RAVI S/O ASHOK GHUMARE versus THE STATE OF MAHARASHTRA

[2019] 15 S.C.R.

RAVI S/O ASHOK GHUMARE

THE STATE OF MAHARASHTRA

(Criminal Appeal Nos. 1488-1489 of 2018)

BOCTOBER 03, 2019

[R. F. NARIMAN, SURYA KANTAND R. SUBHASH REDDY, JJ.]

Penal Code, 1860: ss.302, 363, 376 and 377 – Kidnapping,Crape/unnatural intercourse and murder of two year old girl –Prosecution case was that on the fateful day, the victim child wentmissing around 4.00 p.m. – During the search operations by policeand family members of the missing child, it surfaced that theappellant was seen distributing chocolates to children around thetime the child went missing – Police reached the house of appellantDand nabbed the appellant red handed under the bed with the victimchild in naked condition – Trial court and High Court concurrentlyheld him guilty and awarded death sentence – Appeal againstconviction and sentence – Held: It stood conclusively establishedthat the victim child was brutally assaulted and subjected to vaginalEand unnatural intercourse – She was inflicted multiple injuries onface, head, neck, external genitalia as well as inside the uterusand urethra – Medical opinion was that death was due to throttling– There was overwhelming eye-witness account, circumstantialevidence, medical evidence and DNA analysis on record whichconclusively proved that it was appellant and he alone, whoFcommitted the horrendous crime – Appellant had the specialknowledge as to in what circumstances the victim child sufferedmultiple injuries – Burden to prove that those injuries were notcaused by him was on the appellant alone in view of s.106 of theEvidence Act, which he miserably failed to discharge though theGevidence on record proved beyond doubt that the victim child wasin unlawful custody of the appellant from about 4.00 p.m. till shebreathed her last breath due to the beastly attack on her –Conviction of appellant is upheld – Protection of Children fromSexual Offences Act, 2012 – Protection of Children from SexualOffences Amendment Act, 2019.H

Sentence/Sentencing: Death sentence – Rape and murder oftwo year old girl – Prayer for commutation of death sentence –Held: The victim in this case was barely two-year old baby girlwhom the appellant kidnapped and apparently kept on assaultingover 4-5 hours till she breathed her last – Appellant who had nocontrol over his carnal desires surpassed all natural, social andlegal limits just to satiate his sexual hunger – He ruthlessly finisheda life which was yet to bloom – He, instead of showing fatherlylove, affection and protection to the child against the evils of thesociety, rather made her the victim of lust – It’s case where trustwas betrayed and social values were impaired – The unnatural sexwith two-year old toddler exhibits dirty and perverted mind,showcasing horrifying tale of brutality – The appellantmeticulously executed his nefarious design by locking one doorof his house from the outside and bolting the other one from theinside so as to deceive people into believing that nobody was inside– He was thus in his full senses while he indulged in this senselessact – He showed no remorse or repentance for the gory crime,rather he opted to remain silent in his 313 Cr.P.C. statement – Hisdeliberate, well-designed silence with standard defence of ‘false’accusation revealed his lack of kindness or compassion and wouldlead to believe that he can never be reformed – That being so, casefor interference with the death sentence is not made out – Protectionof Children from Sexual Offences Act, 2012 – Penal Code, 1860– ss.302, 363, 376 and 377.Criminal Law: Evidence – Motive – Though the High Courtobserved that ‘satisfaction of lust’ and ‘removal of trace’ was theappellant’s motive but motive is not an explicit requirement underthe Indian Penal Code, though ‘motive’ may be helpful in provingthe case of the prosecution in case of circumstantial evidence –The case in hand was not entirely based on circumstantial evidenceas there were reliable eye-witness depositions who had seen theappellant committing the crime, may be in part – Such anunshakable evidence with dense support of DNA test did not requirethe definite determination of the motive of the appellant behind thegruesome crime.

Sentence/Sentencing: Death sentence – Doctrine ofproportionality – The object and purpose of determining quantumof sentence has to be ‘society centric’ without being influenced by

Aa ‘judge’s’ own views, for society is the biggest stake holder inthe administration of criminal justice system – civic society hasa ‘fundamental’ and ‘human’ right to live free from any kind ofpsycho fear, threat, danger or insecurity at the hands of anti-socialelements – The society legitimately expects the Courts to applydoctrine of proportionality and impose suitable and deterrentBpunishment that commensurates with the gravity of offence.

Protection of Children from Sexual Offences Act, 2012: s.5– Protection of Children from Sexual Offences Amendment Act,2019 – Aggravated Penetrative Sexual Assault – Punishment – Theunamended Act defines “Aggravated Penetrative Sexual Assault”Cin s.5, which included, “whoever commits aggravated penetrativesexual assault on child below the age of 12 years” – Originally,the punishment for an aggravated sexual assault was rigorousimprisonment for term not less than 10-years but which mayextend for imprisonment for life with fine – The minimum sentencefor an aggravated penetrative sexual assault has been increasedDfrom 10 years to 20 years and imprisonment for life has now beenexpressly stated to be imprisonment for natural life of the person– Significantly, ‘death sentence’ has also been introduced as apenalty for the offence of aggravated penetrative sexual assaulton child below 12 years – The Legislature impliedly distancedEitself from the propounders of “No-Death Sentence” in “NoCircumstances” theory and re-stated the will of the people that inthe cases of brutal rape of minor children below the age of 12years without murder of the victim, ‘death penalty’ can also beimposed – In the Statement of Objects and Reasons of amendment,Parliament has shown its concern of the fact that “in recent pastFincidents of child sexual abuse cases administering the inhumanmindset of the accused, who have been barbaric in their approachto young victim, is rising in the country” – If the Parliament, armedwith adequate facts and figures, has decided to introduce capitalpunishment for the offence of sexual abuse of child, the CourtGhitherto will bear in mind the latest Legislative Policy even thoughit has no applicability in case where the offence was committedprior thereto – The judicial precedents rendered before the recentamendment came into force, therefore, ought to be viewed with apurposive approach so that the legislative and judicial approachesare well harmonised – Crime against children – Sentence/HSentencing.

Administration of Criminal Justice: Punishment to the rapeaccused – Sentencing Policy needs to strike balance betweenthe two sides and count upon the twin test of (i) deterrent effect,or (ii) complete reformation for integration of the offender in civilsociety – Where the Court is satisfied that there is no possibility ofreforming the offender, the punishments before all things, must bebefitting the nature of crime and deterrent with an explicit aim tomake an example out of the evil-doer and warning to those whoare still innocent – Sentence/Sentencing.Evidence: Medical evidence – DNA – Plea of appellant-accused that the prosecution relied on the DNA evidence despitethe fact that the method of analysis used i.e. Y-Chromosome ShortTandem Repeat Polymorphism (Y-STR) has certain inherentlimitations due to which accurate identification of accused cannotbe established beyond reasonable doubt and that the said methoddid not accurately identify the accused as the perpetrator; andunlike other methods say autosomal-STR analysis, it cannotdistinguish between male members in the same lineage – Held: Pleais rejected – The globally acknowledged medical literature coupledwith the statement of the Assistant Director, Forensic ScienceLaboratory leaves no doubt that in cases of sexual assualt, DNAof the victim and the perpetrator are often mixed – Traditional DNAanalysis techniques like “autosomal-STR” are not possible in suchcases – Y-STR method provides unique way of isolating only themale DNA by comparing the Y-Chromosome which is found onlyin males – It is no longer matter of scientific debate that Y-STRscreening is manifestly useful for corroboration in sexual assaultcases and it can be well used as exculpatory evidence and isextensively relied upon in various jurisdictions throughout the world– Science and Researches have emphatically established thatchances of degradation of the ‘Loci’ in samples are lesser by thismethod and it can be more effective than other traditional methodsof DNA analysis – Although Y-STR does not distinguish betweenthe males of same lineage, it can, nevertheless, may be used as astrong circumstantial evidence to support the prosecution case –Y-STR techniques of DNA analysis are both regularly used invarious jurisdictions for identification of offender in cases ofsexual assault and also as method to identify suspects in unsolvedcases – Medical jurisprudence.

ASentence/Sentencing: Death sentence – Commutation of –Aggravating and mitigating circumstances – Rape and murder oftwo year old girl child – Held: (Per R. Subhash Reddy, J. -dissenting on sentencing part) – In case of conviction based oncircumstantial evidence, ordinarily the extreme punishment of deathpenalty should not be imposed – If in given case, guilt of theBaccused is proved beyond reasonable doubt, by establishing chainof circumstances, resulting in conviction, in appropriate casesdeath penalty can be imposed only after considering balancingaspects of aggravating and mitigating circumstances – But, at thesame time ordinarily, if no special reasons exist, in case ofCconviction based on circumstantial evidence, death penalty shouldnot be imposed – In the instant case, conviction of the appellantwas mainly based on circumstantial evidence – The evidence on-record showed that on the day of occurrence, the appellant wasunder influence of liquor and committed the offence and,therefore, it cannot be termed as pre-planned one, to count theDsame as an aggravating circumstance, for balancing aggravatingand mitigating circumstances – The socio-economic condition ofthe appellant, as person below poverty line, can also beconsidered as one of the mitigating factors, while balancing theaggravating and mitigating factors – There was no evidence fromEthe side of prosecution, to show that there was no possibility ofreformation and rehabilitation of the appellant – Age of theappellant was 25 years at the relevant time – He also had no crimerecord – Thus, the mitigating circumstances of the appellant,dominated over the aggravating circumstances, to modify the deathsentence to that of life imprisonment – In view of all these aspects,Fdeath penalty imposed on the appellant is modified to that of lifeimprisonment, for the offence under s.302 IPC – Penal Code, 1860– s.302.

Disposing of the appeals, the Court

GHELD: Per SURYA KANT, J. (for R.F. Nariman, J. andhimself)

1. During search operations by the police and also thefamily members of the missing child, it surfaced that theappellant was distributing chocolates to allure children nearHMaroti Temple on that day and around that time the child went

missing. The police-team, the father of the victim and hisbrother, genuinely apprehensive and smelling something foul,reached the house of the appellant and nabbed him red-handedunder the bed with the victim in naked condition. It further stoodestablished conclusively that deceased had been brutallyassaulted and subjected to vaginal and unnatural intercourse.The victim had been inflicted multiple injuries on face, head,neck, external genetalia as well as inside the uterus and urethra.The appellant had the special knowledge as to in whatcircumstances the victim child suffered those multiple injuries.The burden to prove that those injuries were not caused by himwas on the appellant alone in view of Section 106 of the EvidenceAct, which he has miserably failed to discharge though theevidence on record proves beyond doubt that the victim childwas in unlawful custody of the appellant from about 4.00 p.m.till she breathed her last breath due to the beastly attack on her.[Para 30] [738-C-G]

Scientific Evidence connecting the appellant with the Crime:

2.1 P.W.11 Assistant Director in Forensic ScienceLaboratory (FSL), Mumbai testified that they conducted theDNA test as per the guidelines issued by the Director of ForensicScience, Ministry of Home Affairs, New Delhi. P.W.11accordingly prepared the DNA report which was duly attestedby the Assistant Chemical Analyser also. On seeing the contentsof his report, P.W.11 has pertinently deposed that there weresexual intercourse and unnatural intercourse on the victim bythe accused. The unshakable scientific evidence which nailedthe appellant from all sides, was sought to be impeached on thepremise that the method of DNA analysis “Y-STR” followed inthe instant case was unreliable. It was suggested that the saidmethod does not accurately identify the accused as theperpetrator; and unlike other methods say autosomal-STRanalysis, it cannot distinguish between male members in thesame lineage. [Paras 32-34] [739-D; 740-H; 741-A-B]

2.2 The globally acknowledged medical literature coupledwith the statement of P.W.11 – Assistant Director, FSL leavesnothing mootable that in cases of sexual assualt, DNA of thevictim and the perpetrator are often mixed. Traditional DNA

Aanalysis techniques like “autosomal-STR” are not possible insuch cases. Y-STR method provides unique way of isolatingonly the male DNA by comparing the Y-Chromosome which isfound only in males. It is no longer matter of scientific debatethat Y-STR screening is manifestly useful for corroboration insexual assault cases and it can be well used as exculpatoryBevidence and is extensively relied upon in various jurisdictionsthroughout the world. Science and Researches haveemphatically established that chances of degradation of the`Loci’ in samples are lesser by this method and it can be moreeffective than other traditional methods of DNA analysis.CAlthough Y-STR does not distinguish between the males of samelineage, it can, nevertheless, may be used as strongcircumstantial evidence to support the prosecution case. Y-STRtechniques of DNA analysis are both regularly used in variousjurisdictions for identification of offender in cases of sexualassault and also as method to identify suspects in unsolvedDcases. Considering the perfect match of the samples and therebeing nothing to discredit the DNA analysis process, theprobative value of the forensic report as well as the statementof P.W.11 are very high. Still further, it is not the case of theappellant that crime was committed by some other close relativeof him. Importantly, no other person was found present in theEhouse except the appellant. There was thus overwhelming eye-witness account, circumstantial evidence, medical evidence andDNA analysis on record which conclusively proved that it is theappellant and he alone, who is guilty of committing thehorrendous crime in this case. [Paras 35, 36] [741-C-G; 742-A-FB]

3. Though the High Court has observed that ‘satisfactionof lust’ and ‘removal of trace’ was the appellant’s motive butmotive is not an explicit requirement under the Indian PenalCode, though ‘motive’ may be helpful in proving the case of theGprosecution in case of circumstantial evidence. The case inhand is not entirely based on circumstantial evidence as thereare reliable eye-witness depositions who have seen the appellantcommitting the crime, may be in part. Such an unshakableevidence with dense support of DNA test does not require thedefinite determination of the motive of the appellant behind theHgruesome crime. [Para 37] [742-C-E]

SENTENCING:

4.1 The object and purpose of determining quantum ofsentence has to be ‘society centric’ without being influenced bya ‘judge’s’ own views, for society is the biggest stake holder inthe administration of criminal justice system. civic society hasa ‘fundamental’ and ‘human’ right to live free from any kind ofpsycho fear, threat, danger or insecurity at the hands of anti-social elements. The society legitimately expects the Courts toapply doctrine of proportionality and impose suitable anddeterent punishment that commensurate(s) with the gravity ofoffence. Equally important is the stand-point of `victim’ whichincludes his/her guardian or legal heirs as defined in Section2(wa), Cr.P.C. For long, the criminal law had been viewed on adimensional plane wherein the Courts were required toadjudicate between the accused and the State. The `victim’-thede facto sufferer of crime had no say in the adjudicatoryprocess and was made to sit outside the court as mutespectator. The ethos of criminal justice dispensation to preventand punish `crime’ would surreptitiously turn its back on the`victim’ of such crime whose cries went unheard for centuriesin the long corridors of the conventional apparatus. few limitedrights, including to participate in the trial have now beenbestowed on `victim’ in India by the Act No. 5 of 2009 wherebysome pragmatic changes in Cr.P.C. have been made. TheSentencing Policy, therefore, needs to strike balance betweenthe two sides and count upon the twin test of (i) deterrent effect,or (ii) complete reformation for integration of the offender in civilsociety. Where the Court is satisfied that there is no possibilityof reforming the offender, the punishments before all things,must be befitting the nature of crime and deterrent with anexplicit aim to make an example out of the evil-doer and awarning to those who are still innocent. There is no gainsayingthat the punishment is reflection of societal morals. Thesubsistence of capital punishment proves that there are certainacts which the society so essentially abhores that they justify thetaking of most crucial of the rights – the right to life. [Paras50-52] [748-D-H; 749-A-B]

BCDE

720SUPREME COURT REPORTS

AAshok Debbarma v. State of Tripura (2014) 4 SCC 747: [2014] 4 SCR 287 ; Vasanta Sampat Dupare v. Stateof Maharashtra (2017) 6 SCC 631 : [2017] 3 SCR850 – Distinguished

4.2 Recent amendments carried out by Parliament in theBProtection of Children from Sexual Offences Act, 2012 by wayof The Protection of Children from Sexual Offences(Amendment) Act, 2019 as notified on 6[th] August, 2019. Theunamended Act defines “Aggravated Penetrative SexualAssault” in Section 5, which included, “whoever commitsaggravated penetrative sexual assault on child below the ageCof 12 years.” Originally, the punishment for an aggravated sexualassault was rigorous imprisonment for term not less than 10-years but which may extend for imprisonment for life with fine.The minimum sentence for an aggravated penetrative sexualassault has been increased from 10 years to 20 years andDimprisonment for life has now been expressly stated to beimprisonment for natural life of the person. Significantly, `deathsentence’ has also been introduced as penalty for the offenceof aggravated penetrative sexualt assault on child below 12years. [Paras 57, 59] [752-B-C-F-G]

EKhushwinder Singh v. State of Punjab, (2019) 4 SCC415 : [2019] 3 SCR 446 ; Manoharan v. State byInspector of Police, Variety Hall Police Station,Coimbatore, (2019) SCC Online 951 – relied on

4.3 The Legislature has impliedly distanced itself from theFpropounders of “No-Death Sentence” in “No Circumstances”theory and has re-stated the will of the people that in the casesof brutal rape of minor children below the age of 12 years withoutmurder of the victim, ‘death penalty’ can also be imposed. Inthe Statement of Objects and Reasons of amendment, Parliamenthas shown its concern of the fact that “in recent past incidentsGof child sexual abuse cases administering the inhuman mindsetof the accused, who have been barbaric in their approach toyoung victim, is rising in the country.” If the Parliament, armedwith adequate facts and figures, has decided to introduce capitalpunishment for the offence of sexual abuse of child, the CourtHhitherto will bear in mind the latest Legislative Policy even

though it has no applicability in case where the offence wascommitted prior thereto. The judicial precedents renderedbefore the recent amendment came into force, therefore, oughtto be viewed with purposive approach so that the legislativeand judicial approaches are well harmonised. [Para 60] [752-G-H; 753-A-B]

4.4 The victim was barely two-year old baby whom theappellant kidnapped and apparently kept on assaulting over 4-5hours till she breathed her last. The appellant who had no controlover his carnal desires surpassed all natural, social and legallimits just to satiate his sexual hunger. He ruthlessly finished alife which was yet to bloom. The appellant instead of showingfatherly love, affection and protection to the child against theevils of the society, rather made her the victim of lust. It’s casewhere trust has been betrayed and social values are impaired.The unnatural sex with two-year old toddler exhibits dirtyand perverted mind, showcasing horrifying tale of brutality. Theappellant meticulously executed his nefarious design by lockingone door of his house from the outside and bolting the otherone from the inside so as to deceive people into believing thatnobody was inside. The appellant was thus in his full senses whilehe indulged in this senseless act. Appellant has not shown anyremorse or repentance for the gory crime, rather he opted toremain silent in his 313 Cr.P.C. statement. His deliberate, well-designed silence with standard defence of ‘false’ accusationreveals his lack of kindness or compassion and leads to believethat he can never be reformed. That being so, this Court cannotwrite off the capital punishment so long as it is inscribed in thestatute book. [Para 61] [753-D-H]

Machhi Singh v. State of Punjab (1983) 3 SCC 470 :[1983] 3 SCR 413 ; Bachan Singh v. State of Punjab(1980) 2 SCC 684 – followed.

Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 ;Sunil v. State of Madhya Pradesh (2017) 4 SCC 393 ;Rajindra Pralhadrao Wasnik v. State of Maharashtrain Review Petition(Crl.) Nos. 306-307/2013 Parsuramv. State of Madhya Pradesh (2019) 8 SCC 382 ;

722SUPREME COURT REPORTS

[2019] 15 S.C.R.

ADhanjoy Chaterjee v. State of West Bengal (1994) 2SCC 220 ; [1994] 1 SCR 37 ; Shankar KishanraoKhade v. State of Maharashtra (2013) 5 SCC 546 :[2013] 6 SCR 949 ; Shivaji v. State of Maharashtra(2008) 3 SCC 26 ; Santosh Kumar SatishbhushanBBariyar v. State of Maharashtra (2009) 6 SCC 498 :[2009] 9 SCR 90 ; Swamy Shraddananda @ MurliManohar Mishra v. State of Karnataka (2008) 13 SCC767 : [2008] 11 SCR 93 ; Union of India v. V. Sriharan@ Murugan & Ors. (2016) 7 SCC 1 : [2015] 14 SCR613 – referred to.C

California v. Ramos 463 U.S.992 – referred to.

Per R. SUBHASH REDDY, J. (Partly dissenting)

1. The deposition of PW-9 (father of the victim child)showed that he was fruit vendor, residing in Nutan VasahatDarea, Jalna and the appellant also resided in the same lane.Further, it is also clear from his deposition that accused wasunder influence of liquor, on the day of occurrence of crime.Where it is clear from the evidence on-record that the appellantwas under influence of liquor and committed the offence, cannotEbe termed as pre-planned one, to count the same as anaggravating circumstance, for balancing aggravating andmitigating circumstances. Further, this case on hand restedsolely on the circumstantial evidence. In case of convictionbased on circumstantial evidence, ordinarily the extremepunishment of death penalty should not be imposed. In givenFcase, guilt of the accused is proved beyond reasonable doubt,by establishing chain of circumstances, resulting in conviction,such cases, by considering balancing aspects of aggravating andmitigating circumstances, in appropriate cases, death penalty canbe imposed. But, at the same time ordinarily, if no special reasonsexist, in case of conviction based on circumstantial evidence,Gdeath penalty should not be imposed. In this case on hand, theconviction of the appellant is mainly based on circumstantialevidence. On this ground also, the death sentence, imposed onhim, is to be modified. From such evidence on-record, it is easyto assess the socio-economic condition of the appellant and itHcan certainly be said that he is person below poverty line and

this can also be considered as one of the mitigating factors, whilebalancing the aggravating and mitigating factors. [Paras 18, 19,24, 28, 29, 31] [763-E; 764-B; 766-B; 767-E-G; 768-B-G]

Lehna v. State of Haryana (2002) 3 SCC 76 : [2002]1 SCR 377 ; Sunil v. State of Madhya Pradesh (2017)4 SCC 393 ; Rajendra Pralhaderao Wasnik v. Stateof Maharashtra Review Petition (Criminal) Nos. 306-307 of 2013 ; Sandesh v. State of Maharashtra (2013)2 SCC 479 : [2012] 13 SCR 1049 ; Mohinder Singhv. State of Punjab (2013) 3 SCC 294: [2013] 3 SCR90 ; Sushil Sharma v. State (NCT of Delhi) (2014) 4SCC 317 : [2013] 16 SCR 616 ; Amit v. State ofMaharashtra (2003) 8 SCC 93 : [2003] 2 Suppl. SCR285 ; Surendra Pal Shivbalakpal v. State of Gujarat(2005) 3 SCC 127 : [2004] 4 Suppl. SCR 464 ; BishnuPrasad Sinha v. State of Assam (2007) 11 SCC 467 :[2007] 1 SCR 916 ; Aloke Nath Dutta v. State of WestBengal (2007) 12 SCC 230 ; Swamy Shraddanandav. State of Karnataka (2007) 12 SCC 287 ; SunilDamodar Gaikwad v. State of Maharashtra (2014) 1SCC 129 : [2013] 9 SCR 295 – relied on

2. Recent amendments are carried out to the Protectionof Children from Sexual Offences Act, 2012 by way of Protectionof Children from Sexual Offences Amendment Act, 2019. Byvirtue of the said amendments, taking note of increasing trendof crimes against the children, minimum sentence is increasedfor various offences and for offence under Section 6 of the Acti.e aggravated penetrative sexual assault, minimumimprisonment, which shall not be less than 20 years, which mayextend to natural life or penalty of death. Prior to theamendments made by recent amending Act of 2019, for offenceunder POCSO, death penalty was not provided. By virtue of theamendments made in appropriate cases, for offences falling underprovisions of the POCSO Act alone, penalty of death sentencecan be imposed. In the case on hand, the offence was committedprior to coming into force, of the Act. Even then, the legislativeintent which resulted in amendments to POCSO should not beforgotten, while dealing with the offences against the children.At the same time, even for imposing the death sentence, for

Acases arising out of the provisions under POCSO Act, 2012, itis the duty of the courts to balance the aggravating and mitigatingcircumstances. To balance such aspects, the guidelines inBachan Singh, Machhi Singh and Sushil Murmu will continue toapply. Further, the aggravating and mitigating factors are to beconsidered with reference to the facts of each case and thereBcannot be any hard and fast rule for balancing such aspects. [Para32, 33] [768-H; 769-A-E]

Bachan Singh v. State of Punjab (1980) 2 SCC 684 ;Machhi Singh and Ors. v. State of Punjab (1983) 3SCC 470 : [1983] 3 SCR 413 ; Sushil Murmu v. StateCof Jharkhand (2004) 2 SCC 338 : [2003] 6 Suppl.SCR 702 – relied on.

3. In this case on hand, the mitigating circumstances of theappellant, dominate over the aggravating circumstances, tomodify the death sentence to that of life imprisonment. Even asDper the case of prosecution, the appellant was under influenceof liquor at the time of committing the offence, and there is noevidence on record from the side of prosecution, to show thatthere is no possibility of reformation and rehabilitation of theappellant. Further, age of the appellant was 25 years at theErelevant time and conviction is solely based on circumstantialevidence. Taking all such aspects into consideration, the deathpenalty imposed on the appellant is to be modified to that of lifeimprisonment, for the offence under Section 302 IPC. [Para 34][769-F-G]

FNand Kishore v. State of Madhya Pradesh [2019] 1SCR 260 ; Raju Jagdish Paswan v State ofMaharashtra Criminal Appeal No. 88-89 of 2019 ;Vijay Raikwar v. State of Madhya Pradesh (2019) 4SCC 210 – relied on.

Jagmohan Singh v. State of Uttar Pradesh (1973) 1GSCC 20 : [1973] 2 SCR 541 ; Kalu Khan v. State ofRajasthan (2015) 16 SCC 492 – referred to.

Case Law Reference

In the Judgement of Surya Kant, J.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 1488-1489 of 2018.

From the Judgment and Order dated 20.01.2016 of the HighCourt of Judicature at Bombay, Bench at Aurangabad in ConfirmationCase No. 1 of 2015 and in Criminal Appeal No. 783 of 2015.C

Ms. Nitya Ramakrishnan, Ashwath Sitaraman, Archit Krishna,Ms. Sneha Singh, Shadan Farasat, Advs. for the Appellant.

Nishant R. Katneshwarkar, Anoop Kandari, Advs. for theRespondent.

The Judgments of the Court were delivered by

SURYA KANT, J.*

1. This appeal assails the judgment dated 20[th] January, 2016passed by the High Court of Judicature at Bombay, Bench atEAurangabad, confirming the death reference in the Sessions Case No.127 of 2012 decided by the Additional Sessions Judge, Jalna, in whichthe appellant having been found guilty of committing offences punishableunder Sections 302, 363, 376 and 377 of the Indian Penal Code (forshort, “the IPC”), has been awarded the sentence of death underSection 302, IPC along with the sentence of rigorous imprisonment(s)Fof different durations with fine for the rest of offences. The Trial Courtas well as the High Court have concurrently held that the case fallswithin the exceptional category of `rarest of the rare’ cases where allother alternative options but to award death sentence, are foreclosed.

2. The facts leading to the aforestated conclusion are to theGfollowing effect:-

3. The informant Iliyas Mohinuddin (P.W.9) had been fruit-sellerbased in Jalna. On 06.03.2012 at about 5.00 p.m. while he was as usualbusy in selling fruits, his wife informed him that their daughter (in short,‘the victim child’) who was 2 years old, was missing. He along with

* Ed. note : Judgment delivered by Surya Kant, J. (for R.F. Nariman, J. and himself)

his relatives started looking for the child. During their search, theinformant came to know from Azbar (P.W.2) that the appellant had beenspotted drunk and was distributing chocolates to small children in thelane near the Maroti Temple. The appellant was also resident of thesame lane. The informant went to the appellant’s house which wasfound locked. As the whereabouts of the missing child were still notknown, the informant lodged formal missing report to the police. Healso passed on the information to the police as received from Azbar(P.W.2) regarding the distribution of chocolates amongst small childrenby the appellant. The police, therefore, came to the appellant’s housewhich had two doors. One was found locked from outside while theother was locked from inside. Police broke open the door and enteredthe house along with the informant, his brother and few other persons.They found the appellant in the house; deceased-victim was lying underthe bed in naked and unconscious condition. Blood was oozing outfrom her private parts and had multiple injuries on her body. She wascovered in blanket and taken to the hospital where the doctor declaredher brought dead. Inquest panchnama was prepared and the body wassent for post mortem. panel of doctors, including Dr. B.L. Survaseand Dr. Bedarkar (P.W. 7 and P.W.8 respectively) performed the postmortem and found multiple injuries on the person of the victim. Theyopined that the death was caused due to throttling. The informant –father of the victim lodged the report at 12.30 a.m. on 07.03.2012 onthe basis of which Crime No. 56 of 2012 was registered. The appellantwas arrested at about 1.00 a.m. on the same day by the InvestigatingOfficer Rajinder Singh Gaur (P.W.12). The clothes worn by theappellant were seized and the seizure panchnama was drawn in thepresence of panchnama witnesses – Sheikh Arshad and SheikhNayeem.

4. Iliyas (P.W.9), the father of the deceased-victim also producedthe clothes worn by her which too were duly seized in the presence ofSyed Muzeeb (P.W.1) and Mohd. Akbar Khan. The scene of crimepanchnama was drawn and articles found on the spot were also seized.The appellant was referred for medical examination to Ghati Hospital,Aurangabad. The appellant’s blood samples were taken on 11.3.2012and sent to Mumbai for DNA examination along with the seizedmuddemal. The blood samples of the appellant were taken again on13.03.2012 and were sent for the DNA test.

A5. On filing of the chargesheet, charges under Sections 363, 376and 302, IPC were framed to which the appellant did not plead guiltyand claimed trial. Thereafter, prosecution moved an application forframing an additional charge under Section 377, IPC. The saidapplication was allowed and charge under Section 377 was framed towhich also the appellant did not plead guilty. His defence was of totalBdenial and that he was falsely implicated.

6. The prosecution examined 12 witnesses in all. The followingpoints thus arose for consideration of the Trial Court:-

“1. Whether the prosecution proves that accused on6.3.2012 at about 16.00 Hrs. in the vicinity of IndiraNagar, old Jalna, Taluka and District : Jalna, kidnappedxxx.. d/o Iliyas Pathan minor girl under 16 years ofage from her lawful guardianship & without his consent,and thereby committed an offence punishable u/s 363of I.P.C.?

2. Whether the prosecution further proves that accused onabove date, time and place of offence, committed rapeon xxx.. and thereby committed an offence punishableu/s 376 of IPC?

3. Whether the prosecution further proves that accused onabove date, time and place of offence, committed carnalintercourse against the order of nature with minor girlxxx.. and thereby committed an offence punishable u/s377 of IPC?

4. Whether the prosecution further proves that accused onabove date, time and place of offence, committed murderintentionally or knowingly causing death of xxx.., andthereby committed an offence punishable u/s 302 ofIPC?”

7. The Trial Court discussed the evidence at length in the contextGof each point and answered them in the affirmative. It held the appellantguilty of the offences referred to above. The Trial Court thereaftercompared the ‘aggravating circumstances’ vis-a-vis the ‘mitigatingcircumstances’ and having found that the crime was committed in amost brutal, diabolical and revolting manner which shook the collectiveHconscience of the society, it found that the R.R. Test (rarest of the rare

cases) is fully attracted, hence capital punishment was imposed on theappellant under Section 302, IPC.

8. The High Court considered the death reference as well asthe appeal preferred by the appellant against the trial Court judgmentand after scrutinising the prosecution evidence, reached the followingfactual issues:-

“A. Accused was found with victim girl in house one doorof which was locked from outside and another doorclosed from inside,

B. Multiple injuries found on the person of victim,

C. Medical evidence showing that the girl was forciblyraped and done to death,

D. Recovery of blood stained jeans pant and full bush shirt(torn) from the accused,

E. Motive,

F. Failure of accused to offer plausible explanation to theincriminating circumstances against him.”

9. The High Court held that the circumstances conclusively provethat all the pieces of the puzzle fit so perfectly that they leave noreasonable ground for conclusion consistent with the hypothesis ofthe innocence of the appellant, rather the same leads to the irrefutableconclusion that it is the appellant who took away the victim child to hishouse, sexually assaulted her, committed unnatural intercourse andthrottled her to death. Consequently, the conviction of the appellant underSections 302, 376, 377 and 363 of the IPC. was upheld.

10. The High Court thereafter engaged itself on the question ofquantum of sentence and as to whether the R.R. Test was attractedto the facts and circumstances of this case. The High Court drew upthe balance sheet of the ‘aggravating’ and ‘mitigating’ circumstancesand after their comparative analysis, it concurred with the extremepenalty awarded by the trial Court and confirmed the death sentence.

11. We have heard Ms. Nitya Ramkrishnan, Learned Counselfor the appellant and Mr. Nishant R. Katneshwarkar, Learned Counselfor the State of Maharashtra on merits as well as on the contentiousissue re: quantum of sentence and have minutely perused the relevantrecord.

A12. Learned Counsel for the appellant argued that there arechinks in the culpability calculus that have direct bearing on thequantum of sentence as well. She urged that according to Azbar(P.W.2), the appellant was distributing chocolates to children near MarotiTemple around 3.30 to 4.00 p.m. and that the mother of the victim calledher husband Iliyas (P.W.9) around 5.00 p.m. to inform that the deceased-Bvictim had been missing since 4.00 p.m. There is no evidence that shewas one amongst the children to whom the appellant was distributingchocolates; where had the victim been until 4.00 p.m. and where andwhen was she last seen and in whose company? The argument is thatthe victim was not lastly seen in the company of the appellant. It wasCthen urged that the appellant’s house is four houses away from that ofthe victim; there are other houses next and opposite to that of theappellant, therefore, it is unbelievable that nobody saw the victim childbeing taken away by the appellant. She pointed out that five policemenentered the house of the appellant and the informant (P.W.9) alsostatedly accompanied them but the police officials in their depositionsDhave not made any such reference.

13. According to Learned Counsel for the appellant, Azbar(P.W.2) also went to the house of the appellant only after learning thatthe victim had been traced in the house of the appellant, yet he claimsto have seen the appellant under the cot while the victim was on theEcot inside the house. It was unbelievable that even after the police hadentered the 10x10 room and had hunted him out, the appellant wouldstill remain under the cot until P.W.2 reached the spot. Similarly, Aslam(P.W.5) who is the maternal uncle of the victim, also went to theappellant’s house only after the victim had been found there. Yet, heFtoo found the appellant under the cot. According to the Learned Counsel,all these witnesses, namely, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.9 havebeen set out after learning that the child had been found purportedly todescribe scene immediately upon entering the house, which naturallycannot be the case. It was strongly urged that most of these personsdid not witness the crime or scene of the crime as they have deposedGthat the child and the appellant were found in state of undress, onlyDilip Pralhadrao Tejan (P.W.3), who is police official, says that theappellant was found outraging the modesty of the child. It thus suggeststhat the testimony of all these witnesses is not accurate and at best itleads to an inference that the child was found in the same house asHwas the appellant. It was pointed out that the testimony of P.W.3, P.W.4

and P.W.9 varies at the point as to what they saw on entering the house.However, P.W.3’s statement claiming that the appellant was foundoutraging the modesty of the child under the bed, is different from theversion of others who found cloth around the bed and could see theappellant and the victim only when the cloth was removed. P.W.9 (fatherof the victim child) does not state the same facts as have been describedby P.W.3 or P.W.4 and thus there is inconsistent version on what wasseen inside the appellant’s house upon entering.14. It was then urged that the houses in the area were in closecluster and it would have been difficult for the appellant to take thechild away without being noticed by anyone. Further, prosecution hasfailed to establish two crucial facts, namely, the place where the victimchild was last seen and the estimated time of her death. In the absenceof surety of these two facts as to when was the victim child last seenalive and her approximate time of death, the recovery of her dead bodybetween 9.30-10.00 p.m. in the house of the appellant per se isinsufficient to establish the charge beyond reasonable doubt.

15. It was contended that even as per P.W.9 (the informant) theappellant along with his family had been residing in that very house sincethe past 7-10 years, but the prosecution has failed to explain as to wherehad the other members of the family been during those six hours,between 4.00 p.m. to 10.00 p.m. on that fateful day. This assumessignificance in view of the DNA report which merely indicates that theyare from the same paternal progeny.

16. Learned Counsel lastly urged that since the basis for thematch in DNA report is the comparison with the blood sample of theappellant, it was imperative upon the prosecution to establish that thesample indeed was that of the appellant only. The person, who drewthe blood sample has not been examined as witness nor thecontemporary record of the procedure for taking blood sample has beenexplained. There is only bald statement of the Investigating Officerthat the appellant was referred to Ghati hospital, Aurangabad. There isno memo or material to show as to who collected the blood sample ofthe appellant, when was the sample collected and where and how wasit preserved. As against it, the medical examination reports and samplecollection reports of the appellant (Exbts. 21, 21A and 22) indicate thatno blood sample was taken which shows the incorrectness of theInvestigating Officer’s testimony. The chemical lab at Mumbai also does

Anot mention any receipt of blood sample of the appellant. She arguedthat the prosecution has strongly relied on the D.N.A. evidence despitethe fact that the method of analysis used, i.e., Y-Chromosome ShortTandem Repeat Polymorphism (Y-STR) has certain inherent limitationsdue to which accurate identification of the accused cannot be establishedbeyond reasonable doubt. Unlike other processes like autosomal STRBanalysis, Y-STR analysis does not allow for individual identification inthe same male lineage. It was thus contended that the prosecution hasfailed to bring the guilty at home, hence the appellant deserves thebenefit of doubt.

17. Learned State Counsel, however, refuted all the appellant’sCcontentions and took us through the ocular and medical evidence,especially the eye-witness’s account to urge that there is no error orlapse worth whispering committed by the prosecution in establishing theappellant’s guilt. He extensively referred to the relevant parts of theimpugned judgments to explain as to how the ‘aggravating’ andD‘mitigating’ circumstances have been drawn up and weighed beforeawarding or confirming the death sentence.

18. Before entering the hassled arena of sentencing, it is aproposto recapitulate the facts and evidence on record to find out whetherthe prosecution has been able to prove the charges against the appellantEbeyond any reasonable doubt.

19. The victim was not even 2-year old when she died anunnatural death. The post mortem was conducted on 07.03.2012 by apanel of doctors, which included Dr. B.L. Survesh (P.W.7) and Dr.Bedarkar (P.W.8). According to Dr. B.L. Survesh, the external injuriesFcorresponded to the internal injuries and were sufficient in the ordinarycourse of nature to cause death. All the injuries were ante-mortem andthe cause of death was throttling. The Medical Board found followinginjuries on external examination on the body of the deceased-victim:-

1. Linear abrasion on right side of chest 2 cm, oblique,reddish in colour.

2. Abrasion over left zygomatic area, 5 x 2 cm.

3. Linear abrasion, left side of neck, above clavicle reddish,about 1 cm in length and 2 in number.

4. Linear abrasion, left scapular region, two in number, onebelow other 2½ cm. reddish in colour.

5. Abrasion, 5 in number, at the centre over lower back,A½ x 1 cm each in size.

6. Contrusion over vault ½ x ½ cm.

7. Abrasion over right sub mandibular region, 1 cm reddish.

8. Abrasion, right supra clavicular region, 2 in number, ½cm each, over above other.20. The panel of doctors further found following injuries on theinternal examination of the body:-

1. Neck dissection under the skin, contusion to muscle andsubcutaneous tissues corresponding to abrasions on skin.

2. Right and left lungs congested.

3. Heart was found congested.

4. Right side of the heart was full of blood and left sidewas empty.

5. Tongue was inside the mouth between the teeth.

6. Stomach was congested and was containing semi-digested food.

21. On the vaginal examination of the victim, evidence of tearat posterior vaginal wall and triangular shape tear 2x1x½ cm. wasnoticed and hymen was found ruptured. Dr.Survase (P.W.7) hasdeposed that “on perusal of report as to examination of anal swab inDNA report, and, considering observation in clause 15 of the postmortem report, I opine that there was unnatural sex.” Similarly,Dr.Bedarkar (P.W.8) after perusing the same DNA report and postmortem report has stated that, “ I opine that vaginal and anal intercoursewas performed.”

22. It, therefore, stands established beyond any pale of doubt thatthe victim child was subjected to forcible vaginal and anal/unnaturalintercourse and she died of asphyxia due to throttling.

Connection between the appellant and the crime

23. Azbar (P.W.2) had known the appellant since their childhoodas both of them had been residing in the same lane. On 06.03.2012,while going towards his house at about 3.30 to 4.00 p.m. he met the

Aappellant who was drunk and was distributing chocolates to childrennear Maroti Temple. His friend Gayas called him [Azbar (P.W.2)] at5.00 p.m. to inform that the victim, daughter of Iliyas, was missing. Theystarted looking for the child near Bhagya Nagar Railway Station, MhadaColony, Aurangabad Chouphuly, Sanjay Nagar, etc. Then he got to knowthat the victim had been traced in the house of the appellant. P.W.2Bthen went to the appellant’s house at Indira Nagar. There was crowdof people there and police was already present when he entered thehouse and saw that the child was lying on cot and blanket was puton her body. The appellant was under the said bed. The witness alsoslapped the appellant 2-3 times before the police took the later. P.W.2Cwas called on the next day on 07.03.2012 for spot panchnama. Onewhite paper, pencil, blue broken bangle, one pass book carrying namesof Reena and Lakshmi Bai Ghumare and one piece of saree wasfound and seized by the police and kept in an envelope. The panchnamabears his signatures. In his cross-examination, P.W.2 has categorically

stated that though the parents of the appellant are alive but they wereDnot present at his house at the time of occurrence. He has explainedin detail as to how the panchnama was prepared.

24. Dilip Pralhadrao Tejan (P.W.3) the police official, had beenattached to Kadim Jalna police station on 06.03.2012. The missing reportlodged by Ilias (P.W.9) about his 2-year old daughter was handed overEto P.W.3 for inquiry. P.W. 3 along with policemen Katake, Jawale,Rathod and Chavan was in Indira Nagar area of Jalna where he gotto know that the appellant was seen distributing chocolates andicecream/fruits to minor children. P.W.3 along with other police officials,therefore, went to the house of the appellant between 9.30 to 9.45 p.m.Fand found that there were two doors, one was locked from outside andthe other from inside. P.W.3 peeped through the gap in the door andnoticed some cloth around the bed. He called the appellant by namebut nobody responded. The witness then broke open the door and enteredthe house and found the appellant outraging the modesty of the victim

child under the bed. The police-party covered the baby with quilt andGplaced her on the bed. Meanwhile about 20 persons followed themincluding Aslam, the maternal uncle of the missing child. The victimchild was sent along with Aslam for medical treatment. Since severalmore agitated persons gathered at the scene, the police rescued theappellant and took him to the police station. The people were demandingHthat the appellant be handed over to them. On specific court question

as to in which manner and in what circumstances P.W.3 saw theaccused and the deceased, he had answered in no uncertain terms thatthe “deceased kid was found naked and blood was oozing from hermouth and private parts. There was no shirt on the person of theaccused, his jean and trouser was found on his knee. Accused wasalso found naked.”

25. Constable Sanjay Katake (P.W.4) was also member of thepolice team led by API Dilip Pralhadrai Tejan which was looking forthe missing child in Indira Nagar area of Jalna. P.W.4 has alsounequivocally deposed that they were informed by the people in thevicinity that the appellant ‘used’ to distribute icecream and chocolatesamong the children and on that day also he was seen doing so. Thepolice team, therefore, went to the house of the appellant which hadtwo doors. One of the door was locked from outside whereas the otherwas from inside. The police party called the appellant by name, but hedid not respond. Then, they peeped through the slit of the door andnoticed bed and some piece of cloth around it and got suspicious thatthere was somebody under the bed. They broke open the door andentered the house. A.S.I. Tejankar removed the cloth around the bedand the police team found the appellant and the victim child under thebed in naked condition. Tejankar placed the child over the bed. “Bloodwas found oozing from mouth and private part of that kid”. The victimwas wrapped in blanket and rushed to the hospital through her maternaluncle. 4-5 persons who had entered the house along with the policeteam insisted on having the custody of the appellant. Meanwhile, 150-200 more persons gathered at the spot. The appellant was rescued fromthe mob and taken to the police station. The mob became aggressiveand started pelting stones on the police vehicles and the policemen.Some loss was also caused to the house of the appellant. P.W.4 is thesame police official who lodged the report at Kadim Jalna Police Station(Exbt. 45). In his cross-examination, it was suggested to P.W.4 thatthere is population of about 5000 in the vicinity and that he neveraccompanied Mr. Tejankar, ASI and he knew nothing about the incident.26. Aslam (P.W.5) has deposed that deceased was daughter ofhis sister. The husband of his sister, Iliyas informed him on 06.03.2012on telephone that deceased was missing and he asked him to bring aphotograph of the victim to the police station. Aslam brought onephotograph of the child to Kadim Jalna police station and lodged themissing report. The witness thereafter went to look for the missing

Achild in Ambad Chouphuly Railway Station and Moti Bagh area. Whilehe was still looking for her, one Hussain Pathan informed him on phonethat the child had been found so he immediately went to the IndiraNagar area, Jalna to the house of the appellant. He noticed that theappellant was under the bed while the victim was lying on the bed.There were no clothes on the person of the child; she was wrapped inBa blanket. He then took the victim to Deepak Hospital, Jalna, then tothe Civil Hospital, Jalna where the doctors declared her brought dead.The witness has denied in the cross-examination that there was anyquarrel between Ilias (P.W.9), father of the victim and the appellant.

27. Nand Kumar Vinayakrao Tope (P.W.6) is police headCconstable, who was on duty at Kadim Jalna police station on 12.03.2012.He has deposed that on 11.03.2012 he was asked to carry muddemalalong with covering letter which he deposited on 12.03.2012 in C.A.Office, Mumbai. The covering letter is Exbt. P-51. He also carried theblood sample of the appellant to C.A. Office, Mumbai and depositedDthe same on 14.03.2012. He has categorically stated in his cross-examination that the blood sample of the appellant bore signatures ofthe doctors and panches.

28. We may now briefly refer to the statement of Ilias (P.W.9)– father of the victim girl. He has deposed that the child was aboutEtwo years old; he resides in Indira Nagar, Jalna along with his family,including his wife Aysha; the appellant was also residing in the samelane. On the date of occurrence, i.e, 06.03.2012 he was selling fruitsin Nutan Vasahat area of Jalna when his wife informed him on phoneat about 5.00 p.m. that their daughter had been missing since 4.00 p.m.FHe immediately went home where his father and brother had alreadyreached. They started looking for the child in the adjoining localities.The witness informed the police about his missing daughter who alsostarted searching for her. Azhar Usman meanwhile informed him thatthe appellant while under the ‘influence of liquor’ was distributingchocolates to children. P.W.9 then went to the house of appellant whichGwas found locked from outside. The missing report of the child waslodged around 8.00-8.30 p.m. The witness also passed on the informationto the police that he had gathered from Azhar. The Police party too,therefore, reached at the house of appellant and they broke open oneof the doors. The witness and his brother entered the house along withHthe police and found that his daughter was lying under the bed and the

appellant was also lying under the bed. His daughter was naked andthere were injuries on her person aw well as private parts. Police laidthe child on the bed and after covering her with cloth she was takento Deepak Hospital, Jalna where doctors informed that the victim wasalready dead. The appellant killed her by pressing her throat. Thewitness also identified his signatures on the report lodged by him Exbt.P-67. The witness in his cross-examination denied any dispute withthe father of the appellant in connection with the purchase of thepremises.29. The other witness whose statement has direct bearing onconnecting the appellant with the crime is API RajendrasinghPrabhusingh Gaur (P.W.12), who was attached to Kadim JalnaPoliceStation on 06.03.2012. He arrested the appellant at 1.00 a.m. on07.03.2012. The appellant was brought to the police station by ASITejankar. He has further stated that “blue jeans and green shirt on theperson of accused was seized. There were blood-stains and semenstains on it. The seizure panchnama Exbt. P-19 bears my signatureand also of the accused.” He has further deposed that the father ofthe victim produced knicker and frock worn by the deceased victimand also the blanket in which she was wrapped. Blue bangle, painjanwere also seized under panchnama Exbt. P-32, which bears hissignatures along with those of the panches. Muddemal articles shownat S.No. 125 in the chargesheet were the same. Muddemal article Nos.6 and 7 in the chargesheet were the clothes of the appellant. The policeofficer (P.W.12) went to the spot and also collected paper havingblood-stains, piece of blue bangle, passbook of post office and yellowpiece of saree having blood-stains. All these articles were seizedunder his signatures and of the panches. P.W.12 has further statedthat the appellant was referred to Ghati Hospital, Aurangabad for hismedical examination and report Nos. 21 and 21A were obtained.Appellant’s blood sample was taken on 11.03.2012 from S.D.H. Ambadand all the blood samples were sent to Mumbai for DNA examinationalong with forwarding letter Exbt. P-51. Since the said blood samplewas not sent as per the prescribed format, another blood sample ofthe appellant was taken by the Medical Officer at S.D.H. Ambad on13.03.2012 and it was sent along with the covering letter Exbt. P-52.P.W.12 also sent viscera of the victim on 12.03.2012 along with letterswhich bear his signatures. The report of the viscera Exbt. P-81 wasalso obtained. P.W.12 had further identified the reports regarding

Aclothes on the person of the victim and the appellant Exbt. P-82. P.W.12has been subjected to fairly long cross-examination but no discrepancy,having bearing on the merits of the case, has been extracted.

30. After tenacious analysis of the testimonies of the witnesseswith respect to the facts seen by each one of them, there remains noBroom to doubt that on 06.03.2012 the appellant after taking liquor wasseen distributing chocolates to children sometime around 3.30/4.00 p.m.The victim child went missing around 4.00 p.m. as was informed toIlias (P.W.9) by his wife at about 5.00 p.m. The information of hermissing was immediately circulated amongst the family members/relatives and all of them desparately started searching for her.CMeanwhile, the missing report was lodged with police as well. Duringsuch search operations by the police and also the family members ofthe missing child, it surfaced that the appellant was distributing chocolatesto allure children near Maroti Temple on that day and around that timethe child went missing. The police-team, Iliyas – the father of the victimDand his brother, genuinely apprehensive and smelling something foul,reached the house of the appellant and nabbed him red-handed underthe bed with the victim in naked condition. It further stands establishedconclusively that deceased had been brutally assaulted and subjectedto vaginal and unnatural intercourse. The victim had been inflictedmultiple injuries on face, head, neck, external genetalia as well as insideEthe uterus and urethra. We may in this regard refer to, in particular,the deposition of Dilip Pralhadrai Tejan (P.W.3), who after makingforceful entry inside the appellant’s house, found him outraging themodesty of the child. The appellant had the special knowlege as to inwhat circumstances the victim child suffered those multiple injuries. TheFburden to prove that those injuries were not caused by him was on theappellant alone in view of Section 106 of the Evidence Act, which hehas miserably failed to discharge though the evidence on record provesbeyond doubt that the victim child was in unlawful custody of theappellant from about 4.00 p.m. till she breathed her last breath due tothe beastly attack on her.G

Scientific Evidence connecting the appellant with theCrime:

31. Dr. Bhanu Das Survase (P.W.7) was member of the panelof doctors, who conducted post mortem on the dead body of the victim.HHe has testified that samples of swabs, blood sample and nails sample

of the victim were taken by them. So is the statement of Dr. Bedarkar(P.W.8) who has stated that “various types of swabs, nasal swabs,superficial vaginal swab, deep vaginal smear on slide, superficial vaginalsmear on slide, anus swab, skin scraping of blood on thigh and abdomen,nails and blood samples of xxx.. were taken.” He has further deposedthat all samples were seized and handed over to the police. PoliceInspector Rajendrasingh Prabhusingh Guar (P.W.12) has stated on oaththat after arresting the appellant, the blue jeans and green shirt on hisperson were seized and that there were blood-stains and semen stainson it. The knicker and frock of the victim along with blanket in whichshe was wrapped as well as various articles collected from the sceneof crime including piece of saree having blood-stains, were seized.The blood sample of the appellant was also taken and all the seizedarticles/samples were sent to Mumbai for examination.32. Shrikant Hanamant Lade (P.W.11) Assistant Director inForensic Science Laboratory, Mumbai, who got training in CDFDInstitute, Hyderabad also, has authored about 30 papers on DNA,besides well known book ‘Forensic Biology’. He has testified thatthey conducted the DNA test as per the guidelines issued by theDirector of Forensic Science, Ministry of Home Affairs, New Delhi.Their office received the sealed muddemal from Kadim, Jalna PoliceStation sent vide letter dated 11.03.2012 as also the blood sample ofthe appellant sent vide letter dated 13.03.2012 (Exbt. P-52). The bloodsample of the victim was received on 12.03.2012 along with samplesof oral swabs and other articles. P.W.11 analysed the oral swabs andother articles of the victim, nasal swabs, superficial vaginal swab, deepvaginal smear on slide, superficial vaginal smear on slide, anus swab,skin scraping of blood on thigh and abdomen, nails as also other bloodsamples. P.W.11 has further deposed that,

“I have extracted DNA from blood sample of Accused RaviGhumare, Superficial vaginal swab on Exhibit No.3, deep vaginalswab Exhibit No.4, Deep vaginal swab on slide Exhibit No.5superficial vaginal swab on slide Exhibit No.6, anal swab ExhibitNo.7, skin scrapping of blood on thigh and abdomen Exhibit No.8,blood & semen detected on Exhibit No.3 Jeans pant. This DNAwas amplified by using Y-chromosome specific marker, Y-chromosome short tandem repeat polymorphism [YSTR] and byusing Polymerase Change Reaction [for short PCR] amplificationtechnique. DNA profile was generated. I analyzed all these DNA

DEF

profiles. My interpretation is male haplotypes of semen detectedon Exhibit No.3 Superficial vaginal swab Exhibit No.4 deepvaginal sway Exhibit No.3 Superfinal vaginal swab Exhibit No.4deep vaginal sway Exhibit No.5 deep vaginal smear on slide,Exhibit No.6 superficial vaginal smear on slide, Exhibit No.7 analswab, Exhibit No.8 skin scrapings of blood on thigh and abdomenand blood and semen detected on Exhibit No.3, jeans pant of F.SX. ML Case No.DNA 951/12 matched with the male haplotypesof blood sample of Exhibit No.1, Ravi Ashok Ghumare of F.S.L.ML Case No.DNA-209/12.

My opinion is DNA profile of semen detected on Exhibit No.3superficial vaginal swab, Exhibit 4 deep vaginal swab, ExhibitNo.5 deep vaginal smear on slid Exhibit No.6 superficial vaginalsmear on slide, Exhibit No.7 anal swab, Exhibit No.8, skinscrapings of blood on thigh and abdomen, blood and semendetected on Exhibit No.3 jeans pant of F.S.L ML Case No.DNA-951/112 and blood sample of Exhibit No.1 Ravi Ashok Ghumareof F.S.LML Case No.DNA-209/12 is from the same paternalprogeny.

Accordingly, I prepared examination report filed with list ExhibitNo.71 bear my signature, Contents are correct. It is at ExhibitNo.75. Analysis of all above DNA profiles is shorn in table inthe same report. Blue jeans pant and shirt of Accused ExhibitNo.3 & 4 were referred by biological section of our office. Iextracted DNA from blood and semen detected Exhibit No.3,full jeans pant, blood detected on Exhibit No.4 full bush shirt, andsample of Ravi Ghumare. Then this DNA was amplified by using15 STR Loci using PCR amplification technique. Myinterpretation is DNA profile of blood and semen detected onExhibit No.3 full jeans pant, blood detected on Exhibit No.4 fullbush shirt [torn] of F.S.l. ML. Case No.DNA-951/12 and bloodsample of Ravi Ashok Ghumare is identical and from one andsame source of male origin. DNA profiles match with thematernal and paternal alleles in the source of blood.”

33. Shrikant Lade (P.W.11) accordingly prepared the DNA reportwhich is duly attested by the Assistant Chemical Analyser also. Onseeing the contents of his report, P.W.11 has pertinently deposed that“I can opine on going through the reports Exbts. 75-76 that there were

sexual intercourse and unnatural intercourse on the victim by theaccused Ravi.”

[emphasis applied].

34. The unshakable scientific evidence which nails the appellantfrom all sides, is sought to be impeached on the premise that the methodof DNA analysis “Y-STR” followed in the instant case is unreliable.It is suggested that the said method does not accurately identify theaccused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the samelineage.

35. We are, however, not swayed by the submission. The globallyacknowledged medical literature coupled with the statement of P.W.11– Assistant Director, Forensic Science Laboratory leaves nothingmootable that in cases of sexual assualt, DNA of the victim and theperpetrator are often mixed. Traditional DNA analysis techniques like“autosomal-STR” are not possible in such cases. Y-STR methodprovides unique way of isolating only the male DNA by comparingthe Y-Chromosome which is found only in males. It is no longer matterof scientific debate that Y-STR screening is manifestly useful forcorroboration in sexual assault cases and it can be well used asexcalpatory evidence and is extensively relied upon in variousjurisdictions throughout the world.[1&2]. Science and Researches haveemphatically established that chances of degradation of the `Loci’ insamples are lesser by this method and it can be more effective thanother traditional methods of DNA analysis. Although Y-STR does notdistinguish between the males of same lineage, it can, nevertheless, maybe used as strong circumstantial evidence to support the prosecutioncase. Y-STR techniques of DNA analysis are both regularly used invarious jurisdictions for identification of offender in cases of sexualassault and also as method to identify suspects in unsolved cases.Considering the perfect match of the samples and there being nothingto discredit the DNA analysis process, the probative value of theforensic report as well as the statement of P.W.11 are very high. Still

1 “Y-STR analysis for detection and objective confirmation of child sexual abuse”,authored by Frederick C. Delfin – Bernadette J. Madrid – Merle P. Tan – MariaCorazon A. De Ungria.

2 “Forensic DNA Evidence: Science and the Law”, authored by Justice Ming W. Chin,Michael Chamberlain, A,y Roja, Lance Gima

EFG

Afurther, it is not the case of the appellant that crime was committed bysome other close relative of him. Importantly, no other person wasfound present in the house except the appellant.

36. There is thus overwhelming eye-witness account,circumstantial evidence, medical evidence and DNA analysis on recordBwhich conclusively proves that it is the appellant and he alone, who isguilty of committing the horrendous crime in this case. We, therefore,unhesitatingly uphold the conviction of the appellant.

Motive

37. Though the High Court has observed that ‘satisfaction of lust’Cand ‘removal of trace’ was the appellant’s motive but motive is not anexplicit requirement under the Indian Penal Code, though ‘motive’ maybe helpful in proving the case of the prosecution in case ofcircumstantial evidence. This Court has held in catena of decisionsthat lack of motive would not be fatal to the case of prosecution asDsometimes human beings act irrationally and at the spur of the moment.The case in hand is not entirely based on circumstantial evidence asthere are reliable eye-witness depositions who have seen the appellantcommitting the crime, may be in part. Such an unshakable evidencewith dense support of DNA test does not require the definitedetermination of the motive of the appellant behind the gruesome crime.E

Sentencing:

38. On the question of sentence, Learned Counsel for theappellant vehemently urged that the Courts below have been largelyinfluenced by the ‘nature’ and ‘brutality’ of the crime while awardingFthe extreme sentence of death penalty. She referred to list of as manyas 35 decisions rendered by this Court in the cases of rape and murderof child-victim in which the death sentences were commuted to lifeimprisonment. It was urged that brutality of the crime alone is notsufficient to impose the sentence of death; it is imperative on the Stateto establish that the convict is beyond reform and to this end it isGrelevant to see whether this is the first conviction or there has beenprevious crimes. The socio-economic conditions of the convict and thestate of mind must be assessed by the Court before awarding such apenalty; the death penalty must not be awarded in case ofcircumstantial evidence as any chink in the culpability calculus wouldHinterdict the extreme penalty. Learned Counsel heavily relied upon (i)

Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 in which three-Judge Bench of this Court commuted the death sentence in murder,abduction and rape, holding that the life imprisonment would serve theobject of reformation, retribution and prevention and that giving andtaking life is divine, which cannot be done by Courts unless alternativesare foreclosed. Another three-Judge Bench decision in Sunil v. Stateof Madhya Pradesh (2017) 4 SCC 393 where 25-year old was heldguilty of murder and rape of 4-year old child, but not sent to gallowson the parameters that he could be reformed and rehabilitated, has beenpressed into aid. She, in specific, cited several three-Judge Benchjudgments where the young age of the accused was taken as amitigating circumstance and in the absence of previous criminal history,the conduct of the accused while in custody and keeping in view thesocio-economic strata to which he belonged, the possibility of reformwas not ruled out and death penalty was commuted.

39. Learned Counsel for the appellant placed great reliance ona three-Judge Bench decision of this Court dated December 12, 2018rendered in Rajindra Pralhadrao Wasnik v. State of Maharashtrain Review Petition(Crl.) Nos. 306-307/2013 in which the appellant washeld guilty of rape and murder of 3-year old child and the deathsentence was substituted by the life imprisonment with rider, “thatthe convict shall not be released for the rest of his life”. This Courtviewed in that case that (a) the case was solely based on circumstantialevidence, (b) probability of reformation and rehabilitation could not beruled out, (c) DNA sample of the accused was taken, but not submittedin the Trial Court, and (d) the factum of pendency of two similar casesagainst the accused reflecting on his bad character was not admissible.Yet another three-Judge Bench decision of this Court in Parsuram v.State of Madhya Pradesh (Criminal Appeal Nos. 314-315 of 2013),decided on 19[th] February, 2019 where also death sentence awarded toa 22-year old who was found guilty of rape and murder of minor girl,was commuted on the principles quoted above, has been relied upon.

40. The appellant’s Counsel urged that the High Court ought notto have followed (i) Dhanjoy Chaterjee v. State of West Bengal(1994) 2 SCC 220, which was later on doubted by this Court inShankar Kishanrao Khade v. State of Maharashtra (2013) 5 SCC546 and (ii) Shivaji v. State of Maharashtra (2008) 3 SCC 269 whichtoo was held to be per curian in Santosh Kumar Satishbhushan

ABariyar v. State of Maharashtra (2009) 6 SCC 498. She verypassionately urged that neither the High Court nor the Trial Court havegiven reasons for imposition of death penalty as both the Courts havebeen influenced by the nature of the crime. The mitigatingcircumstances of the appellant were inadequately represented. Thebrutality of the crime is the pre-dominant ground for imposition of deathBpenalty though this Court has cautioned contrarily in catena ofdecisions. Both the Courts have failed in recording finding that theappellant was beyond reform and unless it was so found, the case cannotbelong to the ‘rarest of the rare’ category.

41. Relying upon the facts like (i) lack of criminal antecedents;C(ii) no record of anti-social conduct prior to the crime; (iii) appellantbeing 25-30 years of age; (iv) brutality of crime cannot be ground toaward death sentence; and (v) the appellant belongs to poor section ofsociety, his learned Counsel urged that this is not fit case for impositionof death penalty.D

42. Learned State Counsel, contrarily, maintained that the instantcase satisfies the principle of ‘rarest of the rare cases’ and the appellantwho committed the crime of rape and murder of barely 2-year oldinnocent toddler in the most dastardly manner, does not deserve anyliniency. According to him, the appellant is menace to the society andEto deter such like crimes against mankind, this Court should show nomisplaced sympathy.

43. The question which eventually falls for consideration iswhether the instant case satisfies the test of ‘rarest of the rare cases’and falls in such exceptional category where all other alternatives exceptFdeath sentence, are foreclosed and whether this Court should explorethe award of actual life imprisonment as prescribed by this Court inSwamy Shraddananda @ Murli Manohar Mishra v. State ofKarnataka (2008) 13 SCC 767 which has got seal of approval of theConstitution Bench in Union of India v. V. Sriharan @ Murugan &Ors. (2016) 7 SCC 1.G

44. The Constitution Bench of this Court in Bachan Singh v.State of Punjab (1980) 2 SCC 684, while upholding the constitutionalityof death penalty under Section 302 IPC and the sentencing procedureembodied in Section 354(3) of the Code of Criminal Procedure, strucka balance between the protagonists of the deterrent punishment on oneHhand and the humanity crying against death penalty on the other and

elucidated the strict parameters to be adhered to by the Courts forawarding death sentence. While emphasising that for persons convictedof murder, life imprisonment is the ‘rule’ and death setnence an‘exception’, this Court viewed that rule abiding concern for the dignityof the human life postulates resistance in taking the life through lawsinstrumentality and that the death sentence be not awarded “save inthe rarest of the rare cases” when the alternative option is foreclosed.

45. In Machhi Singh v. State of Punjab (1983) 3 SCC 470, thisCourt formulated the following two questions to be considered as testto determine the rarest of the rare cases in which the death sentencecan be inflicted:

“(a) Is there something uncommon, which renders sentencefor imprisonment for life inadequate calls for deathsentence?

(b) Rather the circumstances of the crime such that thereis no alternative, but to impose the death sentence evenafter according maximum weightage to the mitigatingcircumstances which speaks in favour of the offender?”

46. Machhi Singh then proceeded to lay down the circumstancesin which death sentence may be imposed for the crime of murder andheld as follows:-

“32. The reasons why the community as whole does notendorse the humanistic approach reflected in “deathsentence-in-no-case” doctrine are not far to seek. In the firstplace, the very humanistic edifice is constructed on thefoundation of “reverence for life” principle. When memberof the community violates this very principle by killinganother member, the society may not feel itself bound by theshackles of this doctrine. Secondly, it has to be realized thatevery member of the community is able to live with safetywithout his or her own life being endangered because of theprotective arm of the community and on account of the ruleof law enforced by it. The very existence of the rule of lawand the fear of being brought to book operates as adeterrent for those who have no scruples in killing others ifit suits their ends. Every member of the community owes adebt to the community for this protection. When ingratitude

is shown instead of gratitude by “killing” member of thecommunity which protects the murderer himself from beingkilled, or when the community feels that for the sake of self-preservation the killer has to be killed, the community maywell 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 isso shocked that it will expect the holders of the judicialpower centre to inflict death penalty irrespective of theirpersonal opinion as regards desirability or otherwise ofretaining death penalty. The community may entertain sucha sentiment when the crime is viewed from the platform ofthe motive for, or the manner of commission of the crime, orthe anti-social or abhorrent nature of the crime, such as forinstance:

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal,grotesque, diabolical, revolting or dastardly manner so asto arouse intense and extreme indignation of the community.For instance,

(i) when the house of the victim is set aflame with theend in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts oftorture or cruelty in order to bring about his or herdeath.

(iii) when the body of the victim is cut into pieces or hisbody is dismembered in fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for motive which evincestotal depravity and meanness. For instance when (a) hiredassassin commits murder for the sake of money or reward(b) cold-blooded murder is committed with deliberatedesign in order to inherit property or to gain control overproperty of ward or person under the control of themurderer or vis-a-vis whom the murderer is in dominatingposition or in position of trust, or (c) murder is committedin the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of member of Scheduled Caste orminority community etc., is committed not for personalreasons but in circumstances which arouse social wrath. Forinstance when such crime is committed in order to terrorizesuch persons and frighten them into fleeing from place orin order to deprive them of, or make them surrender, landsor benefits conferred on them with view to reverse pastinjustices and in order to restore the social balance.

(b) In cases of “bride burning” and what are known as“dowry deaths” or when murder is committed in order toremarry for the sake of extracting dowry once again or tomarry another woman on account of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in proportion. For instancewhen multiple murders say of all or almost all the membersof family or large number of persons of particularcaste, community, or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent child whocould not have or has not provided even an excuse, muchless provocation, for murder (b) helpless woman or aperson rendered helpless by old age or infirmity (c) whenthe victim is person vis-a-vis whom the murderer is in aposition of domination or trust (d) when the victim is publicfigure generally loved and respected by the community forthe services rendered by him and the murder is committed forpolitical or similar reasons other than personal reasons.....”

47. It thus spells out from Machhi Singh (supra) that extremepenalty of death sentence need not be inflicted except in gravest casesof extreme culpability and where the victim of murder is ... (a) aninnocent child who could not have or has not provided even an excuse,much less provocation for murder...”, such abhorent nature of thecrime will certainly fall in the exceptional category of gravest cases ofextreme culpability.

48. This Court in Machhi Singh’s case confirmed the deathsentence awarded to Kashmir Singh - one of the appellants as he wasfound guilty of causing death to poor defenceless child (Balbir Singh)aged 6 years. The appellant Kashmir Singh was categorised as personof depraved mind with grave propensity to commit murder.

B49. Bachan Singh and Machhi Singh, the Constitution Benchand the Three-Judge Bench decisions respectively, continue to serveas the foundation-stone of contemporary sentencing jurisprudencethough they have been expounded or distinguished for the purpose ofcommuting death sentence, mostly in the cases of (i) conviction basedon circumstantial evidence alone; (ii) failure of the prosecution toCdischarge its onus re: reformation; (iii) case of residual doubts; and(iv) where the other peculiar ‘mitigating’ circumstances outweighed the‘aggravating’ circumstances.

50. It is noteworthy that the object and purpose of determiningquantum of sentence has to be ‘society centric’ without being influencedDby ‘judge’s’ own views, for society is the biggest stake holder in theadministration of criminal justice system. civic society has a‘fundamental’ and ‘human’ right to live free from any kind of psychofear, threat, danger or insecurity at the hands of anti-social elements.The society legitimately expects the Courts to apply doctrine ofEproportionality and impose suitable and deterent punishment thatcommensurate(s) with the gravity of offence.51. Equally important is the stand-point of ‘victim’ whichincludes his/her guardian or legal heirs as defined in Section 2(wa),Cr.P.C. For long, the criminal law had been viewed on dimensionalFplane wherein the Courts were required to adjudicate between theaccused and the State. The ‘victim’-the de facto sufferer of crimehad no say in the adjudicatory process and was made to sit outside thecourt as mute spectator. The ethos of criminal justice dispensationto prevent and punish ‘crime’ would surreptitiously turn its back on the‘victim’ of such crime whose cries went unheard for centuries in theGlong corridors of the conventional apparatus. few limited rights,including to participate in the trial have now been bestowed on ‘victim’in India by the Act No. 5 of 2009 whereby some pragmatic changes inCr.P.C. have been made.

52. The Sentencing Policy, therefore, needs to strike balanceHbetween the two sides and count upon the twin test of (i) deterrent

effect, or (ii) complete reformation for integration of the offender incivil society. Where the Court is satisfied that there is no possibility ofreforming the offender, the punishments before all things, must bebefitting the nature of crime and deterrent with an explicit aim to makean example out of the evil-doer and warning to those who are stillinnocent. There is no gainsaying that the punishment is reflection ofsocietal morals. The subsistence of capital punishment proves that thereare certain acts which the society so essentially abhores that they justifythe taking of most crucial of the rights – the right to life.

53. If the case-law cited on behalf of the appellant where thisCourt commuted death sentence into life imprisonment for the ‘rest ofthe life’ or so is appreciated within these contours, it won’t need anelaborate discussion that the peculiarity of the facts and circumstancesof each case prompted this Court to invoke leniency and substitute thedeath sentence with lesser punishment. The three-Judge Benchdecision in Rajendra Pralhadrai Washnik (supra) is clearlydistinguisahable on this very premise as that was case, not only basedon circumstantial evidence but where even the DNA sample of theaccused though taken was not submitted in the trial Court. It wasthus case of “residuary doubts” as explained by this Court in AshokDebbarma v. State of Tripura (2014) 4 SCC 747. The same analogytakes away the persuvasive force in Parsuram (supra), for that toowas case where the guilt was established only on the basis ofcircumstantial evidence.

54. Contrary to it, Three-Judge Bench of this Court in VsantaSampat Dupare v. State of Maharashtra (2017) 6 SCC 631, whichis very close on facts to this case, found the convict guilty of rapingand battering to death little girl of 4 years after luring her by givingchocolates. The prosecution established its case by relying upon the‘last seen theory’ as the appellant was seen taking away the victim ona bicycle on the fateful day. The eye-witness account, the disclosurestatement made by the accused coupled with the other circumstantialevidence nailed him. The death setence was confirmed by this Courton 26[th] November, 2014. He, thereafter filed Review Petition afterabout three years, claiming that post-confirmation of his death sentence,he had improved his academic qualification, completed the GandhiVichar Pariksha and had also participated in the Drawing Competitionorganised sometime in January, 2016. It was also asserted that his jail

Arecord was without any blemish and there was possibility of theaccused being reformed and rehabilitated. This Court dismissed theReview Petition by way of self-speaking judgment, holding that theaggravating circumstances, namely, the extreme depravity and thebarbaric manner in which the crime was committed and the fact thatthe victim was helpless child of four years clearly outweigh theBmitigating circumstances now brought on record.

55. In Khushwinder Singh v. State of Punjab, (2019) 4 SCC415, this Court affirmed the death sentence of an accused who hadkilled six innocent persons, out of which two were minors, by kidnappingCthree persons, drugging them with sleeping tablets, and then pushingthem into canal. Thereafter, three other members of the same familywere also done away with. This Court upheld the award of capitalpunishment observing as follows:-

“14. Now, so far as the capital punishment imposed by theDlearned Sessions Court and confirmed by the High Court isconcerned, at the outset, it is required to be noted that, as such,the learned counsel appearing on behalf of the accused is not ina position to point out any mitigating circumstance which warrantscommutation of death sentence to the life imprisonment. In theEpresent case, the accused has killed six innocent persons, out ofwhich two were minors — below 10 years of age. Almost, allthe family members of PW 5 were done to death in diabolicaland dastardly manner. Fortunately, or unfortunately, only oneperson of the family of PW 5 could survive. In the present case,the accused has killed six innocent persons in pre-plannedFmanner. The convict meticulously planned the time. He firstkidnapped three persons by way of deception and took them tothe canal and after drugging them with sleeping tablets, pushedthem in the canal at midnight to ensure that the crime is notdetected. That, thereafter he killed another three persons in theGsecond stage/instalment. Therefore, considering the law laid downby this Court in Mukesh v. State (NCT of Delhi), (2017) 6 SCC1 : (2017) 2 SCC (Cri) 673] , the case would fall in the categoryof the “rarest of rare case” warranting death sentence/capitalpunishment. The aggravating circumstances are in favour of theHprosecution and against the accused.

Therefore, striking balance between the aggravating andmitigating circumstances, we are of the opinion that theaggravating circumstance would tilt the balance in favour ofcapital punishment. In the facts and circumstances of the case,we are of the opinion that there is no alternative punishmentsuitable, except the death sentence. The crime is committed withextremist brutality and the collective conscience of the societywould be shocked. Therefore, we are of the opinion that thecapital punishment/death sentence imposed by the learnedSessions Court and confirmed by the High Court does not warrantany interference by this Court. Therefore, we confirm the deathsentence of the accused imposed by the learned Sessions Courtand confirmed by the High Court while convicting the appellantfor the offence punishable under Section 302 IPC.”

56. In recent Three-Judge Bench decision of this Court inManoharan v. State by Inspector of Police, Variety Hall PoliceStation, Coimbatore, (2019) SCC Online 951, the appellant’s capitalpunishment was confirmed by the High Court in case in which healong with his co-accused was held guilty of kidnapping 10-year oldgirl and her 7-year old brother. After committing gang rape of the minorgirl, both the victims were done away with by throwing them into acanal which caused their death by drowning. This Court (by majority)upheld the death sentence, concluding as follows:-“41. In the circumstances, we have no doubt that the trial courtand High Court have correctly applied and balanced aggravatingcircumstances with mitigating circumstances to find that the crimecommitted was cold blooded and involves the rape of minorgirl and murder of two children in the most heinous fashionpossible. No remorse has been shown by the Appellant at all andgiven the nature of the crime as stated in paragraph 84 of theHigh Court’s judgment it is unlikely that the Appellant, if set free,would not be capable of committing such crime yet again. Thefact that the Appellant made confessional statement would not,on the facts of this case, mean that he showed remorse forcommitting such heinous crime. He did not stand by thisconfessional statement, but falsely retracted only those parts ofthe statement which implicated him of both the rape of the younggirl and the murder of both her and her little brother.

AConsequently, we confirm the death sentence and dismiss theappeals.”

57. It is equally apt at this stage to refer the recent amendmentscarried out by Parliament in the Protection of Children from SexualOffences Act, 2012 by way of The Protection of Children from SexualBOffences (Amendment) Act, 2019 as notified on 6[th] August, 2019. Theunamended Act defines “Aggravated Penetrative Sexual Assault” inSection 5, which included, “whoever commits aggravated penetrativesexual assault on child below the age of 12 years.” Originally, thepunishment for an aggravated sexual assault was rigorous imprisonmentfor term not less than 10-years but which may extend forCimprisonment for life with fine.

58. The recent amendment in Section 6 of 2012 Act hassubstituted the punishment as follows:-

“Post the Amendment, Section 6 has been substituted as follows:-

“6. (1) Whoever commits aggravated penetrative sexual assaultshall be punished with rigorous imprisonment for term whichshall not be less than twenty years, but which may extend toimprisonment for life, which shall mean imprisonment for theremainder of natural life of that person, and shall also be liableEto fine, or with death.

(2) The fine imposed under sub-section (1) shall be just andreasonable and paid to the victim to meet the medical expensesand rehabilitation of such victim.”

[Emphasis applied]

59. The minimum sentence for an aggravated penetrative sexualassault has been thus increased from 10 years to 20 years andimprisonment for life has now been expressly stated to be imprisonmentfor natural life of the person. Significantly, ‘death sentence’ has alsobeen introduced as penalty for the offence of aggravated penetrativeGsexualt assault on child below 12 years.

60. The Legislature has impliedly distanced itself from thepropounders of “No-Death Setence” in “No Circumstances” theory andhas re-stated the will of the people that in the cases of brutal rape ofminor children below the age of 12 years without murder of the victim,H`death penalty’ can also be imposed. In the Statement of Objects and

Reasons of amendment, Parliament has shown its concern of the factthat “in recent past incidents of child sexual abuse cases administeringthe inhuman mindset of the accused, who have been barbaric in theirapproach to young victim, is rising in the country.” If the Parliament,armed with adequate facts and figures, has decided to introduce capitalpunishment for the offence of sexual abuse of child, the Court hithertowill bear in mind the latest Legislative Policy even though it has noapplicability in case where the offence was committed prior thereto.The judicial precedents rendered before the recent amendment cameinto force, therefore, ought to be viewed with purposive approach sothat the legislative and judicial approaches are well harmonised.61. In the light of above discussion, we are of the consideredopinion that sentencing in this case has to be judged keeping in viewthe parameters originating from Bachan Singh and Machhi Singhcases and which have since been strengthened, explained, distinguishedor followed in catena of subsequent decisions, some of which havebeen cited above. Having said that, it may be seen that the victim wasbarely two-year old baby whom the appellant kidnapped andapparently kept on assaulting over 4-5 hours till she breathed her last.The appellant who had no control over his carnal desires surpassed allnatural, social and legal limits just to satiate his sexual hunger. Heruthlessly finished life which was yet to bloom. The appellant insteadof showing fatherly love, affection and protection to the child againstthe evils of the society, rather made her the victim of lust. It’s casewhere trust has been betrayed and social values are impaired. Theunnatural sex with two-year old toddler exhibits dirty and pervertedmind, showcasing horrifying tale of brutality. The appellantmeticulously executed his nefarious design by locking one door of hishouse from the outside and bolting the other one from the inside so asto deceive people into believing that nobody was inside. The appellantwas thus in his full senses while he indulged in this senseless act.Appellant has not shown any remorse or repentance for the gory crime,rather he opted to remain silent in his 313 Cr.P.C. statement. Hisdeliberate, well-designed silence with standard defence of ‘false’accusation reveals his lack of kindness or compassion and leads tobelieve that he can never be reformed. That being so, this Court cannotwrite off the capital punishment so long as it is inscribed in the statutebook.

A62. All that is needed to be followed by us is what O’ Conner J.very aptly observed in California v. Ramos, 463 U.S. 992 that the“qualitative difference of death from all other punishments requires acorrespondingly greater degree of scrutiny of the capital sentencingdetermination” and in order to ensure that the death penalty is not metedout arbitrarily or capriciously, the Court’s principal concern has to beBwith the procedure by which the death sentence is imposed than withthe substantive factors laid before it.

63. For the reasons aforestated, we dismiss the appeals andaffirm the death sentence.

R. SUBHASH REDDY, J.

1. I have gone through the opinion of my learned Brother, SuryaKant, J. I am in agreement with the view expressed in the said judgment,to the extent of confirming the conviction recorded against the appellant,Dfor the offence under Sections 363, 376, 377 and 302 of the Indian PenalCode, 1860 (for short ‘IPC’). However, as I am of the view that, thisis not fit case where the appellant is to be awarded capital punishment,i.e, death penalty, as such, I wish to share my view separately, in thisjudgment.

E2. The appellant was tried for committing the rape and murderon the minor girl child “Zoyabano” and he was charged for offencepunishable under Sections 363, 376, 377 and 302 IPC. After the trial,learned Additional Sessions Judge at Jalna, by judgment dated16.09.2015, has held that appellant is guilty for the charges framedFagainst him.

3. By order dated 18.09.2015, the trial court, by recording afinding that crime committed by the appellant is heinous, brutal andinhuman, convicted and sentenced the appellant to death for the offencepunishable under Section 302 IPC and ordered that he shall be hangedby neck till he is dead, subject to confirmation by the High Court asGper Section 366 of Code of Criminal Procedure and also imposed afine of Rs.500/- (Rupees Five Hundred Only). Similarly, learnedAdditional Sessions Judge has convicted the appellant for offencepunishable under Section 376 of IPC and ordered sentence to sufferlife imprisonment and fine of Rs. 500/-(Rupees Five Hundred Only)Hand sentence of rigorous imprisonment for 10 years for the offencepunishable under Section 377 IPC with fine of Rs.500/-(Rupees FiveHundred Only) and sentence of R.I. for one year for the offencepunishable under Section 363 with fine of Rs.500/-(Rupees FiveHundred Only). Further, it was ordered that all the sentences ofimprisonment shall run concurrently.

4. The reference which was made to the High Court underSection 366 was numbered as Confirmation Case No.1 of 2015 andthe appeal preferred by the appellant was numbered as criminal appealNo. 783 of 2015. The High Court by the Common Judgment and Orderdated 20.01.2016, while dismissing the criminal appeal preferred by theappellant, has confirmed the death sentence imposed under Section 302IPC. Hence, these appeals.

5. I am in agreement with the view expressed by my learnedBrother, to the extent of upholding conviction, as such, there is no needto appreciate the evidence on-record in detail. As such, I confineconsideration of such evidence on-record to the extent to modify thesentence on the appellant.

6. For the conviction recorded against the appellant for theoffences alleged against him, by balancing the aggravated and mitigatedcircumstances, I am of the view that the death sentence imposed onthe appellant requires modification to that of the life imprisonment,without any remission, for the following reasons.

7. For the offence under Section 302 of IPC the punishmentprescribed for committing murder is death or imprisonment for life. Atfirst instance, challenge to Section 302 of IPC was turned down bythis Court in the case of Jagmohan Singh v. State of Uttar Pradesh[1].Further, in Constitution Bench, this Court in the case of Bachan Singhv. State of Punjab[2], ,concluded that Section 302, providing death penaltyfor offence of murder is constitutional. In the aforesaid judgment, thisCourt has indicated the standards and norms, restricting the area forimposition of death penalty. Further, for considering the imposition ofsentence of death, aggravating and mitigating circumstances were alsobroadly indicated. In the aforesaid judgment, while considering the scopeof Section 235(2) read with Section 354(3) of the Code of CriminalProcedure, this Court has held that, in fixing the degree of punishment

1 1973(1) SCC 20

2 1980(2) SCC 684

Aor in making the choice of sentence for various offences, including oneunder Section 302, IPC, the Court should not confine its consideration“principally or merely” to the circumstances connected with theparticular crime, but also due consideration to the circumstances of thecriminal. However, it is observed that, what is the relative weight to begiven to the aggravating and mitigating factors, depends on facts andBcircumstances of each case. The aggravating and mitigatingcircumstances, as suggested by Dr.Chitale were mentioned in theJudgment. Paragraphs 202 to 207 of the judgment reads as under:

“202. Drawing upon the penal statutes of the States in U.S.A.framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US 238C(1972)] , in general, and clauses 2 (a), (b), (c) and (d) of theIndian Penal Code (Amendment) Bill passed in 1978 by theRajya Sabha, in particular, Dr Chitale has suggested these“aggravating circumstances”:

“Aggravating circumstances: court may, however, in theDfollowing cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previousplanning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of member of any of the armed forcesof the Union or of member of any police force or ofany public servant and was committed—

(i) while such member or public servant was on duty;or

(ii) in consequence of anything done or attempted to bedone by such member or public servant in the lawfuldischarge of his duty as such member or publicservant whether at the time of murder he wassuch member or public servant, as the case may be,or hadceased to be such member or public servant;or

(d) if the murder is of person whohad acted in thelawful discharge of his duty under Section 43 of theCode of Criminal Procedure, 1973, or who had renderedassistance to Magistrate or police officer demanding

his aid or requiring his assistance under Section 37 andSection 129 of the said Code.”

203. Stated broadly, there can be no objection to the acceptanceof these indicators but as we have indicated already, we wouldprefer not to fetter judicial discretion by attempting to make anexhaustive enumeration one way or the other.

204. In Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri)749] , the majority said: “It is constitutionally permissible to swinga criminal out of corporeal existence only if the security of Stateand Society, public order and the interests of the general publiccompel that course as provided in Article 19(2) to (6)”. Ourobjection is only to the word “only”. While it may be concededthat murder which directly threatens, or has an extremepotentiality to harm or endanger the security of State and Society,public order and the interests of the general public, may provide“special reasons” to justify the imposition of the extreme penaltyon the person convicted of such heinous murder, it is not possibleto agree that imposition of death penalty on murderers who donot fall within this narrow category is constitutionallyimpermissible. We have discussed and held above that theimpugned provisions in Section 302 of the Penal Code, beingreasonable and in the general public interest, do not offend Article19, or its “ethos” nor do they in any manner violate Articles 21and 14. All the reasons given by us for upholding the validity ofSection 302 of the Penal Code, fully apply to the case of Section354(3), Code of Criminal Procedure, also. The same criticismapplies to the view taken in Bishnu Deo Shaw v. State of W.B.[(1979) 3 SCC 714 : 1979 SCC (Cri) 817] which follows thedictum in Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri)749].

205. In several countries which have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired formonetary reward is, also, considered capital offence of the first-degree which, in the absence of any ameliorating circumstances,is punishable with death. Such rigid categorisation woulddangerously overlap the domain of legislative policy. It maynecessitate, as it were, redefinition of ‘murder’ or its furtherclassification. Then, in some decisions, murder by fire-arm, or

an automatic projectile or bomb, or like weapon, the use of whichcreates high simultaneous risk of death or injury to more thanone person, has also been treated as an aggravated type ofoffence. No exhaustive enumeration of aggravatingcircumstances is possible. But this much can be said that in orderto qualify for inclusion in the category of “aggravatingcircumstances” which may form the basis of “special reasons”in Section 354(3), circumstance found on the facts of particularcase, must evidence aggravation of an abnormal or specialdegree.

206. Dr Chitale has suggested these mitigating factors:

“Mitigating circumstances— In the exercise of its discretionin the above cases, the court shall take into account the followingcircumstances:

(1) That the offence was committed under the influence ofextreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old,he shall not be sentenced to death.

(3) The probability that the accused would not commitcriminal acts of violence as would constitute continuingthreat to society.

(4) The probability that the accused can be reformed andrehabilitated. The State shall by evidence prove that theaccused does not satisfy the conditions (3) and (4)above.

(5) That in the facts and circumstances of the case theaccused believed that he was morally justified incommitting the offence.

(6) That the accused acted under the duress or dominationof another person.

(7) That the condition of the accused showed that he wasmentally defective and that the said defect impaired hiscapacity to appreciate the criminality of his conduct.”207. We will do no more than to say that these areundoubtedly relevant circumstances and must be given

great weight in the determination of sentence. Some ofthese factors like extreme youth can instead be ofcompelling importance. In several States of India, thereare in force special enactments, according to which a“child”, that is, “a person who at the date of murder wasless than 16 years of age”, cannot be tried, convictedand sentenced to death or imprisonment for life formurder, nor dealt with according to the same criminalprocedure as an adult. The special Acts provide for areformatory procedure for such juvenile offenders orchildren.”

8. Further in the three Judge Bench Judgment of this Court, inthe case of Machhi Singh and Ors. v. State of Punjab[3], this Courthas considered tests to determine “rarest of rare” case, to impose deathsentence under Section 302 IPC.

9. In the aforesaid judgment, this Court has held that the followingquestions may be asked and answered, in order to apply the guidelinesindicated in Bachan Singh case[2], where the question of imposing thedeath sentence arises.

(a) Is there something uncommon about the crime whichrenders sentence for imprisonment for life inadequateand calls for death sentence?

(b) Are the circumstances of the crime such that there isno alternative but to impose death sentence even afteraccording maximum weightage to the mitigatingcircumstances, which speak in favour of the offender?

10. In this judgment, it is held by this Court that the guidelinesindicated in Bachan Singhcase[2], will have to be culled out and appliedto the facts of each individual case, where the question of imposingdeath sentence arises. Paragraph 38 of the said judgment reads asunder:

“38. In this background the guidelines indicated in Bachan Singhcase[2 ]will have to be culled out and applied to the facts of eachindividual case where the question of imposing of death sentencearises. The following prepositions emerge from Bachan Singhcase[2 ]:

3 1983(3) SCC 470

(i) The extreme penalty of death need not be inflictedexcept in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstancesof the ‘offender’ also require to be taken intoconsideration along with the circumstances of the‘crime’.

(iii) Life imprisonment is the rule and death sentence is anexception. In other words death sentence must beimposed only when life imprisonment appears to be analtogether inadequate punishment having regard to therelevant circumstances of the crime, and provided, andonly provided, the option to impose sentence ofimprisonment for life cannot be conscientiouslyexercised having regard to the nature and circumstancesof the crime and all the relevant circumstances.

(iv) balance sheet of aggravating and mitigatingcircumstances has to be drawn up and in doing so themitigating circumstances have to be accorded fullweightage and just balance has to be struck betweenthe aggravating and the mitigating circumstances beforethe option is exercised.

11. In this judgment, on facts, by holding that it is cold-blooded,calculated and gruesome multiple murders, as reprisal in family feudand 17 helpless, defenceless, innocent men, women and children weregunned down while asleep on the same night in quick succession indifferent neighbouring villages, confirmed the death sentence imposedon Machhi Singh and two others.

12. In this case, learned counsel for the appellant has contendedthat the Trial Court as well as the High Court, fell in error in confiningnature and brutality of crime alone, to award the sentence of death. Itis submitted that nature of crime alone is not sufficient to impose theGsentence of death, unless State proves by leading cogent evidence thatthe convict is beyond reform and rehabilitation. It is submitted that thesocio-economic conditions of the convict and the circumstances underwhich crime is committed are equally relevant for the purpose ofconsidering whether death penalty is to be imposed or not. It issubmitted that as the case on hand, rests on circumstantial evidence,Hsame is also the ground not to impose capital punishment, of death.

13. In support of his argument, learned counsel for the appellanthas relied on the three Judge Bench Judgment of this Court, in the caseof Kalu Khan v. State of Rajasthan[4], wherein the accused wascharged for offence of abduction, rape and murder of 4 year old girlchild, death sentence was commuted to life imprisonment. Paragraphs32 and 33 of the said judgment reads as under:

“32. In our considered view, in the impugned judgment and order,the High Court has rightly noticed that life and death are acts ofthe divine and the divine’s authority has been delegated to thehuman courts of law to be only exercised in exceptionalcircumstances with utmost caution. Further, that the first andforemost effort of the Court should be to continue the life till itsnatural end and the delegated divine authority should be exercisedonly after arriving at conclusion that no other punishment butfor death will serve the ends of justice. We have criticallyappreciated the entire evidence in its minutest detail and are ofthe considered opinion that the present case does not warrantaward of the extreme sentence of death to the appellant-accusedand the sentence of life imprisonment would be adequate andmeet the ends of justice. We are of the opinion that the four mainobjectives which the State intends to achieve, namely, deterrence,prevention, retribution and reformation can be achieved bysentencing the appellant-accused for life.

33. Before parting, we would reiterate the sentiment reflectedin the following lines by this Court in Shailesh Jasvantbhai case[Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359 :(2006) 1 SCC (Cri) 499] : (SCC pp. 361-62, para 7)

“7. … Protection of society and stamping out criminal proclivitymust be the object of law which must be achieved by imposingappropriate sentence. Therefore, law as cornerstone of theedifice of ‘order’ should meet the challenges confronting thesociety. Friedman in his Law in Changing Society stated that:‘State of criminal law continues to be — as it should be — adecisive reflection of social consciousness of society.’ Therefore,in operating the sentencing system, law should adopt thecorrective machinery or deterrence based on factual matrix. Bydeft modulation, sentencing process be stern where it should be,and tempered with mercy where it warrants to be.”

762SUPREME COURT REPORTS

14. In the case of Lehna v. State of Haryana[5], it was held thatthe special reasons for awarding the death sentence must be such thatcompel the court to conclude that it is not possible to reform andrehabilitate the offender. Paragraph 14 of the said judgment reads asunder:

B“......Death sentence is ordinarily ruled out and can only beimposed for “special reasons”, as provided in Section 354(3).There is another provision in the Code which also uses thesignificant expression “special reason”. It is Section 361. Section360 of the 1973 Code re-enacts, in substance, Section 562 ofthe Criminal Procedure Code, 1898, (in short “the old Code”).CSection 361 which is new provision in the Code makes itmandatory for the court to record “special reasons” for notapplying the provisions of Section 360. Section 361 thus casts aduty upon the court to apply the provisions of Section 360wherever itis possible to do so and to state “special reasons” ifDit does not do so. In the context of Section 360, the “specialreasons” contemplated by Section 361 must be such as to compelthe court to hold that it is impossible to reform and rehabilitatethe offender after examining the matter with due regard to theage, character and antecedents of the offender and thecircumstances in which the offence was committed. This is someEindication by the legislature that reformation and rehabilitation ofoffenders and not mere deterrence, are now among the foremostobjects of the administration of criminal justice in our country.Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging pictureof acceptance by the legislature of the new trends in criminology.FIt would not, therefore, be wrong to assume that the personalityof the offender as revealed by his age, character, antecedentsand other circumstances and the tractability of the offender toreform must necessarily play the most prominent role indetermining the sentence to be awarded. Special reasons mustGhave some relation to these factors.”

15. Learned counsel for the appellant has also relied on the threeJudge Bench Judgment of this Court, in the case of Sunil v. State ofMadhya Pradesh[6], wherein the accused, aged about 25 years at the

5 (2002) 3 SCC 76H6 (2017) 4 SCC 393 (2017) 4 SCC 393

6 (2017) 4 SCC 393 (2017) 4 SCC 393

relevant time, was charged for offence of rape and murder of 4 yearold child, death sentence was commuted to that of life imprisonment.In the said judgment, this Court has held that one of the compelling/mitigating circumstances that must be acknowledged in favour of theappellant is his young age at which he had committed the crime andfurther that the accused can be reformed and rehabilitated, are the othercircumstances which could not but have been ignored by courts below.

16. Reliance is also placed by learned counsel for the appellant,on the three Judge Bench Judgment of this Court, in the case ofRajendra Pralhaderao Wasnik v. State of Maharashtra[7], whereaccused was found guilty of rape and murder of 3 year old child, deathsentence was substituted by life imprisonment, with rider that theconvict shall not be released from custody for the rest of his normallife.

17. The aforesaid three judgments relied on by the learned counselfor the appellant, supports the case of the appellant, when we considerto balance the aggravating and mitigating circumstances of this caseon hand.

18. From the deposition of PW-9, it is clear that he is fruitvendor, residing in Nutan Vasahat area, Jalna and the appellant alsoresides in the same lane. Further, it is also clear from his depositionthat accused was under influence of liquor, on the day of occurrenceof crime. As such, it is clear that on the day of occurrence, he wasunder influence of liquor and he is aged about 25 years and he had noprevious history of any crimes and in absence of any evidence fromthe side of the prosecution to show that he cannot be reformed andrehabilitated to bring in to the main stream of the society, the judgmentsrelied on by learned counsel for the appellant, fully support the case ofthe appellant, to modify the sentence.

19. In the case of Machhi Singh and Ors. v. State of Punjab[3],this Court has confirmed that the death sentence to Machhi Singh andtwo others, mainly by recording finding that it was cold-blooded,calculated and gruesome murders, as reprisal in family feud, inwhich, 17 helpless, defenceless, innocent men, women and childrenwere gunned down, as such, same can be termed as “rarest of rare”case. In the case on hand, it cannot be said to be pre-planned and

7 Review Petition (Criminal) Nos. 306-307 of 2013

Apre-meditated one. To record finding that particular crime committedis pre-planned and pre-meditated one, something more is required ofplanning to commit murder on day earlier to the date of occurrence.In the case on hand, where it is clear from the evidence on-record thatthe appellant was under influence of liquor and committed the offence,cannot be termed as pre-planned one, to count the same as anBaggravating circumstance, for balancing aggravating and mitigatingcircumstances.

20. In the case of Sandesh v. State of Maharashtra[8], this Court,once again, acknowledged the principle that it is for the prosecution tolead evidence, to show that there is no possibility that the convict cannotCbe reformed. Similarly, in Mohinder Singh v. State of Punjab[9], it washeld in Paragraph 23 of the judgment as under:

“......As discussed above, life imprisonment can be said to becompletely futile, only when the sentencing aim of reformationcan be said to be unachievable. Therefore, for satisfying theDsecond aspect to the “rarest of rare” doctrine, the court will haveto provide clear evidence as to why the convict is not fit for anykind of reformatory and rehabilitation scheme.”

21. In the case of Sushil Sharma v. State (NCT of Delhi)[10],this Court acknowledged that among various factors, one of the factorsErequired to be taken into consideration, for awarding or not awardingcapital punishment, is the possibility of reformation and rehabilitationof the convict. This acknowledgment was made in paragraph 103 ofthe judgment, which reads as under:

“103. In the nature of things, there can be no hard-and-fast rulesFwhich the court can follow while considering whether an accusedshould be awarded death sentence or not. The core of criminalcase is its facts and, the facts differ from case to case.Therefore, the various factors like the age of the criminal, hissocial status, his background, whether he is confirmed criminalGor not, whether he had any antecedents, whether there is anypossibility of his reformation and rehabilitation or whether it is acase where the reformation is impossible and the accused is likelyto revert to such crimes in future and become threat to the

8 (2013) 2 SCC 4799 (2013) 3 SCC 294H10 (2014) 4 SCC 317

society are factors which the criminal court will have to examineindependently in each case. Decision whether to impose deathpenalty or not must be taken in the light of guiding principles laiddown in several authoritative pronouncements of this Court inthe facts and attendant circumstances of each case.”

22. In the case of Amit v. State of Maharashtra[11], this Courtadverted to the prior history of the accused and noted that there is norecord of any previous heinous crime and also there is no evidence thathe would be danger to the society if the death penalty is not awardedto him. Paragraph 10 of the said judgment reads as under:

“10. The next question is of the sentence. Considering that theappellant is young man, at the time of the incident his age wasabout 20 years; he was student; there is no record of anyprevious heinous crime and also there is no evidence that he willbe danger to the society, if the death penalty is not awarded.Though the offence committed by the appellant deserves severecondemnation and is most heinous crime, but on cumulativefacts and circumstances of the case, we do not think that thecase falls in the category of rarest of the rare cases.......”

23. In the case of Surendra Pal Shivbalakpal v. State ofGujarat[12], this Court has held that the involvement in any previouscriminal case by the accused, was considered to be factor, to be takeninto consideration, for the purpose of awarding death sentence.Paragraph 13 of the said judgment reads as under:

“13. The next question that arises for consideration is whetherthis is “rarest of rare case”; we do not think that this is “rarestof rare case” in which death penalty should be imposed on theappellant. The appellant was aged 36 years at the time of theoccurrence and there is no evidence that the appellant had beeninvolved in any other criminal case previously and the appellantwas migrant labourer from U.P. and was living in impecuniouscircumstances and it cannot be said that he would be menaceto society in future and no materials are placed before us to drawsuch conclusion. We do not think that the death penalty waswarranted in this case. We confirm conviction of the appellant

11 (2003) 8 SCC 93

12 2005(3) SCC 127

766SUPREME COURT REPORTS

Aon all the counts, but the sentence of death penalty imposed onhim for the offence under Section 302 IPC is commuted to lifeimprisonment.”

24. Further, this case on hand, rests solely on the circumstantialevidence.

25. In the case of Bishnu Prasad Sinha v. State of Assam[13],this Court has held that ordinarily, death penalty would not be awarded,if the guilt of the accused is proved by circumstantial evidence, coupledwith some other factors that are advantageous to the convict. Paragraph55 of the said judgment reads as under:C“

“55. The question which remains is as to what punishment shouldbe awarded. Ordinarily, this Court, having regard to the natureof the offence, would not have differed with the opinion of thelearned Sessions Judge as also the High Court in this behalf, butit must be borne in mind that the appellants are convicted onlyDon the basis of the circumstantial evidence. There are authoritiesfor the proposition that if the evidence is proved by circumstantialevidence, ordinarily, death penalty would not be awarded.Moreover, Appellant 1 showed his remorse and repentance evenin his statement under Section 313 of the Code of CriminalEProcedure. He accepted his guilt.”

26. Further, in the case of Aloke Nath Dutta v. State of WestBengal[14], the principle that death penalty should ordinarily not to beawarded, in case arising out of circumstantial evidence, was broadlyaccepted with the rider that there should be some “special reason” forFawarding death penalty. Paragraph 174 of the said judgment reads asunder:

“174. There are some precedents of this Court e.g. Sahdeo v.State of U.P.[(2004) 10 SCC 682] and Sk. Ishaque v. State ofBihar[(1995) 3 SCC 392] which are authorities for the propositionGthat if the offence is proved by circumstantial evidenceordinarily death penalty should not be awarded. We thinkwe should follow the said precedents instead and, thus, inplace of awarding the death penalty, impose the sentence of

13 (2007) 11 SCC 467H14 (2007)12 SCC 230

rigorous imprisonment for life as against Aloke Nath.Furthermore we do not find any special reason for awardingdeath penalty which is imperative.”

27. In the case of Swamy Shraddananda v. State ofKarnataka[15], this Court has held that the convictions based onseemingly conclusive circumstantial evidence, should not be presumedto be fool-proof. Paragraph 87 of the said judgment reads as under:

“87. It has been fundamental point in numerous studies in thefield of death penalty jurisprudence that cases where the solebasis of conviction is circumstantial evidence, have far greaterchances of turning out to be wrongful convictions, later on, incomparison to ones which are based on fitter sources of proof.Convictions based on seemingly conclusive circumstantialevidence should not be presumed as foolproof incidences and thefact that the same are based on circumstantial evidence mustbe definite factor at the sentencing stage deliberations,considering that capital punishment is unique in its totalirrevocability. Any characteristic of trial, such as conviction solelyresting on circumstantial evidence, which contributes to theuncertainty in the culpability calculus, must attract negativeattention while deciding maximum penalty for murder.”

28. From the above judgments referred, it is clear that in caseof conviction based on circumstantial evidence, ordinarily the extremepunishment of death penalty should not be imposed. In given case,guilt of the accused is proved beyond reasonable doubt, by establishingchain of circumstances, resulting in conviction, such cases, by consideringbalancing aspects of aggravating and mitigating circumstances, inappropriate cases, death penalty can be imposed. But, at the same timeordinarily, if no special reasons exist, in case of conviction based oncircumstantial evidence, death penalty should not be imposed. In thiscase on hand, the conviction of the appellant is mainly based oncircumstantial evidence. On this ground also, I am of the view that thedeath sentence, imposed on him, is to be modified.29. From the materials placed on record, it is clear that accusedis permanent resident of Indira Nagar, Jalna. The father of thedeceased, PW-9, himself has stated that he is fruit vendor in Nutan

EFG

AVasahat area, Jalna, and accused also resides in the same lane, nearbyhis residence. It is also clear from the evidence of PW-9, to the Eastand West side of the house of the appellant, person having buffaloesused to reside at the relevant time. From such evidence on-record, it iseasy to assess the socio-economic condition of the appellant and it cancertainly be said that he is person below poverty line.B

30. In judgment of this Court, in the case of Sunil DamodarGaikwad v. State of Maharashtra[16], while holding that court must notonly look at the crime but also offender and to give due considerationto circumstances of offender, has further held that in imposing penalty,socio-economic condition can be considered as one of the mitigatingCfactors, in addition to those indicated in Bachan Singh[2 ]and MachhiSingh[3]. Para 20 of the said judgment reads as under:

“20. When there are binding decisions, judicial comity expectsand requires the same to be followed. Judicial comity is anintegral part of judicial discipline and judicial discipline theDcornerstone of judicial integrity. No doubt, in case there arenewer dimensions not in conflict with the ratio of the largerBench decisions or where there is anything to be added to andexplained, it is always permissible to introduce the same. Poverty,socio-economic, psychic compulsions, undeserved adversities inlife are thus some of the mitigating factors to be considered, inEaddition to those indicated in Bachan Singh [Bachan Singh v.State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] andMachhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC470 : 1983 SCC (Cri) 681] cases. Thus, we are bound to analysethe facts in the light of the aggravating and mitigating factorsFindicated in the binding decisions which have influenced thecommission of the crime, the criminal, and his circumstances,while considering the sentence.

31. In view of the aforesaid judgments of this Court and evidenceon record in this case, which establishes the socio-economic conditionGof the appellant, as person below poverty line, can also be consideredas one of the mitigating factors, while balancing the aggravating andmitigating factors.

32. I am conscious of recent amendments carried out to theProtection of Children from Sexual Offences Act, 2012 (for short

H16 (2014) 1 SCC 129

‘POCSO Act’), by way of Protection of Children from Sexual OffencesAmendment Act, 2019. By virtue of the said amendments, taking noteof increasing trend of crimes against the children, minimum sentenceis increased for various offences and for offence under Section 6 ofthe Act i.e aggravated penetrative sexual assault, minimumimprisonment, which shall not be less than 20 years, which may extendto natural life or penalty of death. Prior to the amendments made byrecent amending Act of 2019, for offence under POCSO, death penaltywas not provided. By virtue of the amendments made in appropriatecases, for offences falling under provisions of the POCSO Act alone,a penalty of death sentence can be imposed. In the case on hand, theoffence was committed prior to coming into force, of the Act.33. Even then, we cannot forget the legislative intent whichresulted in amendments to POCSO, while dealing with the offencesagainst the children. At the same time, even for imposing the deathsentence, for cases arising out of the provisions under POCSO Act,2012, it is the duty of the courts to balance the aggravating and mitigatingcircumstances. To balance such aspects, the guidelines in BachanSingh v. State of Punjab[2]and further reiterated in the case of MachhiSingh and Ors. v. State of Punjab[3 ]and in the case of Sushil Murmuv. State of Jharkhand[17], will continue to apply. Further, repeatedly, itis said by this Court, in the various judgments that the aggravating andmitigating factors are to be considered with reference to the facts ofeach case and there cannot be any hard and fast rule for balancingsuch aspects.

34. I am clear in my mind that in this case on hand, the mitigatingcircumstances of the appellant, dominate over the aggravatingcircumstances, to modify the death sentence to that of life imprisonment.Even as per the case of prosecution, the appellant was under influenceof liquor at the time of committing the offence, and there is no evidenceon record from the side of prosecution, to show that there is nopossibility of reformation and rehabilitation of the appellant. Further, ageof the appellant was 25 years at the relevant time and conviction issolely based on circumstantial evidence. Taking all such aspects intoconsideration, the death penalty imposed on the appellant is to bemodified to that of life imprisonment, for the offence under Section 302IPC.

17 (2004) 2 SCC 338

A35. Long line of cases decided by this Court are cited by learnedcounsel for the appellant, in similar set of facts and circumstances, thisCourt has modified the death sentence to that of imprisonment for life,without any remission. Few recent decisions of this Court are:

36. In three Judge Bench Judgments of this Court, in the caseBof Nand Kishore v. State of Madhya Pradesh[18] dated 18.01.2019 andin the case of Raju Jagdish Paswan v State of Maharashtra[19] dated17.01.2019, for which I am party, in similar circumstances, this Courthas modified the death penalty to that of life imprisonment, without anyremission.

C37. Further, in recent three Judge Bench Judgment of this Court,in the case of Vijay Raikwar v. State of Madhya Pradesh[20], wherethere was an offence involving rape and murder of girl aged about7½ years, while confirming the conviction of the offences under Section376(2)(f) and Section 201 IPC and also under Sections 5(i), 5(m) and5(r) read with Section 6 of the POCSO Act, this Court commuted theDdeath sentence to life imprisonment.

38. In the aforesaid judgments, in similar set of facts, this Courthas modified the sentence to life imprisonment. In this case also thereis no previous crime record for the appellant. The above referredjudgment, supports the case of the appellant.

39. For the aforesaid reasons, these appeals are allowed in part.While confirming the conviction recorded by the Trial Court, deathsentence imposed on the appellant is modified to that of life imprisonmenti.e to suffer for life till his natural death, without any remission/commutation.

Devika Gujral

Appeals disposed of.

18 Criminal Appeal No. 94 of 2019

19 Criminal Appeal No. 88-89/2019

20 (2019) 4 SCC 210