LOCHAN SHRIVAS versus THE STATE OF CHHATTISGARH

[2021] 14 S.C.R. 809

LOCHAN SHRIVAS

THE STATE OF CHHATTISGARH

(Criminal Appeal Nos. 499-500 of 2018)

DECEMBER 14, 2021

[L. NAGESWARA RAO, B.R. GAVAI AND

B. V. NAGARATHNA, JJ.]

Penal Code 1860: ss.363, 366, 376(2)(i), 377, 201, 302 and376A – Prosecution case was that on the fateful day, the minor daughterof complainant was found missing – They went in search for her butshe was not found anywhere – When they came back home, PW-3 toldthem that appellant who was neighbour had said that if they wouldallow him to conduct worship, he could find the child in an hour –They agreed and after the worship, appellant informed them that thechild was tied and kept inside the sack in the bushes – PW-1 informedpolice and on suspicion, appellant was interrogated and he confessedhis crime before police – Thereafter, sack was recovered from bushescontaining the blood soaked body of the victim girl – Trial courtconvicted appellantfor offences punishable u/s363, 366, 376(2)(i), 377,201, 302 and 376A and s.6 of Protection of Children from SexualOffences Act, 2012 and passed death sentence for the offencepunishable u/s.302 – High Court affirmed the conviction and sentence– On appeal, held: For resting conviction in the case of circumstantialevidence, the circumstances from which the conclusion of guilt is to bedrawn, should be fully established, and all the facts so establishedshould be consistent only with the hypothesis of the guilt of the accused– In the instant case, proven circumstances established chain ofcircumstances, which lead to no other conclusion than the guilt of theappellant – In the statement recorded under s.313 Cr.P.C., though allthese incriminating circumstances were put to the appellant, he did notoffer any explanation except saying that it was wrong and false –Conviction u/ss.363, 366, 376(2)(i), 377, 201, 302 r/ws.376A and s.6of the POCSO Act is maintained – However, taking into considerationthe state of mind of appellant, his socio-economic background, etc., itcannot be said that there is no possibility of the appellant beingreformed and rehabilitated – Death penalty commuted to lifeimprisonment.

DEF

810SUPREME COURT REPORTS

APartly allowing the appeals, the court

HELD: 1. For resting conviction in the case ofcircumstantial evidence, the circumstances from which theconclusion of guilt is to be drawn, should be fully established,and all the facts so established should be consistent only with theBhypothesis of the guilt of the accused. The circumstances shouldbe of conclusive nature and tendency, and they should be suchas to exclude every hypothesis, but the one proposed to beproved. There must be chain of evidence so complete as not toleave any reasonable ground for conclusion consistent with theinnocence of the accused, and it must be such as to show thatCwithin all human probabilities, the act must have been done bythe accused. [Para 14][817-C-D]

2. The circumstances establish chain of circumstances,which lead to no other conclusion than the guilt of the appellant.Apart from that, in the statement recorded under Section 313DCr.P.C., though all these incriminating circumstances have beenput to the appellant, he has not offered any explanation exceptsaying that it is wrong and false. It is trite law that though thefalse explanation cannot be taken to complete missing link inthe chain of circumstances, it can surely be taken to fortify theEconclusion of conviction recorded on the basis of the provenincriminating circumstances. The non-explanation of thecircumstances would fortify the finding, which is based on thechain of incriminating circumstances that leads to noother conclusion than the guilt of the appellant. [Paras 44, 45][829-G-H; 830-D]FHanumant, son of Govind Nargundkar v. State ofMadhya Pradesh [1952] 0 SCR 1091; SharadBirdhichand Sarda v. State of Maharashtra (1984) 4SCC 116 : [1985] 1 SCR 88; Prakash Chand v. State(Delhi Administration) (1979) 3 SCC 90 : [1979] 2 SCRG330; Himachal Pradesh Administration v. Shri OmPrakash (1972) 1 SCC 249 : [1972] 2 SCR 765; A.N.Venkatesh and Another v. State of Karnataka (2005) 7SCC 714; State of Himachal Pradesh v. Jeet Singh(1999) 4 SCC 370; John Pandian v. State representedby Inspector of Police, Tamil Nadu (2010) 14 SCC 129:

[2010] 15 SCR 1012; Krishan Mohar Singh Dugal v.State of Goa (1999) 8 SCC 552; Nilesh DinkarParadkar v. State of Maharashtra (2011) 4 SCC 143 :[2011] 3 SCR 792 – referred to.

3. The trial court as well as the High Court has only takeninto consideration the crime but they have not taken intoconsideration the criminal, his state of mind, his socio-economicbackground, etc. The appellant is young person, who was 23years old at the time of commission of the offence. He comesfrom rural background. The State has not placed any evidenceto show that there is no possibility with respect to reformationand the rehabilitation of the accused. The High Court as well asthe trial court also has not taken into consideration this aspect ofthe matter. The conduct of the appellant in the prison has beenfound to be satisfactory. There are no criminal antecedents. It isthe first offence committed by the appellant. No doubt, heinousone. The appellant is not hardened criminal. It therefore cannotbe said that there is no possibility of the appellant being reformedand rehabilitated foreclosing the alternative option of lessersentence and making imposition of death sentence imperative.The judgment and order of conviction for the offences punishableunder Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section376A of the IPC and Section 6 of the POCSO Act is maintained.However, the death penalty imposed on the appellant underSection 302 IPC is commuted to life imprisonment. The sentencesawarded for the rest of the offences by the trial court as affirmedby the High Court, are maintained. [Paras 50, 52, 54][832-E-F;833-G; 835-B-C]

R. Shaji v. State of Kerala (2013) 14 SCC 266 : [2013]3 SCR 1172; Mohd. Mannan alias Abdul Mannan v.State of Bihar (2019) 16 SCC 584 : [2019] 8 SCR 266;Bachan Singh v. State of Punjab (1980) 2 SCC 684;Machhi Singh and Others v. State of Punjab (1983) 3SCC 470 : [1983] 3 SCR 413; Mofil Khan and Anotherv. The State of Jharkhand 2021 (14) SCALE 249;Rajendra Pralhadrao Wasnik v. State of Maharashtra(2019) 12 SCC 460 : [2018] 14 SCR 585; Sunil v. Stateof Madhya Pradesh (2017) 4 SCC 393 – relied on.

ACase Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos.499-500 of 2018F

From the Judgment and Order dated 17.11.2017 of the High Courtof Judicature of Chhattisgarh at Bilaspur in Reference (CRREF1 of2016) and Criminal Appeal No.888 of 2016.

Anand Grover, Sr. Adv., Amartya Kanjilal, Ms. Priyashree Sharma,GMs. Harini Raghupathy, Ms. Rushali Agarwal, Ms. Prerna Priyadarshini,Advs. for the Appellant.

Nishanth Patil, Ms. Shubhika Saluja, Ms. Malvika Kala, Advs. forthe Respondent.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. The appellant has approached this Court being aggrieved bythe judgment and order passed by the High Court of Chhattisgarh,Bilaspur dated 17[th] November 2017, thereby dismissing the appealpreferred by the appellant challenging the judgment and order dated 17[th]June 2016, passed by the Additional Sessions Judge, Fast Track Court,Raigarh (hereinafter referred to as the “trial judge”) vide which the trialjudge convicted the appellant for the offences punishable under Sections363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the IndianPenal Code, 1860 (hereinafter referred to as the “IPC”) and Section 6of the Protection of Children from Sexual Offences Act, 2012 (hereinafterreferred to as the “POCSO Act”). Vide the same judgment and order,the appellant was sentenced to death for the offence punishable underSection 302 of the IPC. For the other offences for which the appellantwas found guilty, sentences of rigorous imprisonment of 3 years, 5 years,7 years and life imprisonment have been awarded to the appellant. Thetrial judge has also made reference being Cr. Ref. No. 1 of 2016 to theHigh Court under Section 366 of the Code of Criminal Procedure, 1973(hereinafter referred to as “Cr.P.C.”) for confirmation of death penalty.Vide the impugned judgment and order, the High Court while dismissingthe appeal of the appellant, has confirmed the death penalty.

2. The prosecution case in brief is thus:

Complainant-PW-1 Gudiya Parveen w/o PW-2-Mohd. Armaanresided at D-29, 4[th] Floor, Bajrangdheepa Colony with her husband andher minor victim daughter aged 3 years. At about 10.00 am, on 24[th]February 2016, she had gone downstairs to wash clothes. At that time,she called her husband for bathing the victim. Her husband told her thatthe victim had gone downstairs to play. PW-1 then went upstairs andtold her husband that the victim was not downstairs. Thereafter, herhusband (PW-2) and she started looking for the victim, but the victimwas not found anywhere. Since the victim could not be found, PW-1went to Jutemill Police Station and lodged report of the victim goingmissing. They continued the search and ultimately returned to their houseat around 03.00-04.00 am in the morning. PW-3-Mohd. Sahid alias RajuKhan told her that appellant-Lochan Shrivas, resident of D-15 in thesame building had said that if they would allow him to conduct worship,he could find their child in an hour. Therefore, they agreed to conduct

Athe worship. After the worship, the appellant informed them that thechild was tied and kept inside sack in the bushes near pole beside theroad in Amlibhauna. On this, PW-1 and other prosecution witnessesdeveloped suspicion, and as such, PW-3 informed the police. The policeinterrogated the appellant, who confessed his crime before them.Thereafter, on memorandum under Section 27 of the Indian EvidenceBAct, 1872 (hereinafter referred to as the “Evidence Act”), sack fromthe bushes was recovered, wherein the dead body of the deceased soakedin blood was found (Ex.-P.12). On the basis of the oral report (Ex.-P.1)of PW-1, First Information Report (hereinafter referred to as “FIR”)(Ex.-P.36) came to be registered for the offence punishable under SectionC363 of the IPC. After completion of investigation, charge-sheet cameto be filed before the trial judge for the offences punishable under Sections363, 376, 377, 302, 201 of the IPC and Section 6 of the POCSO Act.3. Charges came to be framed for the offences punishable underSections 363, 376(2)(i), 377, 201, 302 read with Section 376A of the IPCDand Section 6 of the POCSO Act. The accused pleaded to be not guiltyand claimed to be tried. At the conclusion of the trial, the trial judge recordedthe aforesaid order of conviction and sentence. Being aggrieved thereby,an appeal was preferred by the appellant and also reference was madeby the trial judge under Section 366 of the Cr.P.C. By the impugnedjudgment and order, the High Court dismissed the appeal filed by the appellantEand confirmed the death sentence. Hence, the present appeals.

4. We have heard Shri Anand Grover, learned Senior Counselappearing on behalf of the appellant and Shri Nishanth Patil, learnedcounsel appearing on behalf of the respondent-State.

F5. Shri Anand Grover, learned Senior Counsel appearing on behalfof the appellant submitted that the present case is case based oncircumstantial evidence. He submitted that the prosecution has utterlyfailed to establish the incriminating circumstances and in any case, failedto establish the chain of events, which leads to no other conclusion thanthe guilt of the accused. He submitted that there are many missing linksGin the prosecution case, and as such, the judgment and order of convictionas recorded by the trial judge and confirmed by the High Court is notsustainable in law. The learned Senior Counsel submitted that the mainincriminating circumstance, on which the prosecution relies, is therecovery of the dead body of the victim. He submitted that the recoveryHis from an open place accessible to one and all. He therefore submitted

that the said recovery is of no assistance to the prosecution case. Hefurther submitted that the alleged recovery of black jeans half pant (Ex.-P.15) of the deceased and the white gamchha (Ex.-P.16) is from aplace accessible to one and all. He submitted that in any case, the ForensicScience Laboratory (hereinafter referred to as the “FSL”) reports areinconclusive, and therefore, the prosecution has failed to establish thelink between the recovered materials and the crime.

6. Shri Grover submitted that the evidence of PW-9-Chameli Sarthi,Constable would reveal that she had gone to the spot from where thebody of the victim was alleged to have been recovered at around 06.00am. It is thus clear that the police were already aware about the placefrom where the body was alleged to have been recovered on amemorandum under Section 27 of the Evidence Act.

7. He further submitted that the finger nails of the appellant werecut by barber PW-8-Kishore Shrivas and not by any forensic expert.He therefore submitted that the circumstance of finding human blood onthe said nails is of no use to the prosecution case. This is particularly soin view of the long delay in seizure of the nail samples and sending themto the FSL. The learned Senior Counsel further submitted that it isimprobable that the prosecution could have called the photographer atsuch short notice. He submitted that the alleged recovery is at around08.00 am which are not the business hours, and as such, the very evidenceregarding photography and videography becomes doubtful.8. The learned Senior Counsel for the appellant further submittedthat the entire record would reveal that the appellant was not given anopportunity of meaningfully defending the case. He submitted that sincethe Raigarh District Bar Association had taken resolution that no lawyerfrom the Bar would appear for the appellant, it was difficult for him toengage lawyer. The lawyer appointed by the court from list of panellawyers, also was not given sufficient opportunity to defend the case ofthe appellant. He submitted that the evidence of PWs 1 and 2, the motherand the father of the victim, were recorded on the very same day onwhich the lawyer was appointed for the appellant. He further submittedthat the trial court recorded the judgment and order of conviction, andthe sentence on the very same day without giving an appropriateopportunity to the appellant. The learned Senior Counsel thereforesubmitted that the prosecution has failed to prove the case beyondreasonable doubt and the appeals deserve to be allowed.

A9. The learned Senior Counsel, in the alternative, would submitthat in any case, the death penalty would not be warranted in the factsof the present case. He submitted that the trial court as well as the HighCourt has taken into consideration only the aspect of crime and theyhave not dealt with the aspect regarding the criminal. It is submitted thatthe trial court as well as the High Court has not taken into considerationBthe socio-economic background of the appellant so also the possibility ofthe appellant being reformed or rehabilitated. It is therefore submittedthat the imposition of death penalty in the facts of the present case is notat all warranted.

10. Shri Nishanth Patil, learned counsel appearing on behalf ofCthe respondent-State, on the contrary, submitted that the prosecutionhas established the case beyond reasonable doubt. It is submitted thatthe prosecution has proved all the incriminating circumstances beyondreasonable doubt. He further submitted that the prosecution has alsoestablished the link of proved circumstances, which leads to no otherDconclusion than the guilt of the accused.

11. Shri Patil further submitted that the appellant has committed aheinous act of rape on minor girl and then brutally killed her, and assuch, the case warrants for no other penalty than the death penalty.

12. With the assistance of the learned counsel for the parties, weEhave scrutinized the entire evidence on record in depth. Normally, thisCourt while exercising its jurisdiction under Article 136 of the Constitutionof India, would not go into detailed analysis of the evidence. However,since in the present case, the trial court has imposed death penalty, whichis confirmed by the High Court, we have scrutinized the evidenceFminutely.

13. The law with regard to conviction in cases based oncircumstantial evidence has been very well crystalised in the celebratedcase of Hanumant, son of Govind Nargundkar v. State of MadhyaPradesh[1]. three-Judge Bench of this Court, speaking through MehrGChand Mahajan, J., observed thus:

“It is well to remember that in cases where the evidence is of acircumstantial nature, the circumstances from which the conclusionof guilt is to be drawn should in the first instance be fully established,

H1 1952 SCR 1091

and all the facts so established should be consistent only with thehypothesis of the guilt of the accused. Again, the circumstancesshould be of conclusive nature and tendency and they should besuch as to exclude every hypothesis but the one proposed to beproved. In other words, there must be chain of evidence so farcomplete as not to leave any reasonable ground for conclusionconsistent with the innocence of the accused and it must be suchas to show that within all human probability the act much havebeen done by the accused.”14. It is thus clear that for resting conviction in the case ofcircumstantial evidence, the circumstances from which the conclusionof guilt is to be drawn, should be fully established, and all the facts soestablished should be consistent only with the hypothesis of the guilt ofthe accused. The circumstances should be of conclusive nature andtendency, and they should be such as to exclude every hypothesis, butthe one proposed to be proved. There must be chain of evidence socomplete as not to leave any reasonable ground for conclusion consistentwith the innocence of the accused, and it must be such as to show thatwithin all human probabilities, the act must have been done by theaccused.

15. Subsequently, this Court in the case of Sharad BirdhichandSarda v. State of Maharashtra[2], observed thus:

“153. close analysis of this decision would show that thefollowing conditions must be fulfilled before case against anaccused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only grammatical but legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973Crl LJ 1783] where the observations were made : [SCC para 19,p. 807 : SCC (Cri) p. 1047]

“Certainly, it is primary principle that the accused must beand not merely may be guilty before court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with theBhypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty,

(3) the circumstances should be of conclusive nature andtendency,

(4) they should exclude every possible hypothesis except theone to be proved, and

(5) there must be chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent withthe innocence of the accused and must show that in all humanDprobability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of case based on circumstantialevidence.”

16. As has been held by this Court, in case of circumstantialEevidence, before the case can be said to be fully established against anaccused, it is necessary that the circumstances from which the conclusionof guilt is to be drawn, should be fully established, and all the facts soestablished should be consistent only with the hypothesis of the guilt ofthe accused. They should not be explainable on any other hypothesisFexcept that the accused is guilty. The circumstances should be of aconclusive nature and tendency. They should exclude every hypothesisexcept the one to be proved. There must be chain of evidence socomplete as not to leave any reasonable ground for the conclusionconsistent with the innocence of the accused and must show that in allhuman probabilities, the act must have been done by the accused.G

17. The aforesaid view has been consistently followed by thisCourt in catena of decisions.

18. The circumstances, which the trial court has culled out in itsjudgment while holding that the prosecution has proved its case beyondHreasonable doubt, are thus:

[B. R. GAVAI, J.]

“1.The accused telling PW5 Munni that he can tell the locationAof the missing victim in an hour if he does Pooja.

2.PW5 Munni telling PW3; Mo Sahid alias Raju Khan whatthe accused had told her as above.

3.PW3 Mo Sahid alias Raju Khan telling the victim’s parentsBof the above conversation.

4.The deceased’s parents PW1 Gudiya Parveen and PW2Mo Armaan asking the accused to perform the Pooja.

5.The accused saying that the victim’s body was in gunnysack near an electricity pole on the side of the road inCAmlibhauna.

6.PW3 Mo Sahid alias Raju Khan telling the police of theaforesaid claims by the accused.

7.Police questioning the accused and the accused going alongwith the police to locate the victim’s dead body in gunnyDsack in Amlibhauna.

8.The accused leading the police to recover the pillow andthe towel from his home-

9.The accused leading the police to the rubbish dump whereEhe had thrown the victim’s pants.

10.Material used in Pooja being recovered from the home ofthe victim

11.According to Ex P 46, the fact that blood was found underthe accused’s nails and that the victim’s vaginal slide hadtraces of human sperm.”

19. The High Court also by giving an elaborate reasoning has heldthat the prosecution has proved the chain of incriminating circumstances,which leads to no other conclusion than the guilt of the appellant.

20. We will now consider the evidence led on behalf of theprosecution to establish the incriminating circumstances against theappellant.

21. PW-1-Gudiya Parveen, mother of the victim has deposed thatshe lived in D-29, 4[th] Floor, Bajrangdheepa Colony. The appellant liveddownstairs in D-15 in the same building. On 24[th] February 2016 at about

A10.00 am, she had gone downstairs to wash clothes. She had called herhusband for bathing the victim. However, her husband told her that thevictim had gone downstairs to play. Thereafter, they searched for thevictim but she was not found, and therefore, they went to Jutemill PoliceStation and lodged the report of the victim going missing. On the basis ofthe oral report (Ex.-P.1), an FIR (Ex.-P.36) came to be registered. TheBoral report (Ex.-P.1) is duly proved in the evidence of PW-1 whereas,the FIR (Ex.-P.36) has been proved in the evidence of PW-16-DineshBahidar, Assistant Sub-Inspector.

22. It could thus be seen that the first circumstance that theprosecution has proved, is that the victim went missing at around 10.00Cam, and thereafter, they started searching for her. When the victim wasnot found anywhere, an oral report (Ex.-P.1) came to be lodged at around22.00 hours on 24[th] February 2016 on the basis of which, an FIR (Ex.-P.36) came to be registered.

23. PW-1, in her testimony, has further stated that she and herDhusband PW-2-Mohd. Armaan tried to search for the child. Since shecould not be found, they returned at around 03.00-04.00 am. When theyreturned home, Raju Khan (PW-3) informed them that appellant-LochanShrivas, resident of D-15, has stated that if they would allow him toconduct worship, he could find the child in an hour. Then, PW-1 agreedEfor conducting the worship. She arranged for the things required forworship – vermilion, lemons, earthen lamps, incense sticks and coal.After these things had been brought, the appellant performed the worshipin the room of PW-1. He had asked them to cover all the pictures ofAllah by cloth. After performing the worship, the appellant told themthat the child was inside sack in the bushes near pole beside the roadFin Amlibhauna.24. Similar is the evidence of PW-2-Mohd. Armaan, the husbandof PW-1 and father of the victim. PW-3-Raju Khan, who is neighbour,had stated in his evidence that when they could not find the victim, theyreturned at around 03.00-03.30 am. He stated that when they returned,GMunni alias Sarbari (PW-5) told them that appellant-Lochan Shrivas,who lived in D-15 was telling her that the child could be traced by worship.Accordingly, the worship was performed, and after that, appellant-Lochansaid that the victim was inside sack in the bushes near pole besideAmlibhauna road.

25. PW-5-Munni alias Sarbari, who is also resident ofBajrangdheepa colony, stated that she had also joined for searching thevictim. However, since the victim was not found, they returned. At about03.00-03.30 am on 25[th] February 2016, the appellant met her and said,“If you conduct worship, your child will be found.” She told the same toRaju Khan (PW-3). Then, the appellant conducted worship and said thatthe deceased was inside sack in the bushes near pole beside the roadin Amlibhauna.

26. It could thus be seen that the prosecution has proved beyondreasonable doubt that the appellant, on his own, told PW-5-Munni aliasSarbari that if worship was performed, the whereabouts of the victimcould be found. PW-5-Munni alias Sarbari informed this fact to PW-3-Raju Khan, who in turn, informed the same to PWs 1 and 2. Accordingly,a worship came to be performed. After the worship was performed, theappellant told them that the victim could be found in sack in the bushesnear pole beside the road in Amlibhauna.

27. PW-19-Amit Patley, Sub-Inspector, Investigating Officer(hereinafter referred to as the “IO”), has also seized the materials whichwere used for performing the worship (Ex.-P.18). The said panchnamais witnessed by Raju Khan (PW-3). The said seizure panchnamatherefore corroborates the ocular version of PWs 1, 2, 3 and 5.

It is thus clear that when PWs 1, 2, 3 and 5 returned to their placeof residence, the appellant informed PW-5 that if they perform worship,the deceased could be found. Accordingly, worship was performedand after performing the said worship, the appellant said that the deceasedcould be found in sack in the bushes near pole beside the road inAmlibhauna. This circumstance could be an important circumstance forconsidering the conduct of the appellant under Section 8 of the EvidenceAct. Reliance in this respect could be placed on the judgments of thisCourt in the cases of Prakash Chand v. State (Delhi Administration)[3],Himachal Pradesh Administration v. Shri Om Prakash[4] and A.N.Venkatesh and Another v. State of Karnataka[5].

28. The next and the most important circumstance on which theprosecution relies, is the recovery of dead body of the victim on

3 (1979) 3 SCC 90

4 (1972) 1 SCC 249

5 (2005) 7 SCC 714

Amemorandum of the appellant under Section 27 of the Evidence Act.The evidence of PWs 1, 2, 3 and 5 would reveal that immediately afterthe appellant performing worship and telling them that the victim wasinside sack in the bushes near pole beside the road in Amlibhauna, asuspicion arose and Raju Khan (PW-3) immediately informed the policeand the police arrived. The evidence of all the four witnesses is consistentBin that regard. Amit Patley, IO(PW-19) also corroborated this fact withregard to the police receiving the said information. In his evidence, PW-19 stated that he registered the said information in Rojnamcha No.2dated 25[th] February 2016 at 06.10 am. The said Rojnamcha entry hasbeen exhibited at Ex.-P.38 and its attested copy is at Ex.-P.38-C.

C29. PW-19, in his evidence, stated that after receiving theinformation, he immediately went to the spot and took the appellant intohis custody and interrogated him. He stated that the appellant, on beinginterrogated, stated thus:

“The previous day on 24.02.2016, at about 10:00, he had beenDalone in his room. The deceased who lived in D-29 on the floorabove his house was coming downstairs whom she persuadedand took into his room and closed his room from inside and got thepants worn by the deceased removed and forcibly made physicalrelation with her. Meanwhile, the deceased started crying loudlyEso he pressed the mouth and nose of the deceased with pillow.By making physical relation, excessive bleeding started, seeingwhich he got nervous and thinking that the secret should not berevealed, he murdered the deceased by strangulating her and wipethe blood and the ejaculated sperm smeared on his penis with atowel kept in the room. He filled the dead body of the deceased inFa plastic sack of lentil by twisting her hands and legs. He tied thebag with plastic rope. He wore his clothes. He filled the pantsworn by the deceased in polythene and threw it from the balconyto the place where garbage is disposed and entering the roomplaced the dead body of the deceased that he had filled in plasticGsack, in yellow bag. He locked the room, carried the bag inhands and went on foot to hide the dead body in bush nearelectric pole at Amlibhouna road and stated of keeping the bag inhis home on returning and of keeping the pillow with which hehad pressed the nose and mouth of the deceased and the towelwith which he had wiped the blood and semen on his penis, in his

room and stated of getting the dead body of the deceased, herpants, pillow and towel recovered.”

30. The memorandum statement under Section 27 of the EvidenceAct was duly executed and the same was marked as Ex.-P.11. Theprosecution has examined PW-3-Raju Khan, who is witness to thesaid memorandum statement.

31. PW-19 further stated that thereafter, in the presence of thewitnesses, he recovered blue plastic bag bearing map of India andthe text “No.1 Dal Best Quality Dal”, which had been tied with plasticrope. He got the bag cut open by Raju Khan (PW-3) in the presence ofthe father of the deceased (PW-2) and other witnesses. In the saidsack, the dead body of the victim soaked in blood and in naked conditionwas found. The body was identified by PW-2, who is the father of thedeceased. The recovery panchnama is duly executed under Ex.-P.12.The prosecution has relied on the evidence of PW-3, who was panchwitness to the said panchnama.

32. The said recovery on the memorandum of the appellant underSection 27 of the Evidence Act, has been attacked by the defence onthe ground that the same is from an open place, accessible to one andall. In this respect, it is apposite to rely on the following observations ofthis Court in the case of State of Himachal Pradesh v. Jeet Singh[6]:

“26. There is nothing in Section 27 of the Evidence Act whichrenders the statement of the accused inadmissible if recovery ofthe articles was made from any place which is “open or accessibleto others”. It is fallacious notion that when recovery of anyincriminating article was made from place which is open oraccessible to others, it would vitiate the evidence under Section27 of the Evidence Act. Any object can be concealed in placeswhich are open or accessible to others. For example, if the articleis buried in the main roadside or if it is concealed beneath dryleaves lying on public places or kept hidden in public office, thearticle would remain out of the visibility of others in normalcircumstances. Until such article is disinterred, its hidden statewould remain unhampered. The person who hid it alone knowswhere it is until he discloses that fact to any other person. Hence,the crucial question is not whether the place was accessible to

Aothers or not but whether it was ordinarily visible to others. If it isnot, then it is immaterial that the concealed place is accessible toothers.”

It could thus be seen that this Court has held that what is relevantis not whether the place was accessible to others or not, but whether itBwas ordinarily visible to others. If the place at which the article hidden issuch where only the person hiding it knows until he discloses that fact toany other person, then it will be immaterial whether the concealed placeis accessible to others.

33. It will also be relevant to refer to the following observations ofCthis Court in the case of John Pandian v. State represented byInspector of Police, Tamil Nadu[7]:

“57. It was then urged by the learned counsel that this was anopen place and anybody could have planted veechu aruval. Thatappears to be very remote possibility. Nobody can simplyDproduce veechu aruval planted under the thorny bush. Thediscovery appears to be credible. It has been accepted by boththe courts below and we find no reason to discard it. This isapart from the fact that this weapon was sent to the forensicscience laboratory (FSL) and it has been found stained withhuman blood. Though the blood group could not be ascertained,Eas the results were inconclusive, the accused had to give someexplanation as to how the human blood came on this weapon.He gave none. This discovery would very positively further theprosecution case.”

34. perusal of the material placed on record would reveal thatFthe dead body of the deceased was recovered on the basis of theinformation supplied by the appellant that he had concealed the body ina sack in the bushes near pole beside the road in Amlibhauna. Theevidence of PW-7-Krishna Kumar Jaiswal, Photographer would revealthat after he received the notice, he went to the spot and clicked theGphotographs (Ex.-P.23). He has further stated that he has also made thevideography of the entire procedure.35. It will also be relevant to refer to the following observationsmade by the High Court in para (35) of the impugned judgment:

H7 (2010) 14 SCC 129

“35. We have gone through the video movie prepared and afterwatching the video, we are of the view that the recovery of deadbody was made from place which cannot be said to be accessibleto an ordinary person without prior knowledge as the bodyrecovered was kept concealed in gunny bag inside the shrubssituated at sufficient distance from the main road. In the statementunder Section 313 CrPC, the accused/appellant failed to explainhow he came to know that the deceased had been murdered andthrown in the shrubs after wrapping her in gunny bag……..”

It could thus be seen that the High Court had itself viewed thevideo and on seeing the same, it was of the view that the recovery of thedead body was made from place, which cannot be said to be accessibleto an ordinary person without prior knowledge since the body recoveredwas kept concealed in gunny bag inside the shrubs situated at sufficientdistance from the main road.

36. Insofar as the reliance placed by the appellant on the judgmentof this Court in the case of Krishan Mohar Singh Dugal v. State ofGoa[8]is concerned, in the said case, the accused was convicted for theoffence punishable under Section 20(b)(ii) of the Narcotic Drugs andPsychotropic Substances Act, 1985, solely on the basis of recovery atthe instance of the accused on the basis of memorandum statementunder Section 27 of the Evidence Act. In the said case, the recoverywas from place under the coconut tree, which was accessible to oneand all. It was not case of concealment in place, which was onlywithin the knowledge of the person concealing it. In any event, in thesaid case, the conviction was solely on the basis of the said recoveryand as such, was found to be untenable.37. Insofar as the reliance placed by the appellant on the judgmentof this Court in the case of Nilesh Dinkar Paradkar v. State ofMaharashtra[9]is concerned, in the said case, the conviction was solelyon the basis of identification by voice and as such, was not found to betenable. As such, these cases would not be of any assistance to the caseof the appellant.

38. It has been sought to be urged on behalf of the appellant thatfrom the evidence of PW-9-Chameli Sarthi, it is clear that the police

8 (1999) 8 SCC 552

9 (2011) 4 SCC 143

Aalready knew about the place where the dead body was concealed. PW-9 had taken the dead body of the deceased to District Hospital, Raigarh. Itwill be apposite to refer to the relevant portion of the deposition of PW-9:

“We went to the place of incident Amlibhowna at 6 a.m. from theoutpost. From there, we directly went to the hospital with all.BToday, I cannot state at what time we left the place of incidentAmlibhowna. The witness now says, “Perhaps we left at 8-9 O’clock. Along with Prakash Tiwari, Sub-Inspector Amit Patle wasalso present with me and policemen from other police station werealso present. Two person were going ahead taking the dead bodyin an auto-rickshaw, we were following by our bikes.”CPW-9 stated that she went to the place of incident Amlibhauna at06.00 am from the outpost. It is to be noted that according to the evidenceof PWs 1, 2, 3 and 19, PW-3 informed PW-19 about the incident ataround 06.00 am. The said information was registered in the Rojnamchaat around 06.10 am. What is stated by this witness is that she went toDAmlibhauna which is locality. However, that by itself would not besufficient to come to conclusion that the police already knew about theplace from where the dead body was recovered. She stated that shehad left for the hospital at around 08.00-09.00 o’clock. The evidence ofa witness cannot be read in piecemeal. The evidence has to be read asEa whole. If the evidence of this witness is read as whole, the attack onher evidence is not justified. In any case, the recovery of the body on theinformation given by the appellant, is duly proved by the memorandumof the appellant under Section 27 of the Evidence Act (Ex.-P.11) and therecovery panchnama (Ex.-P.12). That apart, the oral testimony of PWs1, 2, 3, 5 and 19 corroborates the same.F

39. We are therefore of the considered view that the prosecutionhas proved beyond reasonable doubt that the recovery of the dead bodyof the deceased on the memorandum of the appellant under Section 27of the Evidence Act, was from place distinctly within the knowledgeof the appellant.G

40. Another circumstance against the appellant is the recovery ofthe black jeans half pant of the deceased (Ex.-P.15) from the dumpingarea and the gamchha and pillow (Ex.-P.16) from the house of theappellant. PW-3 is panch witness to the recovery of black jeans halfpant (Ex.-P.15). He is also witness to the spot panchnama (Ex.-P.17)Hwhere the worship was conducted. It is further noted that on the

gamchha seized from the house of the appellant, blood-stains were found.Much attack has been made by the defence on the ground that the FSLReport does not connect the appellant with the said blood found ongamchha. To consider this submission, we may gainfully refer to thefollowing observations of this Court in the case of R. Shaji v. State ofKerala[10]:

“30. It has been argued by the learned counsel for the appellantthat as the blood group of the bloodstains found on the choppercould not be ascertained, the recovery of the said chopper cannotbe relied upon.

31. failure by the serologist to detect the origin of the blooddue to disintegration of the serum does not mean that theblood stuck on the axe could not have been human blood atall. Sometimes it is possible, either because the stain is insufficientin itself, or due to haematological changes and plasmaticcoagulation, that serologist may fail to detect the origin of theblood in question. However, in such case, unless the doubt is ofa reasonable dimension, which judicially conscientious mind mayentertain with some objectivity, no benefit can be claimed by theaccused in this regard. Once the recovery is made in pursuanceof disclosure statement made by the accused, the matching ornon-matching of blood group(s) loses significance. (Vide PrabhuBabaji Navle v. State of Bombay [AIR 1956 SC 51 : 1956 CriLJ 147] , Raghav Prapanna Tripathi v. State of U.P. [AIR 1963SC 74 : (1963) 1 Cri LJ 70] , State of Rajasthan v. TejaRam [(1999) 3 SCC 507 : 1999 SCC (Cri) 436] , GuraSingh v. State of Rajasthan [(2001) 2 SCC 205 : 2001 SCC (Cri)323 : AIR 2001 SC 330] , John Pandian v. State [(2010) 14 SCC129 : (2011) 3 SCC (Cri) 550] and Sunil Clifford Daniel v. Stateof Punjab [(2012) 11 SCC 205 : (2013) 1 SCC (Cri) 438] .)

32. In view of the above, the Court finds that it is not possible toaccept the submission that in the absence of report regardingthe origin of the blood, the accused cannot be convicted, for it isonly because of the lapse of time that the blood could not beclassified successfully. Therefore, no advantage can be conferredupon the accused to enable him to claim any benefit, and the

Areport of disintegration of blood, etc. cannot be termed as missinglink, on the basis of which the chain of circumstances may bepresumed to be broken.”

41. The next circumstance is the finding of the blood-stains on thenail clipping of the appellant. PW-8-Kishore Shrivas is barber. He hasBstated that on being called by the police, he cut the nails of both thehands of the appellant. The said nails were cut under the panchnamaEx.-P.19, which is signed by the said barber as well as PW-3. The saidcircumstance is attacked on the ground that the IO had not called theforensic team for seizure of the said nails. However, even if thiscircumstance is excluded, we find that the other circumstances, whichChave been discussed in detail by us in the foregoing paragraphs,conclusively bring home the guilt of the appellant.

42. The panchnamas are sought to be attacked on the ground thatPW-3 is the only panch witness to all these panchnamas. We are of theview that this contention deserves no merit in the light of the followingDobservations of this Court in the case of Himachal PradeshAdministration (supra):

“10. Further having held this it nonetheless said that there was noinjunction against the same set of witnesses being present at thesuccessive enquiries if nothing could be urged against them. InEour view the evidence relating to recoveries is not similar to thatcontemplated under Section 103 of the Criminal Procedure Codewhere searches are required to be made in the presence of twoor more inhabitants of the locality in which the place to be searchedis situate. In an investigation under Section 157 the recoveriesFcould be proved even by the solitary evidence of the InvestigatingOfficer if his evidence could otherwise be believed. We cannotas matter of law or practice lay down that where recoverieshave to be effected from different places on the informationfurnished by the accused different sets of persons should be calledin to witness them. In this case PW 2 and PW 8 who worked withGthe deceased were the proper persons to witness the recoveriesas they could identify some of the things that were missing andalso they could both speak to the information and the recoverymade in consequence thereof as continuous process. At anyrate PW 2 who is alleged to be the most interested was not presentHat the time of the recovery of the dagger.”

43. We are therefore of the considered view that the prosecutionhas established the following circumstances beyond reasonable doubt:

(i)The victim was reported missing and an FIR was lodged inthis regard;

(ii)The appellant had claimed that he could disclose theBwhereabouts of the victim by performing worship;

(iii)The said worship came to be conducted by the appellant inthe early hours of 25[th] February 2016 in the presence ofPWs 1, 2, 3 and 5 and the appellant disclosed to them thatthe dead body of the victim was inside sack in the bushesCnear pole beside the road in Amlibhauna;

(iv)A suspicion arose in the minds of PWs 1, 2, 3 and 5 andthey immediately informed the police. The said informationis recorded in Rojnamcha No. 2 under Ex.-P.38;

(v)Police immediately reached the spot and interrogated theappellant. On interrogation, memorandum under Section27 of the Evidence Act came to be recorded;

(vi)On the basis of memorandum of the appellant under Section27 of the Evidence Act, the dead body of the victim (Ex.-P.12) was recovered from sack which was concealed bythe appellant under the bushes from place distinctly withinhis knowledge; and

(vii)On memorandum of the appellant under Section 27 of theEvidence Act, black jeans half pant of the victim (Ex.-P.15) and gamchha of the appellant (Ex.-P.16), wererecovered from the dumping area behind Block in NagarNigam Colony and the house of the appellant respectively.

44. We are of the considered view that the aforesaid provencircumstances establish chain of circumstances, which leads to noother conclusion than the guilt of the appellant. Apart from that, in thestatement recorded under Section 313 Cr.P.C., though all theseincriminating circumstances have been put to the appellant, he has notoffered any explanation except saying that it is wrong and false. In thisrespect, we may refer to the following observations of this Court in thecase of Sharad Birdhichand Sarda (supra):

A“151. It is well settled that the prosecution must stand or fall onits own legs and it cannot derive any strength from the weaknessof the defence. This is trite law and no decision has taken contraryview. What some cases have held is only this : where variouslinks in chain are in themselves complete, then false plea or afalse defence may be called into aid only to lend assurance to theBcourt. In other words, before using the additional link it must beproved that all the links in the chain are complete and do notsuffer from any infirmity. It is not the law that where there is anyinfirmity or lacuna in the prosecution case, the same could becured or supplied by false defence or plea which is not acceptedCby court.

45. It is trite law that though the false explanation cannot be takento complete missing link in the chain of circumstances, it can surely betaken to fortify the conclusion of conviction recorded on the basis of theproven incriminating circumstances. We find that the non-explanation ofDthe circumstances would fortify the finding, which is based on the chainof incriminating circumstances that leads to no other conclusion than theguilt of the appellant.

46. An important aspect arises for consideration in the presentappeals so also in the various other appeals where the accused is notEgiven an appropriate opportunity of defending the case. In the presentcase, we find that the charges were framed on 6[th] May 2016. On 6[th]June 2016, the accused appeared before the court and submitted that hewas not competent to engage lawyer at his own cost. As such, the trialjudge appointed Shri Kamlesh Saraf from the Panel as the lawyer torepresent the accused. Immediately on the next day, the evidence ofFPWs 3 to 7 were recorded. The trial judge passed the judgment andorder of conviction on 17[th] June 2016 and also awarded death penalty onthe same day. We find that though speedy trial is desirable, however,sufficient time ought to have been given to the counsel for the accusedto prepare for the case after he was appointed. Even insofar as theGaward of sentence is concerned, some period ought to have been givenbetween the date of conviction and the award of sentence, specificallywhen death penalty was awarded. However, from the evidence whichwe have scrutinized in depth, we do not find that any prejudice wascaused to the accused inasmuch as the witnesses have been cross-examined in detail by the lawyer appointed by the court.H

47. That leaves us with the question of sentence. We will have toconsider as to whether the capital punishment in the present case iswarranted or not.

48. Recently, this Court in the case of Mohd. Mannan aliasAbdul Mannan v. State of Bihar[11], after considering earlier judgmentsof this Court on the present issue in the cases of Bachan Singh v. Stateof Punjab[12]and Machhi Singh and Others v. State of Punjab[13],observed thus:

“72. The proposition of law which emerges from the judgmentsreferred to above is itself death sentence cannot be imposed exceptin the rarest of rare cases, for which special reasons have to berecorded, as mandated in Section 354(3) of the Criminal ProcedureCode. In deciding whether case falls within the category of therarest of rare, the brutality, and/or the gruesome and/or heinousnature of the crime is not the sole criterion. It is not just the crimewhich the Court is to take into consideration, but also the criminal,the state of his mind, his socio-economic background, etc. Awardingdeath sentence is an exception, and life imprisonment is the rule.”

49. This Bench, recently, in the case of Mofil Khan and Anotherv. The State of Jharkhand[14], has observed thus:

“8. One of the mitigating circumstances is the probability of theaccused being reformed and rehabilitated. The State is under aduty to procure evidence to establish that there is no possibility ofreformation and rehabilitation of the accused. Death sentenceought not to be imposed, save in the rarest of the rare cases whenthe alternative option of lesser punishment is unquestionablyforeclosed (See: Bachan Singh v. State of Punjab (1980) 2 SCC684). To satisfy that the sentencing aim of reformation isunachievable, rendering life imprisonment completely futile, theCourt will have to highlight clear evidence as to why the convictis not fit for any kind of reformatory and rehabilitation scheme.This analysis can only be done with rigour when the Court focuseson the circumstances relating to the criminal, along with other

11 (2019) 16 SCC 58412 (1980) 2 SCC 684

13 (1983) 3 SCC 470

14 RP(Criminal) No. 641/2015 in Criminal Appeal No.1795/2009 dated 26.11.2021

Acircumstances (See: Santosh Kumar Satishbhushan Bariyar v.State of Maharashtra (2009) 6 SCC 498). In RajendraPralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC460, this Court dealt with the review of judgment of this Courtconfirming death sentence and observed as under:

B“45. The law laid down by various decisions of this Court clearlyand unequivocally mandates that the probability (not possibilityor improbability or impossibility) that convict can be reformedand rehabilitated in society must be seriously and earnestlyconsidered by the courts before awarding the death sentence.This is one of the mandates of the “special reasons”Crequirement of Section 354(3) CrPC and ought not to be takenlightly since it involves snuffing out the life of person. Toeffectuate this mandate, it is the obligation on the prosecutionto prove to the court, through evidence, that the probability isthat the convict cannot be reformed or rehabilitated. This canDbe achieved by bringing on record, inter alia, material about hisconduct in jail, his conduct outside jail if he has been on bail forsome time, medical evidence about his mental make-up, contactwith his family and so on. Similarly, the convict can produceevidence on these issues as well.””

E50. In the present case, it is to be noted that the trial court hadconvicted the appellant and imposed death penalty on the very sameday. The trial court as well as the High Court has only taken intoconsideration the crime but they have not taken into consideration thecriminal, his state of mind, his socio-economic background, etc. At thisjuncture, it will be relevant to refer to the following observations of thisFCourt in the case of Rajendra Pralhadrao Wasnik v. State ofMaharashtra[15]:

“47. Consideration of the reformation, rehabilitation andreintegration of the convict into society cannot be overemphasised.Until Bachan Singh [Bachan Singh v. State of Punjab, (1980)G2 SCC 684 : 1980 SCC (Cri) 580] , the emphasis given by thecourts was primarily on the nature of the crime, its brutality andseverity. Bachan Singh [Bachan Singh v. State of Punjab,(1980) 2 SCC 684 : 1980 SCC (Cri) 580] placed the sentencing

process into perspective and introduced the necessity of consideringthe reformation or rehabilitation of the convict. Despite the viewexpressed by the Constitution Bench, there have been severalinstances, some of which have been pointed out in Bariyar [SantoshKumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6SCC 498 : (2009) 2 SCC (Cri) 1150] and in Sangeet v. State ofHaryana [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013)2 SCC (Cri) 611] where there is tendency to give primacy to thecrime and consider the criminal in somewhat secondary manner.As observed in Sangeet [Sangeet v. State of Haryana, (2013) 2SCC 452 : (2013) 2 SCC (Cri) 611] “In the sentencing process,both the crime and the criminal are equally important.” Therefore,we should not forget that the criminal, however ruthless he mightbe, is nevertheless human being and is entitled to life of dignitynotwithstanding his crime. Therefore, it is for the prosecution andthe courts to determine whether such person, notwithstandinghis crime, can be reformed and rehabilitated. To obtain and analysethis information is certainly not an easy task but must neverthelessbe undertaken. The process of rehabilitation is also not simpleone since it involves social reintegration of the convict into society.Of course, notwithstanding any information made available andits analysis by experts coupled with the evidence on record, therecould be instances where the social reintegration of the convictmay not be possible. If that should happen, the option of longduration of imprisonment is permissible.”

51. In view of the settled legal position, it is our bounden duty totake into consideration the probability of the accused being reformedand rehabilitated. It is also our duty to take into consideration not onlythe crime but also the criminal, his state of mind and his socio-economicconditions.

52. The appellant is young person, who was 23 years old at thetime of commission of the offence. He comes from rural background.The State has not placed any evidence to show that there is no possibilitywith respect to reformation and the rehabilitation of the accused. TheHigh Court as well as the trial court also has not taken into considerationthis aspect of the matter. The appellant has placed on record the affidavitsof Leeladhar Shrivas, younger brother of the appellant as well asGhasanin Shrivas, elder sister of the appellant. perusal of the affidavits

Awould reveal that the appellant comes from small village called Pusaldain Raigarh district of Chhattisgarh. His father was earning his livelihoodas barber. The appellant was studious and hard-working. He did reallywell at school and made consistent efforts to bring the family out ofpoverty. The conduct of the appellant in the prison has been found to besatisfactory. There are no criminal antecedents. It is the first offenceBcommitted by the appellant. No doubt, heinous one. The appellant isnot hardened criminal. It therefore cannot be said that there is nopossibility of the appellant being reformed and rehabilitated foreclosingthe alternative option of lesser sentence and making imposition of deathsentence imperative.C53. bench consisting of three Judges of this Court had an occasionto consider similar facts in the case of Sunil v. State of MadhyaPradesh[16]. In the said case too, the appellant-accused was around 25years of age who had taken away minor girl. The accused hadcommitted rape on the said minor and caused her death due to asphyxiaDcaused by strangulation. The trial court had sentenced the accused forthe offences punishable under Sections 363, 367, 376(2)(f) and 302 ofthe IPC and awarded him death penalty. The same was upheld by theHigh Court. In appeal, this Court held thus:

“12. In the present case, we do not find that the requirementsEspelt out in Bachan Singh [Bachan Singh v. State of Punjab,(1980) 2 SCC 684 : 1980 SCC (Cri) 580] and the pronouncementsthereafter had engaged the attention of either of the courts. In thepresent case, one of the compelling/mitigating circumstances thatmust be acknowledged in favour of the appellant-accused is theyoung age at which he had committed the crime. The fact thatFthe accused can be reformed and rehabilitated; the probabilitythat the accused would not commit similar criminal acts; that theaccused would not be continuing threat to the society, are theother circumstances which could not but have been ignored bythe learned trial court and the High Court.G13. We have considered the matter in the light of the above. Onsuch consideration, we are of the view that in the present case,the ends of justice would be met if we commute the sentence ofdeath into one of life imprisonment. We order accordingly. The

punishments awarded for the offences under Sections 363, 367and 376(2)(f) IPC by the learned trial court and affirmed by theHigh Court are maintained.”

54. We are also inclined to adopt the same reasoning and followthe same course as adopted by this Court in the case of Sunil (supra).The appeals are therefore partly allowed. The judgment and order ofconviction for the offences punishable under Sections 363, 366, 376(2)(i),377, 201, 302 read with Section 376A of the IPC and Section 6 of thePOCSO Act is maintained. However, the death penalty imposed on theappellant under Section 302 IPC is commuted to life imprisonment. Thesentences awarded for the rest of the offences by the trial court asaffirmed by the High Court, are maintained.

55. Before we part with the judgment, we must appreciate thevaluable assistance rendered by Shri Anand Grover, learned SeniorCounsel appearing on behalf of the appellant and Shri Nishanth Patil,learned counsel appearing on behalf of the respondent-State.

Devika Gujral

Appeals partly allowed.