
working at RAW Garden Building which was under
construction, he heard a small girl crying and later he
came to know about the above referred offence. The age of
the victim was 5 years. The evidence brought on record
indicates that she was subjected to rape and death due to
head injury, she might not have raised such a big cry
which would create some suspicion but definitely she must
have offered resistance but due to her tender age she must
have succumbed to the brutal acts of the assailant.
Therefore, the evidence of PW.4 proved the incident that
took place at the specific place to which the appellant lead
the police.
33. PW5 categorically deposed about PW.2 receiving
a call from his wife while they were working at the
construction site and about the search made by them and
also about his accompanying PW1, PW2 to police station
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when PW1 presented a report to police. Therefore, the
evidence of PWs.1 to 5 clearly show that the victim was last
seen with the appellant in between 12.00 to 12.30 p.m.,
before missing from the locality and a complaint was
lodged with the police at 6.00 p.m., on the same day.
34. The evidence of PWs.1 and 5 further show that
in the early hours of 13-12-2017, they received call from
police and on information, they rushed to the place of
offence where they found the victim with multiple injuries.
35. The evidence of PWs.1 to 5 is corroborated by
PWs.6 and 7. All these witnesses have got acquaintance
with the appellant in view of his employment at the same
sit, but they do not have any motive or reason to speak
false against him.
36. The record further indicates that the police have
apprehended the appellant in view of the specific
information furnished by PW1 in her report and
interrogated him before the independent mediators namely
PW8 and LW10 Dara Narender. It is true, the alleged
confession of the appellant while he was in the police
27
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Rt_1_2021 &
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custody is not admissible but the extent of his confession
through which he lead the police to the scene of offence
where the dead body of the victim was recovered and other
material, can be accepted. It is the appellant, who lead the
police to the scene of offence where they found the dead
body of the SM. PW8 categorically deposed about the
above stated discovery of dead body in pursuance of the
confession of the appellant. PW8 deposed about their
noticing dead body, he has described the posture of the girl
when they reached that place and about the injuries which
he found on her person. Having noticed bleeding from the
private parts, this witness and others have realized that the
girl was raped and killed. He has also deposed about the
seizure of clothes of victim and appellant apart from
seizure of other incriminating material. PW8 specifically
stated before the Court that the police have collected blood
stains from the brick which they found at the scene of
offence and such blood stains were collected on swabs.
The evidence of this witness about the collection of samples
from the cement brick is further corroborated on PW10 a
constable from Clues Team. It may be true while
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describing the material object from which they collected
blood stains, PW8 stated that the police collected blood
from a brick. PW10 also deposed that they collected blood
stains from a brick, but as per the confession of appellant
it is described as boulder. The photographs obtained from
the scene of offence also show the object which was used
for killing the victim. It is a big brick which is generally
used in the construction of big structures like apartments.
It is true, the said brick/boulder is not seized by the police.
But photograph has been obtained and blood stains on the
said brick were collected on cotton swabs which were duly
analyzed by Forensic Science Laboratory. Therefore,
though the brick is not seized, it is not fatal to the case of
prosecution.
37. It is true, as per the contents of Ex.P2
confession panchanama, there is a specific mention about
the Sections of Law/Penal provisions which attracts the
case. The learned counsel while submitting her arguments
before this Court pointed out unless the police completed
the panchanama, they could not have noticed as to what
exactly happened, thereby, the question of their
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Rt_1_2021 &
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mentioning the penal provision at the beginning of the
panchanama creates any amount of doubt. However, the
evidence of PWs.8 and 15 clearly shows that when
appellant made a confession in Hindi language, it was
translated and typed by a constable. Therefore, in order to
have a fair copy, the police might have prepared Ex.P2
panchanama with true extract and mentioned the Sections
of Law at the beginning itself. Since the evidence of PWs.8,
15 is further strengthened by the report received from
Forensic Science Laboratory, such a minor discrepancy
cannot be considered to raise a suspicion about the
involvement of the appellant herein.
38. Therefore, the evidence of PWs.8, 10 and 15
proved the confession of appellant which lead the police to
the scene of offence, discovery of dead body of the victim
and seizure of blood stains and other stains on the clothes
of victim and appellant. Therefore, the evidence of PWs.1
to 8 proved the following important aspects.
1. On 12-12-2017, in the afternoon time while the
said SM was playing in front of her hut, the
appellant took her along with him.
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2. Both of them were seen by PW1 and later by PW.3.
The appellant took SM to the tea stall of PW.3 and
purchased chocolates and left the place.
3. Later, PW1 who could see the appellant alone in
the locality enquired him about her daughter.
4. PWs.1, 2 and others searched for the girl and as
they could not find her, PW1 along with her
husband and PW5 went to police station and PW1
gave oral complaint which was reduced to writing
as in Ex.P1.
5. In view of the specific allegation against the
appellant, the police have apprehended him and
interrogated him before PW8, LW10 Narender.
6. The appellant made a confession and lead the
police to the place behind some bushes and police
have recovered the dead body of SM which was
naked.
7. The police as well as mediators noticed injuries on
the head and bleeding from vagina, which
suggested rape before she was killed.
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8. PW15 could collect the blood samples etc., from
the incriminating objects. The recovery of dead
body was at the instance and on the confession of
appellant.
39. The prosecution has examined PW9 to prove the
inquest on the dead body of SM and the evidence of PW14
proved the post-mortem report of SM. PW14 found the
following anti-mortem injuries on the dead body of SM.
1. Laceration, 2 x 2 cm x bone deep, over the
midline on the forehead just below the hairline,
margins are crushed and contused.
2. Laceration 4 x 2 cm x bone deep, over the left
side of forehead, oblique margins are crushed
and contused.
3. Laceration 5 x 2.5 cm x bone deep, over the
right forehead above the right eyebrow, oblique
and parallel to the above mentioned laceration,
margins are crushed and contused.
4. Laceration, 1 x 0.5 cm x muscle deep, just
above the lateral end of right eyebrow with a
surrounding contusion. Pieces of grass and
fragments of leaves were present within the
wounds. Underlying scalp contusion, 25 x 8 cm
over the Frontal, right parietal and right
temporal regions and 10 x 5 cm over the vault,
involving the left frontal, temporal and left side
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of occipital bone, fracture line extending into
the base of skull and crossing the midline.
Diffuse subdural and subarachnoid
hemorrhages all over the brain.
5. Contusion, 3 x 2 cm over the upper part of left
ear pinna, eeddish in colour.
6. Contused Abrasion, 7 x 4 cm, over the left side
of face, extending from the left temple to mid
part of left cheek, reddish brown in colour.
7. Contused Abrasion, 4 x 3 cm over the neck on
the left side just below the angle of mandible.
8. Multiple small pressure abrasions with sizes
ranging from 0.25 - 0.75 cm over the back of
shoulders front of chest and abdomen, reddish
brown in colour.
9. Contusion, 4 x 3 cm, over the outer aspect of
left arm, reddish in colour.
10. Laceration, 5 x 3 cm, over the posterior vaginal
wall extending upto the anal sphincter, Grass
and weeds recovered from the vaginal and
pelvic cavities, uterus ruptured and lacerated
into multiple pieces. Contusion of pelvic
tissues with blood clots.
40. The report of PW14 has been marked as
Ex.P11. The injuries mentioned at Serial Nos.1 to 8 shows
how brutally she was killed. Her head was crushed and
contused.
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41. Injury No.10 shows how brutally the little girl of
5 years was subjected to such a despicable act of violence.
Her posterior vaginal wall was lacerated, her uterus was
ruptured and lacerated into multiple pieces, pelvic tissues
contused with blood clots. A 5 years little girl for no fault
on her part, having followed a man without knowing his
real intention was subjected to inhuman brutal act and
ultimately lost her life in a most horrifying situation.
42. The prosecution, in order to find out the
involvement of appellant in the above offence, not only
relied on the oral evidence of PWs.1 to 8 but also produced
scientific evidence. PW10 proved the collection of blood
and other stains from the scene of offence. PW15 proved
that he has forwarded all the said MOs to Forensic Science
Laboratory. He has obtained permission from the Court to
collect samples from the appellant for referring them to
Forensic Lab for DNA report.
43. The evidence of PW13, the Assistant Director,
Telangana State, Forensic Science Laboratory, shows that
he has analyzed the blood samples of appellant along with
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the seminal stains found on the clothes of victim and he is
of the opinion that DNA profile of the source of seminal
stains on the frock, cottons swabs matched with the DNA
profile of the appellant and it conclusively proved that they
are of same biological origin.
44. Therefore, the scientific evidence proved that it
is the appellant who committed rape on SM and the body
of the girl was found at the place to which he lead the
police and the death of the girl was due to crush injury to
the head, which proves the confession of appellant where
he said to have informed the police that after committing
rape twice on the victim, he has killed her, as she may
reveal the offence to others. It also proves that as the
violent act of rape caused her internal injuries, he might
have thought he cannot escape if she was seen by her
parents.
45. The appellant at the time of his examination
under Section 313 Cr.P.C., has claimed that on the above
stated day he had been to Shaikpet to watch a movie i.e.,
12.00 Noon show and after watching the movie, he
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returned at 3.00 p.m., and at 4.00 p.m., police caught hold
of him, took him to his room and collected his clothes etc.
46. The evidence collected by the prosecution
clearly shows that PW.1 presented a report to police at
6.00 p.m., on 12-12-2017 and the dead body of victim was
found in the early hours of 13-12-2017. PW14 gave her
opinion that SM died 18 to 24 hours prior to the post-
mortem which was conducted at 11.45 a.m., on 13-12-
2017. Therefore, victim must have died in between 11.45
a.m., to 5.45 p.m., on 12-12-2017. But until the police
received Ex.P1 report, they have no knowledge about the
above offence, thereby, the question of police apprehending
the appellant at 4.00 p.m., on 12.12.2017 when the
appellant was going to the room after allegedly watching
movie does not arise.
47. The above stated rape and murder took place
on 12-12-2017 which happened to be on Tuesday, a
working day. It is the evidence of all the witnesses that the
appellant hails from Madhya Pradesh State and came to
Hyderabad, joined in the work. It also appears from the
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evidence that he has obtained some advance from the
Contractor and purchased required provisions. Therefore,
he is supposed to attend the work on all working days.
Therefore, the contention of appellant that he had been to
Shaikpet to watch a movie that too afternoon show on a
working day is highly doubtful and it clearly shows that he
is trying to escape by creating some alibi, which itself
indicates his mindset.
48. Therefore, the evidence of PWs.1 to 16 coupled
with the documentary evidence proved the offences with
which the trial Court found the appellant guilty.
Absolutely, there are no grounds to raise any suspicion
about the involvement of the appellant. There are no
grounds to accept the claim that the appellant was falsely
implicated in this case. Therefore, for all these reasons, we
are of the considered opinion that the trial Court rightly
found the appellant guilty for the offences and the
judgment cannot be set aside.
49. This is yet another most horrible and despicable
act of violence against an innocent, helpless cute little girl
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of 5 years, who was subjected to most heinous and
terrifying act of 'RAPE' and 'MURDER'.
50. The happy life of the girl was ended by a
monstrous man, who caused internal injuries to a girl of
tender age in the most abhorrent manner. Such an act is
unforgivable. The family of SM which migrated from a
different State only for the sake of earning something for
their livelihood lost precious life of a girl from their family.
51. The next question that falls for our
consideration would be sentencing the appellant i.e.,
whether to confirm the punishment imposed by the trial
Court or to examine whether there are grounds to convert
the capital punishment imposed on the appellant for the
offence under Section 302 IPC as imprisonment for life.
52. Before dealing with the said aspect, we feel it
appropriate to refer certain Judgments on this issue and
place on record the statistics of identical cases in the
recent years.
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53. In order to effectively address the heinous
crimes of sexual abuse and sexual exploitation of children
through less ambiguous and more stringent legal
provisions, the Ministry of Women and Child Development
campaigned the introduction of the POCSO Act, 2012. The
Act was amended in 2019, to make provisions for
enhancement of punishments for various offences so as to
'deter' the perpetrators and ensure safety, security and
dignified childhood for a child. But, according to the
statistics available, child rape cases, covering various
forms of penetrating assaults, have increased in the past
eight(8) years. According to the statistics released by
National Crime Records Bureau (NCRB), the increase in
such cases is 96% from 2016 to 2022.
54. The parents of a girl child always considered
their daughter as princess of their home, and treat her as
'Maha Laxmi' the goddess of fortunes. Whenever the
mother notice the dress of her child is messed-up or
disturbed, how young she might be immediately try to
adjust the same to protect the dignity and modesty of her
child. But, here in the present case, PW1 is the
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unfortunate mother had to see her daughter in such a
situation where the naked body was exposed behind the
bushes, smashed head, legs apart, bleeding from vagina
unevenly twisted leg. This horrible scene which the
parents witnessed in the wee hours on 13.12.2017 may be
a nightmare which will haunt them throughout their life.
They came to this place to provide something for the
development of the family, but they lost their daughter in
such a horrible rape and murder committed by this
appellant.
55. The appellant has come from a family
consisting one elder brother, one elder sister and one
younger sister. So he cannot claim that he was suffering
from any frustrations. PW1, when she found the appellant
taking her daughter did not raise any objection and it
seems she did not feel it would be dangerous to leave the
child with this man. But, the appellant, by breaking the
said trust removed the little girl to a lonely place, raped her
in a brutal manner and when she raised cries, smothered
her face. To satisfy his evil desire, he has used force which
caused laceration over the posterior vaginal wall extended
40
PSK,J & SSRN,J
Rt_1_2021 &
Crla_448_2023
up to anal sphincter and her uterus was ruptured, in spite
of it he did not leave the girl. In order to save himself and
to prevent the girl from revealing the acts, he has killed her
by smashing her head. One can imagine the horrible
situation whereunder the poor girl lost her dignity and
valuable life as well.
56. It may be true, after the pronouncement of
Judgment by the trial Court and imposition of capital
punishment while undergoing the sentence, the appellant
tried to show all good qualities. Having committed such a
heinous offence, if suddenly he became a saint, can it be
believed? Certainly 'NO'. It must be only to gain sympathy
and may be because he is conscious of his appeal is
pending before the High Court.
57. The learned counsel Ms.Zainab Khan while
taking us to various Judgments has submitted that in view
of the settled law and in view of the Judgments relied on by
her, imprisonment for life is rule and death penalty is only
exception in case of punishment for the offence under
Section 302 IPC or even for the offence under Section 376
(AB) IPC. She has filed written arguments and sought to
41
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rely on the Judgments of various High Courts and Hon'ble
Supreme Court. She took pains for preparing two volumes
of compilation with the copies of various Judgments, both
on appreciation of evidence and sentencing in rarest of the
rare cases.
58. In a Judgment between Sate of Uttar Pradesh
vs Satish 5, wherein the Hon'ble Supreme Court had
referred to the guidelines laid down in Bachan Singh vs
State of Punjab will have to be applied to the facts of each
individual case.
59. In a Judgment between Dhanunjay Chatterjee
@ Dhana vs State of West Bengal 6 in para Nos.14 and
15 it is observed that:
14. In recent years, the rising crime rate -- particularly
violent crime against women has made the criminal
sentencing by the courts a subject of concern. Today there
are admitted disparities. Some criminals get very harsh
sentences while many receive grossly different sentence
for an essentially equivalent crime and a shockingly large
number even go unpunished thereby encouraging the
criminal and in the ultimate making justice suffer by
weakening the system's credibility. Of course, it is not
possible to lay down any cut and dry formula relating to
5 2005 (3) SCC 114
6 1994 SCC (Crl.) 358
42
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imposition of sentence but the object of sentencing should
be to see that the crime does not go unpunished and the
victim of crime as also the society has the satisfaction
that justice has been done to it. In imposing sentences in
the absence of specific legislation, Judges must consider
variety of factors and after considering all those factors
and taking an overall view of the situation, impose
sentence which they consider to be an appropriate one.
Aggravating factors cannot be ignored and similarly
mitigating circumstances have also to be taken into
consideration.
15. In our opinion, the measure of punishment in a given
case must depend upon the atrocity of the crime; the
conduct of the criminal and the defenceless and
unprotected state of the victim. Imposition of appropriate
punishment is the manner in which the courts respond to
the society's cry for justice against the criminals. Justice
demands that courts should impose punishment befitting
the crime so that the courts reflect public abhorrence of
the crime. The courts must not only keep in view the
rights of the criminal but also the rights of the victim of
crime and the society at large while considering
imposition of appropriate punishment.
60. In another Judgment between Molai and
another vs State of Madhya Pradesh 7, Wherein the
Hon'ble Supreme Court has observed that :
36. We have very carefully considered the contentions
raised on behalf of the parties. We have also gone
through various decisions of this Court relied upon by the
7 (1999 (9) SCC 581)
43
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parties in the courts below as well as before us and in
our opinion the present case squarely falls in the category
of one of the rarest of rare cases, and if this be so, the
courts below have committed no error in awarding capital
punishment to each of the accused. It cannot be
overlooked that Naveen, a 16-year-old girl, was preparing
for her Class 10th examination at her house and
suddenly both the accused took advantage of she being
alone in the house and committed a most shameful act of
rape. The accused did not stop there but they
strangulated her by using her undergarment and
thereafter took her to the septic tank along with the cycle
and caused injuries with a sharp-edged weapon. The
accused did not even stop there but they exhibited the
criminality in their conduct by throwing the dead body
into the septic tank totally disregarding the respect for a
human dead body. Learned counsel for the accused
(appellants) could not point any mitigating circumstance
from the record of the case to justify the reduction of
sentence of either of the accused. In a case of this nature,
in our considered view, the capital punishment to both the
accused is the only proper punishment and we see no
reason to take a different view than the one taken by the
courts below.
61. In a Judgment between Laxman Naik v. State
of Orissa 8, wherein it was observed in para No.28 that:
28. The evidence of Dr Pushp Lata, PW 12, who
conducted the post-mortem over the dead body of the
victim goes to show that she had several external and
internal injuries on her person including a serious injury
8 1994 (3) SCC 381
44
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in her private parts showing the brutality which she was
subjected to while committing rape on her. The victim of
the age of Nitma could not have even ever resisted the act
with which she was subjected to. The appellant seems to
have acted in a beastly manner as after satisfying his
lust he thought that the victim might expose him for the
commission of the offence of forcible rape on her to the
family members and others, the appellant with a view to
screen the evidence of his crime also put an end to the life
of innocent girl who had seen only seven summers. The
evidence on record is indicative of the fact as to how
diabolically the appellant had conceived of his plan and
brutally executed it and such a calculated, cold-blooded
and brutal murder of a girl of a very tender age after
committing rape on her would undoubtedly fall in the
category of rarest of the rare cases attracting no
punishment other than the capital punishment and
consequently we confirm the sentence of death imposed
upon the appellant for the offence under Section 302 of
the Penal Code. As regards the punishment under Section
376, neither the learned trial Judge nor the High Court
have awarded any separate and additional substantive
sentence and in view of the fact that the sentence of
death awarded to the appellant has been confirmed we
also do not deem it necessary to impose any sentence on
the appellant under Section 376.
62. In view of the above stated legal propositions
and in view of the guidelines laid down in Bachan Singh
case, unless there are aggravating circumstances and
unless the Court feels the case is one of rarest of the rare
45
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cases, the punishment to be imposed on the accused is
only life imprisonment, but not the death penalty. Let us
examine the present case.
63. The victim is only a five (5) year girl. She
followed the appellant without any hesitation when he
called her on the garb of giving chocolates. She was
brutally raped which is evident from the medical report.
The injuries to uterus and other internal organs show the
extreme brutality and depravity.
64. One can assess the situation of the girl who was
taken to open lands where there are bricks and other
construction material and was made to lie naked and
ravished. The injury certificate is proof of such inhuman
behavior. This little girl who was raped in such a manner
was killed in horrible way by throwing a boulder/brick on
her head causing multiple fractures on the head.
65. The appellant simply left the dead body in the
said area and returned home as if he did not commit any
offence and such a behavior clearly show his mindset. It is
quite clear that he did not even repent. When he is
46
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examined under Section 313 Cr.P.C., after conclusion of
evidence of the prosecution, he tried to escape by saying
that on that particular day he went to watch "Bahubali"
movie and police have falsely implicated him in the case.
He tried to set up alibi. His behavior to destroy a budding
girl does not require any sympathy.
66. When he was examined by the Court on the
proposed sentence, he said he was married and had two
children. It may be true he has no past criminal history.
At the time of the above offence as per the confession vide
Ex.P1 he was unmarried. At the time of his examination
under Section 235(2) Cr.P.C., on 09.02.2021 on sentencing
he has claimed that he was married and he has two
children. The trial Court had informed the appellant that
since his guilt for the offences under Section 363,376 (AB),
302 IPC and under Section 5(l)(m) of POCSO Act are
proved, he is liable for punishment which includes death
penalty. He did not state anything, except saying that he
did not commit any offence.
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67. In a Judgment between Madan Gopal Kakkad
vs Naarval Dubey and Another 9, the Hon'ble Apex Court
was pleased to observe that "offences of sexual assault who
are menace to the civil society should be mercilessly and
inexorably punished in the severest terms". In the said
Judgment it was further observed that "we feel that Judges
who bear the sword of justice, should not hesitate to use
that sword with utmost severity, to the full and to the end if
the gravity of the offences so demand".
68. While the bench was hearing the appeal,
another similar incident was reported in the press. A six(6)
year old girl was allegedly raped and killed at a rice mill at
Katnapalli in Sulthanabad Mandal of Peddapalli District. It
was alleged that one Vinod a migrant from Bihar State,
while the mother of the victim slept in the open place in
front of the house due to power cut along with her six year
old girl, removed the girl and it is alleged that in CCTV
footage he was seen removing the girl, whose dead body
was found later in open fields.
9 1992 (3) SCC 204
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69. The aim of imposing punishment on an offender
is retribution, justice, deterrence, reformation and
protection. Therefore, by imposing sentence on an accused
whose guilt is proved the offender should be given
appropriate punishment and it must be to deter the others
to realize that any such offence is committed they too will
receive the same punishment. So the aim of imposing
punishment is deterrence of not only the actual offender
but also potential offenders from breaking the law, so that
the society will be protected.
70. If any offender who has committed brutal rape
on five years girl and killed her by crushing her head under
the heavy boulder is left with imprisonment for life allowing
him to enjoy the remaining life even without bothering to
earn any livelihood by attending a job/work definitely it will
give a wrong signal to the potential offenders and an
impression to the society and people that they are living in
a most unsafe situation. If the parents of a girl like SM
feels that there is no safety to their children at school,
hospital or play ground and in the hands of neighbours, it
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create havoc. Therefore, offences like the one committed by
the appellant shall be dealt with appropriate punishment.
71. Therefore, the crime that was committed by the
appellant being extreme depravity shocks the conscience,
the appellant deserves the extreme punishment i.e.,
imposition of death penalty. The trial Court has thus
rightly imposed the said punishment, and we see no
grounds to set aside the said punishment by converting the
same into life imprisonment. As such, the punishment
imposed by the trial Court being justified has to be
confirmed and the appeal filed by the appellant is liable to
be dismissed.
(Per The Hon'ble Sri Justice P. Sam Koshy):
72. The recovery of the dead body at the instance of
the appellant and the other incriminating circumstances
gathered during the investigation all go against the
appellant. The DNA test also conducted from the articles
that were seized from the scene of occurrence matched
with the DNA profile of the accused/appellant and
conclusively proving that they are from the same biological
50
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origin, thereby further establishing the case of the
prosecution against the appellant. Hence, I am in full
agreement with the view and finding penned by the Hon'ble
brother Judge so far as the guilt of the appellant being
proved beyond all reasonable doubts. I am also in full
agreement so far as the confirmation of the penalty of
death awarded by the Trial Court and which has the
approval of my Hon'ble brother Judge also.
73. However, with all due respect to the Hon'ble
brother Judge, I would like to add a few paragraphs on the
aspect of the "sentencing" and the "doctrine of rarest of
rare" so far as awarding of capital punishment is
concerned.
74. I would like to start my views on the point of
"sentence" by borrowing a passage from a recent judgment
dated 19.04.2022 in the case of Mohd. Firoz vs. State of
Madhya Pradesh 10, wherein the Hon'ble Apex Court held
at paragraph No.40 as under, viz.,
"40. As demonstrated earlier, once again one
of the most barbaric and ugly human faces has surfaced.
10 2022 LiveLaw (S.C.) 390
51
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A tiny bud like girl was smothered by the appellant
before she could blossom in this world. The monstrous
acts of the appellant suffocated the victim to such an
extent that she had no option but to leave this world.
Once again, all the Constitutional guarantees have failed
to protect the victim from the clutches of the demonizing
acts of the appellant. In the opinion of the Court, any
sympathy shown to the appellant would lead to
miscarriage of justice. However, it has been brought to
the notice of this Court that in a series of judgments, this
Court has not treated such case as the "rarest of rare"
case."
75. Undoubtedly, there are strong divergent views
within the society when it comes to the question whether
or not death penalty should be awarded in gruesome
criminal acts or not. It has been always propounded that
life imprisonment is the rule and the death sentence is an
exception. It has also been the view of the Hon'ble Apex
Court repeatedly that, death sentences must be imposed
only when life imprisonment appears to be totally
inadequate punishment considering the circumstances of
the crime.
76. There can be no statutory definition of rarest of
rare. It all depends upon the facts and circumstances of
each case. Each case has to be measured on its own
52
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factual backdrop like brutality of the crime, the conduct of
the offender etc. while deciding the sentence part. What
needs to be considered, at this juncture, is that Indian
laws do not hold a steady perspective of capital
punishment, but at the same time, India also does not
dissuade it completely. Death penalties have been awarded
in India occasionally, but in rarest of rare cases. There are
still offences including laws those have been enacted in
India as late as in the year 2023 which came into force
from 01.07.2024where there are offences which are
punishable with capital punishment. There again can be
no dispute as to the fact that there is a global tendency
being propagated towards abolition of the extreme penalty.
77. So far as the Indian criminal justice system is
concerned, the doctrine of rarest of rare came up for
consideration for the first time in the case of Bachan
Singh vs. State of Punjab 11. In the said decision, the
Hon'ble Supreme Court while considering the
constitutional validity of imposing death penalty after
much deliberation and discussion has affirmed its
11 (1980) 2 S.C.C. 684
53
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constitutional validity. However, the Hon'ble Supreme
Court in the said judgment itself laid down the principle
that death penalty must be awarded only in the rarest of
rare case. The Hon'ble Supreme Court also set down the
norms and standards to be kept in mind while awarding
death penalty. The ratio laid down in the case of Bachan
Singh (supra) is that death sentence is constitutional
under the Indian laws. However, the same can be imposed
where all other alternative sentence would not be
commensurate to the gravity of the offence. In other words,
as per the decision of the Hon'ble Supreme Court in the
case of Bachan Singh (supra), the death penalty can be
awarded only where the Court is gratified that it is a rarest
of rare case.
78. After the landmark decision of the Hon'ble
Supreme Court in the case of Bachan Singh (supra). The
next authoritative decision on death penalty is the case of
Machhi Singh vs. State of Punjab 12 refining the principle
and doctrine laid down in the case of Bachan Singh
(supra), the Hon'ble Supreme Court while deciding the case
in Machhi Singh laid down certain criteria for assessing
12 (1983) 3 S.C.C. 470
54
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those cases which would fall under the ambit of "rarest of
rare" case. Some of these criteria are as under, viz.,
"1. Manner of commission of murder : When the murder
is committed in an extremely brutal, ridiculous, diabolical,
revolting, or reprehensible manner so as to awaken intense
and extreme indignation of the community, for instance :
(a) When the victim's house is on fire with the intention to
bake him alive;
(b) When the victim is tortured to inhuman acts in order to
bring about his/her death;
(c) When the body of the victim is mutilated or cut in pieces
in a brutal manner.
2. Motive for the commission of murder : When total
depravity and cruelty are the motives behind a murder, for
instance.
(a) A hired killer committing murder merely for the sake
of a monetary reward.
(b) A cold-blooded murder incorporating a thoughtful
design in order to get control to inherit property or for any
other selfish gains.
3. Socially abhorrent nature of the crime : When a
murder of a person belonging to one of the backward classes
is committed. Cases of bride burning, famously known as
dowry deaths, are also covered in this.
4. Magnitude of the crime : When the proportion of the
crime is massive, for instance, in cases of multiple murders.
5. Personality of victim of murder : When the murder
victim is an innocent child, a helpless woman or person (due
to old age or infirmity), a public figure, etc.,"
55
PSK,J & SSRN,J
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79. The Hon'ble Supreme Court in the case of
Jagmohan Singh vs. State of Uttar Pradesh 13 had
made an observation that awarding of capital punishment
was not meant merely to act as a deterrent but also to
highlight the disapproval of the said crime on the part of
the society. It was this observation which stood approved
in the case of Bachan Singh (supra) and all the
subsequent decisions by the Indian Courts so far as
awarding of death penalty is concerned. The proposition
which culls out after going through the plethora of
decisions rendered by the Hon'ble Supreme Court and
various High Courts on the issue of identifying "rarest of
rare" case is as under, viz.,
"(i) The extreme step of imposing death penalty need
not be imposed except in cases of extreme culpability.
(ii) Before opting out for capital punishment, the
circumstances of the offender must need to accounted for
(Aggravating and Mitigating circumstances).
(iii) Life imprisonment is rule and death sentence is an
exception. In other words, death sentence should only be
imposed in cases where life imprisonment proves to be
altogether insufficient punishment giving regard to accurate
conditions of the crime.
(iv) A balance sheet of all aggravating and mitigating
circumstances needs to be drawn up and full weightage
13 A.I.R. 1973 S.C. 947
56
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must be given to mitigating circumstances just so that a
balance between both can be struck."
80. Keeping in view the aforesaid proposition, what
is required to be ascertained is whether the nature of the
crime to be an uncommon one, unsocial to any prudent
person or any person of the society with reasonable
mindset and the brutality of the crime does not ascribe any
other alternative punishment being sufficient for the said
crime than that of death penalty. It is this that would
carve out the rarest of rare situation.
81. From the decisions rendered by the Hon'ble
Supreme Court, it is apparent that death penalty is to be
awarded to create a deterrent effect on the society so that
such people should fear the consequences of the offence.
Another aspect which crops up in the mind is, should a
person not be awarded death penalty if he has crossed all
limits of barbarity. From the moralistic point of
consideration one may be convinced that such penalty is
necessary to deter the other like-minded person. However,
those who belong with a progressive mindset may argue
the other way round. While deciding a penalty, the point
to be considered is culpability of the act, the individual
57
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characteristics, the gravity of the offence and the
circumstances under which the accused was at the time of
committing the offence, motive of the offence, nature and
magnitude of the crime, but above all, the personality of
the victim of the offence and also the plight of the parents
if the victim is an infant or a minor of very young age.
82. In the case of the State of Madhya Pradesh v.
Naveen @ Ajay 14, the Hon'ble Court held in paragraph
Nos.69 and 70 as follows:
"69. The barbaric act of the appellant does not
remotely show any concern for the precious life
of a very small infant, who had really not seen
life. The criminality of the con-duct of the
appellant is not only depraved and debased,
but can have a menacing effect on the society.
70. It was not committed by accused under any
mental stress or emotional disturbance and it is
difficult to compre-hend that he would not
commit such acts and would be reformed and
rehabilitated. The act of the appellant/accused
meets the test of "rarest of the rare case".
83. In the case Viran Gyanlal Rajput v. State of
Maharashtra 15 supra, the Hon'ble Court in paragraph
Nos.45 & 59 held as under:
14 2018 SCC Online MP 952
15 2015 SCC Online Bom 380
58
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"45. In the case of Dhanajoy Chatterjee
(supra), accused committed rape and murder of
a young girl of about 18 years in the society
where he was working as a security guard. The
Supreme Court observed that the measure of
punishment in a given case must depend upon
the atrocity of the crime, conduct of the criminal
and the defenceless and unprotected state of
the victim. Imposition of appropriate
punishment is the manner in which the Courts
respond to the society's cry for justice against
the criminals. Justice demands that courts
should impose punishment befitting the crime
so that the courts reflect public abhorrence of
the crime. The Supreme Court further observed
that the court must not only keep in view the
rights of the criminal but also the rights of the
victim of crime and the society at large while
considering imposition of appropriate
punishment.
... .... ....
59. In our view, the reasons and findings
recorded by the learned Additional Sessions
Judge are based upon due appreciation of
evidence and are consistent with the evidence
on record as well as the settled legal principles.
We have, therefore, no hesitation in confirming
the sentence of death awarded by the trial
court."
59
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84. In the case of Dattatraya v. State of
Maharashtra 16, the Hon'ble Court held in paragraph
Nos.80, 137, 141 & 142 as follows:
"80. When an innocent hapless girl of 7
years was subjected to such barbaric treatment
by a person who was in a position of her trust
his culpability assumes the proportion of
extreme depravity and arouses a sense of
revulsion in the mind of the common man. In
fine, the motivation of the perpetrator, the
vulnerability of the victim, the enormity of the
crime, the execution thereof persuade us to hold
that this is a 'rarest of rare' cases where the
sentence of death is eminently desirable not
only expression to society's a abhorrence of
such crime.
... ... ...
137. As far as mitigating circumstances are
concerned, though we have searched minutely,
we did not find any mitigating circumstance.
The accused is neither too young nor too old. It
is also to be kept in mind that the Supreme
Court in many decisions has stated that the age
of the accused by itself cannot be the only
factor which can be taken into consideration
while considering the overall facts of the case.
Moreover, no one is dependent on the accused
and his family members are working and they
are all independent. Thus even considering the
crime test and criminal test as laid down in the
16 2014 SCC Online Bom 409
60
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case of Khade (Supra) which from para 57
of Khade's Judgment becomes clear are just
different terms for aggravating circumstances
(crime test) and mitigating circumstances
(criminal test). We find that crime test is fully
satisfied that is 100% and criminal test is 0%.
.........
140. Justice is supreme and justice ought
to be beneficial for the society so that the
society is placed in a better-off situation. Law
courts exist for the society and ought to rise up
to the occasion to do the needful in the matter,
and as such ought to act in a manner so as to
sub-serve the basic requirement of the society.
It is a requirement of the society and the law
must respond to its need. The greatest virtue
of law is its flexibility and its adaptability, it
must change from time to time so that it
answers the cry of the people, the need of the
hour and the order of the day. In the present-
day society, crime is now considered a social
problem and by reason therefore a tremendous
change even conceptually is being seen in the
legal horizon so far as the punishment is
concerned. Looking to the new enactments like
PCFSO Act and amendment to IPC in relation to
rape which have taken place keeping in mind
the rising graph of sexual offences and
especially of sexual offences against children
and public outcry in relation to the same, the
sentencing policy also now needs to be shaped
keeping all these aspects in mind. We are of the
view that awarding the death penalty in the
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present case takes into consideration all the
four theories of punishment which can come
into play in such cases. It satisfies the deterrent
theory of punishment as it would deter would
be wrong doers from committing similar crimes.
It satisfies the preventive theory as it would
physically prevent the present accused from
committing such crimes in future. It satisfies the
retributive theory as the accused is sufficiently
punished for his crimes as well as society feels
that justice is done. As far as the last theory is
concerned that is reformative theory, the history
and the age of the accused is such that he
cannot be given benefit of this theory.
... ... ...
142. Not only is the victim an innocent child
and the accused a middle aged married man
of 53 years of age with four children but the
crime is committed in an extremely brutal,
inhuman, grotesque, diabolical, revolting, and
dastardly manner and is such as to arouse
intense and extreme indignation of the society.
The accused has acted in a totally beastly and
perverse manner. It can hardly be even
imagined that what torture and suffering the
minor child must have faced during the course
of commission of this crime. All her private parts
were torn, lacerated and bleeding. It shows the
extent of brutal sexual urge of the accused
which targeted a minor child, who still had to
see the world. The pain and agony that he must
have caused to the deceased minor girl is
beyond imagination and is the limit
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of viciousness. We have, therefore, no hesitation
to hold that, in the perception of the society it
would surely be a "rarest of rare" case wherein
the death sentence is required to be imposed.
The motivation of the accused, the vulnerability
of the victim girl, the barbaric and inhuman
nature of the crime and the execution thereof
persuade us to hold that this is a "rarest
of rare" case where the sentence of death is
eminently desirable not only to deter others
from committing such atrocious crimes and to
prevent the accused from committing such acts
for all times to come but also to give emphatic
expression to society's abhorrence of such
crime. Examining the case on the touchstone
of the above decisions and balancing the
aggravating and mitigating circumstances, we
are of the opinion that the case can be
appropriately called one of the rarest of rare
cases deserving the death penalty. We are
satisfied that the circumstances of the crime
are such that there is no alternative but to
impose death sentence even after according
maximum weightage to the mitigating
circumstances. There can be no doubt that the
offence committed by the accused deserves
severe condemnation and is a heinous crime
and on looking to the cumulative facts and
circumstances of the case, we are of the opinion
that the case falls in rarest of rare category,
hence, we confirm the sentence of death."
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85. Coming into the factual aspect in respect of the
incident involved in the present case. One also cannot lose
sight of the plight of the parents of the victim when they
saw the body of their daughter/the deceased victim first
time after she went missing. We have no hesitation in
forming an opinion that the said scene must be still
looming large in and around of the eyes of both the
parents, even today in spite of so long a period having
passed. The parents might still be having nightmares
recollecting the scene and the incident and the plight of the
victim that they saw at the scene of occurrence. Imagine
the plight of a mother who gave birth to a girl child the
eldest in the family and brings and nurture her up with
high expectations, and as has been aptly stated by the
Hon'ble Supreme Court in Mohd Feroz's case supra, "tiny
bud like girl was smothered by the appellant even before
she could blossom in the world". The parents when they
were taken to the spot by the police authorities to identify
whether the victim is their missing daughter or not, they
saw their daughter viz., Shivani Mishra, aged around 5
years lying naked with both her legs spread wide, with
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injuries at her vagina and blood oozing out from the vagina
and to make things worse, her head completely smashed
with blood all around. The whole dream of the mother
stands totally shattered.
86. In the case of Santosh Kumar Satisbhushan
v. State of Maharashtra 17, in paragraph No.118 referring
to the topic justice in capital sentencing the Hon'ble
Supreme Court observed as under:
"118. Justice must be the first value of the law
of sentencing. A sentencing court must consider
itself to be a "forum of principle". The central
idea of such a forum is its continuing
commitment to inhere a doctrinal approach
around a core normative idea. "principled
reasoning" flowing from judicial precedent or
legislation is the premise from which the courts
derive the power. The movement to preserve
substantial judicial discretion to individualise
sentences within a range of punishment also
has its basis in the court's ability to give
principled reasoning."
87. From the judicial precedents referred to in the
preceding paragraphs what also stands culled out is that
the "rarest of the rare case" would be made out if the facts
17 (2009) 6 Supreme Court Cases 498
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of the case satisfy to specific facts i.e., (i) that the case and
the facts brings it out to be one among the rarest of the
rare case category; (ii) the punishment of life imprisonment
if awarded in such factual backdrop, would not do
complete and substantial justice. Their Lordships of the
Supreme Court while deciding the case of Santosh Kumar
Satishbhusan (supra), in paragraph No.66, dealing on the
aspect of what otherwise would construe as the rarest of
the rare case has held as under:
"66. The rarest of rare dictum, as
discussed above, hints at this difference
between death punishment and the alternative
punishment of list imprisonment. The relevant
question here would be to determine whether
life imprisonment as a punishment will be
pointless and completely devoid of 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 exception 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. This
analysis can only be done with rigour when the
court focuses on the circumstances relating to
the criminal, along with other circumstances.
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This is not an easy conclusion to be deciphered,
but Bachan Singh sets the bar very high by
introduction of the rarest of the rare doctrine."
88. In the very same judgment again dealing with
sentencing justifying in heinous crimes in paragraph
Nos.71 & 72 has held as under:
"71. It has been observed, generally and
more specifically in the context of death
punishment, that sentencing is the biggest
casualty in crimes of brutal and heinous nature.
Our capital sentencing jurisprudence is thin in
the sense that there is very little objective
discussion on aggravating and mitigating
circumstances. In most such cases, courts have
only been considering the brutality of crime
index. There may be other factors which may
not have been recorded.
72. We must also point out, in this context,
that there is no consensus in the Court on the
use of "social necessity" as a sole justification in
death punishment matters. The test which
emanates from bachan Singh in clear terms is
that the courts must engage in an analysis of
aggravating and mitigating circumstances with
an open mind, relating both to crime under
consideration. A dispassionate analysis, on the
aforementioned counts, is a must. The courts
while adjudging on life and death must ensure
that rigour and fairness are give primacy over
sentiments and emotions."
PSK,J & SSRN,J
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89. The learned counsel for the appellant in the
present case took the Bench through plethora of the
judgments of the Hon'ble Supreme Court as also of the
High Courts, where the penalty stands reduced to life
imprisonment.
90. The factual aspect narrated by us which is
described in a few paragraphs earlier, can easily lead us to
reach to the conclusion that those decisions can be
distinguished from the facts of the present case in hand.
91. As regards the aggravating and mitigating
circumstantial evidence are concerned, no such special
circumstance has been brought out by the learned counsel
for the appellant to meet the two tests. Merely because the
appellant's conduct in the jail during the period of
incarceration appears to be sober and soft with no
complaints, cannot be accepted to be a strong ground for
interfering with the capital punishment.
92. Another aspect which needs consideration is
that the appellant/accused to the victim and parents of the
victim was a neighbour. There is a great trust and faith
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that one have in a neighbour and if the neighbour himself
acts like in a demon-like manner, no parent in the society
would think of sending their daughters out of the house
because of the distrust that they have in the neighbours.
Another aspect which needs to be touched is the fact that
the appellant himself had two minor children of
approximately the same age that of the victim girl. In spite
of that he could think of taking a young tender age girl
around 5 years of age and do such a barbaric act followed
by the gruesome murder. The little minor girl was totally
defenceless and helpless before the appellant. There was
nothing the minor child could have done to save herself.
There was also no indication provided as to the fact that
the appellant was living in frustration and the condition of
the appellant was such that could have evoked such evil
thoughts in his mind. Moreover, if the prosecution story is
to be accepted as he recently came back from his native
place from the company of his wife and children, which
also is again a ground to say that there was no such
reason for the appellant to feel frustrated.
PSK,J & SSRN,J
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93. It would had been altogether a different case if
the appellant thought of only raping the minor victim and
in the course of committing the said offence, she would
have died for some reason. But, in the instant case, the
appellant fulfilled his lustful desire then to ensure that she
does not disclose the incident to anybody, thought of
eliminating the victim and thereafter took the most
dreadful decision and thereafter crushed the head of the
minor victim.
94. Here we cannot brush aside of the fact that the
victim also underwent great amount of unbearable pain
and agony while the appellant was committing the act of
rape on her, and the pain and suffering that she
underwent immediately after the act of rape where it seems
that she had fallen unconscious. The severity of the act
and offence got further enhanced when the victim had to
undergo another horrifying episode of attack on her head
in the process of which the head of the victim was crushed
by the appellant as would be evident from the post-mortem
report. During this time also the victim must have
undergone un-bearable pain and agony.
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95. There is no material on record by which it can
be said that the appellant/accused was in any form of
emotional or mental disturbance or there was any sort of
provocation which led to the committing of the offence. The
minor girl who was playing in front of her house where the
neighbour was also present which made the mother go
inside the house for some household work. The said
neighbour took the child in the garb of getting chocolate
from a nearby shop. The child went with the element of
trust that they have in the neighbour. The neighbour buys
a chocolate to the child and thereafter this dreadful act
was committed by the appellant, which again establishes
that there was no absolute material to show that the
appellant was in any imbalanced emotional or mental state
of mind.
96. Considering the nature of offence, the manner
in which it was committed and upon evaluating the
aggravating and mitigating circumstances, according to us,
this is a case which falls in the category of "rarest of rare"
case. The offence committed by the appellant / accused
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shows extreme depravity of mind and shows extreme
perversity calling for extreme punishment.
97. In my considered opinion also the trial court
was justified in awarding the capital punishment which
does not warrant interference. Confirming the same, the
appeal being devoid of merits deserves to be and is
accordingly dismissed.
98. Before concluding on this matter, we deem it
appropriate to put on record our appreciation for the
learned counsel for the appellant Ms. Zainab Khan to
whom the matter was entrusted by the High Court Legal
Services Committee, Hyderabad, to argue on behalf of the
appellant for the excellent research in preparing herself in
arguing the matter and the way in which she assisted the
Court for the disposal of this referred trial case and
criminal appeal.
99. In the light of the peculiar facts and
circumstance of the case, we are of the considered opinion
that the appeal preferred by the appellant/accused is liable
to be dismissed and the appeal is accordingly dismissed.
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The sentence of conviction imposed in Sessions Case
No.592 of 2018 dated 09.02.2021 passed by the
Metropolitan Sessions Judge, Cyberabad at L.B.Nagar,
Ranga Reddy District, against the appellant/accused for
the offences under Sections 363, 376(AB) and 302 IPC,
including the death sentence awarded to the
appellant/accused for the offence under Section 376(AB) of
IPC, is confirmed. The Referred Trial is answered
accordingly.
100. Pending miscellaneous applications, if any,
shall stand closed.
_________________________
JUSTICE P.SAM KOSHY
___________________________________
JUSTICE SAMBASIVARAO NAIDU
Date: 31.07.2024
LR copy to be marked : YES
B/o.
PSSK/PLV/AQS
