H MANOHARAN versus STATE BY INSPECTOR OF POLICE, VARIETY HALL POLICE STATION, COIMBATORE (REVIEW PETITION (CRL.) NOS.446-447 OF 2019) IN

[2019] 18 S.C.R.

MANOHARAN

STATE BY INSPECTOR OF POLICE, VARIETY HALLPOLICE STATION, COIMBATORE

(Review Petition (Crl.) Nos.446-447 of 2019)

(Criminal Appeal Nos.1174-1175 of 2019)

NOVEMBER 07, 2019

[R. F. NARIMAN, SURYA KANT ANDSANJIV KHANNA, JJ.]

Review – In death penalty cases – Application of restrictiveprinciples – Murder – Rape – Co-accused (now deceased) usingborrowed school van, picked up 10-year old girl and her 7-yearDold brother who were waiting to go to school – He thereafter pickedup his friend (accused-petitioner) from his house – Girl child wasraped and sodomised – Both children were administered poison (cowdung powder) mixed in milk – However, they spat out the substanceand only ingested small portion – Since poisoning did not work,the children were thrown into nearby canal, leading to their deathEby drowning – Conviction of accused-petitioner u/ss.302, 376(2)(f),(g) & 201, IPC and death sentence by trial court and High Court –Present three-Judge Bench unanimously affirmed the conviction andby majority upheld the death sentence – Majority judgmentupholding conviction and death penalty delivered by Surya Kant,FJ. (for Rohinton F. Nariman, J. and himself) – Minority judgmentupholding conviction but awarding life sentence (till natural death)without remission / commutation delivered by Sanjiv Khanna, J. –Review Petitions – Held: Liable to be dismissed – Per Surya Kant,J. (for R.F. Nariman, J. and himself), held: Prosecution case wasestablished through numerous evidences in addition to clearGconfession proving petitioner’s guilt beyond any residual doubt –Conflicting versions were deposed by petitioner and defencewitnesses, and no explanation to discharge onus u/s.106 of theEvidence Act was provided – Hence, it was not case fit forapplication of theory of “residual doubt” – Just because the nowHdeceased co-accused was the mastermind whose offence was

comparatively more egregious, one cannot commute the otherwisebarbarically shocking offences of the petitioner – Also, attemptedretraction of confession by the petitioner showed how he was infact remorseless – It was not in the spur of the moment or crime ofpassion; but craftily planned, meticulously executed and withmultiple opportunities to cease and desist – Offences of petitionerwere so grave as to shock the conscience of the Court and of societyand amounted to the rarest of the rare – No grounds to reviewjudgment upholding his conviction and death penalty – Per SanjivKhanna, J., held: Reasons given by Surya Kant, J. in dismissing thereview petition and upholding the conviction of petitioner are entirelyagreed upon and concurred with – On the question of sentence, nogood ground and reasons to review the observations and findingsin the minority judgment – Penal Code, 1860 – ss. 302, 376(2)(f),(g) & 201 – CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – ss.24and 106.

Review – Scope of – Held [per Surya Kant, J. (for R.F.Nariman, J. and himself)]: Scope of review is more constrainedthan that of an appeal – party cannot be allowed to re-urge thecase on merits to effectively seek re-appreciation of evidence whenthe matter has already been decided earlier, even if on differentgrounds – Interference in the earlier judgement assailed in Reviewis permissible only on the basis of an error apparent on the face ofrecord or discovery of important new evidence which has directbearing on the ultimate outcome of the case and if not wellappreciated, would cause manifest injustice.

Precedents – Verdicts with multiple opinions – Interpretationof – Dissenting opinions – Precedential value of – Held [per SuryaKant, J. (for R.F. Nariman, J. and himself)]: Dissenting opinionshave little precedential value and there is no difference in operationbetween decisions rendered unanimously or those tendered bymajority, albeit with minority dissenting views – Jurisprudence.

Confession – Validity – Voluntariness of confession – Held[per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Cornerstoneof valid confession in India is only whether such statement wasmade in compliance with statutory provisions which mandate thatthe same must be before the Magistrate after compliance with certainsafeguards meant to ensure voluntariness and lack of coercion by

Athe police – On facts, the Magistrate (PW-28) duly complied withall procedural requirements for recording of confessional statementand affirmatively satisfied himself of the voluntariness of thepetitioner’s confession – CrPC, 1973 – ss.163, 164 – Evidence Act,1872 – s.24.

BConfession – Retracted confession – Effect of – Held [perSurya Kant, J. (for R.F. Nariman, J. and himself)]:: Even in theabsence of an express provision for retracting confessionarystatement once made, the Courts have preferred rule of prudencewhereby in case of retraction, the Court reduces the probative valueof such confessionary statements and seeks corroborating evidenceC– CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – s. 24.

Confession – Objective and use of – Held [per Surya Kant,J. (for R.F. Nariman, J. and himself)]: Provisions permitting use ofconfessionary statements in criminal trials were statutorily includedas an acknowledgement of the possibility that in certainDcircumstances an accused may voluntarily confess to his offence(s).

Sentence / Sentencing – Death penalty – Plea that death oughtnot to be awarded in cases of circumstantial evidence – Held [perSurya Kant, J. (for R.F. Nariman, J. and himself)]: Not tenable –There can be no hard rule of not awarding death in cases based onEcircumstantial evidence – Criminal Law.

Sentence / Sentencing – Death penalty cases – Opportunityfor oral arguments on the question of sentence – Held [per SuryaKant, J. (for R.F. Nariman, J. and himself)]: In cases of death penalty,since the punishment is irreversible and right to life u/Art.21 of theFconvict is violated, it is necessary to provide at least one opportunityfor oral arguments on the question of sentence – Constitution ofIndia, 1950 – Art. 21.

Sentence / Sentencing – Death penalty – Grounds forcommutation – Held [per Surya Kant, J. (for R.F. Nariman, J. andGhimself)]: Even observed devoid of any aggravating circumstances,mere young age and presence of aged parents cannot be groundsfor commutation – One may view that such young age poses acontinuous burden on the State and presents longer risk to society,hence warranting more serious intervention by Courts.

MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETYHALL POLICE STATION, COIMBATORE

Code of Criminal Procedure, 1973 – s.164 – Defence plearegarding absence of counsel during proceedings before theMagistrate u/s.164, CrPC resulting into prejudice – Held [per SuryaKant, J. (for R.F. Nariman, J. and himself)]: The plea is misconceived– s.164 CrPC does not contemplate that confession or statementshould necessarily be made in the presence of the advocate(s),except, when such confessional statement is recorded with audio-video electronic means.

Dismissing the review petitions, the Court

HELD : [per Surya Kant, J. (for R.F. Nariman, J. andhimself)]:

1. Scope of Review: The scope of Review even in deathpenalty cases is narrow and in various earlier decisions of theSupreme Court restrictive principles were applied and re-affirmedwhile considering the scope of review in death penalty cases.The scope of Review is more constrained than that of an appeal.A party cannot be allowed to reurge the case on merits toeffectively seek re-appreciation of evidence when the matter hasalready been decided earlier, even if on different grounds.Interference in the earlier judgement assailed in Review ispermissible only on the basis of an error apparent on the face ofrecord or discovery of important new evidence which has directbearing on the ultimate outcome of the case and if not wellappreciated, would cause manifest injustice. [Paras 18, 19,20][1096-C; 1097-A-G; 1098-A-B]

Mohd. Arif @ Ashfaq v. Registrar, Supreme Court ofIndia (2014) 9 SCC 737 : [2014] 11 SCR 1009 –followed.

Vikram Singh v. State of Punjab (2017) 8 SCC 518 :[2017] 8 SCR 177; Mukesh v. State of (NCT of Delhi)(2018) 8 SCC 149 : [2018] 7 SCR 898; Kamlesh Vermav. Mayawati (2013) 8 SCC 320 : [2013] 11 SCR 25 –relied on.

Manoharan v. State by Inspector of Police (2019) 7SCC 716 – affirmed.

[2019] 18 S.C.R.

A2. Voluntariness of Confession & Effect of Retraction2.1. On conjoint reading of the confessional schemecomprising of Sections 163, 164 CrPC and Section 24 IndianEvidence Act, it is obvious that even in the absence of an expressprovision for retracting confessionary statement once made,Bthe Courts have preferred rule of prudence whereby in case ofretraction, the Court reduces the probative value of suchconfessionary statements and seeks corroborating evidence.Hence, the cornerstone of valid confession in India is onlywhether such statement was made in compliance with statutoryprovisions which mandate that the same must be before theCMagistrate after compliance with certain safeguards meant toensure voluntariness and lack of coercion by the police. In theinstant case, from chronological analysis of the confessionalstatement of Petitioner dated 20.11.2010 (Ex.P.18) as well as thepreliminary examination held on 19.11.2010, it is apparent thatDthe Magistrate (PW-28) duly complied with all proceduralrequirements for recording of confessional statement andaffirmatively satisfied himself of the voluntariness of thepetitioner’s confession. [Paras 23, 26][1099-B-D]

Bharat v. State of U.P. (1971) 3 SCC 950 and AbdulERazak Murlaza Dafadar v. State of Maharashtra AIR1970 SC 283 : [1970] 1 SCR 551 – relied on.

Shivappa v. State of Karnataka (1995) 2 SCC 76 :[1994] 6 Suppl. SCR 171; State of Assam v. RabindraNath Guha 1982Cri LJ 216 – referred to.F2.2. The confession, in the present case, was not challengedduring stage of framing of charge or over the course ofexamination of forty-seven prosecution witnesses, but insteadonly partly disputed through letter written in secret just beforepetitioner’s examination under Section 313 CrPC. Such retractionGat the fag-end of the trial, was not natural but rather meticulouslyformulated, perhaps as part of defence strategy. Hence, thereremains no doubt about the voluntariness of the confession of20.11.2010 or it being unaffected by subsequent retraction. Thatapart, even if the confession dated 20.11.2010 were to be treatedas being retracted vide letter dated 25.07.2012 (as adopted during

examination under Section 313 CrPC), still the original confessioncan be relied upon. Coupled with corroborating evidence,conviction can also be secured on the strength of such confession.Still further, it is clear that even in the retraction statement, thepetitioner has made substantial admissions which read togetherwith prosecution evidence, are sufficient to convict him. Throughthe letter dated 25.07.2012, the Petitioner merely restates hisconfession with certain omissions and few denials as comparedto his earlier statement. comparison of the retraction with theconfession dated 20.11.2010 further shows that it is merely animprovement. The Petitioner has admitted to all the generalcircumstances of the incident, i.e. having been present at thescene of all crimes, being friend of the co-accused and of theoffences as claimed by the prosecution to have occurred.However, he merely contends that the crimes were committedby the co-accused and not by the Petitioner himself. Regardlessthereto, there are sufficient inculpatory admissions in the letterdated 25.07.2012 to place strong burden of proof on thePetitioner under Section 106 of the IEA. Moreover, the petitionerhas not been convicted by the Courts below or this Court, solelyon the basis of his confession made under Section 164 CrPC.The confession has been corroborated by enough evidence andit would not be stretch to state that even independent of suchconfessional statement, this Court would nevertheless havereached firm conclusion of guilt. [Paras 28, 29, 31 and 32][1102-D-F; 1103-C-D; F-H]

Shankaria v. State of Rajasthan (1978) 3 SCC 435;Subramania Goundan v. State of Madras AIR 1958 SC66 : [1958] SCR 428; Pyare Lal Bhargava v. State ofRajasthan AIR 1963 SC 1094 : [1963] Suppl. SCR689 – relied on.

3. Independent Re-appreciation of Evidence: Thecontention raised that this Court decided the appeal withoutindependently re-appreciating all the material on record, cannotbe accepted. This Court critically analysed all the materialwitnesses and documents exhibited on record which were referredto during the course of arguments. careful examination of suchevidence lead to unanimous finding of guilt against the Petitioner.[Para 33][1104-A-B]

[2019] 18 S.C.R.

A4. Plea of inadequacy of Legal Representation

4.1. Although it is correct that seven counsels refused todefend the Petitioner and there was resolution by the bar to nottake up his brief, but the Trial Court ensured the services of alegal aid counsel who ably conducted petitioner’s defence duringBthe trial. In the present facts no prejudice has been caused to thepetitioner for want of adequate or proper legal assistance. Notonly did the High Court re-appreciate the entire evidence, but italso conducted another examination of the Petitioner underSection 313, CrPC. Furthermore, the High Court appointed aSenior Advocate, in addition to an Advocate, to provide the bestClegal services to the Petitioner. Similarly, in appeal, this Courtboth re-appreciated the evidence and ensured due legalrepresentation. Even in the present Review, the petitioner’sinterests are protected by Senior Counsel and as matter ofabundant caution, this Court has also conducted an elaborate

Danalysis. It is thus not found to be case of deficient legalassistance, affecting the Petitioner’s rights under Article 21 ofthe Constitution. [Para 38, 39][1105-D, F-G; 1106-A]

4.2. The plea regarding absence of counsel duringproceedings before the Magistrate under section 164, CrPCEresulting into any prejudice, are misconceived. What mandatorilyis needed, is that the Magistrate must satisfy himself of thevoluntariness of the statement and all the statutory safeguardswhich includes bringing the repercussions and the voluntarinessof making confessions to the knowledge of the accused, must bemeticulously complied with. Section 164 CrPC does notFcontemplate that confession or statement should necessarilybe made in the presence of the advocate(s), except, when suchconfessional statement is recorded with audio-video electronicmeans. [Paras 40, 41][1106-B-D]

Hussainara Khatoon v. State of Bihar (1980) 1 SCCG98 : [1979] 3 SCR 532; State v. Navjot Sandhu (2005)11 SCC 600 : [2005] 2 Suppl. SCR 79 – referred to.

Strickland v. Washington 466 U.S. 668 (1984) –referred to.

MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETYHALL POLICE STATION, COIMBATORE

5. Allegations of discrepancies in arrest & recovery ofevidence

The dispute re: the date of arrest is not only immaterial fordetermination of petitioner’s guilt in the present case, butotherwise also there is no substance therein. Analysis of thedepositions prove that the underwear of the deceased girl (MO-1) was recovered and sent for forensicexamination without anytampering. The seal on the parcel containing the underwear wasstill intact when PW-49 received it for forensic examination.Furthermore, casting doubt on the identification of MO-1 bythe father of deceased (PW-1) is also baseless and holds noground. Merely because PW-1 did not dress his daughter on thedate of the incident does not imply that he would not recognize apiece of clothing of his daughter. PW-1 has clearly deposed thatMO-1 belongs to his daughter. [Paras 43, 48 and 49][1106-G;1108-G-H; 1109-A-B]

6. Plea of erroneous conviction under Section 376 IPC

Considering the final opinion of PW-46 (who conductedautopsy on the body of the girl) that the girl was subjected tosexual assault; injury on the penis of petitioner; recovery of deadbody of X without underwear; recovery of underwear from theMaruti Van; father of X recognising the underwear; finding hairon the recovered underwear and matching of DNA of hair withthat of the petitioner, even in absence of the confessionalstatement of the petitioner, it is established the petitionercommitted offence under Section 376 IPC. The petitioner is justlyconvicted for offence under Section 376 IPC. [Para 55][1110-F-H]

7. Plea of erroneous reliance on POCSO

It was urged that this Court ought not to have relied on arecent amendment to the Protection of Children from SexualOffences (POCSO) Act, 2012 to justify death penalty, as the newlaw was non-existent on the date of occurrence and hence cannotbe applied retrospectively in derogation to Article 20 of theConstitution. Although the plea is attractive at first glance, it mustbe noted that the Petitioner has not been convicted or sentencedunder the POCSO Act. Instead, only passing reference was

Amade to pinpoint whether the present case was rarest of the rareand whether it would shock the conscience of the society. [Paras56, 57][1111-A-C]

Macchi Singh v. State of Punjab AIR 1983 SC 957 :[1983] 3 SCR 413; Suthenraraja v. State, (1999) 9 SCCB323 : [1999] 3 Suppl. SCR 540; Ravishankar v. Stateof Madhya Pradesh 2019 SCC OnLine SC 1290 –referred to.

8. Sentencing

8.1.The contention that death ought not to be awarded inCcase of single dissent, notwithstanding the opinion of the majorityis unsupported in view of more than one decisions of this Court.Dissenting opinions have little precedential value and there isno difference in operation between decisions renderedunanimously or those tendered by majority, albeit with minorityDdissenting views. Nevertheless, this Court has re-visited themitigating circumstances against aggravating circumstances, aswell as report commissioned by this Court during the course ofappeal and submitted by the jail superintendent which revealsthat the conduct of the Petitioner is merely satisfactory and hehas not undertaken any study or anything else to show any signsEof reformation. The prosecution case has been establishedthrough numerous evidences in addition to there being clearconfession, which proves the Petitioner’s guilt beyond anyresidual doubt. Conflicting versions have been deposed by thePetitioner and the defence witnesses, and no explanation toFdischarge the onus under Section 106 of the Evidence Act hasbeen provided. Hence, it is not case fit for application of thetheory of “residual doubt”. Accordingly, even the contention thatdeath ought not to be awarded considering that the present caseis one involving circumstantial evidence is unfounded. There canbe no hard rule of not awarding death in cases based onGcircumstantial evidence owing to recent developments in medicalscience and the possibility of abuse by seasoned criminals. [Paras59-62][1112-C; 1113-A-F]

Devender Pal Singh v. State of NCT of Delhi (2003) 2SCC 501 : [2002] 5 Suppl. SCR 332; Krishna Mochi

v. State of Bihar (2002) 6 SCC 81 : [2002] 3 SCR 1 –relied on.

8.2. Furthermore, there is nothing to support thecharacterisation of the accused as being helpless, illiterate youngadult who is victim of his socio-economic circumstances. Farfrom being so, it is clear through the version of events that theaccused had the presence of mind to craft his own defence andattempt to retract his confession through an elaborately writteneleven page letter addressed to the Magistrate and had furtherreceived adequate legal representation. [Para 63][1113-G]

8.3. The retraction was extremely belated and only defenceto shield himself. Further, medical evidence has proved that rapewas committed on the deceased girl. It is hence factually incorrectto state that the Petitioner prevented the co-accused from rapingthe girl and is nothing more than belated lie at the end of thetrial. Hence, the exculpatory parts ought to be excluded.[Para 64][1114-A-B]

8.4. Even observed devoid of any aggravatingcircumstances, mere young age and presence of aged parentscannot be grounds for commutation. One may view that suchyoung age poses continuous burden on the State and presentsa longer risk to society, hence warranting more seriousintervention by Courts. Similarly, just because the now deceasedco-accused was the mastermind whose offence was comparativelymore egregious, one cannot commute the otherwise barbaricallyshocking offences of the petitioner. The current crime was notjust one offence, but comprised of multiple offences over theseries of many hours. [Para 65][1114-C-D]8.5. Even if the cases involving confession merit someleniency and compassion, however, as was earlier noted in themajority opinion, the attempted retraction of the statement showshow the petitioner was in fact remorseless. Such belatedretractions further lay rise to the fear that any remorse orrepentance being shown by the petitioner now may be temporaryand that he can relapse to his old ways. Irrespective of theunderlying reasons behind such retraction, whether it be the fear

CDE

Aof death or feeling that he was not getting any benefit of his earlierconfession, but the possibility of recidivism has only beenheightened and one can no longer look at the initial confession ina vacuum. [Para 66][1114-E-F]

8.6. Rather, the present case is essentially one where twoBaccused misused societal trust to hold as captive two innocentschool-going children, one of whom was brutally raped andsodomised, and thereupon administered poison and finally,drowned by throwing them into canal. It was not in the spur ofthe moment or crime of passion; but craftily planned,meticulously executed and with multiple opportunities to ceaseCand desist. The present offence(s) of the Petitioner are so graveas to shock the conscience of this Court and of society and wouldwithout doubt amount to rarest of the rare. There exist no groundsto review the judgment upholding conviction and death penalty.[Paras 67, 68][1114-G-H; 1115-A-B]DNishi Kant Jha v. State of Bihar (1969) 1 SCC 347 :[1969] 1 SCR 1033 – relied on.

HELD : (Per Sanjiv Khanna, J.)

The reasons given by Surya Kant, J. in dismissing theEreview petitions upholding the conviction of the petitioner underSections 302, 376(2)(f) and (g) and 201 of the Indian Penal Codeare entirely agreed upon and concurred with. On the question ofsentence, no good ground and reasons are seen to review theobservations and findings in the minority judgment. [Para 1]F[1115-C, D]

Case Law Reference

[In Judgment of Surya Kant, J.(for R.F. Nariman, J. and himself)]

MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETYHALL POLICE STATION, COIMBATORE

CRIMINAL APPELLATE JURISDICTION: Review PetitionE(Criminal) Nos. 446-447 of 2019 in Criminal Appeal Nos. 1174-1175 of2019.

From the Judgment and Order dated 01.08.2019 passed bySupreme Court of India in Criminal Appeal Nos.1174-1175 of 2019.

Sidharth Luthra, Sr. Adv., Mrs. Revathy Raghavan, S. MuthuKrishnan, Ms. Divya Chaudhary, Mobin Akhtar, Amartya Kanjilal, KartikMurukutla, Ms. Aaayushi Sharma, Ms. Shubhangni Jain, Advs. for thePetitioner.

M. Yogesh Kanna, Ms. Meha Aggarwal, Advs. for theRespondent.

1090SUPREME COURT REPORTS

AThe Judgment and Order of the Court were delivered/passed by

SURYA KANT, J.

1. These review petitions are directed against the judgment dated01.08.2019 passed in Manoharan v. State by Inspector of Police[1],wherein this three-Judge Bench had affirmed conviction of the accusedBManoharan for offences punishable under Sections 302, 376(2)(f) and(g) and 201 of the Indian Penal Code (in short “IPC”) and by majorityupheld the death sentence confirmed by the High Court.

Factual Matrix

C2. Brief facts of the present case are as follows:

‘X’, ten-year-old girl and ‘Y’, her 7-year-old brother wereenrolled in Classes V and II respectively in private school at Coimbatoreand would commute around 7:45 a.m. in pickup vehicle owned by oneKartikeyan (PW-2). On 29.10.2010 the children left as usual with theirDschool bags and lunch boxes and stood about two-hundred feet awayfrom their home, in front of the Vinayakar Temple. Around 8:00 a.m.,PW-2 came to the designated pick-up spot but did not find the childrenthere. He contacted the children’s father, Ranjith Kumar Jain (PW-5),over mobile to enquire about their absence. Being in Hyderabad, PW-5was unable to provide an immediate reply to the query of PW-2 andEhence called his wife, the children’s mother - Sangeetha (PW-8), whoinformed him that both X and Y had already left home. Since the fatherof the children (PW-5) was already on his way back to Coimbatore, heentrusted his wife to look out for the children and co-ordinate with thevan driver. Sangeetha informed Karthikeyan that the children had alreadyleft the house, whereafter she along with her relatives Vijay KumarF(PW-1) and Sanjai (PW-6) started searching for the children.

3. Kamala Bai (PW-9), the paternal grandmother of the childrenhad gone to Jain Temple around 8:00 a.m. in the morning. Upon returninghome at 10:30 a.m. and finding Sangeetha in panic, Kamala Bai informedher that the children had been picked up by former van driver and itGwas conjectured that the children must be in school. Vijay Kumar(PW-1) then went to the school and found that the children had howevernot reached. After frantic but futile search, PW-1 lodged policecomplaint (Ex. P1) with Vasuki (Sub-Inspector of Police, PW-42) at

around 11AM under Section 363 of the Indian Penal Code (in short“IPC”).

4. The Investigating Officer (“IO”, PW-47), thereafter, took overinvestigation and recorded statements of the informant (PW-1), theschool’s principal - Anthony Raj (PW-10), as well as of the grandmother(PW-9) and the just returned father of the children (PW-5). First traceof the missing children was received at 6PM when Anthony Raj (PW-10) informed the IO (PW-47) that one Chinnasamy (PW-22) had calledto inform that two school bags with identity cards bearing names of Xand Y were found floating in and later fished out from the Parambikulam-Axhiyar Project (“PAP”) Canal. second lead came to the Police fromKarthikeyan (PW-2) who received call from his erstwhile employee –Anbu @ Gandhiraj (PW-7) who conveyed that one Mohanakrishnanhad borrowed Maruti Omni Van from him that morning. This arousedKarthikeyan’s suspicion since Mohanakrishnan was his former employeewhose services were terminated after it had been discovered that hewas borrowing money from the parents whose children were beingtransported to school by PW-2’s agency. The IO (PW-47) accordinglyadvised both Anbu (PW-7) and Karthikeyan (PW-2) to immediately alertthe police whenever Mohanakrishnan came to return the Omni Van. Ataround 9:45PM, Anbu alerted the police that Mohanakrishnan had cometo return the Van and he had also confessed to the kidnapping, rape andmurder of the two missing children along with his friend Manoharan.Pursuant to the information received by Anbu, Mohanakrishnan wasarrested and confessional statement was recorded in the presence ofAnbu (PW-7) and one Santosh Kumar (not examined as witness).The Maruti Omni Van along with one Nokia Cellphone and the drivinglicense of Mohanakrishnan were also seized. The IO consequently senta report (Ex. P-30) for alteration of charge from under Section 363, IPCto Sections 364(A), 376, 302 read with Section 201, IPC which wasreceived by the Magistrate at 11:45PM.

5. Having observed certain saliva and yellow-coloured stains onthe seized van, the IO requisitioned forensic assistance of Sarvanan(PW-43), Deputy Director of Mobile Unit of Tamil Nadu ForensicSciences Department. In the presence Sarvanan (PW-43), Anbu (PW-7) and one Santosh Kumar (unexamined), the van was thoroughlysearched wherein lady’s underwear bearing the inscription “SBTKidswear 75 c.m.” with hair strands was recovered. Sarvanan (PW-

A43) further collected the betel nut saliva stains on the left door of the vanwith cotton swab for chemical examination, as well as dried yellow-colour stains found on the seat and floormat, and the clothes (namelypant, half shirt and underwear) worn by Mohanakrishnan (Mahazar Exs.P-5 & P-6). Mohanakrishnan subsequently led police team to the placewhere he claimed to have raped X as well as to Deepalapatti, the placeBfrom where the children had allegedly been pushed into the running watersof the PAP canal.

6. The girl child’s body was found the subsequent morning in thePAP canal by villagers near Palladam Taluk at 9:30AM, and the boy’sbody was later recovered from the canal around 12 kms fromCDeepalapatti. Postmortem was conducted by Dr. Jayasingh (PW-46) atthe Coimbatore Medical College and Hospital, wherein the followinginjuries were recorded on X’s body:

“The body was first seen by the undersigned at 02.15 pm on30.10.10. Its condition then was rigor mortis present all overDthe body. Post mortem commenced at 02.15 pm on 30.10.10.Appearances found at the postmortem:-

Moderately nourished body of female aged 10 yrs. Fingerand toenails bluish in colour. The body wearing blue colour“T” shirt with white colour sticker named as “Suguna Rips”Enoted left side, black colour track suit with white line order,white colour socks and white colour shoes and rose colourshimmis. White colour frothy secretions noted over both nostrilsand mout. Water suddening noted over both palms and soles.”

7. The following ante mortem injuries noted over the body:

“1. Liner vertical scratch marks 4 in numbers in varying sizenoted over lateral aspect right elbow joint.

2. Transverse scratch abrasions 3 in number in varying sizenoted over lateral aspect of left upper forearm.

G3. scratch mark 3 in number noted over lower part of leftarm.

4. Contusion 2x1 cm x 0.5 depth noted over in the posteriorfourchettes and lateral wall of vagina. Hymen intact.

5. On examination of anus: - Anus found roomy measuring 3Hcm in diameter and mucosal tear 1x0.5 cm x mucosal deep

noted over left lateral aspect of the anus at the level of muco-cutaneous junction.

On dissection of Thorax and Abdomen: Contusion 4 x 2 cmnoted over anterior aspect of lower end of uterus.”

8. Similarly, in Y’s postmortem examination, the following antemortem injuries were noted:

“1. Bluish contusion 3 x 2 cm noted on middle of left sideneck, 3 cm left to midline.

2. Bluish contusion 3 x 2 cm noted over outer aspect of rightforearm.

3. Bluish contusion noted over right side third intercostalspace.

4. On dissection of scalp, skull and dura: sub scalpelcontusion 20 x 10 cm noted over bi frontal region and biparietal region. Diffuse sub dural and sub arachnoidhaemorrhages noted on both cerebral hemispheres.

5. On bloodless dissection of neck: contusion 4 x 3 cm notedon left side middle of neck. Hyoid bone found intact.”

9. The present review-petitioner, Manoharan (hereinafter“petitioner”) who was stated to have perpetrated the crime along withMohanakrishnan, was arrested on 31.10.2010 at 7AM, as recorded inEx. D-4. Manoharan made disclosure statement to the police (Ex. P-21) on the basis of which the IO (PW-47) recovered lunch box of Yfrom his house. Further, after being produced before the Magistrate thesame day, the petitioner was sent to judicial custody.

10. Test Identification Parade was conducted on request of theIO whereby Kamala Bai (PW-9) identified Mohanakrishnan as the driverof the van in which the children had been kidnapped. Subsequently, boththe petitioner and Mohanakrishnan were medically examined on04.11.2010 whereby samples of their blood and saliva were sent to theTamil Nadu Forensic Science Laboratory for DNA Analysis. potencytest of the petitioner was conducted by Dr. J.R. Singh (PW-46), who inhis medical report (Ex. P-56) found him potent and further noticed signsof injury around his private parts.

11. During recovery proceedings under Section 27 of the IndianEvidence Act (in short “IEA”), whilst in police custody, Mohanakrishnanshot and wounded two police officers and was consequently shot deadby the Police on 09.11.2010. Thus, the trial against Mohanakrishnanwas abated and the petitioner alone was left to be tried as an accused.

B12. Succinctly, the prosecution’s version of events is thatMohanakrishnan using borrowed school van, picked up two children(X and Y) who were waiting to go to school at about 7:50 a.m. Hefurther picked up his friend, Manoharan from his house at 9:30 a.m. andsubsequently, they took the children to remote location where after thegirl child was raped and sodomised. Subsequently, Manoharan andCMohanakrishnan purchased cow dung powder (a poisonous substance)which was mixed in milk and then administered to the children to endtheir life. However, both the children spat out the substance and onlyingested small portion. Since poisoning did not work, Mohanakrishnanand the petitioner threw both the children into the turbulent waters of aDnearby Canal, hence drowning them.

CASE HISTORY

13. Over the course of the trial, the prosecution examined forty-nine witnesses in all including persons who witnessed abduction, purchaseof milk and cow dung powder and those having seen children in theEcustody of accused persons at various places. Further, various medicaland forensic evidence were produced, proving drowning and rape aswell as injuries on Petitioner’s body. ‘last seen theory’ was built by theprosecution, in addition to use of confessional statement made by thepetitioner under Section 164, CrPC. The Trial Court ultimately held theFPetitioner guilty under Section 120-B, 364-A, 376, 302 r/w 34 and 201IPC. Under Section 376, the Petitioner was awarded life sentence andfor offence under Section 302 IPC he was given death sentence.

14. The Madras High Court set aside conviction of Petitionerunder Sec. 120-B and 364A IPC but confirmed the sentences underGSec. 376, 302 r/w 34 and 201 IPC. After considering aggravating andmitigating circumstances, the High Court confirmed death sentenceawarded by the Trial Court.

15. Thereafter the Petitioner filed Special Leave Petition underArticle 136 whereby this Court dismissed his appeal and confirmed thedeath sentence by majority, observing that the case fell in the categoryH

of the ‘rarest of rare’ cases. After considering all evidence on recordand contentions of the counsels, the majority opinion of this Court readas follows:

“In the circumstances, we have no doubt that the trial courtand High Court have correctly applied and balancedaggravating circumstances with mitigating circumstances tofind that the crime committed was cold blooded and involvesthe rape of minor girl and murder of two children in themost heinous fashion possible. No remorse has been shownby the Petitioner at all and given the nature of the crime asstated in paragraph 84 of the High Court’s judgment it isunlikely that the Petitioner, if set free, would not be capable

of committing such crime yet again. The fact that thePetitioner made confessional statement would not, on thefacts of this case, mean that he showed remorse for committingsuch heinous crime. He did not stand by this confessionalstatement, but falsely retracted only those parts of thestatement which implicated him of both the rape of the younggirl and the murder of both her and her little brother.Consequently, we confirm the death sentence and dismiss theappeals.”

16. Khanna J., in his minority opinion also upheld conviction underthe various offences concerned, but dissented on the quantum of sentence,holding as follows:

“I would, therefore, uphold and maintain conviction of theappellant under Sections 302, 376(2)(f) and (g) and 201 IPCand the sentences awarded under Sections 376(2)(f) and (g)and 201 IPC. To this extent the appeal is dismissed. In viewof the aforesaid discussion and on balancing aggravatingand mitigating circumstances, in my opinion, the present casedoes not fall under the category of “rarest of the rare” casei.e. there is no alternative but to impose death sentence. Itwould fall within the special category of cases, where theappellant should be directed to suffer sentence for life i.e. tillhis natural death, without remission/commutation underSections 432 and 433 CrPC. To this extent I would allow theappeal.”

A17. The Petitioner then filed the present petition for review of thesaid judgement and order dated 01.08.2019, which was heard atconsiderable length in open Court following the parameters evolved inMohd. Arif @ Ashfaq v. Registrar, Supreme Court of India[2], whereina Constitutional Bench of this Court held that in cases of death penalty,since the punishment is irreversible and Article 21 of the convict is violated,Bit is necessary to provide at least one opportunity for oral arguments onthe question of sentence.

SCOPE OF REVIEW

18. At the outset, it may be clarified that the scope of ReviewCeven in death penalty cases has been narrowed down in Vikram Singhv. State of Punjab[3], laying down that review can only be on glaringerror apparent on the face of the judgement or order. mere change oraddition of grounds cannot be allowed at the stage of review. This Courtthus held as follows:D“23. In view of the above, it is clear that scope, ambit andparameters of review jurisdiction are well defined. Normallyin criminal proceeding, review applications cannot beentertained except on the ground of error apparent on theface of the record. Further, the power given to this Courtunder Article 137 is wider and in an appropriate case can beEexercised to mitigate manifest injustice. By review applicationan applicant cannot be allowed to reargue the appeal on thegrounds which were urged at the time of the hearing of thecriminal appeal. Even if the applicant succeeds in establishingthat there may be another view possible on the conviction orFsentence of the accused that is not sufficient ground forreview. This Court shall exercise its jurisdiction to review onlywhen glaring omission or patent mistake has crept in theearlier decision due to judicial fallibility. There has to be anerror apparent on the face of the record leading to miscarriageof justice to exercise the review jurisdiction under Article 137Gread with Order 40 Rule 1. There has to be material errormanifest on the face of the record with results in themiscarriage of justice.”

2 (2014) 9 SCC 737.H3 (2017) 8 SCC 518.

19. The above cited decision was reiterated in Mukesh v. Stateof (NCT of Delhi)[4]where also similar restrictive principles were appliedand re-affirmed while considering the scope of review in death penaltycases. Reliance was placed on the dictum in Kamlesh Verma v.Mayawati[5], prescribing that Courts should refrain from re-appreciatingthe entirety of evidence only to arrive at different possible conclusion,besides illustrating an inexhaustible list of instances where review shallnot be maintainable. The relevant part reads as follows:

“20.2. When the review will not be maintainable:

(i) repetition of old and overruled argument is not enoughto reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the originalhearing of the case.

(iv) Review is not maintainable unless the material error,manifest on the face of the order, undermines its soundnessor results in miscarriage of justice.

(v) review is by no means an appeal in disguise whereby anerroneous decision is reheard and corrected but lies only forpatent error.

(vi) The mere possibility of two views on the subject cannotbe ground for review.

(vii) The error apparent on the face of the record should notbe an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully withinthe domain of the appellate court, it cannot be permitted tobe advanced in the review petition.

(ix) Review is not maintainable when the same relief soughtat the time of arguing the main matter had been negatived.”

20. It is, therefore, to be kept in mind that the scope of Reviewis more constrained than that of an appeal. party cannot be allowed toreurge the case on merits to effectively seek re-appreciation of evidence

4 (2018) 8 SCC 149.

5 (2013) 8 SCC 320.

Awhen the matter has already been decided earlier, even if on differentgrounds. Interference in the earlier judgement assailed in Review ispermissible only on the basis of an error apparent on the face of recordor discovery of important new evidence which has direct bearing onthe ultimate outcome of the case and if not well appreciated, wouldcause manifest injustice.B

21. Learned Senior Counsel for the petitioner, Mr. Siddharth Luthrahas made deft challenge to our judgment, through multifaceted attackon both merits and procedure of the case. He forcefully urged for settingaside the conviction and in the alternate, requested commutation of thesentence of death.C

VOLUNTARINESS OF CONFESSION & EFFECT OF RETRACTION

22. The arguments for the Petitioner begun with challenge toreliance by this Court on confessional statement of the accused.Mr. Luthra strenuously contended that strict compliance with theDsafeguards for recording confessional statement as mandated underSection 164 are mandatory, as ruled in Shivappa v. State of Karnataka[6].He strongly disputed the admissibility of the confessional statement madeby the petitioner before Magistrate on 20.11.2010 on the premise that:

(a) Confession was coerced and involuntary, and in contraventionEof Section 163, CrPC and Section 24, IEA for first, thepetitioner had been physically assaulted by the police whilstin custody, as evidenced through answer to Question 8 posedby the Magistrate during preliminary examination on19.11.2010. Second, the petitioner was under severepsychological stress owing to the in-custody killing of the co-Faccused Mohanakrishnan on 09.11.2010; and third,circumstances surrounding confession were suspicious, forthe IO (PW-47) moved an application stating that the petitionerwas ready to volunteer confession when he was in judicialand not police custody.

G(b) The Magistrate failed to comply with the mandatory procedureas prescribed under Section 164, CrPC since he did not informthe petitioner that he would not be sent to police custody afterrecording of the confessional statement.

H6 (1995) 2 SCC 76

23. In light of the vehement attempt at assailing the confessionalstatement as being non-voluntary and violative of the right guaranteedunder Article 20(3) of the Constitution and in the alternate its reliancefor having been retracted by the petitioner, it may be briefly noticed thaton conjoint reading of the confessional scheme comprising of Sections163, 164 CrPC and Section 24 IEA as construed in catena of decisionsof this Court, it is obvious that even in the absence of an express provisionfor retracting confessionary statement once made, the Courts havepreferred rule of prudence whereby in case of retraction, the Courtreduces the probative value of such confessionary statements and seekscorroborating evidence.

24. Hence, the cornerstone of valid confession in India is onlywhether such statement was made in compliance with statutoryprovisions which mandate that the same must be before the Magistrateafter compliance with certain safeguards meant to ensure voluntarinessand lack of coercion by the police. This has been so noted by this Courtin Bharat v. State of U.P.[7]:

“7. ... Confessions can be acted upon if the court is satisfiedthat they are voluntary and that they are true. The voluntarynature of the confession depends upon whether there wasany threat, inducement or promise and its truth is judged inthe context of the entire prosecution case. The confession mustfit into the proved facts and not run counter to them. Whenthe voluntary character of the confession and its truth areaccepted it is safe to rely on it. Indeed confession, if it isvoluntary and true and not made under any inducement orthreat or promise, is the most patent piece of evidence againstthe maker. Retracted confession, however, stands on slightlydifferent footing. As the Privy Council once stated, in India itis the rule to find confession and to find it retracted later. Acourt may take into account the retracted confession, but itmust look for the reasons for the making of the confession aswell as for its retraction, and must weigh the two to determinewhether the retraction affects the voluntary nature of theconfession or not. If the court is satisfied that it was retractedbecause of an after thought or advice, the retraction may notweigh with the court if the general facts proved in the case

Aand the tenor of the confession as made and the circumstancesof its making and withdrawal warrant its user. All the same,the courts do not act upon the retracted confession withoutfinding assurance from some other sources as to the guilt ofthe accused. Therefore, it can be stated that true confessionmade voluntarily may be acted upon with slight evidence toBcorroborate it, but retracted confession requires the generalassurance that the retraction was an after thought and thatthe earlier statement was true. ...”

25. The objective behind such provision has been explored bythis Court in various decisions wherein it has been noted that provisionsCpermitting use of confessionary statements in criminal trials werestatutorily included as an acknowledgement of the possibility that in certaincircumstances an accused may voluntarily confess to his offence(s).

26. From chronological analysis of the confessional statementof Petitioner dated 20.11.2010 (Ex.P.18) as well as the preliminaryDexamination held on 19.11.2010, it is apparent that the learned Magistrate- S.S. Sathiamoorthy (PW-28) duly complied with all proceduralrequirements for recording of confessional statement and affirmativelysatisfied himself of the voluntariness of the petitioner’s confession:

a. During preliminary examination, the petitioner informed theEMagistrate that he was brought from Central Jail, Coimbatore on19.11.2010, hence abridging the possibility of any coercion or influenceby the police. Further, perusal of the record shows that petitioner waslast in police custody only on 11.11.2010 and hence there is no doubt thathe had been in judicial custody for some time prior to giving confessionalFstatement. Hence per Abdul Razak Murlaza Dafadar v. State ofMaharashtra[8] it can be inferred that he was not under the influence ofthe investigating agency.

b. In reply to Question 8 during preliminary examination on19.11.2010, when asked by the Magistrate whether someone torturedGhim, the petitioner does say that he was beaten by the police. However,when asked whether the “police tortured and compel you to givestatement like this”, the petitioner denied any such torture or compulsion.Similarly, when the Magistrate asked him whether he was told somesweet words such as “the confession statement will be beneficial or

H8 AIR 1970 SC 283.

where you threatened by police or by anybody else that if statementwas not given”, the petitioner specifically denied the same. He alsoacknowledged the fact that he was not under compulsion to give aconfession statement and that he was aware of the fact that suchstatement could be used against him. Further, when re-questioned bythe Magistrate if the petitioner was tortured, he answered in the negative.Hence, not only was the petitioner inconsistent in his claims, but furtherit is evident that the alleged physical assault by the police, if at all, wouldhave been committed weeks before the confession. Vague and passingclaims of police assault, supposedly committed far before the confessionaldate, cannot be ground for holding the confession as coerced.

c. After preliminary questioning on 19.11.2010, the petitioner wasentrusted to the Prison Warden and sent back to judicial custody forreflection “after duly informing him that he was not under obligationto give confessional statement.” The petitioner was re-produced beforethe Magistrate on the next day at 2PM and was again given an opportunityto change his mind and not confess. The Magistrate once more satisfiedhimself of the voluntariness of the petitioner and the absence of anypolice influence. Hence, it is clear that an adequate opportunity to recantwas provided and the Magistrate ensured that any possible lingeringeffects of alleged beatings or psychological stress post encounter of co-accused, would have been mitigated. It is also apparent that the Magistarteduly informed the petitioner about the repurcussions of his confessionalstatement, and made no false assurance of it helping his case, as hadbeen made in State of Assam v. Rabindra Nath Guha[9], which haserroneously been relied upon by Mr. Luthra.

d. The statement once recorded, was thereafter read out to thepetitioner who signed it to be correct. The Magistrate signed the statementat 4:30 PM on 20.11.2010, and afterwards sent the petitioner to judicialcustody. The Magistrate thus was fully conscious of his statutory obligationand factually ensured that the petitioner was not sent to police custodypost the confessional statement. It is further clear that the petitionerwas kept in judicial custody for almost twenty months after the confession,over the course of which there was no likelihood of him being entrustedto police, and still no protest or attempt to retract the confession wasmade by him.

Ae. The fact that the application to record the petitioner’s statementwas moved by the IO is inconsequential, as the petitioner was neither inpolice custody nor, as acknowledged by him, the police officials interactedwith him during judicial custody. It is thus far-fetched to use the fact thatpolice put forth the request for recording of confession to suggest thatthe confession was involuntary or secured at the behest of police.B

27. Further, it is essential to note that the petitioner failed to putforth any protest against the confessional statement despite havingmultiple opportunities during the course of trial. This Court has held earlierin Shankaria v. State of Rajasthan[10] that retractions must be made bythe accused as soon as possible, otherwise there would be strongCpresumption of voluntariness in the confession.

28. The confession, in the present case, was not challenged duringstage of framing of charge or over the course of examination of forty-seven prosecution witnesses, but instead only partly disputed through aletter written in secret just before petitioner’s examination under SectionD313 of the Code. It is thus evident that such retraction at the fag-end ofthe trial, was not natural but rather meticulously formulated, perhaps asa part of defence strategy. Hence, there remains no doubt about thevoluntariness of the confession of 20.11.2010 or it being unaffected bysubsequent retraction.E

29. That apart, even if the confession dated 20.11.2010 were tobe treated as being retracted vide letter dated 25.07.2012 (as adoptedduring examination under Section 313 of the Code), still the originalconfession can be relied upon. Coupled with corroborating evidence,conviction can also be secured on the strength of such confession. TheFrule regarding use of such retracted confessions was noted by this Courtin Subramania Goundan v. State of Madras[11 ]as well asby four-Judge Bench of this Court in Pyare Lal Bhargava v. State ofRajasthan[12], holding that:

“A retracted confession may form the legal basis of aGconviction if the court is satisfied that it was true and wasvoluntarily made. But it has been held that court shall notbase conviction on such confession without corroboration.

10 (1978) 3 SCC 435.

11 AIR 1958 SC 66.12 AIR 1963 SC 1094.H

It is not rule of law, but is only rule of prudence. It cannoteven be laid down as an inflexible rule of practice orprudence that under no circumstances such conviction canbe made without corroboration, for court may, in aparticular case, be convinced of the absolute truth of aconfession and prepared to act upon it without corroboration;but it may be laid down as general rule of practice that it isunsafe to rely upon confession, much less on retractedconfession, unless the court is satisfied that the retractedconfession is true and voluntarily made and has beencorroborated in material particulars.”

30. Still further, it is clear that even in the retraction statement, thepetitioner has made substantial admissions which read together withprosecution evidence, are sufficient to convict him. Through the letterdated 25.07.2012, the Petitioner merely restates his confession withcertain omissions and few denials as compared to his earlier statement.Although he agrees to be at the place of the occurrence along with thenow deceased Mohanakrishnan throughout the incident, instead ofadmitting an equal role in commission of rape and murder, he portrayshimself to be mere helpless bystander. The petitioner has attempted tojustify his retraction by stating that he had told the truth to the Magistratebut his statement was not read out to him and hence the Magistrate’saffirmation under Section 164 of the Code is incorrect.

31. comparison of the retraction with the confession dated20.11.2010 further shows that it is merely an improvement. The Petitionerhas admitted to all the general circumstances of the incident, i.e. havingbeen present at the scene of all crimes, being friend of the co-accusedand of the offences as claimed by the prosecution to have occurred.However, he merely contends that the crimes were committed by theco-accused and not by the Petitioner himself. Regardless thereto, thereare sufficient inculpatory admissions in the letter dated 25.07.2012 toplace strong burden of proof on the Petitioner under Section 106 of theIEA.32. Moreover, we must note that the petitioner has not beenconvicted by the Courts below or this Court, solely on the basis of hisconfession made under Section 164 of the Code. The confession hasbeen corroborated by enough evidence and it would not be stretch tostate that even independent of such confessional statement, this Courtwould nevertheless have reached firm conclusion of guilt.

AINDEPENDENT RE-APPRECIATION OF EVIDENCE

33. The second contention raised by Mr. Luthra is that this Courtdecided the appeal without independently re-appreciating all the materialon record. We are in strong disagreement with this contention. ThisCourt critically analysed all the material witnesses and documentsBexhibited on record which were referred to during the course ofarguments. careful examination of such evidence lead to unanimousfinding of guilt against the Petitioner. It was noted by the majority that:

“PW.20, PW.25 and PW.23 all saw the two accused togetherwith the children at different times on 29.10.2010. Indeed,Ceven if one were to read the confessional statement of theAppellant together with the retraction thereof, the fact thathe purchased milk at 1.00 p.m. from PW.23 is clearly madeout and the fact that Mohanakrishnan went to meet the tailor,was also admitted by him in both the original confessionalstatement as well as the retraction. It is clear therefore thatDthe evidence of PW.20 and 23 are corroborated by theconfessional statement and the retraction made by theAppellant and therefore the factum of the two accused beingwith the two children in the vehicle is clearly made out andthus the High Court’s conclusion that the last seen theoryEcan be relied upon cannot possibly be assailed.”34. Such an independent re-appreciation was also conducted byKhanna J. in his minority opinion in para nos. 23 to 29.

INADEQUACY OF LEGAL REPRESENTATION

35. Mr. Luthra seeks to make third core challenge by placingFreliance on Article 21 of the Constitution of India, claiming that it mandatesadequate and efficient legal assistance, the denial whereof would amountto condemning one unheard.

36. There cannot be any quarrel with the cited proposition for it isa fundamental tenet of criminal jurisprudence, least not because of ourGConstitution, that every person has right to effective legal assistance.In case an accused cannot afford the same, then it is the responsibilityof the State to provide free legal aid, as definitively noted in HussainaraKhatoon v. State of Bihar[13]. However, we feel that such right has

H13 (1980) 1 SCC 98.

been protected in the present case and the legal representation accordedto the petitioner was not inadequate.

37. At the outset, as noted in State v. Navjot Sandhu[14] judicialscrutiny of counsel’s performance must be careful, deferential andcircumspect for not doing so would give rise to the dangerous possibilityof convicts raising such pleas of inadequate legal assistance after adverseverdicts. It would also be useful to cite Strickland v. Washington[15]wherein the Supreme Court of the United States, laid down that todemand re-trial or acquittal on grounds of inadequate legal representation,the accused must show both that the assistance of the counsel wasdeficient per an objective standard of reasonableness as developed bycustomary practice, as well as that such deficiency has with reasonableprobability affected the outcome of the case, such that had he receivedadequate representation, the result would have been different.38. It is clear that the petitioner has failed to demonstrate eitherof these legs in the present case. Although it is correct that seven counselsrefused to defend the Petitioner and there was resolution by the bar tonot take up his brief, but the Trial Court ensured the services of legalaid counsel who ably conducted petitioner’s defence during the trial.The record reveals that from 23.02.2011 till 18.06.2012, no effectiveproceedings were held and post 18.06.2012, legal aid counsel Mrs. A.Sharmila appeared on behalf of the petitioner. The length and quality ofcross-examination conducted by the court-appointed counsel testifiesher legal acumen and professional ability. Hence, there can be no questionon the adequacy of counsel’s performance.

39. Notwithstanding the above determination, we must note thatin the present facts no prejudice has been caused to the petitioner forwant of adequate or proper legal assistance. Not only did the High Courtreappreciate the entire evidence, but it also conducted another examinationof the Petitioner under Section 313, CrPC. Furthermore, the High Courtappointed Senior Advocate, Mr. Raghunathan, in addition to AdvocateSmt. Vairam, to provide the best legal services to the Petitioner. Similarly,in appeal, this Court both re-appreciated the evidence and ensured duelegal representation. Even in the present Review, the petitioner’s interestsare protected by an outstanding Senior Counsel and as matter ofabundant caution, we have also conducted an elaborate analysis. We

14 (2005) 11 SCC 600.

15 466 U.S. 668 (1984).

Athus do not find this to be case of deficient legal assistance, affectingthe Petitioner’s rights under Article 21 of the Constitution.

40. The plea regarding absence of counsel during proceedingsbefore the Magistrate under section 164, CrPC resulting into anyprejudice, are misconceived. What mandatorily is needed, as noted earlier,Bis that the Magistrate must satisfy himself of the voluntariness of thestatement and all the statutory safeguards which includes bringing therepercussions and the voluntariness of making confessions to theknowledge of the accused, must be meticulously complied with. It ispertinent to take note of the first Proviso to Section 164(1), added witheffect from 31.12.2009, which specifies that:C

“Provided that any confession or statement made under thissub-section may also be recorded by audio-video electronicmeans in the presence of the advocate of the person accusedof an offence.”

(emphasis supplied)

41. Section 164 of the Code thus does not contemplate that aconfession or statement should necessarily be made in the presence ofthe advocate(s), except, when such confessional statement is recordedwith audio-video electronic means.

DISCREPANCIES IN ARREST & RECOVERY OF EVIDENCEE

42. The next contention of Mr. Luthra revolves around the dateof arrest of the petitioner. According to him, the petitioner was arrestedfrom his village Anglapurchi post-midnight on 29.10.2010 and not on31.10.2010 at 7:00 a.m. The petitioner was not sent to custody afterformal arrest till an alleged confession was recorded before the VillageFAdministrative Officer, S. Ganesan (PW-30). Mr. Luthra relies upon thecross-examination of PW-47 where he is stated to have admitted thatthe petitioner was caught in his village after midnight of 29.10.2010.

43. Not only is the dispute re: the date of arrest immaterial fordetermination of petitioner’s guilt in the present case, but we otherwiseGdo not find any substance therein. First, the petitioner’s arrest on31.10.2010 at 7:00 a.m. is proved by Exhibit D4 which is duly signed byhis father (DW-1). P. Ramasamy (DW-1) has admitted his signatureson the Exhibit D4, proving the date and time of the arrest. Second, theplea at best assumes violation of Section 167 of CrPC which mandatesHproduction of the suspect before the jurisdictional magistrate within 24hours of arrest. The adverse impact of such assumed variation on theJudicial proceedings has also not been convincingly demonstrated. Mr.Luthra’s contention would have carried some weight had it been caseof making confessional statement by the petitioner before the JudicialMagistrate on 30/31.10.2010, that is, when he was allegedly in policecustody.

44. Mr. Luthra very ably made an attempt to cast doubt on therecovery of the underwear of the deceased girl as well as the presenceof pubic hair of the Petitioner on the said underwear. It was argued thatthe underwear worn by the deceased remained in the custody of thepolice till 01.11.2010, therefore plantation of hair on the panty cannot beruled out.

45. Firstly, such plea is at variance from the submission madebefore the High Court where it was argued that police had planted thepubic hair on 04.11.2010. Secondly, there is no factual discrepancy inthe prosecution case as may be seen from the following facts:

i.The police found Mohanakrishnan in the house of one A.Anbu (PW-7) on 29.10.2010 at about 9:45 pm. Pursuant tothis, the Maruti Van was inspected by the police in presenceof PW-7 and one Santosh Kumar. Appropriately, Mahazar(Ex.P.4) was prepared by the police incorporating detailsof seizure of van and presence of stains on its doors andEfloor mat.

ii.Thereafter, A. Sarvanan (PW-43), Deputy Director ofMobile Unit of Tamil Nadu Forensic Sciences Departmentwas called by the IO (PW-47) at around midnight of 29/30.10.2010. PW-43 examined the van whereby theunderwear of the deceased girl (MO-1) was found withhair strands. Cellophane tape was applied to the hair strandsby PW-43, to keep them at their spot and the MO-1 wasthen put in cover and sealed. Further, PW-47 sealed thesame in an ‘Angelform’ brassieres cardboard box, obtainedfrom vicinity and seized it as Mahazar (Ex.P.5).

iii.Accordingly, Ex.P.5 reached the Judicial Magistrate on30.10.2010 along with Form 95 pertaining to the MO-1.This explains the delay of one day in production of Ex.P.5before the Judicial Magistrate.

Aiv.Moreover, since 30.10.2010 was Saturday, the JudicialMagistrate directed Ex.P.5 to be produced again on the nextworking day i.e. 01.11.2010. Hence, the box was re-produced before the Judicial Magistrate on 01.12.2010 andwas then forwarded to Tamil Nadu Forensic SciencesDepartment for further analysis.B

46. PW-43 prepared his report (Ex.P.38) and sent it to the IO forfurther forensic examination, wherein it was recorded that:

“a) Pink coloured panty printed letters “SBT kids wear”“75cms” with pale brownish starchy like stains with smallChair pieces on its inner surface was found beneath the backseat of the vehicle was identified, collected. The place wherethe hair pieces were seen were marked and pasted withcellphone tape in order to safety transport the vital cuematerials for comprehensive Forensic analysis.”

D47. Additionally, Mrs. Lakshmi Balasubramanian (PW-49), DeputyDirector of DNA Division of the Forensic Science Department stated inher cross-examination that the underwear was received by her forexamination, in sealed parcel. She has said:

“It is correct to state that my first prerogative is to satisfy thatEthe seal of the container in which the items received for testing,is not broken. It is correct to state that the items and the papercovers would be sealed with the Medical Officer’s seal. Theparcel received by me contained the Medical Officer’s sealand not any Court seal. It is correct to state that in my reportI have not mentioned that the seals were not broken.FXXX

By “correct seals”, I mean that the same seal on the letterand the sample seal on the paper covers are the same.”

48. Analysis of the depositions as reproduced above prove thatGthe underwear was recovered and sent for forensic examination withoutany tampering. The seal on the parcel containing the underwear wasstill intact when PW-49 received it for forensic examination.

49. We find that the contention of the learned Senior Counsel,pertaining to non-production of the property room Register is of no forceHsince it has not been raised before at any stage of the proceedings and

thus cannot be allowed to be argued afresh at the stage of Review.Furthermore, casting doubt on the identification of MO-1 by the fatherof deceased (PW-1) is also baseless and holds no ground. Merely becausePW-1 did not dress his daughter on the date of the incident does notimply that he would not recognize piece of clothing of his daughter.PW-1 has clearly deposed that MO-1 belongs to his daughter.

Erroneous conviction under section 376 ipc

50. In the judgment-under-review, it was argued by Mr. Luthrathat even per the confessional statement, the accused only committedanal intercourse which is punishable under Section 377 IPC, and he hasbeen wrongly convicted under Section 376 IPC. Such plea, however,does not find support from the overwhelming evidence to the contrary.First, relevant portions of the confessional statement need to be extracted:

“… I asked him to give me chance. He asked me to do itwith the girl. Seated from the front seat, Mohan saw. I wentand saw the girl who was without pant. I placed my penison the front side when the girl cried saying it was paining.Then I did through backside through anus. Even that did notcome good for me. Then I masturbated and brought out semen.…”

51. The confessional statement lucidly reveals that the accusedplaced his penis on the vagina of the deceased girl consequent to whichshe cried. This act of the Petitioner satisfies all relevant ingredients ofSection 376 as it existed at the relevant time. The only dispute thatremains is whether the Petitioner committed peno-vaginal penetrationor not. However, the medical evidence shows that vaginal intercoursehad been committed with X and that there was contusion on thepetitioner’s private part. Relevant portions of the post-mortem of X asdeposed by PW-46 are reproduced below:

“… The anti-mortem injuries that had been caused on thebody are:

XXX

4) contusion of 2 x 1 cm x 0.5 cm on the inner lower aspectof Vagina and the inner edge of uterus. Hymen was in tact.5) When anus was examined, it was found to be bigger insize, 3 cm wide.”

A52. Furthermore, following the orders of Magistrate on 04.11.2010,Dr. Jeyasingh examined Manoharan and observed an injury on his penisin his report (Ex.P.56) as:

“A dark colour contusion noted over proximal part of glandspenis around urethral orifice.”

B53. It is evident from the deposition of PW-46 that the vagina of Xwas penetrated. Also, Dr. Jeyasingh (PW-46), who conducted the autopsyon the body of X had stated in his final opinion (Ex.P.50):

“The deceased would appear to have died of DROWNING.Injuries noted on the vagina and anus due to forcible sexualCassault.”

54. Furthermore, the evidence of his pubic hair found in the girl’sunderwear coupled with DNA Report that those were his hair belies hisplea of not having committed the ghastly crime. The DNA Report, asdeposed by Mrs. Lakshmi Balasubramanian (PW-49), affirms the pubicDhair found in the underwear of X to be that of the petitioner. Relevantportion of the statement of PW-49, delineating the DNA Report readsas follows:

“Conclusion: From the DNA typing results of the abovesamples, it is found that the pubic hair in item [8] belongs toEa human male individual and is that of alleged accused -2Manoharan. The report DNA 220/2010 is given and signedby me. The said report with four annexures is marked asEx.P.48B.”

55. Considering the final opinion of Dr. Jeyasingh stating that thegirl was subjected to sexual assault; injury on the penis of petitioner;Frecovery of dead body of X without underwear; recovery of underwearfrom the Maruti Van; father of X recognising the underwear; findinghair on the recovered underwear and matching of DNA of hair with thatof Manoharan, we are of the view that even in absence of theconfessional statement of the petitioner, it is established the petitionerGcommitted offence under Section 376 IPC. The retraction dated25.07.2012 may merely eclipse some part of the inculpatory evidencebut cannot be construed to render the entire evidence exculpatory. Hence,we do not find any substance in the contention of Mr. Luthra and are ofthe view that the petitioner is justly convicted for offence under Section376 IPC.H

Erroneous reliance on POCSO

56. It was then urged that this Court ought not to have relied on arecent amendment to the Protection of Children from Sexual Offences(POCSO) Act, 2012 to justify death penalty, as the new law was non-existent on the date of occurrence and hence cannot be appliedretrospectively in derogation to Article 20 of the Constitution.

57. Although the plea is attractive at first glance, it must be notedthat the Petitioner has not been convicted or sentenced under the POCSOAct. Instead, only passing reference was made to pinpoint whetherthe present case was rarest of the rare and whether it would shock theconscience of the society. It has been noted by this Court in MacchiSingh v. State of Punjab[16] and various other judgments that in order touphold the guarantee under Article 21 and to reduce arbitrariness causedby discretion of judges in sentencing, it should be the opinion of thesociety and not the personal opinion of the judge which should beconsidered whilst awarding sentence of death. Towards the same, achange in law during pendency of the case is an apt indicator of societalopinion as legislated by elected representatives. It is not the case herethat Petitioner has not been convicted of an offence otherwise notpunishable with death.

Sentencing

58. Lastly, Mr. Luthra impassionedly urged that this is not fitcase for award of death penalty, especially when, the death penalty hasbeen confirmed only by way of 2:1 split decision. Relying on the minorityopinion of Thomas J. in Suthenraraja v. State,[17 ]he vehemently arguedthat in case where one of the Hon’ble Judges did not deem it appropriateto award death penalty, that in itself ought to be sufficient ground tocommute death sentence in Review. He also urged this to be case of‘residual doubt’, as evolved in Ravishankar v. State of MadhyaPradesh[18], which is also mitigating circumstance to be taken note ofby the Court whilst considering whether the case falls in the category of“rarest of rare cases”. He further argued that neither the High Court orthis Court gave due weightage to mitigating circumstances such as:

16 AIR 1983 SC 957.

17 (1999) 9 SCC 323.

18 2019 SCC OnLine SC 1290

A(i)Lack of adequate opportunity to place on record material/evidence of mitigating circumstances.

(ii)Young age (less than 30 years) of petitioner, and aged parents.

(iii) Absence of any previous criminal history.

B(iv) Backward socio-economic background.

(v) Death ought not to be awarded in cases of circumstantialevidence.

59. At this juncture, it is necessary to highlight that the contentionof Mr. Luthra urging that death ought not to be awarded in case of aCsingle dissent, notwithstanding the opinion of the majority is unsupportedin view of more than one decisions of this Court. In Devender PalSingh v. State of NCT of Delhi[19 ]and also in Krishna Mochi v. State ofBihar[20], concurrent Bench had refused to review the death sentencewhich had earlier been upheld in appeal by two out of three judges ofDthis Court. The reliance on Suthendraraja (supra) itself is erroneousfor the proposition relied upon was delivered in minority opinion, whichwas unsupported both by the order of the Court and also was disagreedwith by Quadri J., who noted:

“The ambit of Rule XL(1) of the Supreme Court Rules whichprovides grounds for review, as interpreted by this Court inEP.N. Eswara Iyer v. Registrar, Supreme Court of India [(1980)4 SCC 680] vis-à-vis criminal proceedings, is not confined to“an error apparent on the face of the record”. Even so by theprocess of interpretation it cannot be stretched to embracethe premise indicated by my learned brother as ground forFreview. That apart there are two difficulties in the way. Thefirst is that the acceptance of the said proposition would resultin equating the opinion of the majority to ground analogousto “an error apparent on the face of the record” and secondlyin Bench of three Judges or of greater strength if learnedJudge is not inclined to confirm the death sentence imposedGon convict, the majority will be precluded from confirmingthe death sentence as that per se would become open to review.

60. Further, even sans the aforesaid decisions, we are not inclinedto accept such reasoning for it is contrary to the establishedjurisprudence of precedents and interpretation of verdicts with multipleopinions. It is settled in law that dissenting opinions have little precedentialvalue and that there is no difference in operation between decisionsrendered unanimously or those tendered by majority, albeit with minoritydissenting views.

61. Although Mr. Luthra’s contention that the petitioner has notreceived adequate opportunity to place material regarding hiscircumstances is unsubstantiated, we have nevertheless re-consideredsentencing. We have re-visited the mitigating circumstances againstaggravating circumstances, as well as report commissioned by thisCourt during the course of appeal and submitted by the jail superintendentwhich reveals that the conduct of the Petitioner is merely satisfactoryand he has not undertaken any study or anything else to show any signsof reformation.

62. It has been made clear in the preceding parts of this judgmentthat the prosecution case has been established through numerousevidences in addition to there being clear confession, which proves thePetitioner’s guilt beyond any residual doubt. Conflicting versions havebeen deposed by the Petitioner and the defence witnesses, and noexplanation to discharge the onus under Section 106 has been provided.Hence, it is not case fit for application of the theory of “residual doubt”as noted in Ravishankar (supra). Accordingly, even the contention thatdeath ought not to be awarded considering that the present case is oneinvolving circumstantial evidence is unfounded. It is no longer res integrathat there can be no hard rule of not awarding death in cases based oncircumstantial evidence owing to recent developments in medical scienceand the possibility of abuse by seasoned criminals.63. Furthermore, there is nothing to support the characterisationof the accused as being helpless, illiterate young adult who is victimof his socio-economic circumstances. Far from being so, it is clear throughthe version of events that the accused had the presence of mind to crafthis own defence and attempt to retract his confession through anelaborately written eleven page letter addressed to the Magistrate andhad further received adequate legal representation.

64. Mr. Luthra’s reliance on the retraction letter to contend that inso far as the statement shows that he stopped the co-accused from

Acommitting rape, is evident of the fact that he has remorse which entitleshim to commutation, if not acquittal, is misplaced. As noted earlier, theretraction was extremely belated and only defence to shield himself.Further, medical evidence has proved that rape was committed on thedeceased girl. It is hence factually incorrect to state that the Petitionerprevented the co-accused from raping the girl and is nothing more thanBa belated lie at the end of the trial. Hence, the exculpatory parts ought tobe excluded per Nishi Kant Jha v. State of Bihar[21].

65. Even observed devoid of any aggravating circumstances, mereyoung age and presence of aged parents cannot be grounds forcommutation. One may view that such young age poses continuousCburden on the State and presents longer risk to society, hence warrantingmore serious intervention by Courts. Similarly, just because the nowdeceased co-accused Mohanakrishnan was the mastermind whoseoffence was comparatively more egregious, we cannot commute theotherwise barbarically shocking offences of the petitioner. We are alsoDnot inclined to give leeway of the lack of criminal record, consideringthat the current crime was not just one offence, but comprised of multipleoffences over the series of many hours.

66. Even if the cases involving confession merit some leniencyand compassion, however, as was earlier noted in our majority opinion,Ethe attempted retraction of the statement shows how the petitioner wasin fact remorseless. Such belated retractions further lay rise to the fearthat any remorse or repentance being shown by the petitioner now maybe temporary and that he can relapse to his old ways. Irrespective of theunderlying reasons behind such retraction, whether it be the fear of deathor feeling that he was not getting any benefit of his earlier confession,Fbut the possibility of recidivism has only been heightened and we can nolonger look at the initial confession in vacuum.

67. Rather, the present case is essentially one where two accusedmisused societal trust to hold as captive two innocent school-goingchildren, one of whom was brutally raped and sodomised, and thereuponGadministered poison and finally, drowned by throwing them into canal.It was not in the spur of the moment or crime of passion; but craftilyplanned, meticulously executed and with multiple opportunities to ceaseand desist. We are of the view that the present offence(s) of the Petitioner

H21 1969 SCC (1) 347.

are so grave as to shock the conscience of this Court and of society andwould without doubt amount to rarest of the rare.

68. Hence, we find that there exist no grounds to review ourjudgment upholding conviction and death penalty. The review petitionsare accordingly dismissed.

ORDER

SANJIV KHANNA, J.

I entirely agree and concur with the reasons given by my brotherSurya Kant, J in dismissing the review petitions upholding the convictionof Manoharan under Sections 302, 376(2)(f) and (g) and 201 of theIndian Penal Code. On the question of sentence, I do not see any goodground and reasons to review my observations and findings in the minorityjudgment. Accordingly, the review petitions are dismissed.

Bibhuti Bhushan Bose

Review Petitions dismissed.