Uttarakhand High Court
Unknown vs State Of Uttarakhand on 21 May, 2024
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE MR. JUSTICE ALOK KUMAR VERMA
Reserved on : 14.05.2024
Delivered on : 21.05.2024
CRIMINAL REFERENCE NO. 01 OF 2021
In the matter of capital punishment
awarded to Harswroop ...... Appellant
Versus
State of Uttarakhand ...... Respondent
WITH
CRIMINAL JAIL APPEAL NO. 17 OF 2021
Harswaroop ...... Appellant
Versus
State of Uttarakhand ...... Respondent
WITH
CRIMINAL JAIL APPEAL NO. 21 OF 2021
Pappu ...... Appellant
Versus
State of Uttarakhand ...... Respondent
WITH
CRIMINAL JAIL APPEAL NO. 22 OF 2021
Roopwati ...... Appellant
Versus
State of Uttarakhand ...... Respondent
2
Presence:-
Mr. J.S. Virk, learned Deputy Advocate General with Mr. Rakesh
Kumar Joshi, learned Brief Holder for the State of Uttarakhand.
Mr. Arvind Vashistha, learned Amicus Curiae assisted by Mr. Vivek
Pathak and Ms. Disha Vashistha, learned counsel for accused
Harswroop in criminal reference No. 01 of 2021, as well as in
Criminal Jail Appeal No. 17 of 2021.
Ms. Pushpa Joshi, learned Senior Counsel assisted by Mr. S.R.S. Gill,
learned counsel for accused / appellants Pappu and Roopwati in
Criminal Jail Appeal No. 21 of 2021 & CRJA No. 22 of 2021.
The Court made the following:
JUDGMENT:
(per Hon'ble the Chief Justice Ms. Ritu Bahri)
The present Reference has been sent by
the Court of Additional Sessions Judge / FTC / Special
Judge (POCSO), Udham Singh Nagar, under Section 366
of the Code of Criminal Procedure, 1973, for affirmation
of the sentence of death awarded by said court against
the convict Harswroop under Section 302 IPC. Aforesaid
convict has been further convicted under Section 364
IPC and sentenced to rigorous imprisonment for a period
of seven years and also directed to pay fine of Rs.
5,000/-. He was also convicted under Section 201 IPC,
and sentenced to rigorous imprisonment for a period of
six years and directed to pay fine of Rs. 5,000/-. The
convict was further sentenced under Section 6 of the
POCO Act, and sentenced to imprisonment for life along
with a fine of Rs.10,000/-. Convicts Pappu and Roopwati
were, however, acquitted of the charge of offence
punishable under Section 16/17 POCSO Act. Convict
Pappu and Roopwati were both convicted under Section
201 IPC, and sentenced to rigorous imprisonment for a
period of four years and three years, respectively, along
with a fine of Rs. 5,000/- each, vide judgment and order
dated 06.03.2021, passed by Additional Sessions Judge /
FTC / Special Judge (POCSO), Udham Singh Nagar, in
Special Sessions Trial No. 104 of 2019. Against said
order, criminal jail appeals have also been filed by all the
three convicts.
2) Prosecution story, in brief, is that a complaint
(Ext. A-1) was made on 21.02.2019, at 1.20 hours, by
the father of the victim to the In-charge Police Station,
Transit Camp, District Udham Singh Nagar, stating
therein that on 19.02.2019, at about 05:00 hours, his
son was playing on the roof. After sometime, when his
wife went to bring him he was not there. Victim was
searched at all probable places but could not be located.
Thereafter, an FIR (Ext. A-10) to this effect was
registered against unknown person in the police station
under Section 365 IPC.
3) Investigation was given to S.I. Jitender
Kumar, and during investigation an application (Ext. A-
2) was given to the In-charge Police Station, Transit
Camp by father of the victim stating therein that he and
his family members were searching their missing child
whose missing report is lodged in the police station.
Father of the victim, his relatives and the neighbours
were searching, but their neighbour Harswroop, Pappu,
Pawan and Roopwati were not cooperating in the search.
In the night there was a noise on the roof and when he
and his relatives went there they found Harswroop near
the water tank and trying to open the tank. When they
tried to catch Harswroop, he pushed them and ran into
his house. When they called him and tried to get his
door open, he did not come out and his family started
hurling abuses. It is further stated in the application
that if strict inquiry be conducted against them, then
information about his missing son could be received.
4) During investigation the dead body of the
missing child was found from the house of accused
Harswroop, and the three accused persons namely,
Harswroop, Pappu and Roopwati were arrested and
arrest memos (Ext. A-15, Ext. A-16 and Ext. A-17) were
prepared. The recovery of the body of victim was made
and recovery memo of dead body (Ext. A-14) was also
prepared. The clothes of the child were also recovered
and recovery memo (Ext. A-18) thereof was prepared.
Panchayatnama (Ext. A-5), photo lash (Ext. A-6) were
prepared and the body was sent for postmortem
examination, and police form No. 13 (Ext. A-7) was
prepared thereof. Sample of seal (Ext. A-8) was
prepared, and samples prepared and handed over by the
Medical Officer were sent to F.S.L. Dehradun. The
postmortem report (Ext. A-3) was collected and the
body of the deceased victim was handed over to his
parents. The police also collected other evidences, and
prepared site plan (Ext. A-26), recorded the statements
of the father of deceased victim and other witnesses.
5) During investigation, statement of accused
Harswroop was recorded under Section 161 Cr.P.C., in
which the accused stated that he is a mason and
addicted to drug. He is the son of his father's first wife.
He further stated that on 19.02.2019, the son of his
neighbour was playing on the roof. The child was dumb.
After seeing him he had bad intention so he enticed and
took the child to his room where he did kukarm
(unnatural act) with the child. When the child cried, the
accused closed his mouth to keep him quite. After two
hours, he again did unnatural act with the child, when
the child insisted to go out accused pressed his mouth,
and as a result of suffocation the child died, and stool
came out in his payjama. Being frightened, the accused
hid the body in his room. He kept the body in a jute bag
and in an attempt to dispose it in the water tank on the
roof top, a brick fell down, and hearing such noise family
members of the deceased victim wake up. When the
accused brought the body in the room his family
members noticed it, then he disclosed everything to
them. His family members also helped him in hiding the
body. The other accused namely, Pappu and Roopwati
also stated that on noticing Harswroop carrying the body
of the deceased victim, they got frightened and helped
him in hiding the body. Before the Magistrate, accused
Harswroop made his confessional statement under
Section 164 Cr.P.C. He was informed by the Magistrate
that he is not bound to make the confessional
statement. As per the Magistrate, the entire statement
was given voluntarily.
6) During investigation P.W.10 Vidhya Dutt
Joshi, I.O. of the case, recorded the statements of the
informant and other witnesses, inspected the place of
occurrence, prepared site plan, arrested all the accused,
prepared panchayatnama, and sent the dead body of the
deceased victim for postmortem examination. After
completion of investigation, P.W.10 submitted charge
sheet (Ext. A-27) against accused Harswroop before the
court under Section 364, 377, 302, 201 IPC and under
Section 5/6 of POCSO Act; and against accused persons
Pappu and Roopwati under Section 201 IPC and Section
16/17 of POCSO Act. Charge sheet was also filed
against co-accused Pawan, who was later declared to be
juvenile by the court on 29.07.2019, and further trial
was to be conducted by the Juvenile Justice Board. All
the accused were heard on point of charge. The Court
after hearing the prosecution as well as the defence,
framed charges under Section 364, 302, 377, 201 of
IPC, and Section 5/6 POCSO Act against the accused
Harswroop, while against accused person Pappu and
Roopwati charges under Section 201 IPC and Section
16/17 POCSO Act were framed. All of them pleaded not
guilty and claimed to be tried.
7) As many as 11 prosecution witnesses were
examined. P.W.1 (father of deceased victim /
complainant); P.W.2 (maternal uncle of deceased);
P.W.3 (mother of deceased victim); P.W.4 (cousin
brother of complainant); P.W.5 Dr. Nagender Singh,
Medical Officer (who conducted the postmortem
examination); P.W.6 S.I. Harvinder Kumar; P.W.7
Constable Hemraj Singh, P.W.8 S.I. Jitender Kumar,
P.W.9 Rashid Ahmed (Govt. officer who proved the age
of the deceased victim), P.W.10 Vidhya Dutt Joshi (I.O.
of the case) and P.W.11 Dr. Rajeev Kumar (Medical
Officer who conducted medical examination of accused
Harswroop).
8) The prosecution also submitted documentary
evidence viz. Tahrir (Ext. A-1), Application dated
21.02.2019 (Ext. A-2), postmortem report (Ext. A-3),
letter to CMO by the SI (Ext. A-4), Panchayatnama
(Ext. A-5), photo lash (Ext. A-6), challan of dead body
(Ext. A-7), specimen seal (Ext. A-8), ravangi of
panchayatnama (Ext. A-9), copy of FIR (Ext. A-10),
copy of G.D. (Ext. A-11), memo of recovery of body
(Ext. A-14), arrest memos of accused persons (Ext. A-
15, Ext. A-16, Ext. A-17), site plan (Ext. A-26), memo
taking into possession the clothes (Ext. A-18), and
medical examination report of accused Harswroop (Ext.
A-29).
9) Statements of the accused persons were
recorded under Section 313 Cr.P.C. Accused
Harswroop retracted from his confessional statement
made before the learned Magistrate and stated that it
was made under police pressure. Accused Pappu and
Roopwati also stated that the evidence adduced by
prosecution against them was false.
10) P.W.9 Rashid Ahmed, Asstt. Development
Officer, Panchayat, Vikas Khand Amariya, District
Pilibhit (U.P.) was summoned by the Court for proving
the age of the deceased victim. The birth certificate
issued by the A.D.O., Block Amariya, District Pilibhit,
U.P. was released on 08.05.2019, in which the date of
birth of the deceased was entered as 11.06.2012, along
with the names of father and mother. This birth
certificate of the deceased was issued online by the Jan
Sewa Kendra, Amariya, Pilibhit, U.P. P.W.9 also
produced the online application form in original bearing
signatures of A.D.O. Amariya, which was marked as
Ext. A-25. Hence, keeping in view the date of birth
11.06.2012, the age of the deceased victim was 07
years on the date of incident, i.e., 19.02.2019, and no
objection was raised with respect to the age of the
deceased victim. The trial court thereafter proceeded
to examine the oral and documentary evidence.
11) The material fact witnesses are P.W.1, P.W.2,
P.W.3 and P.W.4, who are all family members of the
deceased victim, i.e., father, maternal uncle, mother
and cousin of the complainant / P.W.1.
12) As per the consistent evidences given by all
these witnesses the deceased victim was not able to
speak, and his age was 7 years. On 19.02.2019, the
victim disappeared while playing in the evening on the
roof. P.W.2 is the maternal uncle of the victim, and he
was given this information by P.W.1, father of the
victim. P.W.2 came to his sister's house at Rudrapur.
The victim was searched everywhere after he went
missing. Harswroop, Pappu, Pawan and Roopwati used
to live in the neighbourhood of P.W.1. Accused
Harswroop was a drug addict. The family of Harswroop
was stealing eyes from them and did not cooperate in
the search of the child. In the night of 21.02.2019,
P.W.1 and his family members heard some noise on the
roof top. When all of them went to the roof, they saw
accused Harswroop opening the lid of the water tank
kept on the roof top. When Harswroop was called by
them, he ran away to his house, and started hurling
abusing. This raised a doubt in the minds of above said
witnesses, and this information was given to the Police
Station, Transit Camp. On 21.02.2019, the police took
them along with the accused. Police told them that
accused Harswroop wanted to give some information
about the missing child. After this P.W.1, P.W.2 and
the accused Harswroop proceeded with the police to
the house of accused. They went towards the main
gate of the house and opened the gate. The father,
mother and brother of the accused Harswroop were
present in their house. Accused Harswroop moved
towards the right side of his room and removed a
blanket lying there. From beneath the blanket he took
out a jute bag of khaki colour, opened its mouth and
told that this is the deceased body, who was murdered
by him by throttling his neck after doing duskarm and
the naked body was hidden by him there. He told that
Roopwati and Pawan helped him in hiding the body.
The dead body was identified by P.W.1,
father of the deceased victim. The police in their
presence took the body out from the bag, examined it
and found that there were finger impression on the
neck and stool was coming out of the anal region. The
tongue of the deceased was protruding out. Near the
body of the deceased there were his clothes and the
slippers which were soiled with stool. On 21.02.2019,
at about 12-12:30 hours, the police prepared the
panchnama. Signatures were taken of P.W.1 and
P.W.2 on paper No. 3Ka/36 to 3Ka/38. The accused
Harswroop was caught on the spot by the police and a
memo (Ext. A-14) of the recovered body was prepared.
Police took possession of the clothes of the deceased,
which include one brown colour jacket, blue lower, a
red and black colour checked shirt, one pair of slippers,
brown colour underwear and a white baniyan. All these
articles were sealed in a white cloth. The jute bag from
which the naked body of the victim was recovered was
also sealed. The sealed packet was marked as Material
Ext. A-8 and the jute bag as Material Ext. A-9.
13) All the four witnesses were cross-examined
by the defence, and their version given in their
examination-in-chief remained consistent.
Medical evidence
14) P.W.5 Dr. Nagender Singh, who was posted
as Medical Officer on 21.02.2019, stated that on that
day in the evening at about 5.00 hours, he along with
Dr. R.D. Bhatt conducted the postmortem of the
deceased, aged 07 years, who was brought in white
stitched, sealed and stamped cloth. The dead body
was identified by Constable Neeraj Shukla and Kuldeep
of P.S. Transit Camp, Rudrapur, District Udham Singh
Nagar.
15) On conducting postmortem it was found that
the rigor mortis has after coming on the upper, lower
portion of the deceased had passed off from the neck
region of the deceased. From the external examination
of the body it was found that the muscularity was
average. The eyes of the deceased were closed and
shrinked. The tongue was protruding outside. During
postmortem, following ante mortem injuries were found
on the body of the deceased :
Injury No. 1 A scratch mark on the right side of
the neck and 4 x 2 cm in length just
below the right jaw.
Injury No. 2 A scratch mark on the left side of the
neck and 3 x 2 cm in length just
below the jaw.
Injury No. 3 A scratch mark measuring 10 x 5 cm
on the right side of stomach and just
above the hip bone.
Injury No. 4 A scratch mark measuring 2 x 0.5 cm
in size on left and outer side of
stomach just above the Illise crest
(Hip Bone).
Injury No.5 A scratch mark measuring 4 x 3 cm in
size just above the back over medal
to left forearm. (The Y on the back
was in line with the forearm).
16) On examination of the anal portion of the
dead body the panel of doctors found that the outer
area of anal passage was 4 cm and the anal canal
depth was 6 cm and broadened. It was visible easily.
The stool was present on the outer area of the anal
canal and outside the anal some hairs were present.
The colour of the nails, face, mouth and the ears (lower
soft part) colour was bluish. The tongue was
protruding outside the mouth. As per the opinion of
panel of doctors, the death of the deceased child was
about 36-42 hours ago, and the cause of death of the
deceased was due to asphyxia as a result of ante
mortem strangulation. The postmortem report was
marked as Ext. A-3. The postmortem report was
signed by Dr. R.D. Bhatt, who was another panel
doctor, in the presence of P.W.5 Dr. Nagender Singh.
17) P.W.5 further stated that blood sample was
taken for DNA test of accused Harswroop by Senior
Pathologist of District Hospital, Rudrapur on FTA card,
which was sealed and stamped. Application in this
regard was made before the court for collection of the
blood sample for DNA test of accused Harswroop, and
the same was marked as paper No. 3Ka/4. On
14.03.2019, the blood sample of accused, case
property for examination was send with the permission
of the court by special messenger Constable Devender
Singh to FSL Dehradun. The above report was marked
as paper No. 3Ka/55 to 3Ka/57.
18) The medical examination of the accused
Harswroop was done by P.W.11 Dr. Rajeev Kumar,
Orthopedic surgeon at L.D. Bhatt, Hospital, Kashipur,
who was posted as EMO in Jawahar Lal Nehru Hospital
on 21.02.2019. P.W.11 stated that on medical
examination of the accused it was found that the colour
of the glans penis was reddish especially base of glans
penis was red, pubic hair present. In the opinion of
P.W.11 the penis glans will be reddish when some
forceful act is done. At about 2.10 afternoon, this
witness did the medical examination of the accused and
prepared the medical report on which the left hand
thumb impression of the accused was taken. The
paper no. 3 Ka/24 i.e. medical report of the accused is
in the file and in the handwriting of this witness, on
which there is the stamp of the hospital and after
identification the same was marked as Ext. A-29.
On cross-examination, P.W.11 deposed that
the redness on the penis of the accused could have
been 24 to 48 hours. There was no scratch mark.
There was no smegma present on the penis. When
there is redness there is no smegma. The injury on the
private part of the victim was also deposed by P.W.11.
Police witnesses
19) The prosecution examined P.W.6 S.I.
Harvinder Kumar, P.W.7 Constable Hemraj Singh,
P.W.8 S.I. Jitender Kumar and P.W.10 S.H.O. Vidhya
Dutt Joshi. All the above said prosecution witnesses
deposed with respect to the registration of the FIR No.
30 of 2019 under Section 365 IPC of the missing of
child. Thereafter on 21.02.2019, on the information
given by accused Harswroop to P.W.8 S.I. Jitender
Kumar, the body of the deceased and his clothes were
recovered. After said recovery the investigation of the
case was further made in respect of offences
punishable under Section 302, 364, 201, 377 IPC and
Section 5/6 and 16/17 of POCSO Act. Panchnama of
the deceased was done by P.W.6 S.I. Harvinder Kumar
on the spot. Accused Harswroop, Pappu and Roorwati
admitted the offence. Postmortem of the deceased was
conducted by a panel of doctors, who opined that the
cause of death was due to asphyxia as a result of ante
mortem strangulation. The unnatural act committed
with the victim was also reflected from the postmortem
examination.
20) On 22.02.2019, for getting the statement of
the accused recorded under Section 164 Cr.P.C. an
application (paper No. 30Ka/3) was presented before
the court, where on the same day, the statement was
recorded by Judicial Magistrate, Rudrapur. Paper No.
3Ka/1 is the statement of confession of the accused
Harswroop. Another application in the file is (paper No.
3ka/2).
On 22.02.2019, the site plan of the recovery
was prepared which is paper No. 3ka/32, marked as
Ext. A-26. On 24.02.2019, the statement of the memo
witness and grandfather of the deceased were
recorded. On the same day the witnesses of the memo
panchan and the panchnama witness Manoj Gupta and
the S.I. who did the proceedings of the panchnama
statement were recorded. Panchnama witnesses stated
about the grievous offence done by the accused and
that the body of the deceased was recovered from the
house of the accused.
21) Photographs of the deceased victim were
kept on record which are Material Ext. 10, 11, 12 and
14. On 27.02.2019, the police officer, who did the
proceedings of the panchnama statement, received the
panchnama report of the deceased. The police
witnesses also deposed that on 11.03.2019, the
statements of a panel doctor Dr. Nagender Singh were
recorded. The doctor stated of the unnatural act, the
enlarged anal, injury on the adjoining area of the anal
and the murder done by throttling of the neck of the
victim. On the same day, an application paper No.
3Ka/4 was made before the court to collect the blood
sample for DNA test of the accused Harswroop. On
13.03.2019, Sr. Pathologist of District Hospital
Rudrapur took the sample on the FTA card which was
sealed and stamped. The statement of panel doctors
Dr. R.D. Bhatt and Dr. Nagender Singh were recorded.
On 14.03.2019 the blood sample of the
accused, case property for examination was sent with
the permission of the court to FSL, Dehradun. On the
same day statement of P.W. 11 Dr. Rajeev Kumar, who
had done the medical examination of the accused
Harswroop was also recorded.
P.W.11 in his statement stated that during
the medical examination, he found the mouth of the
private part of the accused open and reddish, the
description of which was made in medical report (Ext.
A-29) of the accused. He proved the medical report
which was in his handwriting.
22) On 20.03.2019, constable Devendra Singh
submitted the case property to FSL Dehradun which is
entered as Sl. No. 559/19 and the receiving receipt
3Ka/61 to 3Ka/62 bears the FSL Dehradun's seal. On
06.04.2019, majid statement of the complainant and
his wife were recorded at their residence. On
16.04.2019, the statement of the memo witnesses
Umesh Pant, constable Raj Kumar, Kuldeep, Neeraj
Shukla were recorded.
23) The evidence of all the above police
witnesses was that they had gone with accused
Harswroop, along with the complainant, on 21.02.2019
to his house where he got the dead body of the victim
recovered from his room from a jute bag. Recovery
was done in the presence of witnesses. After recovery
of the dead body information was immediately given to
the senior officials and to the forensic team, and
panchnama (Ext. A-5) was prepared. These witnesses
also proved all the recoveries as enumerated above.
24) The lower court had examined the above said
evidence with respect to arrest of the accused and
recovery from his possession. Accused Harswroop was
arrested on 13.30 hours from his house as per Ext. A-
15. Hence, the plea taken by the defence that he was
arrested from the fish market, near Govind Temple is
against the above said evidence. The arrest of accused
persons Pappu and Roopwati was made after the
recovery of body of the deceased under Section 27 of
the Indian Evidence Act, and memos thereof were
prepared as Ext. A-16 and Ext. A-17, respectively.
On the basis of suspicion as raised in
application (Ext. A-2), submitted by P.W.1, and taken
by the Investigating Officer which is also a custody
since the information gathered at the time was
confirmed subsequently by the recovery of the jute bag
Mat. Ext. 10, which contains the dead body of deceased
whose photographs were on record as Mat. Ext. 11 and
Mat. Ext. 12. Accused Harswroop was in custody of the
police before his actual arrest was made vide arrest
memo (Ext. A-15). As per the evidence given by P.W.8
S.I. Jitender Kumar, accused Harswroop was
continuously with police after he was found in the fish
market near Govind Temple [Ext. A-15 (paper No.
3Ka/20)]. The recovery of the dead body was made
when accused Harswroop was in the custody of the
police under Section 27 of the Indian Evidence Act and
after the recovery he has to be taken in the custody by
the police officer.
25) The lower court made reference to the
judgment rendered by the Supreme Court in State of
U.P. Vs Deoman Upadhayaya, AIR 1960 SC 1125, and
Aghno Nagesia Vs State of Bihar, AIR 1966 SC 119,
where the Supreme Court has held that where the FIR
is given by the accused to the police officer that he had
committed the murder then Section 27 of the Act
serves as an exception to Section 25 of the Indian
Evidence Act and assumes that the accused to be in
constructive custody of the police and has admitted the
information relating to the recovery of bodies and the
weapon. Under Section 27 of the Indian Evidence Act,
custody does not mean formal custody but includes any
surveillance or restriction by police which is more
relaxing in the present case as the accused has himself
willingly stated about his involvement in taking of the
victim to his room, doing unnatural act with him and
committing murder.
Further accused Pappu and Roopwati were
also arrested after the dead body of deceased was
recovered at 11.45 hours, and accused Roopwati was
arrested after a lady Sub Inspector was called.
Hence, the proceedings have been correctly followed
while recovering the dead body, taking accused
Harswroop into custody, and arresting Pappu and
Roopwati. Finally, the final opinion taken by the lower
court was that since the recovery of deceased victim's
dead body (Ext. A-14) and the clothes (Ext. A-18) was
made fulfilling all the legal provisions and requirements
of Section 27 of the Indian Evidence Act, as per the
judgment of Anter Singh Vs State of Rajasthan (2004)
10 SCC 657, the same is relevant and admissible in
evidence.
26) P.W.8 had deposed that the dead body of
victim was taken out of the jute bag and P.W.1, father
of the deceased child, started crying. The prosecution
has led all evidence with respect to the identification
and description of the recovered body, and how the
body was recovered, sealed and sent for postmortem
examination, and panchnama (Ext. A-5) of the
deceased was prepared by P.W.6 S.I. Harvinder in the
presence of the Panches, which is paper No. 3Ka/36 to
3Ka/38 on record.
Kidnapping under Section 364 of IPC
27) As per the deposition given by P.W.1 , P.W.2
and P.W.3 in the court the deceased victim was playing
on the roof and subsequently recovery (memo Ext. A-
14) of the body of the victim from the room of the
accused Harswroop was identified by the witnesses at
the time of preparation of inquest report (Ext. A-5).
Hence, the offence punishable under Section 364 IPC
was made out against accused Harswroop.
Offence under Section 377 IPC and 5/6 of POCSO Act
28) As far as kidnapping is concerned, the
offence was made out against accused Harswroop as
discussed above. With respect to the offence under
Section 377 IPC, the panel of doctors prepared the
swab collected during postmortem and sent it to F.S.L.,
Dehradun. P.W.11 Dr. Rajeev Kumar has also
examined the accused on 21.02.2019, who in his cross-
examination stated that there was redness on the penis
which appears within 24-48 hours. There were no
scratch marks. There was no smegma present on the
penis. When there is redness there is no smegma
present. P.W. 11 further deposed in his examination-
in-chief that the penis glans is reddish when it is used
to do some work forcefully.
29) Apart from the evidence adduced by P.W.5
Dr. Nagender Singh and P.W.11 Dr. Rajeev Kumar with
respect to the offence of unnatural act, the FSL report
No. FSL-571(Bio)-914 (DNA) dated 10.06.2019 (Ext. A-
28) reveals that the following exhibits were prepared
by P.W.6 S.I. Harvinder Kumar at the time of sending
the same to F.S.L. for examination :
Parcel No. Description of Exhibits
1 Exhibit-1 Anal Swab of deceased
Exhibit-2 Hair of deceased
2 Exhibit-3 Hair of accused
3 Exhibit-4 Blood sample of accused on FTA card
(reference DNA sample)
Result of the examination for examination of the semen
and blood
1. Semen could not be detected on Exhibit-1 and 2
2. Human blood could not be detected on Exhibit-2
Result of DNA Examination
1. The DNA test was performed for Exhibit -1 and 4
2. The alleles were amplified at each loci to obtain the
DNA profiles of the sources of Exhibits -1 & 4
3. The DNA profile obtained from the Exhibit-1 (anal
swab of deceased) is from a single male human
source and not matching with the DNA profile
obtained from the Exhibit-4 (blood sample of
accused)
CONCLUSION
The DNA test performed on the exhibits provided is
sufficient to conclude that, the DNA obtained from the
Exhibit-1 (anal swab of the deceased) is from a single
male human source and not matching with the DNA
obtained from the exhibit-4 (blood sample of the
accused).
30) Nothing material has come in the FSL report
to show that accused had sodomized the deceased
victim, but Section 377 of IPC stipulates there must be
penetration to constitute the carnal intercourse. The
postmortem report (Ext. A-3), paper No. 3Ka/43 was
silent with respect to any injury caused in or around
the anal region of the deceased victim. Reference was
made to the Modi's Medical Jurisprudence where it has
been observed that there can be less or no injury when
for the offence of 377 of IPC one is consenting or
major.
The deceased, in the present case, was
neither a major nor consenting. However, as per the
deposition of P.W.5 the outer area of anal passage was
4 cm and the anal canal depth was 6 cm and
broadened, it was visible easily. Hence the court
proceeded to discuss what can be the reason of
broadening of the anal canal. Hence the court
observed that it was difficult to recourse to the fact that
such an observation made at the time of medical
examination and the deposition of P.W.5 was a
consequence of the act done by the accused
Harswroop. Again, reference was made to the evidence
adduced by P.W.11 Dr. Rajeev Kumar, who had
examined the accused Harswroop. As per P.W.11,
there was redness found on the private part of accused
Harswroop during medical examination, after his arrest.
It transpires that the reason for the absence of
smegma was due to some forceful action. Since
redness was found on the private part of accused
Harswroop during medical examination, it could be a
clinching evidence as per the deposition made by this
witness. As per this witness the reason probably would
be that accused Harswroop could have exercised force
at some time other than when he was with the
deceased child. The victim was missing from
19.02.2019, the accused Harswroop was medically
examined on 21.02.2019 at 2.10 hours in the afternoon
which is soon after the commission of crime. As per,
P.W.11 the redness caused due to the force used by
the accused was soon after the commission of crime.
This was a probability that such a force caused the
redness and absence of smegma from the private part
of accused Harswroop. The accused failed to give any
evidence that how this redness came after missing of
the child and no evidence was led to prove his
availability at some other place. Failure to lead any
such evidence that he was elsewhere when the child
was went missing, the case of the prosecution has to
be taken more favourably.
31) Another fact which the lower court took into
account was that the body of the deceased was found
in a naked condition in the jute bag, and the body was
recovered from the room of the accused Harswroop.
The clothes of the victim were also recovered from the
room of the accused Harswroop (Ext. no. 18). This fact
was further stated by accused Pappu and Roopwati in
their statement recorded under Section 313 Cr.P.C.,
and with respect to the recovery of the dead body in
naked condition and the clothes of the deceased
recovered from the room of accused Harswroop, a
strong presumption about the occurrence of offence
under Section 377 IPC was made out. Harswroop used
less force due to which noticeable injury was not found
during postmortem. Hence the lower court came to the
conclusion that Harswroop used less force and due to
which no injury was found during postmortem.
The victim was only 07 years of age, and the
marks of injury Nos. 1, 2, 3 and 4 found on the body of
the deceased during postmortem examination was a
living example of the situation in front of the eyes that
some resistance was offered when the accused was
trying to make victim his prey. It is unusual for the
accused to grasp in his hand the neck of the deceased
victim while committing sodomy.
32) Apart from the above evidence which clinches
that the body of the deceased victim was found in a
naked condition from the room of Harswroop, and the
injury marks found during postmortem also confirms
that the deceased had offered resistance while the
accused was committing crime under Section 377 IPC.
In the above background, the statement given by the
accused under Section 164 Cr.P.C. before the
Magistrate confessing his crime, and statement under
Section 161 Cr.P.C., and as per the photograph Mat.
Ext. 12 (paper No. 3Ka/60) of the deceased victim, the
stool coming out was visible. All these facts show that
the unnatural act was committed with the victim before
his death. Since the age of the victim was below 12
years, the offence under Section 5 of POCSO Act which
defines aggravated penetrative sexual assault is also
made out, keeping in view the fact that the offence
punishable under Section 377 IPC is proved beyond
reasonable doubt against the accused Harswroop.
33) After the amendment in the POCSO Act, even
if body of the victim is touched it amounts to
penetrative sexual assault, when the victim is under 12
years of age Section 5(m) of the POCSO Act is
attracted. Since the body of the deceased victim was
found in a naked condition, a presumption under
Sections 29 and 30 of the POCSO Act, of existence of
culpable mind and offence to have occurred is also
made out.
Offence under Section 302 of IPC
34) As discussed in the preceding paragraphs of
the judgment that accused Harswroop in his confession
statement made under Section 161 Cr.P.C. stated that
he did unnatural act and thereafter committed murder
of the victim by pressing his neck through his right
hand when the victim started crying and insisted to go
outside. Accused committed the murder of the victim
with a fear of being caught. In his confession
statement under Section 164 Cr.P.C. also, accused
Harswroop reiterated the story of committing murder of
the victim and the fact of committing rape on him again
after his death. Accused also stated that he moved the
clothes of the victim kept them aside, covered the body
with a blanket and went to sleep. He admitted his
offence. Accused even hid the dead body of the victim
in a jute bag in order to dispose it off at an appropriate
time. It was the fear in his mind which does not allow
him to move out and cooperate in the ongoing search
of the missing victim. The confessional statement
given by Harswroop under Sections 161 and 164
Cr.P.C., and thereafter recovery of the dead body at
his instance was evidence sufficient enough to hold that
these statements of the accused to the police is barred
by limitation of Section 25 of the Indian Evidence Act,
while it does not apply on Section 27 of the Act.
Based on these confessional statements inference can
safely be drawn that the accused had every intention to
entice away the victim to his room for fulfilling his
sexual desire. This is further corroborated by the fact
that both the families had no enmity and they were
neighbours, as had come in the statement of all the
accused persons recorded under Section 313 Cr.P.C.
Accused Harswroop did not adduce any evidence to
contradict the prosecution evidence, apart from making
a statement that it was a false case against him. The
statement recorded under Section 313 Cr.P.C. can not
be relied upon to shake the credibility of the
prosecution story.
Finally, the evidence adduced by P.W.5 are
fully corroborated by the postmortem report (Ext. A-3)
that cause of death of the victim was due to asphyxia
as a result of ante mortem strangulation, and the death
had occurred 30-40 hours before the postmortem.
Hence, the cause of death after the dead body was
recovered was due to asphyxia as a result of ante
mortem strangulation, and strong presumption can be
drawn that the death of the victim was not natural, but
it was a homicidal death. Keeping in view the above
facts, the court below rightly came to the conclusion
that offence punishable under Section 302 IPC was
clearly made out against accused Harswroop.
Offence u/s 201 of IPC against all the accused
35) The dead body of the deceased was
recovered from the room of accused Harswroop hidden
in a jute bag, and said fact is in the knowledge of his
parents viz. accused Pappu and Roopwati, which amply
indicates that he and his family members were in an
opportunity to dispose off the dead body in order to
cause disappearance of the evidence. The recovery of
the dead body, seizure memo (Ext. A-14), photographs
filed as Mat. Exts. 11 & 12, and the clothes recovered
(Ext. A-18) from the room of accused Harswroop which
was in his possession proves the case of the
prosecution beyond reasonable doubt under Section
201 IPC against the accused Harswroop.
Other accused persons Pappu and Roopwati
in their statement under Section 313 Cr.P.C. stated
that clothes of the deceased victim were recovered
from the room of Harswroop. They admitted it since
both the accused Pappu and Roopwati were living with
accused Harswroop in the same house, and there was
no specific denial about the commission of the offence.
Both of them expressed their consent in words
regarding investigation done against accused
Harswroop to be correct.
With respect to the offence punishable under
Section 201 IPC, it has come on record that both the
accused Pappu and Roopwati were labourers and they
used to go for work everyday in the morning and used
to return back in the late evening. They knew nothing
about the offence. They did not aid the accused
Harswroop in any way, but they played a role in order
to save their son Harswroop and helped him in
disappearance of the evidence. Hence, the case of the
prosecution on this count against accused persons
Pappu and Roopwati is also proved beyond reasonable
doubt.
However, prosecution led no evidence to
prove the case under Section 16 / 17 of POCSO Act
against accused Pappu and Roopwati and, hence the
charge under Section 16 / 17 of POCSO Act was not
proved against them.
36) Thus, the court below after hearing counsel
for the parties, came to the conclusion that the
prosecution was successful to prove its case beyond
reasonable doubt against accused Harswroop in respect
of offences punishable under Section 364, 302, 201 of
IPC, and the one under Section 5/6 of POCSO Act, and
after conviction, sentenced him accordingly. Similarly,
the court below also came to the conclusion that
prosecution has successfully proved charge for the
offence punishable under Section 201 of IPC against
the accused persons namely, Pappu and Roopwati, and
after convection, sentenced them accordingly.
37) The present case is based on circumstantial
evidence, and reference can be made to the case of
Sharad Birdhichand Sarda Vs State of Maharastra,
AIR 1984 SC 1622, wherein the Supreme Court has
laid down the following tests which have to be
followed before conviction has to be recorded in cases
which are based on circumstantial evidence. The
same read as under :
(a) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
The circumstances concerned 'must or should'
and not 'may be' established;
(b) 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;
(c) tendency; The circumstances should be of
conclusive nature and
(d) They should exclude every possible hypothesis
except the one to be proved; and
(e) There must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
38) As per evidence collected by the
prosecution the following facts came to light. The
same are enumerated as under:
(1) the house of the complainant and that of the
accused persons is adjacent to each other as
per the site plan (Ext. A-26). Accused
Harswroop in his statement recorded under
Section 313 Cr.P.C. also stated that P.W.1
(complainant) was his neighbour. In the site
plan the house of the complainant was shown
as the house of Roshan Lal (landlord), in which
the complainant was staying, and the same
was shown adjacent to the house of the
accused.
(2) On 21.02.2019, at about 09.05 hours, an
application (Ext. A-2) was given by P.W.1 in
the police station alleging the role of accused
Harswroop, Pappu, Roopwati and Pawan
(declared juvenile). It was stated by P.W.1
that in the night, he heard some noise on the
roof, when he reached there along with his
family members, he saw accused Harswroop
trying to open the lid of the water tank. When
P.W.1 shouted, Harswroop rushed to his house
through the staircase and this raised a
suspicion in the mind of P.W.1 and he
immediately made a complaint (Ext. A-2) with
the police station doubting the role of accused
Harswroop with respect to his child went
missing. This complaint was made by P.W.1
subsequent to the tehrir dated 21.02.2019
(Ext. A-1).
On the basis of this application (Ext. A-2),
the investigation was carried out and the police
along with P.W.1 / complainant went in search
of the accused Harswroop, and he was found in
the fish market near Govind Temple. Accused
was taken into custody and at his instance the
dead body of deceased was recovered from his
room in his house. Harswroop was never
arrested, he was merely taken on the basis of
information (Ext. A-2).
(3) As per evidence given by P.W.8 S.I. Jitender
Kumar when search was being made for
accused Harswroop, they met P.W.1 at the P.S.
Transit Camp, who told them that accused was
in the fish market. Thereafter, when
Harswroop was confronted in the fist market
near Govind Temple, he informed the police
that he lured the victim by offering toffee and
committed bad act (unnatural act) with him,
and after 1-2 hours, he again committed
unnatural act with the victim, and when the
victim started crying for going outside with the
fear of being caught, accused throttled his neck
with his right hand due to which victim died.
There is no occasion to doubt the complaint
(Ext. A-2) made by P.W.1. The investigation
was thereafter carried out, and Harswroop was
apprehended in the fish market from where he
was taken to the police station, where he
admitted his crime. There are entries in the
General Diary that police had taken him there.
Harswroop took them to his house, and
then to his room, where the naked dead body
of the victim was recovered from a jute bag,
and clothes of the deceased victim were also
recovered from his room. Harswroop was
arrested vide arrest memo (Ext. A-15) at 13.30
hours from his residence. The arrest was
made after recovery of the dead body of the
victim as per the information given by
Harswroop to the police and the recovery of
dead body under Section 27 of the Indian
Evidence Act is crucial evidence connecting
with the chain of circumstances which started
with the complaint (Ext. A-2) made by P.W.1.
The sustainable evidence that it was Harswroop
who had kept the naked dead body of the
victim in his room in a jute bag and had taken
out the clothes and kept in the room as well,
which were soiled with stool. The clothes of
the victim, as well as the dead body of the
victim, were identified by P.W.1.
(4) Apart from the above, the statement given by
parents of Harswroop under Section 313
Cr.P.C. also supports the case of the
prosecution. Both the accused Pappu and
Roopwati in their statement recorded under
Section 313 Cr.P.C. stated that the clothes of
the victim were recovered from the room of
Harswroop. Roopwati further stated that the
mother of Harswroop had died and she is the
stepmother of Harswroop, who had brought
him up when he was four and a half years old.
No other evidence was led by the defence to
show that they had doubted anybody else of
committing the murder of deceased victim.
They admitted that the clothes have been
recovered from the room of their son
Harswroop.
Hence the whole chain of events as per
the judgment of the Supreme Court in Sharad
Birdhichand Sarda's case (supra) is complete
and does not leave any reasonable doubt for
the conclusion with respect to the innocence of
the accused. The whole chain of event does
not leave any doubt that it was Harswroop who
had enticed the child from the roof top to his
room, committed unnatural act, and murdered
him.
(5) The postmortem report and the evidence given
by the doctors further require to be assessed
whether an unnatural act was done by
Harswroop or not?
As per the evidence given by P.W.5 Dr.
Nagender Singh, who was one of the panel
doctors, during postmortem after examining
the anal portion of the dead body it was found
that the outer area of anal passage was 4 cm.
and the anal canal dept was 6 cm. and
broadened. It was visible easily. The stool
was present on the outer area of the anal canal
and outside the anal some hairs were present.
The colour of nails, face, mouth and the ears
(lower soft part) colour was bluish. The tongue
was protruding outside the mouth.
39) Whether this medical examination and the
injuries would reflect the commission of offence under
Section 377 IPC and Section 5/6 of POCSO Act is to be
examined now.
40) Section 6 of the POCSO Act provides for
rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to
imprisonment for life, and also liable to fine. As far as
aggravated penetrative sexual assault on a child below
twelve years is concerned, the same is defined in
Section 5(m) of the POCSO Act. The same reads as
under :
"5. Aggravated penetrative sexual assault
(m) whoever commits penetrative sexual
assault on a child below twelve years"
41) Since the victim in the present case was
below twelve years of age then for the purpose of
punishment committed of an offence of aggravated
penetrative sexual assault even an assault can be
considered to be covered under the provision of Section
5(m) and the same will be applicable, and the
punishment as per Section 6 would be as under :
"6. Punishment for aggravated penetrative
sexual assault. -(1) Whoever commits aggravated
penetrative sexual assault shall be punished with
rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment
for the remainder of natural life of that person, and
shall also be liable to fine, or with death."
42) Now with respect to the offence punishable
under Section 377 IPC, the medical opinion given by
the panel of doctors in their report, while conducting
the postmortem of the deceased victim, is an under :
"From the examination of the anal portion of the
dead body by the panel of doctors it was found that
the outer area of anal passage was 4 cm. and the anal
canal depth was 6 cm. and broadened. It was visible
easily. The stool was present on the outer area of the
anal canal and outside the anal some hairs were
present. The colour of nails, face, mouth and the ears
(lower soft part) colour was bluish. The tongue was
protruding outside the mouth."
Hence, even if there is such injury or no
injury, the offence punishable under Section 6 of the
POCSO Act is made out. In the present case, as per
the evidence adduced by P.W.5 Dr. Nagender Singh,
the court below had rightly observed the reason of
broadening of the anal canal.
43) In the present case, as per evidence adduced
by P.W.5 Dr. Nagender Singh, on examination of the
anal portion of the dead body it was found that the
outer area of anal passage was 4 cm and the anal canal
depth was 6 cm and broadened, it was visible easily.
The above said evidence as per Section 6 read with
Section 5(m) of POCSO Act would amount to sexual
assault. Even if the offence punishable under Section
377 IPC per se would not be made out, the offence
punishable under Section 6 of the POCSO Act is made
out.
44) Another finding recorded by the lower court
was that on account of presence of stool on the outer
area of the anal canal the possibility of committing the
crime for sexual assault before the stool came out was
more probable. Apart from the postmortem report of
the deceased and the opinion given by P.W.5, the
opinion given by P.W.11 Dr. Rajeev Kumar, Orthopedic
surgeon of L.D. Bhatt, Hospital, Kashipur, who
conducted the medical examination of the accused
Harswroop on 21.02.2019, at about 2.10 hours, would
also be relevant. P.W.11 stated that on medical
examination of the accused it was found that the colour
of the glans penis was reddish especially base of glans
penis was red, pubic hair present. In the opinion of
P.W.11 the penis glans will be reddish when some
forceful act is done. The said medical examination
report is marked as (Ext. A-29). Further, on cross-
examination, P.W.11 deposed that the redness on the
penis of the accused could have been 24 to 48 hours.
There was no scratch mark. There was no smegma
present on the penis. When there is redness there is
no smegma.
45) As per the evidence given by P.W.11, the
reason for absence of smegma was due to some
forceful action and redness may occur within 24 to 48
hours. When there is redness smegma is not present,
and as per P.W.11, if redness was found during medical
examination of accused Harswroop, this would be a
clinching evidence that accused Harswroop could have
exercised force at some time other than when he was
with deceased victim, but this does not completely rule
out the possibility that the accused could have also
exercised force through the small anal aperture of the
deceased victim due to which the smegma was absent.
46) The medical examination of accused
Harswroop was conducted on 21.02.2019 afternoon,
and the crime was committed on 19.02.2019, and as
per P.W.11, the redness caused was due to force used
by the accused soon after the commission of crime.
Since there was no delay in conducting medical
examination of accused Harswroop, and the dead body
was recovered from his room, under Section 106 of the
Indian Evidence Act, the burden was on the accused to
prove how the body came in his room, and where was
he after 19.02.2019 till 21.02.2019, when the child
went missing in order to prove his non-involvement in
the crime. No evidence has been led by the defence to
show that Harswroop was not in his house on
19.02.2019. The marks of ante mortem injuries found
on the dead body of the victim during postmortem, i.e.,
injury Nos. 1, 2, 3 and 4 were also living example of
the situation in front of the eyes that some resistance
was offered when the accused was trying to make
deceased victim his prey. The Doctor further stated
that it was not unusual for the accused to grasp in his
hand the neck of the deceased victim while committing
sodomy.
47) Apart from the postmortem examination, and
medical examination of accused, proved by Medical
Officers P.W.5 and P.W.11, the accused in his
statements recorded under Section 164 Cr.P.C. and
161 Cr.P.C. had admitted that this act was done with
the victim before or after his death. The accused
committed the crime with the victim which is evident
from Mat. Ext. 12 (Paper No. 3Ka/60) which is the
photograph of the deceased victim, in which stool was
seen coming out of anal canal and it means the act was
done before the death of the victim.
48) The lower court after going through the
above said medical evidence given by P.W.5 and
P.W.11; statement of the accused recorded under
Section 164 and 161 Cr.P.C.; and photograph of the
deceased victim Mat. Ext. 12, has rightly come to a
conclusion that the offence punishable under Section
377 IPC was made out. The best evidence could have
been given by the victim, and since he had died, hence
the prosecution case has been weighed. The trial court
observed that the anal swab (Ext. A-28) collected and
send to the FSL, even if does not give any findings
suggesting the offence of sodomy, it does not
neutralize the prosecution case with respect to the
offence under Section 377 IPC, and the same has to be
appreciated in the light of other evidence available.
49) Reliance has been placed on the judgment of
the Supreme Court in State of Uttarakhand Vs
Darshan Singh, 2019 SCC Online SC 1431, wherein it
has been held that the ocular evidence is primary to
the expert evidence. In the present case, even if the
body of the victim is touched it amounts to penetrative
sexual assault with the victim, who is twelve years of
age, under Section 5(m) of POCSO Act. The trial court
in para 124 of its judgment observed as under :
"Here it is very important to mention that
penetrative sexual assault means not only to
penetrate once penis into the vagina of the victim
child as earlier the situation was, but now after the
amendment under the relevant sections of the IPC
and creation of this POCSO Act makes this clear that
rape / sexual assault includes penetration of penis or
anything into the vagina or anus etc., using of mouth
on the vagina, anus etc. or making her to use her
mouth on his penis, anus etc. or to manipulate her
body in such a way that the act is done in furtherance
to commit rape upon her that is the act shows that he
is about to penetrate. In the POCSO cases even if the
body of the victim is touched it amounts to
penetrative sexual assault and when the victim is
under twelve years of age, Section 5(m) of the POCSO
Act is attracted."
50) For the purpose of convicting the accused,
reference was made to Sections 29 and 30 of the
POCSO Act, which relates to existence of culpable mind
and offence to have occurred, and also holds a
presumption for an offence of the murder. The same
read as under :
Section 29 POCSO Act - where a person is
prosecuted for committing or abetting or attempting
to commit any offence under Section 3, 5, 7 and
section 9 of this Act, the Special Court shall presume,
that such person has committed or abetted or
attempted to commit the offence, as the case may be,
unless the contrary is proved.
Section 30 POCSO Act - In any prosecution for
any offence under this Act which requires a culpable
mental state on the part of the accused, the Special
Court shall presume the existence of such mental
state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect
to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is
said to be proved only when the Special Court believes
it to exist beyond reasonable doubt and not merely
when its existence is established by a preponderance
of probability.
Explanation. -In this section, "culpable mental
state" includes intention, motive, knowledge of a fact
and the belief in, or reason to believe, a fact.
As per the above said provisions if an
accused is charged under the section of penetrative
sexual assault in POCSO Act, then the court must
believe and shall presume that the charge and
existence of such mental state is true against the
accused unless he himself proves it otherwise.
51) In the facts of the present case, as per the
statements of accused persons Pappu and Roopwati
recorded under Section 313 Cr.P.C., they admitted that
the clothes of the deceased victim were recovered from
the room of accused Harswroop, and even naked dead
body of the victim was recovered from a jute bag from
his room, and as per Sections 29 and 30 of POCSO Act,
it was accused Harswroop who had to led evidence to
show that the offence has not been committed by him.
He led no evidence in defence. Moreover, as per the
evidence given by P.W.5, the cause of death was
asphyxia as a result of ante mortem injuries. There
were ante mortem injuries found on the body of the
deceased, stool was found present, which is one of the
symptom of death caused due to pressing of the neck.
The death had occurred 36-48 hours before, and the
time of the death related back to 19.02.2019. Hence,
the postmortem report also reflected that the victim
had died on 19.02.2019 and the dead body was
recovered on 21.02.2019 from the room of accused
Harswroop. Thus, the offence punishable under Section
302 IPC was made out against accused Harswroop, and
he was convicted on said charge.
52) The dead body was recovered at the
instance of accused Harswroop, and as per P.W.8 S.I.
Jitender Kumar, it was identified by P.W.1, father of the
deceased. The recovery was made in the presence of
panch witnesses, a panchnama (Ext. A-5) was also
prepared, and further as per the confessional
statement, postmortem report, evidence adduced by
P.W.5, and statement recorded under Section 313
Cr.P.C., the accused Harswroop was convicted under
Section 302 IPC.
53) Hence, the prosecution has proved the case
beyond reasonable doubt that accused Harswroop has
killed the deceased victim with a motive to commit
sodomy with him. However, other accused persons
Pappu and Roopwati helped the main accused
Harswroop for causing disappearance of the evidence,
as it has come on record that they knew that dead
body was in Harswroop's room and did not inform the
police. Hence, they have been rightly convicted under
Section 201 IPC.
54) Learned Senior Counsel appearing for the
accused-appellant Harswroop argued that there is
inconsistency in the evidence given by P.W.1, P.W.2
and P.W.3 with respect to the time when they went to
the house of accused Harswroop in the morning on
21.02.2019. One of the witnesses had stated 11:00 to
11:30, P.W.1 had stated 11:00 to 11:30, P.W.3 had
stated 1 o'clock, P.W.4 stated 11:30 to 12:00, and as
per P.W.2 the body was recovered at night and the
police did not take the body at night. These are the
minor discrepancies in the statements of witnesses
P.W.1, P.W.2, P.W.3 and P.W.4. However, in the
present case, the evidence given by prosecution and
the investigating agency is consistent. These minor
discrepancies in giving the date and time wrongly
cannot dent the prosecution evidence. Evidence
collected by the I.O. after thorough investigation
especially keeping in view the fact that the incident
took place on 19.02.2019, at night when the child went
missing, and on 21.02.2019 the police team went to
the fish market and found accused Harswroop there,
who accompanied the police to the police station and
then he gave his confessional statement under Section
164 Cr.P.C. that he had done unnatural act with the
victim and had committed his murder. Accused took
the police to his house and opened his room and
showed them the naked dead body of the victim under
the cover of a blanket in a jute bag. Further, the
postmortem report also reflected that as per the
medical report of accused Harswroop (Ext. A-29)
proved by P.W.11 Dr. Rajeev Kumar, the redness on
the private part of the accused Harswroop could have
occurred 36 to 48 hours before, and that was the exact
time when the murder took place, i.e., 19.02.2019.
With respect to the mentioning wrong timing by P.W.1,
P.W.2 P.W.3 and P.W.4, the finding recorded by the
lower court can not be interfered.
55) Learned Senior Counsel further referred to
the judgment of Supreme Court in Dhan Raj alias
Dhand Vs State of Haryana, (2014) 6 SCC 745, where
while examining a case of circumstantial evidence some
extra-judicial confession was made and on the basis of
extra-judicial confession some recoveries of robbed
articles were made. In that case there were material
discrepancies between the two extra-judicial
confessions and even with respect to the recovery of
robbed articles, it was doubtful. This judgment cannot
be applied to the facts of the present case, as in the
present case recovery of the naked body of the victim
was made from the room of accused Harswroop where
he himself accompanied the police and the
complainant. Even if the confession made under
Section 161 Cr.P.C. and under Section 164 Cr.P.C., it
must be taken into account that the recovery of the
naked dead body of the victim from his own room casts
onus on accused Harswroop under Section 106 of the
Indian Evidence Act to lead evidence to show how this
dead body came in his room. Moreover, the clothes
and naked dead body of the victim were recovered
from the room of accused Harswroop, and even this
fact was stated by other accused persons Pappu and
Roopwati, while giving statements under Section 313
Cr.P.C.
56) In the same backdrop, learned Senior
Counsel for the appellant referred to the judgments of
Supreme Court in State of Karnataka Vs
Mahabaleshwar Gourya Naik, 1992 Supp (3) SCC 179
and Shankarlal Gyarasilal Dixit Vs State of
Maharashtra, (1981) 2 SCC 35. He has referred these
judgments on the proposition that in a case of offence
punishable under Section 376 IPC, as per medical
jurisprudence smegma would require 24 hours to re-
accumulate after intercourse and presence of smegma
perhaps exclude the possibility of recent sexual
intercourse but its absence will not necessarily establish
that the person has had a recent intercourse.
57) Even the ratio of the above two judgments
will not be applicable to the facts of the present case,
as in the present case, after medical examination of the
accused Harswroop, as per the opinion given by P.W.11
Rajeev Kumar it was found that the colour of the glans
penis was reddish especially base of glans penis was
red, pubic hair present. In the opinion of P.W.11 the
penis glans will be reddish when some forceful act is
done.
Apart from the opinion given by P.W.11, the
offence punishable under Section 5/6 of POCSO Act,
which is similar in nature to an offence punishable
under Section 377 of IPC makes it clear that rape,
sexual assault includes penetration of penis or anything
into vagina or anus, using of mouth on vagina, anus
etc. or making her use of mouth on penis etc. or to
manipulates her body in such a way that the act is
done in furtherance to commit rape. In the POCSO Act
cases, even if body of a victim is touched it amounts to
penetrative sexual assault, and when the victim is
under twelve years of age under Section 5(m) of
POCSO Act, said Act is attracted. The medical evidence
was sufficient to prove that confession of the accused
Harswroop while making his statement under Section
161 Cr.P.C. and 164 Cr.P.C. were correct, and not
false.
58) Reference can now be made to a recent
judgment of Supreme Court in Perumal Raja @
Perumal Vs State, Rep. by Inspector of Police, 2024
0 AIR(SC) 460, where the Supreme Court while
examining a case of circumstantial evidence has held
that distinction has to be drawn between incomplete
chain of circumstances and a circumstance after a
chain is complete and defence or explanation given by
accused is found to be false in which event said
falsehood is added to reinforce conclusion of court. If
defence case is false it would constitute an additional
link for the case of prosecution. While dealing with
the confessional statements, the Supreme Court
observed that the bar under Section 25 of Evidence
Act would apply. The expression "accused person" in
Section 24, and expression "a person accused of any
offence" in Sections 26 and 27 have some
connotation, and describe the person against whom
evidence is sought to be led in a criminal proceeding.
The term "accused of any offence" is descriptive of
person against whom a confessional statement made
by him is declared not provable and does not
predicate a condition of that person at the time of
making statement. Confession includes not only
admission of offence but all other admissions of
incriminating facts related to offence, except to the
extent that the ban is lifted by Section 27 of the
Evidence Act. Relevant paragraphs of above said
judgment of the Supreme Court are reproduced as
under :
"32. In State of Maharashtra Vs Suresh,
(2000) 1 SCC 471, this Court in the facts therein
held that recovery of a dead body, which was from
the place pointed out by the accused, was a
formidable incriminating circumstances. This would,
the Court held, reveal that the dead body was
concealed by the accused unless there is material
and evidence to show that somebody else had
concealed it and this fact came to the knowledge of
the accused either because he had seen that person
concealing the dead body or was told by someone
else that the dead body was concealed at the said
location. Here, if the accused declines and does not
tell the criminal court that his knowledge of the
concealment was on the basis of the possibilities
that absolve him, the court can presume that the
dead body (or physical object, as the case may be)
was concealed by the accused himself. This is
because the person who can offer the explanation as
to how he came to know of such concealment is the
accused. If the accused chooses to refrain from
telling the court as to how else he came to know of
it, the presumption is that the concealment was by
the accused himself.
40. The appellant - Perumal Raja @ Perumal
in his statement under Section 313 of the Code of
Criminal Procedure, 1973 plainly denied all
accusations without furnishing any explanation
regarding his knowledge of the places from which
the dead body was recovered. In this circumstance,
the failure of the appellant - Perumal Raja @
Perumal to present evidence on his behalf or to offer
any cogent explanation regarding the recovery of
the dead body by virtue of his special knowledge
must lead to a reasonable adverse inference, by
application of the principle under Section 106 of the
Evidence Act, thus forming an additional link in the
chain of circumstances. The additional link further
affirms the conclusion of guilt as indicated by the
prosecution evidence.
41. The whereabouts of Rajini @ Rajinikanth
were unknown. The perpetrator(s) were also
unknown. It is only consequent to the disclosure
statement by the appellant - Perumal Raja @
Permual, that the police came to know that Rajini @
Rajinikanth had been murdered and his body was
first dumped in the sump tank and after some
months, it was retrieved, cut into two parts, put in
sack bags, and thrown in the river/canal. The
police, accordingly, proceeded on the leads and
recovered the parts of the dead body from the sump
tank and sack bags from the river/canal. It has
been also established that Rajini @ Rajinikanth was
murdered. In addition, there have been recoveries
of the motorcycle and other belongings at the behest
of the appellant - Perumal Raja @ Perumal. These
facts, in the absence of any other material to doubt
them, establish indubitable conclusion that the
appellant - Perumal Raja @ Perumal is guilty of
having committed murder of Rajini @ Rajinikanth.
The presence of motive reinforces the above
conclusion."
59) The ratio of the above said judgment is
directly applicable to the facts of the present case.
The recovery was made on the statement given by
accused Harswroop while he accompanied the police
from fish market to police station, and thereafter to
his house. The naked dead body of the deceased
victim was recovered from the room of the accused
hidden in a jute bag, and clothes worn by the
deceased victim along with slippers were also
recovered from the same room. Hence, as per
Section 27 of the Evidence Act, accused failed to give
any explanation as to how these things came in his
room, and in this backdrop, the recovery of naked
dead body in itself from his own room, whose
presence was not explained by the accused
Harswroop, completes the chain of circumstantial
evidence.
60) Another important fact is that the
complainant's family and family of the accused were
neighbours and there were known to each other. It is
the case of the prosecution that on 19.02.2019,
accused Harswroop came to his house in a drunkard
state and he himself has stated that he had lured the
child from the roof to his room by offering toffee. Ante
mortem injuries were found on the dead body of victim
during postmortem. As per the postmortem report
proved by P.W.5 Dr. Nagender Singh there were
scratch marks on the neck, forearm and two scratch
marks on left and right side of stomach just above the
hip bone. On examination of the anal portion of the
dead body it was found that outer area of anal passage
was 4 cm. and the anal canal depth was 6 cm. and
broadened. It was visible easily. The stool was
present on the out area of the anal canal. The tongue
was protruding outside the mouth. The death of the
victim was due to asphyxia as a result of ante mortem
strangulation. The prosecution was successful to prove
its case beyond reasonable doubt that accused
Harswroop had kidnapped the deceased victim with a
motive to sodomize him. After the act of sodomy /
aggravated penetrative assault, accused murdered the
victim and hide the dead body in a jute bag in his room
to cause disappearance of the evidence. Hence,
accused Harswaroop has rightly been convicted for the
offences punishable under Sections 364, 377, 302, 201
of IPC. Also, keeping in view the fact that the victim
was 07 years old dumb child, and below 12 years, the
accused Harswroop was rightly convicted and
sentenced for the offence punishable under Section 6
POCSO Act. Hence, no interference is called for in the
judgment of the trial court recording the conviction
against the accused Harswroop on above said counts.
The appeal filed by accused-appellant Harswroop is
liable to be dismissed.
61) With respect to the appeals filed by other
accused persons Pappu and Roopwati since the appeal
of convict Harswroop has been dismissed keeping in
view the statements recorded by them under Section
313 Cr.P.C., even these two accused persons did not
lead any evidence in defence to show that Harswroop
had not committed the crime, rather they had stated
that the clothes of the naked deceased victim were
recovered from the room of convict Harswroop, hence
their conviction under Section 201 IPC is also proved
beyond reasonable doubt, and they have been rightly
convicted and sentenced by the court below on said
count. Thus, the appeals filed by convicts Pappu and
Roopwati are also liable to be dismissed.
Quantum of sentence :
62) The lower court has referred to the
judgments of the Supreme Court in Shankar Kisanrao
Khade Vs State of Maharashtra, (2013) 5 SCC 546;
Kamta Tiwari Vs State of M.P., decided on
04.09.1996; State of Karnataka Vs Krishnappa,
(2004) 4 SCC 75; and Gurvail Singh @ Gala and
another Vs State of Punjab, AIR 2013 SC 1177. In
Kamta Tiwari (supra) death penalty was awarded to
an accused, who has committed rape on a seven year
old girl, and he was in a position of trust.
63) In the case in hand, lower court observed
that the victim at the time of the incident was a
young boy about 7 years of age. He must have
undergone severe pain and found himself helpless.
The inability of the victim to speak properly which has
come in evidence of the witnesses P.W.1, P.W.2,
P.W.3 and P.W.4, and said fact has also been
admitted by convict Harswroop in his statement
recorded under Section 313 Cr.P.C. Further the court
below observed that Harswroop was not seen in pain
or no remorse on his face, and he kept smiling whole
time when his statements were recorded. He did not
even plead for his innocence in front of the court. He
did not adduce any defence evidence and even his
parents held him responsible for the entire case, and
finally the court below held that Harswroop had
intentionally and knowingly committed the murder of
the victim aged 7 years, and in this backdrop, the
convict Harswroop was awarded the death penalty
under Section 302 IPC.
64) In the facts of the present case, convict-
appellant Harswroop is 24 years old poor person, and
had no previous criminal history. He had lost his
mother when he was only four and a half years old.
He was brought up by his stepmother. Convict-
appellant was an alcoholic, and as per the evidence
brought on record, he used to do only daily wage
work. His mental status could not be of a satisfied
person being a daily wager.
65) Reference can now be made to the judgments
of the Supreme Court where the sentence of capital
punishment was committed to life imprisonment.
66) In 1973, the Supreme Court in the case of
Jagmohan Singh Vs State of U.P. (1973) 1 SCC 20,
examined the question whether death sentence awarded
by a court under Section 302 of Indian Penal Code, 1880
was violative of sub-clause (1) of Article 19 of the
Constitution. As per Sub-Section (5) of Section 367 of
Criminal Procedure Code, there was a discretion with the
court either to award capital sentence or life
imprisonment. The Supreme Court held that Article 19
of the Constitution does not directly deal with the
freedom to live. It is not included in the seven freedoms
mentioned in that Article. As far as India is concerned,
capital punishment cannot be described as unusual
because that kind of punishment has been with us from
ancient times right up to the present day though the
number of offences for which it can be imposed has
continuously changed. The framers of our Constitution
were well aware of the existence of capital punishment
as a permissible punishment under the law. The other
Articles in the Constitution, viz., Section 72(1)(c), 72(3),
21 and 134 and Sections 401 and 402 of the Code of
Criminal Procedure and the Entries 1 and 2 in List III of
the Seventh Schedule, all indicate that capital sentence
has not been regarded per se as unreasonable or not in
the public interest.
67) After the amendment by Act 26 of 1955, it
was left to the judicial discretion of the court whether
the death sentence or the lesser sentence should be
imposed. Article 14 cannot be invoked in matters of
judicial discretion. If the law has given to the Judges
wide discretion in matter of sentence to be exercised by
him after balancing all the aggravating and mitigating
circumstances of the crime, it will be impossible to say
that there would be at all any discrimination, since facts
and circumstances of one case can hardly be the same
as the facts and circumstances of another. In a criminal
trial, the accused who is charged for murder knows that
he is liable to sentence of death in the committing court
itself. The accused has a right to examine himself as a
witness, and thereafter, give evidence on the material
facts. He and his counsel are at liberty to address the
court not merely on the question of guilt but also on the
question of sentence, and so on. After the prosecution
and the accused have had their full say, the court is
principally concerned with the facts and circumstances,
whether aggravating or mitigating, which are connected
with the particular crime under inquiry. In this
backdrop, the procedure established by law cannot be
said to be unconstitutional under Article 21.
68) The Supreme Court also examined several
studies made by Western Scholars to show the
ineffectiveness of capital punishment either as a
deterrent or as an appropriate retribution. The Supreme
Court Judges in the above study observed that social
conditions are different and also the general intellectual
level. The only authoritative study in India is that of the
Law Commission of India published in the year 1967.
One the basis of its conclusions it is difficult to hold that
capital punishment as such is unreasonable or not
required in public interest. The policy of the law in
giving a very wide discretion in the matter of
punishment to the Judge has its origin and impossibility
of laying down standards.
69) The impossibility of laying down standards is
at the very core of the Criminal Law as administered in
India which invests the Judges with a very wide
discretion in the matter of fixing the degree of
punishment. This discretion in the matter of sentence is
liable to be corrected by superior courts. Laying down of
standards to the limited extent possible as was done in
the Mode Judicial Code would not serve the purpose.
The exercise of judicial discretion of well-recognised
principles is, in the final analysis, the safest possible
safeguards for the accused. The Code of Criminal
Procedure lays down a detailed procedure and this
procedure is limited to the finding of the guilt. The
Supreme Court finally held that it was necessary to
emphasize that the court was principally concerned with
the facts and circumstances, whether aggravating or
mitigating, which are connected with the particular crime
under inquiry.
70) In paragraph 29 of the Jagmohan's case
(supra), the Supreme Court observed as under :
"However, it is necessary to emphasize that the
court is principally concerned with the facts and
circumstances, whether aggravating or mitigating,
which are connected with the particular crime under
inquiry. All such facts and circumstances are capable of
being proved in accordance with the provisions of the
Indian Evidence Act in a trial regulated by the Cr.P.C.
The trial does not come to an end until all the relevant
facts are proved and the counsel on both sides have an
opportunity to address the court. The only thing that
remains is for the judge to decide on the guilt and
punishment and that is what Sections 306(2) and
309(2), Cr.P.C. purport to provide for. These
provisions are part of the procedure established by law
and, unless it is shown that they are invalid for any
other reasons, they must be regarded as valid. No
reasons are offered to show that they are
constitutionally invalid, and, hence, the death sentence
imposed after trial in accordance with the procedure
established by law is not unconstitutional under Article
21."
71) Thereafter, in Bachan Singh Vs State of
Punjab (1980) 2 SCC 684, a larger bench of Supreme
Court consisting of five judges has affirmed the view
taken in Jagmohan's case (supra), and has affirmed the
proposition that the provisions of death penalty for an
offence punishable under Section 302 IPC, and the
sentencing procedure laid down in sub-section (3) of
Section 354 of Criminal procedure Code, requires that
special reasons have to be recorded for awarding a
death penalty, and these provisions are not violative of
Article 14, 19 and 21.
72) While approving the judgment in Jagmohan's
case (supra), the Supreme Court also referred to the
new provision in sub-section (3) of Section 354 of the
Criminal Procedure Code, 1973, that award of death
sentence was an exception to be made for "exceptional
reasons" founded on grave circumstances of the
particular case relating to the crime and the criminal.
73) In Paragraphs 160, 161 & 162 of the Supreme
Court judgment rendered in Bachan Singh's case
(supra), it has been observed as under :
"160. In the light of the above conspectus, we
will now consider the effect of the aforesaid
legislative changes on the authority and efficacy of
the propositions laid down by this Court in
Jagmohan's case. These propositions may be
summed up as under:
(i) The general legislative policy that underlies
the structure of our criminal law, principally
contained in the Indian Penal Code and the Criminal
Procedure Code, is to define an offence with
sufficient clarity and to prescribe only the maximum
punishment therefor, and to allow a very wide
discretion to the Judge in the matter of fixing the
degree of punishment.
With the solitary exception of Section 303, the
same policy permeates Section 302 and some other
sections of the Penal Code, where the maximum
punishment is the death penalty.
(ii)(a) No exhaustive enumeration of
aggravating or mitigating circumstances which
should be considered when sentencing an offender,
is possible. "The infinite variety of cases and facets
to each case would make general standards either
meaningless 'boiler plate' or a statement of the
obvious that no Jury (Judge) would need." (Referred
to McGoutha v. California, (1971) 402 US 183.
(b) The impossibility of laying down standards
is at the very core of the criminal law as
administered in India which invests the Judges with
a very wide discretion in the matter of fixing the
degree of punishment.
(iii) The view taken by the plurality in Furman
v. Georgia, 408 US 238 (1972), decided by the
Supreme Court of the United States, to the effect,
that a law which gives uncontrolled and un-guided
discretion to the Jury (or the Judge) to choose
arbitrarily between a sentence of death and
imprisonment for a capital offence, violates the
Eighth Amendment, is not applicable in India. We do
not have in out Constitution any provision like the
Eighth Amendment, nor are we at liberty to apply
the test of reasonableness with the freedom with
which the Judges of the Supreme Court of America
are accustomed to apply "the due process" clause.
There are grave doubts about the expediency of
transplanting western experience in our country.
Social conditions are different and so also the
general intellectual level. Arguments which would be
valid in respect of one area of the world may not
hold good in respect of another area.
(iv)(a) This discretion in the matter of sentence
is to be exercised by the Judge judicially, after
balancing all the aggravating and mitigating
circumstances of the crime.
(b) The discretion is liable to be corrected by
superior courts. The exercise of judicial discretion on
well-recognised principles is, in the final analysis,
the safest possible safeguard for the accused.
In view of the above, it will be impossible to
say that there would be at all any discrimination,
since crime as crime may appear to be superficially
the same but the facts and circumstances of a crime
are widely different. Thus considered, the provision
in Section 302, Penal Code is not violative of Article
14 of the Constitution on the ground that it confers
on the Judges an unguided and uncontrolled
discretion in the matter of awarding capital
punishment or imprisonment for life.
(v)(a) Relevant facto and circumstances
impinging on the nature and circumstances of the
crime can be brought before the Court at the pre-
conviction stage, notwithstanding the fact that no
formal procedure for producing evidence regarding
such facts and circumstances had been specifically
provided. Where counsel addresses the Court with
regard to the character and standing of the accused,
they are duly considered by the Court unless there is
something in the evidence itself which belies him or
the Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its
discretion to choose either of the two alternative
sentences provided in Section 302, Penal Code, "the
Court is principally concerned with the facts and
circumstances whether aggravating or mitigating,
which are connected with the particular crime under
inquiry. All such facts and circumstances are capable
of being proved in accordance With the provisions of
the Indian Evidence Act in a trial regulated by the
Cr.P.C. The trial does not come to an end until all
the relevant facts are proved and the counsel on
both sides have an opportunity to address the Court.
The only thing that remains is for the Judge to
decide on the guilt and punishment and that is what
Sections 306(2) and 309(2), Cr.P.C. purport to
provide for. These provisions are part of the
procedure established by law and unless it is shown
that they are invalid for any other reasons they must
be regarded as valid. No reasons are offered to show
that they are constitutionally invalid and hence the
death sentence imposed after trial in accordance
with the procedure established by law is not tin-
constitutional under Article 21. (emphasis added).
161. A study of the propositions set out above,
will show that, in substance, the authority of none of
them has been affected by the legislative changes
since the decision in Jagmohan's case. Of course,
two of them require to be adjusted and attuned to
the shift in the legislative policy. The first of those
propositions is No. (iv)(a) which postulates, that
according to the then extant CrPC both the
alternative sentences provided in Section 302, Penal
Code are normal sentences, and the court can,
therefore, after weighing the aggravating and
mitigating circumstances of the particular case, in its
discretion, impose either of those sentences. This
postulate has now been modified by Section 354(3)
which mandates the Court convicting a person for an
offence punishable with death or, in the alternative
with imprisonment for life or imprisonment for a
term of years, not to impose the sentence of death
on that person unless there are "special reasons" -
to be recorded - for such sentence. The expression
"special reasons" in the context of this provision,
obviously means "exceptional reasons" founded on
the exceptionally grave circumstances of the
particular case relating to the crime as well as the
criminal. Thus, the legislative policy now writ large
and clear on the face of Section 354(3) is that on
conviction for murder and other capital offences
punishable in the alternative with death under the
Penal Code, the extreme penalty should be imposed
only in extreme cases.
162. In this view we are in accord with the
dictum of this Court in Balwant Singh v. State of
Punjab , 1976 SCC (Cri) 43, wherein the
interpretation of Section 354(3) first came up for
consideration. After surveying the legislative
background, one of us (Untwalia, J.) speaking for
the court, summed up the scope and implications of
Section 354(3), thus:
Under this provision the Court is required
to state the reasons for the sentence awarded
and in the case of sentence of death, special
reasons are required to be stated. It would
thus be noticed that awarding of the sentence
other than the sentence of death is the general
rule now and only special reasons, that is to
say, special facts and circumstances in a given
case, will warrant the passing of the death
sentence. It is unnecessary nor is it possible to
make a catalogue of the special reasons which
may justify the passing of the death sentence
in a case.
While applying proposition (iv)(a), therefore,
the Court has to bear in mind this fundamental
principle of policy embodied in Section 354(3)."
74) The Supreme Court further observed that
there could be no rigid standards which can be laid down
in the form of guidelines with respect to area of
imposition of death penalty. The purpose of "laying
down standards" meant that 'murder' should be
categorised beforehand according to the degrees of its
culpability and all aggravating and mitigating
circumstances should be exhaustively and rigidly
enumerated so as to exclude all free play of discretion.
Such standardisation was not possible. Firstly, the
degree of culpability cannot be measured in each case;
secondly, criminal cases cannot be categorized where
there are infinite, unpredictable and unforeseeable
variations; thirdly, on such categorisation the sentencing
process will cease to be judicial; and, fourthly, such
standardization or sentencing discretion is a policy
matter belonging to legislation beyond the court's
function. In this backdrop, no rigid standard in this area
can be laid down. Some broad guidelines consistent
with the policy indicated by the legislature in Section
354(3) can be taken. The Court finally has to pay due
regard both to the crime and the criminal. What is
relative weight to be given to the aggravating and
mitigating factors, depends on the facts and
circumstances of a particular case. 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. Hence, it is not desirable
to consider the circumstances of the crime and the
circumstances of the criminal in two separate watertight
compartments. The Judges should never be
bloodthirsty. Hence, courts aided by the broad
illustrative guidelines will discharge the onerous function
with evermore scrupulous care and humane concern. As
per the legislative policy guidelines in sub-section (3) of
Section 354, i.e., for the person 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.
75) The Supreme Court, thereafter, in Machhi
Singh and others Vs State of Punjab, (1983) 3 SCC
470, followed the guidelines laid down by it in Bachan
Singh's case (supra), and examined the case of a death
sentence imposed on Machhi Singh, Kashmir Singh,
Jagir Singh by the Sessions Court as confirmed by the
High Court. They confirmed the death sentence awarded
to the above said three accused. While, affirming the
death sentence, in paragraph 32 of said judgment, the
Supreme Court observed as under :
"32. The reasons why the community as a whole
does not endorse the humanistic approach reflected in
'death sentence-in-no-case' doctrine are not far to
seek. In the first place, the very humanistic edifice is
constructed on the foundation of 'reverence for life'
principle. When a member of the community violates
this very principle by killing another member, the
society may not feel itself bound by the shackles of this
doctrine. Secondly, it has to be realized that every
member of the community is able to live with safety
without his or her own life being endangered because of
the protective arm of the community and on account of
the rule of law enforced by it. The every existence of
the rule of law and the fear of being brought to book
operates as a deterrent of those who have no scruples
in killing others if it suits their ends. Every member of
the community owes a debt to the community for this
protection. When ingratitude is shown instead of
gratitude by 'killing' a member of the community which
protects the murderer himself from being killed, or
when the community feels that for the sake of self-
preservation the killer has to be killed, the community
may well withdraw the protection by sanctioning the
death penalty. But the community will not do so in
every case. It may do so 'in rarest of rare cases' when
its collective conscience is so shocked that it will expect
the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty. The
community may entertain such a sentiment when the
crime is viewed from the platform of the motive for, or
the manner of commission of the crime, or the anti-
social or abhorrent nature of the crime."
76) All the three accused had murdered two
innocent and helpless women named Ghamo Bai and
Rajo Bai in a helpless and defenceless state in their own
house. A couple namely Bishan Singh and his wife Paro
Bai were killed in similar circumstances. Sahib Singh,
Mukhtiar Singh, Manto Bai, Palo Bai and Jita Singh were
killed by five men including Machhi Singh and Jagir
Singh. They put to death a young newly married couple
and rendered a young woman a widow. The appeal filed
by above accused was dismissed by the Supreme Court
following the guidelines indicated in Bachan Singh's case
(supra).
77) Recently, the Supreme court in the case of
Digambar Vs The State of Maharashta, 2023 2 CriCC
647, had an occasion to examine whether death penalty
could be awarded in case of an honour killing. In that
case, the Supreme Court observed that the appellant
Digambar was a young boy of 25 years at the time of
incident and had not acted in a brutal manner as there
was one single injury inflicted on both deceased. As far
as offence punishable under Section 302 is concerned,
the Supreme Court held that the prosecution had
established that the deceased and accused persons left
the house together and soon thereafter the death of
deceased person had occurred. The accused were held
guilty of the offence punishable under Section 302 IPC.
However, keeping in view the fact that appellant
Digambar was 25 years of age, it was not considered to
be a 'rarest of rare' case. He was held to be not a
person with criminal mindset and criminal records, and
in this backdrop, the sentence of capital punishment was
committed to life imprisonment. The Supreme Court
had also taken into account the report of the Probation
Officer. As per said report, the Sarpanch and people of
the village had stated that inter-caste marriage of
deceased friend Govind and deceased sister Pooja was
putting social pressure and being angry about it, the
incident took place in sudden provocation by Digambar.
However, overall behaviour of Digamber was found to be
good.
78) The Supreme Court also referred to the case
of Gandi Doddabasappa alias Gandhi Basavaraj Vs
State of Karnataka, (2017) 5 SCC 415, wherein the
accused had committed murder of his daughter, who
was in the advanced stage of pregnancy. The Supreme
Court had upheld the conviction of the accused in
respect of offence punishable under Section 302 IPC, but
commuted the sentence from capital punishment to
imprisonment for life.
79) Similarly, in the case of Prakash Dhawal
Khairnar (Patil) Vs State of Maharashtra, (2002) 2 SCC
35, the appellant was a Senior Scientific Assistant. He
wiped out his brother's entire family. The Supreme
Court found that this was done by him on account of
frustration as his brother was not partitioning the alleged
joint property. The Supreme Court held that the crime
was heinous and brutal, but the same could not be
considered to be 'rarest of rare' case. It is, however,
held that it was difficult to hold that the accused was a
menace to the society, and that there was no reason to
believe that he could not be reformed or rehabilitated.
80) Also, Mohinder Singh Vs State of Punjab,
(2013) 3 SCC 294, was a case where the accused had
committed murder of his wife and daughter, and the
Supreme Court had held that it could not be considered
to be 'rarest of rare' case to inflict the capital
punishment.
81) The Supreme Court also referred to the case
of Sundar @ Sundarrajan Vs State by Inspector of
Police [Review Petition (Criminal) Nos. 159-160 of
2013, in Criminal Appeal Nos. 300-301 of 2011, dated
21.03.2023], wherein it was held that 'rarest of rare'
doctrine does not require that in such a case only death
sentence has to be imposed. The Court has to consider
not only the grave nature of crime, but also as to
whether there is possibility of reformation of a criminal.
82) Supreme Court in the case of B.A. Umesh Vs
Union of India and others, Criminal Appeal No. 1892 of
2022 (arising out of SLP (Crl.) No. 890 of 2022,
decided on 04.11.2022, has also examined the issue
whether delay in execution of death sentence could be a
sufficient ground for substituting death sentence by
imprisonment for life.
83) In the above matter, the Supreme Court was
examining the case where the execution of death
sentence was due to the delay which took place in
execution of the death sentence due to pendency of
mercy petition and reference was made to a judgment of
Ajay Kumar Pal Vs Union of India and another, 2015
(2) SCC 478. In that case there was a delay of 03 years
and 10 months, which was found to be inordinate and
the delay was not attributed to the accused / petitioner
but the delay was found on account of functionaries and
authorities in question.
84) In paragraph 14 of the above said judgment,
the Supreme Court observed as under :
"Paras 44 and 48 of the decisions of this Court in
Shatrughan Chauhan and another Vs Union of India
and others, (2014) 3 SCC 1, which were quoted in Ajay
Kumar Pal (supra), had laid down that undue long
delay in execution of death sentence would entitle the
condemned prisoner to pray for commuting the death
sentence to that of life imprisonment. The individual
cases were thereafter dealt with in Shatrughan
Chauhan (supra) and paragraph 105 onwards of said
decision show that in cases where there was a delay of
12 years (para 118), 9½ years (para 137), 9½ years
(para 147), 7 years and 8 months (para 161), 5 years
and 8 months (para 175) and 7 years and 5 months
(para 209), the benefit of commutation was extended
by this Court."
85) In the case before the Supreme Court the
mercy petition was received by the Central Government
on 03.03.2011, and it was disposed of on 15.05.2013.
In between, the Ministry of Home Affairs, Government of
India, forwarded the mercy petition to the Principal
Secretary, Home Department, Karnataka so that the
Governor, Karnataka could consider the mercy petition.
Thereafter, in the meantime, on 09.03.2011 in Writ
Petition No. 52 of 2011, preferred by the accused-
appellant, Supreme Court granted stay of execution of
death sentence. Before the Central Government
authorities, the State Cabinet on 07.05.2012, decided to
approve the note prepared by the Home Department
recommending rejection of mercy petition. The
Governor also rejected the mercy petition on
06.06.2012, and subsequently, the matter was referred
to the Central Government on 30.08.2012, and finally,
the Hon'ble President after considering the mercy
petition, rejected the mercy petition on 12.05.2013.
Hence, a period of 02 years and 03 months was taken to
dispose of the mercy petition.
86) In A.G. Perarivalan Vs State through
Superintendent of Police and another, 2022 SCC Online
SC 635, a bench of three Judges of Supreme Court had
commuted the sentence of death to life in a petition filed
under Article 161 of the Constitution keeping in view the
fact that the petition remained pending for 2½ years
with the Hon'ble Governor, despite recommendation of
the State Cabinet for remission of the sentence.
87) In the present case, the judgment was passed
on 06.03.2021, and the Reference is now being decided
after a gap of almost more than three years. If there is
a delay in deciding the Reference that is one of the
reasons this Court can take into account for commuting
the death penalty.
88) It must also be borne in mind that imposition
of death penalty is exception rather than a rule, and
further special reasons must be given. The extreme
penalty of death is to be awarded to a convict only in
those discerning few cases where the murder committed
by him is shocking, brutal diabolical and revolting and
the tremors of which are felt far and wide. In the
present case, the convict is 24 years of age and did not
have the criminal background. There is scope for
reformation of the convict. There is every hope that by
associating him with counselors, his mindset could be
reformed while in custody and even while he is in
custody, he can be given training to lead a good life by
giving him technical skills to make a good livelihood so
that he can be reformed. Hence, it will be in the interest
of justice that the death sentence awarded to convict
Harswroop be commuted to imprisonment for life.
89) In view of the foregoing discussion, Criminal
Reference No. 01 of 2021 in respect of convict-appellant
Harswroop made by the trial court so far as the
confirmation of sentence of death to him is concerned is
answered in negative.
90) Instead of confirming the sentence of death
awarded by the trial court, (in exercise of powers
conferred under Section 368(a) Cr.P.C.) the sentence
of death is commuted to imprisonment for life against
convict Harswroop.
91) The conviction recorded by the trial court in
S.S.T. No. 104 of 2019, under Section 364, 302, 201
IPC, and the one under Section 6 of POCSO Act,
against accused-appellant Harswroop is affirmed.
Convict Harswroop is sentenced to undergo
imprisonment for life with the stipulation that he shall
not be entitled to premature release or remission
before undergoing actual imprisonment for a period of
20 years.
92) The conviction recorded by the trial court in
S.S.T. No. 104 of 2019, under Section 201 IPC
against accused-appellants persons Pappu and
Roopwati is affirmed.
93) The other terms of sentences awarded to all
the convicts including fine amount and default
stipulations also stand confirmed. All the substantive
sentences awarded to the convict Harswroop shall run
concurrently.
94) The Criminal Jail Appeal filed by the
accused-appellant Harswroop against the conviction
and sentences awarded by the trial court in S.S.T. No.
104 of 2019 in respect of offences punishable under
Section 364, 302, 201 IPC, and one under Section 6
of the PCSO Act stands dismissed.
95) The Criminal Jail appeals filed by accused-
appellants Pappu and Roopwati against their
conviction and sentence awarded by the trial court in
S.S.T. No. 104 of 2019 in respect of offence
punishable under Section 201 IPC also stand
dismissed.
96) The Criminal Jail Appeal filed by accused-
appellant Harswroop in respect of offences punishable
under Section 364, 302 and 201 IPC, and one under
Section 6 of the POCSO Act, having been dismissed,
his sentence is modified as directed in Paras 91 and
93 above.
97) Let a copy of this Judgment be sent to the trial
court with reference to its letter dated 08.03.2021, in
S.S.T. No. 104 of 2019. A copy of this judgment be also
sent to the Superintendents of Jail concerned where the
convicts are presently serving out their sentences, for
ensuring compliance of this order. Lower court record
be sent back.
______________
RITU BAHRI, C.J.
_________________
ALOK KUMAR VERMA, J.
Dt: 21ST MAY, 2024
Negi
