PAPPU versus THE STATE OF UTTAR PRADESH

[2022] 2 S.C.R. 13

PAPPU

THE STATE OF UTTAR PRADESH

(Criminal Appeal Nos. 1097-1098 of 2018)

FEBRUARY 09, 2022

[A. M. KHANWILKAR, DINESH MAHESHWARI AND

C. T. RAVIKUMAR, JJ]

Penal Code, 1860: ss. 376, 302, 201 – Protection of ChildrenFrom Sexual Offences Act 2012 – ss. 5, 6 – Circumstantial Evidence– Prosecution case was that appellant enticed seven year old girlto accompany him on the pretext of picking lychee fruits – Thereafterhe committed rape on her and killed her and dumped the dead bodyin bushes near the riverbank –Trial court and High Courtconcurrently recorded the findings that the prosecution was able tosuccessfully establish the chain of circumstances leading tounmistakable conclusion that the appellant was guilty of the offencesof rape and murder of the victim child as also of concealing herdead body – The fundamental fact, as held proved against theappellant was that the deceased was lastly seen in the company ofthe appellant when he took the deceased along with himself whileshooing away other children– Burden was on the accused toexplain his whereabouts after he was last seen with the deceasedand to show if, and when, the deceased parted with his company asalso the reason for his knowledge about the location of the deadbody– Appellant undoubtedly failed to discharge the burden castupon him by s.106 of the Evidence Act – This circumstance is astrong link in the chain of circumstances against him – In the givenset of circumstances, it could safely be said that the presumptioncontemplated by s.29 POCSO came into operation – The othersignificant fact, as held proved, was that the dead body of the victimchild was recovered at faraway place near the riverbank at theinstance of the appellant – Appellant failed to satisfactorily explainhis whereabouts since he was last seen in the company of the deceasedas also his knowledge of the location of the dead body – Thesefacts and factors, taken together with the medical and other scientificevidence formed complete chain of circumstances, leading to theconclusion on the guilt of the appellant – Conviction of the appellantof offences under ss.376, 302, 201 IPC and ss.5/6 POCSO is upheld.

ASentence/Sentencing: Rape and murder of seven year old girlchild – The heinous nature of crime like that of present one, inbrutal rape and murder of seven-year-old girl child, definitelydiscloses aggravating circumstances, particularly when the mannerof its commission shows depravity and shocks the conscience – But,at the same time, considering that appellant had no criminalBantecedents, came from very poor socio-economic background,having family comprising of wife, children and aged father, andunblemished jail conduct, probability of reformation andrehabilitation of the appellant is not ruled out – Therefore, case istreated to not fall in ‘rarest of rare’ category – Yet, the impact of theCoffences in question on the conscience of the society as wholecannot be ignored – Appellant was about 33-34 years of age at thetime of commission of crime in the year 2015 – Looking to the overallfacts and circumstances, it is held just and proper to award thepunishment of imprisonment for life to the appellant for the offenceunder s.302 IPC while providing for actual imprisonment for aDminimum period of 30 years – Penal Code, 1860 – ss. 376, 302,201 – Protection of Children From Sexual Offences Act 2012 – ss.5, 6.

Evidence: Child witness – Rural background of witness –Discrepancies in evidence – In the process of appreciation ofEevidence, trial court and High Court looked at the crux of the matteremerging from her testimony that she was indeed witness to thefact that the deceased child was last seen in the company of theappellant when he took her along towards lychee farm – Thetestimony of child witness is categorical in regard to the facts and

Fthere appears no reason to disbelieve her testimony, even if hercomprehension of time and hours appears to be wanting in maturity– It would be rather unrealistic to expect such maturity from ten-year-old child coming from rustic background.

Constitution of India: Art.134 and Art.136 – ConcurrentGFinding – Interference – Scope – As against any judgment/finalorder or sentence in criminal proceeding of the High Court,regular appeals to Supreme Court are envisaged in relation to theeventualities specified in Art.134 of the Constitution of India ands.2 of the Supreme Court (Enlargement of Criminal AppellateJurisdiction) Act, 1970 – The present matter is not covered thereunderH

– Present appeals are by special leave in terms of Art.136 of theConstitution of India – In an appeal by special leave, where thetrial court and the High Court concurrently returns findings of factafter appreciation of evidence, each and every finding of fact cannotbe contested nor such an appeal could be dealt with as if anotherforum for reappreciation of evidence – Of course, if the assessmentby trial court and the High Court could be said to be vitiated byany error of law or procedure or misreading of evidence or indisregard to the norms of judicial process leading to seriousprejudice or injustice, Supreme Court may, and in appropriate caseswould, interfere in order to prevent grave or serious miscarriage ofjustice but, such course is adopted only in rare and exceptionalcases of manifest illegality.

Partly allowing the appeals, the Court

HELD: 1. It is but clear that as against any judgment/finalorder or sentence in criminal proceeding of the High Court,regular appeals to this Court are envisaged in relation to theeventualities specified in Article 134 of the Constitution of Indiaand Section 2 of the Supreme Court (Enlargement of CriminalAppellate Jurisdiction) Act, 1970. The present one is not amatter covered thereunder and the present appeals are byspecial leave in terms of Article 136 of the Constitution of India.In such an appeal by special leave, where the Trial Court andthe High Court have concurrently returned the findings of factafter appreciation of evidence, each and every finding of factcannot be contested nor such an appeal could be dealt with as ifanother forum for reappreciation of evidence. Of course, if theassessment by the Trial Court and the High Court could besaid to be vitiated by any error of law or procedure ormisreading of evidence or in disregard to the norms of judicialprocess leading to serious prejudice or injustice, this Court may,and in appropriate cases would, interfere in order to preventgrave or serious miscarriage of justice but, such course isadopted only in rare and exceptional cases of manifest illegality.Tersely put, it is not matter of regular appeal. This Court wouldnot interfere with the concurrent findings of fact based on pure

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Aappreciation of evidence nor it is the scope of these appealsthat this Court would enter into reappreciation of evidence soas to take view different than that taken by the Trial Courtand approved by the High Court. [Para 20][65-F-H; 66-A-C]

Pritam Singh v. State: AIR 1950 SC 169: 1950 SCRB453; Ramaniklal Gokaldas and Ors. v. State of Gujarat:(1976) 1 SCC 6; Mst. Dalbir Kaur and Ors. v. State ofPunjab: (1976) 4 SCC 158 : [1977] 1 SCR 280; Hari& Anr. v. The State of Uttar Pradesh: Criminal AppealNo. 186 of 2018 decided on 26.11.2021 – relied on.

C2. The Trial Court and the High Court have concurrentlyrecorded the findings that the prosecution has been able tosuccessfully establish the chain of circumstances leading tounmistakable conclusion that the appellant is guilty of the offencesof rape and murder of the victim child as also of concealing herDdead body. The facts and factors, taken together with the medicaland other scientific evidence, are said to be of complete chainof circumstances, leading to the conclusion on the guilt of theappellant. [Para 21][66-C-D, F]

Sharad Birdhichand Sarda v. State of MaharashtraE(1984) 4 SCC 116 : [1985] 1 SCR 88; Hanumant v.State of Madhya Pradesh: AIR 1952 SC 343: [1952]SCR 1091 – relied on.

3. It is true that the child-witness PW-3 stated as if she hadgone to the site and looked at the dead body at 10:00 a.m. in theFmorning but then, the said child- witness was about 10 years ofage at the time of her deposition and was coming from ruralbackground. Her comprehension of timings had obviously beencrude or amateurish, which is borne out of the fact that in theother part of statement, she stated that after 7 p.m., she and otherchildren kept on playing for 5 hours. Such narrative about theGtiming by her had obviously been lacking in the requisite maturityand comprehension. In the process of appreciation of evidence,the Trial Court and High Court have looked at the crux of thematter emerging from her testimony that she was indeed witness

to the fact that the deceased child was last seen in the companyof the appellant when he took her along towards lychee farm.[Para 24.2][75-D-F]

State of Rajasthan v. Kashi Ram: (2006) 12 SCC 254 :[2006] 8 Suppl. SCR 501 – relied on.

D.K. Basu v. State of W.B.: (1997) 1 SCC 416 : [1996]10 Suppl. SCR 284; Rammi Alias Rameshwar v. Stateof M.P. (1999) 8 SCC 649 : [1999] 3 Suppl. SCR 1 –held inapplicable.

4. The overt assertion made in the complaint by PW-1,mother of the victim child, that as per her belief, the child wasraped and murdered and the dead body was concealed by theappellant, is also required to be visualised with reference tothe backdrop that she had the knowledge about the appellanthaving taken her daughter in the evening and had been searchingfor her daughter for the whole night. This is coupled with thefact that she was undoubtedly rustic villager and even got thecomplaint scribed from someone else. Again, in the process ofappreciation of evidence, the Trial Court and High Court havelooked at the substance and core of the matter emerging fromher testimony while consciously taking note of her background.Yet further, as to who accompanied PW-1 to Police Station is nota factor for which, the FIR could be taken as ante-timed. PW-1and PW-2 had been consistent that both of them had gone tothe Police Station before the noon hours of 14.05.2015. It has,of course, appeared in the statements of PW-7 that PW-4 hadaccompanied PW-1 to Police Station but, such minordiscrepancy occurring in the statement of the said police officerposted at the Police Station concerned cannot override the entireevidence on record. Moreover, he had been the person whoregistered the FIR and there had not been any specificsuggestion to this witness that dead body had been seen byanyone before lodging of FIR. Similarly, PW-8, the IO initiallystated in the cross-examination that he took the statement ofthe complainant next day after taking over investigation butthereafter, corrected himself to say that he took her statement

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Aat about 2.00 p.m. after registration of the case. This aspect hasalso been duly taken note of by the Trial Court and thecontentions urged on behalf of the appellant have been rejectedwith reference to the fact that the IO had deposed from memoryafter one and half year of the investigation; and PW-7 hasclarified that the statement of the complainant was taken by theBSHO at the date of registration of FIR and thereafter, heproceeded to investigate. Further, even if the particularsregarding date and time of dispatch of FIR to the Court werenot stated in the form, that could only be regarded as proceduralfault on the part of the staff of the Police Station and that cannotCnullify all other material on record.[Paras 24.3, 24.4][75-F-H;76-A-E]

5. There is no infirmity in the Trial Court and the HighCourt concurrently finding the prosecution case proved that on13.05.2015, at around half past six in the evening, while theDdeceased was playing with PW-3 and other children of the village,appellant gave Rs. 20 to PW-3, for buying sweets for the children.After distributing these sweets amongst them, the deceased waslured by appellant by suggesting that they go together and plucklychees from the farm. When the other children sought to followthem, he sent them away by scolding them, picked and placedEthe deceased on his back, and set off towards the farm. Thetestimony of child witness PW-3 is categorical in regard to thesefacts and there appears no reason to disbelieve her testimony,even if her comprehension of time and hours appears to bewanting in maturity. It would be rather unrealistic to expect suchFmaturity from ten-year-old child coming from rustic background.PW-2, the maternal aunt of the deceased, has also corroboratedPW-3 in regard to these crucial facts, establishing that thedeceased was last seen with the appellant. In fact, the evidencehas been categorical that it was the appellant alone who enticed

the deceased to go along with him and rather carried the deceasedGchild on his back. PW-2 has also testified to the fact that she sawthe appellant taking the deceased child from the window of thehouse while standing and PW-1, mother of the deceased childwas sitting. This explains even the statement of PW-1 that shehad also seen the appellant taking the deceased child. TheH

submission that why these women allowed the child to taken inthe evening by man they described as alcoholic is, again, onlyan attempt at hair-splitting exercise in the matter of appreciationof evidence. In the rural background, where the appellant was aneighbour and person of the same community, there could nothave been any reason for the ladies to suspect the intent of theappellant towards the child. The assertion that the ladies searchedfor the child for the whole night cannot be cooked-up storybecause, if the seven-year-old girl child did not return home untillate hours, they were, obviously, expected to look for the child.The fact that while searching, they indeed reached the house ofthe appellant, where his wife stated about his having gone outafter quarrelling, has also been consistently stated by PW-1 andPW-2. Of course, PW-2 stated about herself having met theappellant past midnight but, also made it clear that PW-1 was notwith her at that time. It is also given out that the ladies could nottake steps for approaching the police because at the relevantpoint of time i.e., during the night intervening, they were nothaving any person of support with them. [Para 27][78-E-H; 79-A-E]6. So far as the factum of discovery of the dead body of thevictim child at the information of appellant is concerned, the samestands proved by the evidence of relevant witnesses includingPW-4 and PW-8 IO. The IO of this case seems to have notmeticulously prepared the papers of investigation and even thememorandum of discovery of dead body and arrest of the appellantwas prepared as one document (Ex. Ka-2). However, perusalof the said document Ex. Ka-2, duly proved by the relevantwitnesses including PW-4 and PW-8 IO, makes it clear that therelevant facts stand established therefrom and cannot be ignored.Mere irregularity in preparation of memos by the IO would notfalsify the factum of information by the accused- appellant leadingto the discovery of the dead body. [Para 28][79-F-H]

7. When ‘last seen’ evidence is cogent and trustworthywhich establishes that the deceased was lastly seen alive in thecompany of the accused; and is coupled with the evidence ofdiscovery of the dead body of deceased at far away and lonely

Aplace on the information furnished by the accused, the burden ison the accused to explain his whereabouts after he was last seenwith the deceased and to show if, and when, the deceased partedwith his company as also the reason for his knowledge about thelocation of the dead body. The appellant has undoubtedly failedto discharge this burden. For the appellant having failed to do so,Bit is inevitable to hold that he failed to discharge the burden castupon him by Section 106 of the Evidence Act. This circumstance,therefore, provides another strong link in the chain ofcircumstances against the appellant. In the given set ofcircumstances, it could safely be said that the presumptionCcontemplated by Section 29 POCSO came into operation and theburden came staying with the appellant; and it was for him torebut the presumption and to prove that he had not committedthe offence. The appellant has failed to discharge this burden.[Paras 31, 32][80-D-G, H; 81-A]

DNoor Aga v. State of Punjab and Anr.: (2008) 16 SCC417 : [2008] 10 SCR 379; Justin v. Union of India andOrs.: 2020 SCC OnLine Ker 4956; Raj Kumar SinghAlias Raju Alias Batya v. State of Rajasthan: (2013) 5SCC 722 : [2013] 8 SCR 599 – held inapplicable.

E8. The Forensic Science Laboratory had reported thattraces of ‘spermatozoa and sperms’ were found on the underwearof the deceased. Even if the said report was drawn on 10.08.2016,its veracity cannot be doubted and there is no reason to considerthe said report with suspicion. The relevant articles were indeedsealed as proved in evidence and did reach the laboratory in theFsame sealed condition. The alleged want of upgraded andsophisticated facilities for sealing of the articles at the PoliceStation cannot override and nullify the proceedings otherwiselawfully conducted by the Police Station and the InvestigatingOfficer. In any case, it is also far-stretched to argue that the offenceGunder Section 376 IPC could not have been imputed in the charge-sheet before receiving such report. The said report was onlycorroborative scientific evidence but the other facts directlyavailable on record, more particularly as per the conditions of

the dead body of the seven-year-old girl child, as seen at the siteand then the relevant aspects of gruesome injuries, includingthose on private parts, as reported in the post-mortem report,could not have been ignored. [Para 35][82-A-D]

Ramesh Chandra Agrawal v. Regency Hospital Limitedand Ors. (2009) 9 SCC 709:[2009] 14 SCR 424 – heldinapplicable.

9. rather strange line of submission in this case has beenthat as per post- mortem report, the death had occurred 2-3 daysbefore examination and that opinion would take the time of deatheven much before the evidence of last seen or that the dead bodymight have been seen by other persons much before its recoveryat the instance of the appellant. The approximate time of deathbefore examination, as indicated in the post-mortem report,cannot be applied as something of mathematical precision. Thepost-mortem examination was conducted in the afternoon of15.05.2015; and approximation of two days before suchexamination matches the proven time when the deceased waslast seen with the appellant i.e., around 6:30 p.m. on 13.05.2015.In fact, the indications in the post-mortem report are only to theeffect that the appellant did not provide any time to the child andrather carried out his misdeeds immediately after taking her along.[Para 36][82-E-G]

10. It could readily be seen that while this Court has foundit justified to have capital punishment on the statute to serve asdeterrent as also in due response to the society’s call forappropriate punishment in appropriate cases but at the same time,the principles of penology have evolved to balance the otherobligations of the society, i.e., of preserving the human life, be itof accused, unless termination thereof is inevitable and is to servethe other societal causes and collective conscience of society.This has led to the evolution of ‘rarest of rare test’ and then, itsappropriate operation with reference to ‘crime test’ and ‘criminaltest’. The delicate balance expected of the judicial process hasalso led to another mid-way approach, in curtailing the rights of

Aremission or premature release while awarding imprisonment forlife, particularly when dealing with crimes of heinous nature likethe present one. [Para 41][98-C-E]

11. The heinous nature of crime like that of present one, inbrutal rape and murder of seven-year-old girl child, definitelyBdiscloses aggravating circumstances, particularly when themanner of its commission shows depravity and shocks theconscience. But, at the same time, it is noticeable that theappellant has no criminal antecedents, comes from very poorsocio-economic background, has family comprising of wife,Cchildren and aged father, and has unblemished jail conduct. Whenall these factors are added together and it is also visualised thatthere is nothing on record to rule out the probability of reformationand rehabilitation of the appellant, it would be unsafe to treat thiscase as falling in ‘rarest of rare’ category. Putting it differently,when the appellant is not shown to be person having criminalDantecedents and is not hardened criminal, it cannot be said thatthere is no probability of him being reformed and rehabilitated.His unblemished jail conduct and having family of wife, childrenand aged father would also indicate towards the probability of hisreformation. However, and even when the present case is takenEto be not falling in the category of ‘rarest of rare’ so as to requiretermination of the life of the appellant yet, the impact of theoffences in question on the conscience of the society as wholecannot be ignored. Thus, it appears just and proper to apply thecourse adopted in various cases involving the crimes of similarnature where, even while commuting capital punishment, thisFCourt has provided for life imprisonment without application ofthe provisions of premature release/remission before mandatoryactual imprisonment for substantial length of time. The appellantwas about 33-34 years of age at the time of commission of crimein the year 2015. Looking to the overall facts and circumstances,Git would be just and proper to award the punishment ofimprisonment for life to the appellant for the offence under Section302 IPC while providing for actual imprisonment for minimumperiod of 30 years. [Paras 43.1, 44, 45][99-F-H; 100-A-B, E-H]

12. The conviction of the appellant of offences underSections 376, 302, 201 IPC and Section 5/6 POCSO is upheldand the sentences awarded to him are confirmed except the deathsentence for the offence under Section 302 IPC. The deathsentence awarded to the appellant for the offence under Section302 IPC is commuted into that of imprisonment for life, with thestipulation that the appellant shall not be entitled to prematurerelease or remission before undergoing actual imprisonment fora period of 30 (thirty) years. [Para 46][101-A-C]

Union of India v. V. Sriharan Alias Murugan and Ors.:(2016) 7 SCC 1: [2015] 14 SCR 613 -followed.

Kalu Khan v. State of Rajasthan: (2015) 16 SCC 492;Bachan Singh v. State of Punjab: (1980) 2 SCC 684;Mohd. Mannan Alias Abdul Mannan v. State of Bihar:(2019) 16 SCC 584: [2019] 8 SCR 266; RajendraPralhadrao Wasnik v. State of Maharashtra: (2019) 12SCC 460: [2018] 14 SCR 585; Machhi Singh and Ors.v. State of Punjab: (1983) 3 SCC 470 : [1983] 3 SCR413 Dhananjoy Chatterjee Alias Dhana v. State of W.B.:(1994) 2 SCC 220 : [1994] 1 SCR 37; M. A. Antony v.State of Kerala: 2018 SCC OnLine SC 2800; LaxmanNaik v. State of Orissa: (1994) 3 SCC 381 : [1994] 2SCR 94 Kamta Tiwari v. State of M.P.: (1996) 6 SCC 250: [1996] 5 Suppl. SCR 507; Swamy Shraddananda (2)v. State of Karnataka: (2008) 13 SCC 767 : [2008] 11SCR 93; Jagmohan Singh v. State of U.P. (1973) 1 SCC20 : [1973] 2 SCR 541; Rameshbhai Chandubhai Rathodv. State of Gujarat : (2009) 5 SCC 740 : [2009] SCR1055 Rameshbhai Chandubhai Rathod (2) v. State ofGujarat : (2011) 2 SCC 764 : [2011] 1 SCR 829; AshokDebbarma Alias Achak Debbarma v. State of Tripura:(2014) 4 SCC 747 : [2014] 4 SCR 287; ShatrughnaBaban Meshram v. State of Maharashtra: (2021) 1 SCC596; Ravishankar Alias Baba Vishwakarma v. State ofMadhya Pradesh: (2019) 9 SCC 689 : [2019] 14 SCR285; Shankar Kisanrao Khade v. State of Maharashtra:(2013) 5 SCC 546 : [2013] 6 SCR 949– relied on.

ASudarshan and Anr. v. State of Maharashtra: (2014)12 SCC 312 [2014] 6 SCR 437; Anjan Kumar Sarmaand Ors. v. State of Assam: (2017) 14 SCC 359 : [2017]SCR 991; State (NCT of Delhi) v. Navjot Sandhu: (2005)11 SCC 600 : [2005] 2 Suppl. SCR 79; Aghnoo Nagesiav. State of Bihar: [1966] 1 SCR 134; AbdulwahabBAbdulmajid Baloch v. State of Gujarat: (2009) 11 SCC625 : [2009] 4 SCR 956; Gudda Alias Dwarikendra v.State of Madhya Pradesh (2013) 16 SCC 596 : [2013]11 SCR 293; Inspector of Police, Tamil Nadu v. JohnDavid: (2011) 5 SCC 509 : [2011] 7 SCR 354 – referred

Cto.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1097-1098 of 2018.

From the Judgment and Order dated 06.10.2017 of the High Courtof Judicature at Allahabad in Reference No.13 of 2016 and Capital CaseNo.6601 of 2016.

Siddhartha Dave, Sr. Adv., Ms. Jemtiben AO, Vibhor Jain, Ms.Sakshi Jain, Ms. Vidhi Thaker, Siddharth, Amit Kumar Agarwal, Advs.for the Appellant.

Vinod Diwakar, AAG, Ms. Alka Sinha, B. N. Dubey, AnuvratSharma, Advs. for the Respondent.

AThe Judgment of the Court was delivered byDINESH MAHESHWARI, J.

Table of Contents*

Preliminary

1. These appeals by special leave are directed against the judgmentFand order dated 06.10.2017 in Reference No. 13 of 2016 and CapitalCase No. 6601 of 2016 whereby, the High Court of Judicature atAllahabad has affirmed the judgment and order dated 07/08.12.2016 inSessions Case No. 414 of 2015, as passed by the Additional SessionsJudge, Court No. 2, Kushinagar; and, while upholding the conviction ofthe appellant of offences punishable under Sections 376, 302, 201 of theGIndian Penal Code, 1860[1] and Section 5/6 of the Protection of Childrenfrom Sexual Offences Act, 2012[2], has confirmed the death sentenceawarded to him for the offence under Section 302 IPC.

*The Table of Contents is as per the Original Judgment.

1 ‘IPC’, for short.H2 ‘POCSO’, for short.

1.1. In addition to sentence of death for the offence under Section302 IPC, the appellant has also been punished with fine of Rs. 20,000/-for the offence under Section 302 IPC. This apart, he has been awardedthe punishments of rigorous imprisonment for term of 10 years andfine of Rs. 10,000/- for the offence under Section 376 IPC; rigorousimprisonment for term of 7 years and fine of Rs. 5,000/- for the offenceunder Section 201 IPC; and rigorous imprisonment for term of 10years and fine of Rs. 10,000/- for the offence under Section 5/6 POCSO.While providing for further imprisonment in case of non-payment of fineamount, it has also been directed that half of the fine amount shall begiven to the mother of deceased girl as compensation.

2. In these appeals, the conviction of the appellant as also thepunishment awarded to him, particularly the capital punishment, are underchallenge. Before dealing with the matter in necessary details, we maydraw brief sketch to indicate the contours of the forthcoming discussion.

2.1. The appellant has been accused of enticing seven-year-oldgirl to accompany him on the pretext of picking lychee fruits; havingthereafter committed rape upon the child; having caused her death; andhaving dumped the dead body near bridge on the riverbank, after havingdragged the dead body over distance of one and one-quarter kilometres.

2.2. The prosecution case rested on circumstantial evidence tothe effect that the victim was lastly seen in the company of the appellant;that her dead body was recovered at the instance of the appellant; thatthe appellant had failed to satisfactorily explain his whereabouts and hisknowledge of the location of dead body; and that the medical and otherscientific evidence was consistent with the accusation. Per contra, theappellant alleged that he was falsely implicated due to enmity with thefamilies of the deceased and other witnesses because of land dispute.

2.3. The Trial Court, after analysing the material placed on record,came to the conclusion that the prosecution had been able to substantiatethe charges by proving beyond doubt that the appellant had taken thedeceased with himself by enticing her to pluck and eat lychee fruits,committed rape and then murdered her, and concealed the dead body inbushes near the riverbank. Thus, the appellant was convicted by thejudgment dated 07.12.2016. Next day, the learned Additional SessionsJudge heard the accused and the prosecution on the question of sentence;and looking to the heinous crime committed by the appellant, found itunjustified to show any mercy in punishment and thus, awarded varying

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Apunishments, including that of death sentence for the offence underSection 302 IPC.

2.4. The sentence of death was submitted for confirmation to theHigh Court in terms of Section 366 of the Code of Criminal Procedure,1973[3]. On the other hand, the accused-appellant preferred an appealBagainst the judgment and order of the Trial Court. Both, the referencecase for confirmation of death sentence and the appeal preferred by theappellant, were considered together, where the High Court found noreason to disbelieve the evidence led by the prosecution; and whilerejecting the defence story of wrongful prosecution for enmity due toland dispute, affirmed the findings on conviction of the appellant. TheCHigh Court further dealt with the question of sentence and with referenceto the nature of offence, in brutal rape and murder of seven-year-oldgirl child, found the present one to be ‘rarest of rare case’, where thesentence of death was considered ‘eminently desirable’. The High Court,accordingly, dismissed the appeal filed by the appellant and confirmedDthe punishment awarded to him, including the sentence of death.2.5. In the present appeals, conviction of the appellant has beenquestioned essentially with the contentions that the relevant factors areindicative of ante-dating of the FIR; that the prosecution has not beenable to prove that the deceased was last seen with the appellant; that theEstory of discovery of dead body at the instance of the appellant was alsonot established; and that the medical and forensic evidence was notconclusive to connect the appellant with the crime. The sentence awardedto the appellant has also been put to question, essentially with thesubmissions that the Trial Court as also the High Court have not examinedthe mitigating circumstances existing in this matter, including that it is aFcase of weak chain of circumstances; and that the appellant is having nocriminal antecedent and comes from poor socio-economic backgroundwith family members, including wife and children, being dependent onhim. Per contra, it is contended on behalf of the respondent thatconcurrent findings on the guilt of the appellant, based on properGappreciation of facts, call for no interference. It is also submitted thatthe abhorrent nature of the crime justifies the death sentence in thepresent case where the appellant, grown-up person of about 35 yearsof age, enticed seven-year-old girl child and committed brutal rape andmurder.

H3 ‘CrPC’, for short.

2.6. Thus, two major points would arise for determination in theseappeals: first, as to whether the conviction of the appellant calls for anyinterference; and second, if the conviction of the appellant is maintained,as to whether the sentence of death awarded to the appellant deservesto be maintained or deserves to be substituted by any other sentence?

3. With the aforesaid outline, we may take note of the relevantfactual and background aspects in necessary details.

Relevant factual and background aspects

4. The prosecution in the present case had its foundation in acomplaint (Ex. Ka-1) submitted by PW-1 Nisha wife of Manoj Harijan,at Police Station Kasya, District Kushinagar on 14.05.2015 at about12:35 p.m., with the allegations that the previous evening, at around 06:30p.m., her seven-year-old daughter, when playing with other kids ofneighbourhood, was taken by the appellant Pappu towards southern sideof the house on the pretext of plucking lychee,while shooing away otherchildren; and her sister PW-2 Anita and many neighbours had seen theappellant Pappu taking her daughter. The complainant further statedthat after turning dark, she searched for her daughter who was not foundanywhere and the appellant Pappu was also not found. The complainantalso stated her strong apprehension that the appellant had committedrape on her daughter, caused her death, and concealed the dead body.On the basis of this complaint, FIR No. 840 of 2015 (Ex. Ka-13) cameto be registered for offences under Sections 376, 302, 201 IPC andSections 3/4 POCSO. The complaint so made by PW-1 Nisha, on whichthe said FIR was registered, has its own relevance on the questionssought to be raised in this matter. Therefore, the translated version ofthe same is reproduced for ready reference as under[4]-[5]: -

4 It may be indicated that the relevant documents and depositions in the original recordof this case are in Hindi language. The translated versions in English language, as placedbefore us, carry several obvious errors where the words and even sentences are ratherincomprehensible. We have scanned through the record with the assistance of learnedcounsel for the parties; and the extractions in this judgment are, as far as feasible, nearto the correct translation and meaning of the text in original.

5 Having regard to the nature of case, the name of victim has been omitted in theextractions and at all other places in this judgment; and substituted by the expression‘Am’.

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The SHO,

PS-Kasya

Sir,

It is requested that complainant Nisha w/o Shri Manoj,caste-Harijan is r/o village- Sabaya Khas, PS- Kasya, District-Kushinagar. Yesterday evening i.e. on 13.05.2015 my daughterAm aged around 7 years was playing with neighbour RajendraDhobi’s daughter Ashna, Mishri’s daughter Rinku and other kidsof neighbourhood near the home. At around 6:30 o’clock, nativeof my village and of my caste Pappu s/o Shri Ram Preet took mydaughter Am with him towards the southern side of home on thepretext of plucking lychee. He gave toffee to other children ofneighbourhood playing with her and shooed them off the spot. Myyounger sister Anita and many neighbours had seen Pappu takingaway my daughter. After sometime when it turned dark, I startedto search my daughter. Children who were playing with her, mysister Anita and neighbours told that Pappu had taken her in theorchard of lychee towards the south. I went to the house of Pappuwhere he could not be found. I kept searching my daughter butnothing could be known. I am damn sure that Pappu had takenmy daughter Am with him on the pretext of plucking lychee andhe committed rape on her, caused her death and concealed hercorpse at some lonely place. It is requested that report be lodgedand appropriate action be taken.

ComplainantSd/- Nisha

Name- Nisha w/o Manoj HarijanVillage- Sabya KhasPS- KasyaDistrict- KushinagarDate- 14.05.2015"

5. According to the prosecution, after registration of FIR, theinvestigation was taken over by the Station House Officer[6] of Police

H6 ‘SHO’, for short.

Station Kasya, Gyanendra Nath Shukla (PW-8)[7]; the statement of PW-1 Nisha was recorded; and search was mounted for the appellant. TheSHO obtained information on the whereabouts of the appellant and actingupon such information, found the appellant near the Community HealthCentre. It has been the case of prosecution that on being questioned, theappellant disclosed the place of incident as also the location where bodyof the daughter of the complainant had been dumped near the bridge onthe banks of the river Hiranmati. On the basis of his disclosure, thecorpse was recovered along with clothes of the deceased. TheInvestigating Officer prepared the necessary memos, plans and reportsand sent the dead body for post-mortem examination. few aspectsrelated with preparation of such memos and reports have also been putto question in this matter on behalf of the appellant, which we shallexamine hereafter later.

5.1. In the post-mortem conducted by PW-6 Dr. Himanshu Kumar,eleven injuries were found on the dead body and it was opined thatdeath had occurred due to haemorrhage and shock, as result of ante-mortem injuries.

6. After other processes of investigation, charge-sheet was filedagainst the appellant on 12.08.2015 and the case was committed to theCourt of Sessions where the appellant was charged of the offencesunder Sections 376, 302, 201 IPC and Sections 3/4 POCSO (later onrectified to Sections 5/6 POCSO). The appellant pleaded not guilty andclaimed trial.

Prosecution Evidence

7. The case against the appellant was tried as Sessions Trial No.414 of 2015 before the Additional Sessions Judge, Court No. 2,Kushinagar, Padrauna. The prosecution examined 8 witnesses, andproduced 19 documents. In view of the contentions urged, we may takenote of the salient features of the relevant evidence adduced by theprosecution.

7.1. PW-1 Nisha, mother of the deceased-child, deposed in herexamination-in-chief as under: -

“…Pappu Gautam had called and taken along my daughter namelyAmaged 7 years at about 6:30/7:00. First of all he fed toffee then

7 Hereinafter also referred to as ‘the Investigating Officer’ or ‘the IO’.

took her southwards in the village on the pretext of plucking litchi.My daughter was playing at the door along with other children.When (he) called and took along my daughter, my sister and otherchildren who were playing with her and I had seen it. When thegirl did not return home, we had searched for her throughout thenight but in vain. When I did not find my daughter, I had given acomplaint at Police Station Kasya the next day after getting itwritten on the basis of which the case was lodged. Pappu hadsexually assaulted my daughter and thereafter had thrown her atthe river bank on Deoria Road where cremation rites areperformed.

When I did not find my daughter, I enquired at Pappu’shome then his wife said that she did not know where Pappu hadgone after quarrelling. Pappu used to consume liquor. I know it.When police arrested Pappu and interrogated him, Pappu got thedead body recovered. My Jija (brother-in-law) and my uncle(bade papa) identified the dead body. When the case was lodged,the S.I. had recorded my statements. I had also shown the placeto the S.I. from where the girl was taken along…”

7.1.1. The relevant part of her testimony in the cross-examinationwould read as under: -

“…I had got written the complaint by an educated boy. Iwas coming to the police station crying then this boy met me onthe way. I asked him to write it, he wrote. I had gone to the policestation at about 11-12 (during day time). Sister and I had gone tothe police station and no one else had gone…..

Q: At what time and day your siter Anita had told you thatyour daughter is missing?

A: Pappu had taken along the girl at 6.30, thereafter wemade search for 1-1½ hours. Then (we) had gone to Pappu’shouse to inquire, his wife told that her husband is out of the hoursesince evening after quarrelling.

Anita and I had seen Pappu carrying the girl. Police/Chowkidar/Pradhan had not been informed first- firstly the girlwas searched for. We had been searching for the girl throughoutthe night. My Jija (brother-in-law) and father had informed aboutthe death of the girl. When police had arrested Pappu, only then I

came to know that my daughter has died. I had not given thecomplaint at the police station on my Jija’s advice. I did not havemobile at the time of the incident. I can’t state as to from wherethe police had arrested Pappu. At the time when Pappu wasarrested, I was at home. I had got the complaint written by boyon dictation. He had written so much as I had dictated. I wassatisfied with the thing that the same is written in my complaintwhat I had dictated. I had also told the same thing to the S.I. whatI had got written in the complaint. We both (my sister and I) hadseen Pappu taking along the girl. If darogaji had not written suchpoint in my statement, I could not tell its reason. If darogaji hadwritten this point that my sister had seen Pappu taking along mychild, then it is correct. I had heard and seen at the door thatPappu is taking along the girl on the pretext of toffee and litchi. Ihad written in my complaint that I believe that it is Pappu who hastaken along my daughter- this point is true because Pappu hadtaken along my daughter before me.

Q: When you saw Pappu taking along your daughter, despiteit you gave complaint on the next day with delay. Can you tell itsreason.

A: Firstly, I kept on searching for my daughter, when I didnot find her, I gave the complaint on the next day.

I kept on searching for my daughter in the entire villagethroughout the night. I kept on searching door to door in the entirevillage. Whose name do I tell? I recognize the people of village. Ikept on searching throughout the night. Names of how maypersons do I tell? I can’t tell the names of the persons of entirevillage. Pappu drinks liquor for many days. I don’t know whetherhe falls inebriated condition at some place or not but he consumesliquor. Pappu drinks liquor daily. Prior to this incident, we hadnormal relation with Pappu’s house. I went to see the dead body.Firstly I had gone to the bridge itself and thereafter had gone tothe Police Station. It was 5-6pm when Pappu was arrested. Thedead body was recovered on the next day of the incident. WhenI saw the girl, one of her eyes had come out, vein was also comingout below the eye, leg was also fractured. The animals had noteaten the dead body. The neck of my daughter was alsotwisted.…..

It is wrong to state that I had falsely implicated Pappu dueto village animosity.”

7.2. PW-2 Anita (maternal aunt of the deceased) largelycorroborated the testimony of PW-1. The relevant parts of her assertionsin the examination-in-chief would read as under: -

“The incident is of 13.05.2015 at 6:30 pm. My sister’s daughternamely Amaged 7 years was playing along with other childrennear Gokul Gupta’s house beside my house. There came PappuGautam and gave twenty rupee note to girl called Aashna andasked her to bring toffees. He distributed toffees to the childrenand then made all the children go from there. Thereafter, he stoppedmy sister’s daughter namely Amand took her along on his back onthe pretext of plucking litchi. I had seen all this through my window.When my sister’s daughter did not return home till night, we startedsearch for her. But we could not find her in the night and mysister gave complaint at the Police Station on the next day.

Police arrested Pappu Gautam. Accompanying the police,Pappu had got recovered the dead body from the bush near thebridge. Pappu Gautam had concealed the dead body of my sister’sdaughter Amin the bush after committing rape upon her and killingher…”

7.2.1. In her cross-examination, this witness PW-2 Anita statedas under:-

“…The distance from my window to the place where childrenwere playing is 4-5 steps…when I was watching the childrenplaying…my sister was sitting at the place where I wasstanding…I had told my sister about the missing of the child afteran hour. We had started to search for the girl child after one orone and half (1-1½) hour. Pappu Gautam had taken the childtowards the south direction. We first went to the orchard of litchiand thereafter, went to Pappu’s house. Pappu was not at home.We met Pappu’s wife at home who told that she did not knowwhere Pappu had gone after quarrelling…When we reachedPradhan’s house at about 12-1 at night, Pappu came home, hisfeet and clothes were laced with mud. When we asked, Pappusaid that he had not taken the child.

When we were interrogating Pappu at about 12 at night,Pradhanji was not present there. We had met Pradhanji beforePappu came to Pradhanji’s house then we proceeded to his house.Jamaluddin Ansari was the then Pradhan. By the time when wehad gone to Pradhanji’s house, Pappu’s father had also arrivedand we said that we are going to complain at police station thenPappu’s father counselled and forbad us from going to police stationby saying that if he would have gone somewhere, he would return.At that time my sister Nisha was not with me…After coming toknow that Pappu had come to his house, we didn’t go to the policestation because only girls were present at our house and therewas no guardian so that we could leave for the police station. Idon’t remember the exact time but it was 10.00 to 10.30. OnlyNisha and I had gone to the Police Station for giving theinformation. Pappu was not behind the bars when we reachedthe Police Station.

How much time after giving the information, the dead bodywas recovered we don’t remember. Later, when the policemanapprehended Pappu and interrogated him then he told that thedead body of the child was there. The people of the entire villagewere shouting the dead body had been found there- when mybrother-in-law lifted the dead body, it was the dead body of mysister’s daughter.…. No quarrel etc had taken place between myhouse and the house of Pappu before the incident.…It is wrongto say that Pappu has been falsely implicated in this case due tofactionalism.”

7.3. PW-3 Aashna, said to be about 10 years of age at the time ofher deposition, was found to be competent witness. She deposed thatthe appellant gave her Rs. 20 to bring sweets and to distribute themamongst other children. She brought sweets worth Rs. 4, returned theremaining amount to the appellant, and distributed the toffees. Whilecorroborating PW-1 and PW-2, this child-witness further stated that theappellant invited the deceased to accompany him to the farm to plucklychee. When the other children attempted to follow, they were scoldedby the appellant and shooed away. She further stated that in the morning,it came to be known that Am had been murdered and thrown; and shehad stated this fact to Darogaji.

7.3.1. few aspects emerging from the cross-examination of thischild-witness PW-3 Aashna have been underscored during submissionson behalf of the appellant, particularly as regards the place where thechildren were playing and as regards the time of her having seen thedead body of the victim child. We may take note of the relevant factsstated by this witness in the cross-examination as under: -

“…..was playing game at Rampravesh’s door. Am’s house fallsbehind one house after the house of Rampravesh and the middleone is Bablu’s. Pappu’s house is adjacent to Rampravesh’s house.Pappu scolded us at 7 O’clock in the evening and thereafter westarted playing at the door of Ram Parvesh and kept playing foralmost 5 hours. Thereafter, we returned back home. At the timewhen we were playing, Am was there. Myself, daughter of myfather’s elder brother, my mama’s daughter and my mausi’sdaughter were there; we all went back home. When met Pappuat my house, at that time my mother, father, brother and myselfwere present. My father did not talk to Pappu. (He) took awayAm which was witnessed by my mother and father. Thereafter, Idid not meet Am. After getting up in the morning, I got theinformation that Am had died. The information about death of Amwas given by the sister and brother-in-law and when brother-in-law (jija) told the said fact then at that time, his sister Sunita waspresent.

…...When Anita and Sunita told that Am has died then Ialong with them went to that place at about 10 O’clock wheredead body of Am was lying. Many persons had gathered thereand after that, I went to the police station. My brother-in-law(jija) took me there, but I cannot tell the name of brother-in-law(jija); he is husband of Neelam. I was interrogated at thepolice station on the same day and had stated to the sub-inspectorthat I have come after seeing the dead body…..”

7.4. PW-4 Ambedkar is the uncle of the deceased child and residingGat place about 22 kms from the village of incident-Sabya. This witnessasserted to have reached Sabya after getting information from PW-1that her daughter was missing. He also stated that the appellant Pappuwas interrogated by the IO before him whereupon the appellant agreedto show the place where he had thrown the child after committing rapeHand murder. The witness asserted that the dead body of victim and her

clothing were recovered at the instance of the appellant before him. Healso deposed regarding preparation of inquest report, the memos of arrestand recoveries, and identified his signatures on the memos Ex. Ka-2 andEx. Ka-3. In his cross-examination, this witness PW-4 Ambedkar pointedout that he reached Sabya by bus but was unable to state the time of hisarrival. As regards the facts concerning arrest of the appellant andrecoveries, this witness stated in the cross-examination, inter alia, asunder: -

“…The police brought Pappu in afternoon. Perhaps, Pappu wasarrested two hours prior to my arrival, he was arrested by policeat Sabya-square. Thereafter, the sub-inspector brought Pappu frompolice station before me and obtained signature of arrest at thespot of arrest. I do not remember as to the signature of whichpersons were obtained there besides me. When I affixed mysignature, there were no signatures of other persons. Whensignature was obtained, about 40-50 persons had gathered there.I had come to my relative’s place, therefore I cannot tell the namesbut I am acquainted with the relatives. Recovered panty and T-shirt are not before the court. Panty and T-shirt were sealed andstamped at the police station and after seal and stamp proceedings,signature was obtained. Panty was of black colour….. It is wrongto state that I did not see the place of occurrence and put thesignature at the police station before the police.”

7.5. The post-mortem was conducted by PW-6 Dr. HimanshuKumar on 15.05.2015, beginning at 3:05 p.m. and ending at 4:05 p.m.The relevant extracts of the post-mortem examination report (Ex. Ka-11) are as under: -

“External Examination-

Rigor mortis upper and lower limb present.

External General Appearance-

Tongue protruded mouth eye (L) closed, eye ( R ) protruded.

External Injuries-

(1) Contusion 5 cm X 3 cm on the ( R ) side of eye.

(2) Contusion 10 cm X 3 cm on the ( R ) side face.

(3) Contusion 7 cm X 3 cm on the posterior aspect of ( R ) arm.

(4) Contusion 12 cm X 5 cm on the front of chest.

(5) Lacerated wound 3 cm X 1 cm on the anus.

(6) Protruded trunk.

(7) Eye Protruded ( R ) side.

(8) Loss of hair (on the head).

(9) Germ found on the whole body.

(10) Contusion 5 cm X 3 cm on the ( R ) side parietal region.

(11) Contusion 3 cm X 2 cm on the (L) side parietal region.

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Bones of Scalp and skull: Right and left Parietal region fractured

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Genital Organs: Vagina found in tear position and clotting present.Vaginal swab is taken and sealed and sent to lab.”

1. Time since death: about 2 and 3 days.

(i) Cause and manner of death: Death is due to haemorrhagesand shock- result of Ante-Mortem Injury.”

7.5.1. It was opined in the post-mortem report that possible timeof death was about 2-3 days; and the cause of death was haemorrhageand shock as result of ante-mortem injuries. few factors relating tothe probable time of death, as occurring in the statement of this witnessPW-6 Dr. Himanshu Kumar, would read as under: -

“The probable time of her death would be within 2 to 3 days….The time of 2-3 days means that the probable time of death couldbe between 48 hours and 72 hours before the post-mortem.”

7.6. PW-8, Gyanendra Nath Shukla, the Investigating Officer,stated in his examination-in-chief that at the relevant time, he was postedas the SHO of Police Station Kaysa, when Case Crime No. 840 of 2015was registered on the complaint submitted by PW-1. He immediatelystarted investigation and attempted to locate the appellant. This witness

further stated that he received tip-off about the location of the appellantand acting on this information, he apprehended the appellant Pappu nearthe Community Health Centre. PW-8 stated that Pappu Gautam wasthen interrogated. The relevant part of his testimony as regards disclosuresby the appellant Pappu and preparation of memos would read as under: -

“…And when asked about the dead body, he said, I could get thedead body recovered. On the pointing of the accused Pappu, thedead body of Am was recovered in the presence of witnesses,namely Siri s/o Jhagru, Ambedkar s/o Ram Nagine, Ishteyaq s/oJamaluddin, which was identified by the above persons. Askedthe lady constable Rinku Yadav and constable Om Prakash tobring the jild panchayatnama from the Police Station andinstructed SI Rakesh Kumar Singh for the panchayatnama andinspected the spot of occurrence. During the inspection of therecovery spot, T-shirt and underwear of Am were recovered onthe pointing of the accused Pappu. It was placed in piece ofcloth, sealed & stamped and recovery memo was prepared. …”

7.6.1. It has rightly been pointed out on behalf of the appellantthat few parts of the testimony of this witness PW-8 in the cross-examination, as available in the original record, have not appeared in theEnglish translation, particularly regarding the timing of his recording thestatement of the complainant. As per that part of the statement, thiswitness stated that he commenced investigation at about 2 p.m. on14.05.2015; he started from the Police Station about half an hour aftercommencing the investigation; and at that time, the person accompanyingthe complainant was not present. This witness deposed that he recordedthe statement of complainant next day after entering into investigationbut then, stated that he recorded the statement on the day of incidentitself and then, further stated that he recorded the statement of thecomplainant at about 2 p.m.; that it took about 20 minutes to record thestatement; and that he reached the site about 2-2½ hours thereafter.This witness further deposed about the tip-off regarding the location ofthe appellant and stated as under: -

“….Arrest of the accused took place at the road near CHC. Iprepared the arrest memo at the spot. I did not write the arrestmemo at the place where the accused Pappu was arrested. I,immediately after the accused was arrested and he confessed hiscrime, started preparing the arrest memo at the spot of arrest. I

don’t remember it well as to how long did it take to prepare thearrest memo. The memo was prepared after the proceeding wascompleted. Body of the deceased was recovered on being pointedout by the accused. Moreover, clothes of the deceased viz. Kachhiand T-shirt of the deceased were recovered from the place ofoccurrence. All these proceedings were recorded in the memo.

It is right to say that at the time of arresting, the accusedwas apprised of the reason of his arrest. But the arrest memowas prepared after the recovery memo was written. The accusedwas not handed over the copy of the memo at the place where hewas arrested because the memo was not prepared completelyCthere. It is wrong to say that during the arrest, I did not abide bythe rules of 50 CrPC, of the Human Right Commission and of theHon’ble Supreme Court. The truth is that after arresting theaccused, the arrest memo was prepared after the body of thedeceased and her clothes were taken into custody. The accusedDwas orally informed of the reason of his arrest before he wastaken into police custody….”

7.6.2. This witness, the IO, further pointed out in his cross-examination about preparation of memos, inter alia, in the followingterms: -

“….Memo of arrest and the memo of recovery are same andone; they don’t have different witnesses. Arrest memo of theaccused, recovery memo of kachhi and T-shirt of deceased andrecovery of Kachhi are mentioned in one. The witness againstated that recovery memo of dead body and arrest of dead bodyF(sic) are in one and memo of recovery of kachhi of the deceasedis one and recovery of kachhi of accused is in different memowhich bear the signature of Siri and Ambedkar….”[8]

7.6.3. This witness, the IO, also admitted the fact that the reportof Forensic Science Laboratory had not been received while filing theGcharge-sheet but according to him, the offence of rape was made outfrom perusal of the post-mortem report.

8 This part of the statement of PW-8 carries obvious overlapping of expressions even inthe original; and its translated version also carries several question marks (?) whichHhave been omitted herein, to make it read, as close as possible, to the original version.

7.7. It may be noticed at this juncture that as per the report dated10.08.2016 (Ex. Ka-19) prepared by the Forensic Science Laboratory,U.P. Ramnagar, Varanasi, ‘spermatozoa and sperms were found’ on theunderwear of the deceased.

7.8. There had been two more witnesses in this case namely,PW-5 SI Rakesh Kumar Singh and PW-7 HCP Nagendra Singh. PW-5Rakesh Kumar Singh deposed in relation to the preparation of memosand reports. PW-7 Nagendra Singh stated that the complainant hadarrived at the Police Station with her brother-in-law and with hand-written complaint, which was duly entered as G.D. No. 30 at 12:35 p.m.and thereupon, FIR No. 840 of 2015 was registered. He indeed stated inthe cross-examination that no other person had accompanied thecomplainant. He also stated that the SHO immediately left forinvestigation and had recorded the statement of the complainant at thePolice Station; and that the statement of the brother-in-law of thecomplainant was also recorded at the Police Station. The relevant aspectsof his testimony in the cross-examination would read as under: -“….Complainant of the case had come to the Police Station alongwith her Bahnoi (sister’s husband) namely Ambedkar. She hadgiven me the complainant. Other than her Bahnoi, no other personwas accompanying her. SHO was also present there. The casewas registered when the SHO directed the same. Had not issuedany order on the complaint and had asked it verbally. It was aserious matter, when I told him, he verbally asked to register theFIR. The SHO had said that he himself would investigate thecase. Then his name was written as the IO of the case. The copyof the FIR was given to the SHO after registering the case. Itwould have taken 10 minutes in making the entry in the GD andFIR. The SHO immediately left for the investigation after thecase was registered. SHO had recorded the statement ofcomplainant at the police station. The statement of her bahnoi(sister’s husband) was also recorded at the police station….”

Defence Version and Evidence

8. The appellant, in his examination under Section 313 CrPC stated,inter alia, that he had been falsely implicated in the case under aconspiracy; and that the investigation conducted by the IO was false, inpursuance whereof, false charge-sheet had been filed.

A8.1. One witness, DW-1 Shameem, was examined by the defence.DW-1 stated in his examination-in-chief that there was commotion inthe village on the 13[th] and again the next day, when it was said that abody was lying near the bridge. The villagers reached the site and thebody of the deceased was identified by the father of the child. Thiswitness stated that only after that did the police arrive and took the deadBbody into custody. The witness further stated that there was some hubbubabout enmity of Ram Preet (father of the appellant) and Rajendra Dhobi(father of PW-3) and Manoj (father of the deceased) as regards pieceof land sold by Ram Preet to one Gokul; and Pappu was falsely implicated.

Trial Court found the appellant guilty and awarded deathCsentence

9. After conclusion of the trial and after having heard the parties,the Trial Court accepted the prosecution case; and while rejecting thecontentions urged on behalf of the appellant, held that the chain ofcircumstances established by the prosecution was complete andDcontinuing one, bringing home the guilt of the appellant, who had notbeen able to rebut the presumption under Section 29 POCSO. The TrialCourt, accordingly, convicted him of the aforementioned offences ofrape and murder of the girl child and destroying evidence; and awardedvarying punishments, including that of death.

9.1. By relying on the testimonies of PW-1, PW-2 and PW-3, itwas held by the Trial Court that the deceased child was playing with thechildren of her village; the appellant gave money to PW-3 to buy toffees,who distributed toffees amongst other children; and the appellant thentook the deceased child by enticing her on the pretence of picking lycheeandFshooed the other children away when they attempted to follow them.

9.2. The contentions regarding delay in lodging the FIR wererejected by the Trial Court, while holding that the delay was duly explainedby PW-1 and PW-2, since the father of the appellant had met and assuredthem that their daughter would be returned if she was taken by theGappellant; and since PW-2 had stated that no guardian was available athome, so they could not go to the Police Station in the night. The TrialCourt observed as under: -

“…The reason for delay in lodging the FIR has been madeapparent by PW-2, the sister of the complainant and it has beenstated that ‘the guardian was not present at home. It was assured

by Pappu’s father that he would come back, if he had taken (her)somewhere.’ Because of it, as the deceased could not be foundon the second day, the First Information Report was lodged…”

9.3. The defence sought to question the story of prosecution bysubmitting that due procedure had not been followed while arresting theappellant, since it was not mentioned in the arrest memo and recoverymemo whether copy thereof had been supplied to the appellant. This,the defence argued, weakened the assertion about the discovery of deadbody and clothing of the deceased child at the instance of the appellant.However, these submissions were rejected by the Trial Court afterperusing the testimonies of PW-4 Ambedkar, PW-5 Rakesh Kumar, PW-7 Nagendra Singh and PW-8 Gyanendra Nath Shukla (IO); and whileobserving that since the IO was deposing after one and half year andwas reciting from memory, minor contradictions would not affect thecase of the prosecution. The Trial Court rejected the contentionsconcerning the procedure followed by the Investigating Officer and heldproved that the dead body as also clothing of the daughter of thecomplainant were recovered at the instance of the appellant. The relevantfindings of the Trial Court could be usefully reproduced as under: -

“Thus it is clear from the above mentioned evidence that T shirtand panty belonging to deceased was recovered by the IO at theinstance of accused after his arrest and arrest memo of accusedas well as recovery memo were prepared at that very spot in thesaid order, copy of which is said to have been provided to accusedand statement regarding absence of this fact in memo has beenprovided. Thus question raised by defence has been rebutted byPW-8 by the evidence provided by him in his examination due towhich there is no weight in the defence argument. Thus it is amplyproved from the above mentioned scrutiny that body, panty and TShirt recovered at the instance of the accused belongs to thedaughter of complainant only.”

9.4. Further, with reference to the site plans Ex. Ka-14 and Ex.Ka-15, in addition to the post-mortem report Ex. Ka-11 and the testimonyof PW-6 Dr. Himanshu Kumar, the Trial Court held that the site plansand the medical evidence clearly proved that the deceased was draggedafter being killed due to which, wheat stacks were trampled and linewas formed in the tilled field; and the deceased received numerous minoras well as major injuries. The Trial Court, inter alia, held as under: -

A“…Spot marked as 1 on the sketch map is the place whereaccused is shown to have committed rape of the deceased andmurdered her, Spot marked as 2 is the place from where pantyof deceased was recovered, spot marked as 3 is the place fromwhere T Shirt belonging to deceased was recovered. Mark ——exhibits the line made on accused dragging the body of deceased.BWheat stack was found trampled and line due to dragging thebody was present in the tilled field…Thus the sketch map… iscorroborated by the evidence provided by medical witness PW-6Dr. Himanshu Kumar…which clearly proves that deceased Amwas dragged after being killed till the chak road due to whichCwheat stacks were trampled and line was formed in the tilledfield. Deceased received numerous minor as well as majorcontusion injuries on her head.”9.5. The Trial Court also examined the contention urged on behalfof the appellant that in the charge-sheet, he was charged of the offenceDunder Section 376 IPC even though there was no eye-witness to theincident of rape and even before the IO had perused the report of theForensic Science Laboratory. The Trial Court rejected this contentionwhile holding that the nature of the injuries in the post-mortem report,the report of the Forensic Science Laboratory, the recovery of theunderwear of the deceased child as also her T-Shirt at the instance ofEthe appellant corroborated the fact that she had been subjected torape.

9.6. Another contention urged on behalf of the appellant was thatthe complainant PW-1 mentioned in the written complaint about herapprehension that the appellant had raped and murdered her daughterFand had concealed the dead body, though there was no reason for her tostate such apprehensions while filing the complaint. It was argued thatsuch assertions in the complaint demonstrated that the appellant hadbeen falsely implicated. This contention was, however, negatived by theTrial Court while observing that PW-1 suspected from the beginningGthat the appellant had raped and murdered her daughter and the suspicionswere confirmed by the post-mortem report as also the report of theForensic Science Laboratory.

9.7. The defence put forth by the appellant as regards enmity dueto land dispute was also rejected by the Trial Court after examining thestatement of DW-1 and with the observation that such statement wasH

of no assistance to the accused in the face of cogent evidence adducedby the prosecution.

9.8. Thus, in the ultimate analysis, Trial Court found proved thecase of the prosecution beyond reasonable doubt and convicted theappellant accordingly by its judgment and order dated 07.12.2016.

9.9. Next day i.e., on 08.12.2016, the Trial Court heard the partieson the question of sentence where it was urged on behalf of the appellantthat he had no criminal antecedents; he was in the young age of 35years; and there was none else to look after his children and old parents.On the other hand, the prosecution referred to the heinous nature ofcrime and urged that the present case was of ‘rarest of rare’ categorywhere the accused-appellant ought to be punished with death sentence.The Trial Court observed that the appellant was around 33-34 years ofage at the time of the incident and was sensible enough to understandthe consequences of his actions, and yet committed such heinousoffence, for which no leniency was called for. Consequently, the TrialCourt awarded the punishments as noticed at the outset, including thedeath sentence.

High Court confirmed the death sentence awarded to theappellant

10. As noticed, this case came up before the High Court ofJudicature at Allahabad on two counts, i.e., the death sentence submittedfor confirmation and the appeal against conviction and sentence preferredby the appellant. The High Court reappreciated the material placed onrecord, including the testimony of witnesses and, in its judgment andorder dated 06.10.2017, upheld the decision of the Trial Court in convictingthe appellant of the aforementioned offences and sentencing him to deathfor the offence under Section 302 IPC.

10.1. The counsel for the appellant attempted to highlight theinconsistencies in the testimonies of PW-1, PW-2, PW-3, PW-4 and PW-7 while arguing that the FIR was not filed immediately after it came tobe noticed that the deceased girl had been taken away by the appellant;that it was case of manipulated rediscovery because according toPW-3, she had seen the body of the deceased at around 10.00 a.m. butthe FIR was lodged at about 12.35 p.m.; that PW-4 had incorrectlystated the colour of the recovered underwear to be black; that PW-1

Ahad deposed that she came to the Police Station to file the FIR with PW-2 whereas it was deposed by PW-7 that PW-1 was accompanied byPW-4.

10.2. The High Court, however, held that the testimonies of PW-1, PW-2 PW-3 and PW-4 were trustworthy and were natural, being notBa result of tutoring. Since the witnesses were deposing after year andwere rustic villagers, minor inconsistencies in their testimonies wouldnot be of any adverse impact on the case of the prosecution. Additionally,it was held by the High Court that merely because the witnesses wererelated to the deceased, they could not be characterised as interestedwitnesses once their testimonies were found to be natural.C

10.3. The High Court reasoned that there was delay in lodgingthe FIR because the deceased child was being searched for in the village;and only when PW-1 and PW-2 failed in their search that they gave awritten complaint the next day. Furthermore, it was held by the HighCourt that the delay would not be fatal to the case of the prosecutionDsince the cases involving sexual offences had to be considered with adifferent yardstick, where the delay in lodging FIR was natural becauseit involved the prestige and reputation of the family.

10.4. On reappreciating the medical evidence, being the post-mortem report, the report of the Forensic Science Laboratory, and theEtestimony of PW-6, the High Court noted that vagina of the deceasedwas torn; there was presence of blood clots; the time of death was 2-3days before post-mortem; and human sperm and spermatozoa were foundon the underwear of the deceased. These corroborated the story of theprosecution and confirmed that rape had been committed upon theFdeceased child before her death.

10.5. The High Court also referred to the effect of discoveriesmade on the information furnished by the appellant in terms of Section27 of the Evidence Act, 1872[9] and observed, inter alia, that the appellanthimself having led the police to the place of recovery of the body, andGhaving failed to offer any explanation as to how it came to be concealedthere, the only inference would be that the appellant had murdered thedeceased girl and concealed the body. The High Court observed andheld thus: -

H9 Hereafter referred to as ‘The Evidence Act’.

“43. Learned trial Judge has legally and correctly interpreted theocular testimony of the witnesses. Here the accused took policeparty and pointed out the place from where dead body of thedeceased was recovered, in absence of explanation by accusedas to how dead body was kept and concealed there, court candraw inference that it was accused who murdered deceased andconcealed dead body and such interpretation is not inconsistentwith principle embodied in Section 27 of Evidence Act.

44. In the present case, the declarant accused person was in thecustody of the police and alleged information received from theaccused person was made in consequence of his statement whichresulted into the recovery of the dead body of the minor girl at thepointing out of the accused person.

45. Only this component or portion which was immediate causeof the recovery of the corpse of minor girl would be legal evidenceand not the rest. This may therefore pro tanto (to that extent)permits the derivative use of custodial statements in the ordinarycourse of events.”

10.6. The High Court found the prosecution evidence reliable andpointing towards guilt of the appellant while the appellant having failedto discharge the burden placed upon him under Section 29 POCSO. TheHigh Court held the prosecution case established while observing asunder: -

“54. Thus, the ocular testimony of P.W. 1 Smt. Nisha, P.W. 2Km. Anita and P.W. 3 Km. Ashana is wholly reliable andtrustworthy. We see no reason to disbelieve the testimony of P.W.6 Dr. Himanshu Kumar. The oral evidence of P.W. 6 Dr. HimanshuKumar fully supports prosecution version. The medical evidenceof P.W. 6 Dr. Himanshu Kumar who conducted the autopsy foundthat the death of Km. Am aged about 7 years minor girl had takenplace due to ante-mortem injuries and the time of death mentionedin the post-mortem report (Exhibit Ka-11) corresponds to the timementioned in the F.I.R. (Exhibit Ka-1) as well as in the oculartestimony of P.W. 1 Smt. Nisha, P.W. 2 Km. Anita and P.W.3Km. Ashana.”

10.7. The High Court also rejected the defence story of falseimplication due to prior enmity while observing that no cogent

Adocumentary evidence was produced as regards the alleged sale of landby Rampreet to Gokul; and it was also not shown as to how the appellantwas concerned with the said land deal.

10.8. Having thus affirmed the conviction, High Court examinedthe question of sentence and, while holding that cases of such natureBwere crimes against humanity, upheld the death sentence awarded tothe appellant while observing as under: -

“61. In this case, the accused person-appellant Pappu who belongedto the same caste, social strata and native place of the deceasedminor girl Am; allured her to provide her Lychee apparently as aCprelude to his sinister design which resulted in her kidnapping,brutal rape and gruesome murder-as the numerous ante-morteminjuries on her person testify; which culminated in concealing herdead body near the banks of the river beside the bushes andinnocent helpless and hapless girl of 7 years was subjected tosuch barbaric treatment by person who was in position to winDher trust. His culpability is of enormous proportion and arouses asense of revulsion in the mind of the common man.

62. In fine, the motivation of the perpetrator, the vulnerability ofthe victim, the enormity of the crime, the execution thereofpersuade us to hold that this is ‘rarest of rare cases’ whereEthe sentence of death is eminently desirable not only to deter othersfrom committing such atrocious crimes but also to give emphaticexpression to society’s abhorrence of such crime.

63. Taking an overall view of all the facts and circumstances ofthe instant case in the light of the above propositions we are ofFthe firm opinion that the sentence of death should be maintained.In vain, we have searched for mitigating circumstances-but foundaggravating circumstances aplenty.”

Rival Submissions

11. Learned counsel for the appellant has assailed the judgmentGand order aforesaid while raising questions against the findings leadingto the conviction of the appellant as also against the sentence awardedto the appellant.

12. As regards conviction of the appellant, learned counsel has, inthe first place, strenuously argued that probability of ante-timing of theH

FIR cannot be ruled out; and in this regard, has referred to the factsstated in the testimony of PW-3 that she, along with PW-2 and oneSunita, had visited the spot where the dead body was found at 10:00a.m. on 14.05.2015. It is submitted that until that time, FIR had not beenregistered because the complaint was made only around 12:35 p.m. on14.05.2015 and the dead body was allegedly recovered between 4:10-5:15 p.m. Yet further, learned counsel has referred to the fact thataccording to PW-1, she came to know about the killing of her daughteronly after the appellant was arrested but, in her complaint, she statedwith confidence that the appellant had raped and murdered her daughterand concealed the dead body. According to the learned counsel, shecould not have known the factum of alleged offences at the time ofmaking the complaint. The learned counsel has also contended that thedead body having been found prior to the prosecution’s claimed sequenceof events is also probabilised by the fact that in the post-mortemconducted on 15.05.2015, the time of death was stated to be about 2-3days and thus, the dead body was found in the afternoon of either13.05.2015 or 12.05.2015. The contention has been that from the evidenceon the record, it cannot be ruled out that the body was found before10:00 a.m. on 14.05.2015 and the FIR was registered subsequently, whilepinning the blame on the appellant due to prior enmity.

12.1. The inconsistencies in regard to the facts as to who waspresent at the Police Station at the time of registration of FIR as also thetiming of recording of the informant’s statement under Section 161 CrPChave also been highlighted. It has also been submitted that no particularswere mentioned in column 15 of the FIR as regards ‘date and time ofdispatch to the Court’. It is submitted that the inconsistencies, takentogether with the doubts concerning circumstantial evidence would entitlethe appellant to the benefit of doubt.

12.2. Learned counsel for the appellant has strongly assailed thefindings relating to the circumstantial evidence, taken as proved by theTrial Court and the High Court. Taking up the circumstance that thedeceased was lastly seen alive in the company of the appellant, thelearned counsel has endeavoured to point out certain inconsistencies inthe evidence which, according to him, falsify the prosecution case.

12.2.1. It has been contended that there are inconsistencies intestimonies of PW-1, PW-2 and PW-3 regarding the location where thechildren and the deceased were playing before the appellant allegedly

Aenticed the deceased. This apart, the conduct of PW-1 and PW-2 hasalso been questioned, in that they allowed the deceased child to be takenaway in the evening by man they would describe as an alcoholic,without attempting to intervene. Various other features of inconsistenciesin the prosecution case are referred to, where PW-3 Aashna stated thatthe children kept on playing for 5 hours and upon returning home, sheBfound the appellant being there; and it is submitted that either thetestimony may be seen as incoherent, or is required to be disregarded, orit casts strong doubts on the testimonies of PW-1 and PW-2. Accordingto the learned counsel, the High Court has erroneously ignored thematerial contradictions and inconsistencies with reference to the so-Ccalled rustic background of witnesses, while ignoring that in any case,benefit of doubt arising from such material contradictions should go tothe appellant.12.2.2. It has also been contended that PW-1 and PW-2 were notbelievable for they could not name single villager whose house theyDvisited in search of the deceased; and in fact, PW-2 stated about meetingthe appellant at the house of village Pradhan between midnight and1:00 a.m. on 14.05.2015 but such facts were not stated in the testimonyof PW-1 or PW-8.

12.2.3. Learned counsel would contend that burden of explanationEfor the intervening period between the time of ‘last seen’ and ‘recoveryof the dead body’ would not be shifted on the appellant because thecircumstance of last seen itself is not satisfactorily proven withdefiniteness.

12.3. It has also been strongly argued that the prosecution has notFbeen able to prove that the body of the deceased was recovered at theinstance of the appellant, or that he had any knowledge of the location ofthe dead body.

12.3.1. The learned counsel would contend that the discovery ofthe dead body before registration of FIR is not ruled out and when theGappellant was arrested later, there could not have been any so-calleddiscovery pursuant to any statement made by the appellant. In this verysequence, it has also been submitted that the appellant cannot be said tohave exclusive knowledge of the location of the dead body since such aknowledge to many persons beforehand is not ruled out. Therefore, theHigh Court has erred in drawing inference with reference to Section 27Hof the Evidence Act.

12.3.2. It has also been argued that even the fact relating to thearrest of the appellant has itself not been proved in accordance with lawand in this regard, inconsistencies in the statement of PW-4 have beenindicated coupled with the fact that the arrest memo was not preparedat the spot of arrest and was finished few hours later after making ofalleged recoveries. The learned counsel would contend that when thecircumstance of arrest is doubtful, the subsequent disclosure statementand recovery cannot be taken as proved.

12.3.3. It has further been argued that the disclosure sought to berelied upon in this matter had been non-specific and the alleged recoverycannot be connected with the alleged disclosures. The submission is thatno aspect of disclosure pointing out or leading to recovery has beenproved and, in any case, such foisted recovery cannot be made the basisof conviction. It has also been contended that the Trial Court haderroneously taken into consideration the incriminating statements allegedlymade by the appellant in police custody, including the factum of draggingof the deceased.

12.4. The learned counsel for the appellant has further contendedthat the medical and forensic evidence in this case are neither provedagainst the appellant nor are sufficient to connect the appellant to thecrime. As regards the presence of human sperm on the underwear ofthe deceased, it is submitted that there has been no connecting evidencequa the appellant nor any sperm was found on the appellant’s underwear.It is also submitted that the seizures were neither proved nor appearedscientifically proper. The clothes of the deceased were sealed at thePolice Station and not at the spot. Even the storage and forwardingwere also unscientific in as much as PW-8 admitted that there was nofacility in the Police Station malkhana to store the seized clothes in ascientific manner. Further, the FSL report was delivered on 10.08.2016and it was improbable that spermatozoa could still be discovered on thecloth one year and three months after the incident; and no expert wasexamined to prove the scientific criteria and basis for the conclusion inthe report. It has thus been submitted that the offence of rape is notestablished in the present case.

12.5. The learned counsel has also argued that the Courts belowhave seriously erred in relying on Section 29 POCSO while failing toconsider that to shift the burden of proof on the appellant, foundationalfacts must have been established by the prosecution which, in the context

Aof offences under POCSO, include ‘proving the alleged offence beyondreasonable doubt’. According to the learned counsel for the appellant,the prosecution having failed to prove the alleged offences beyondreasonable doubt, no presumption with reference to Section 29 POCSOcould have been drawn in the present case.B12.6. The learned counsel would also contend that the Courts

B12.6. The learned counsel would also contend that the Courtsbelow have erred in not drawing adverse inferences in terms of Section114 illustration (g) of the Evidence Act on account of non-examinationof material witnesses whose names had surfaced on the record; and infailing to consider that the rules of prudence and circumspection wererequired to be applied while appreciating the testimony of PW-1 to PW-C4, who were to be personally benefitted by securing conviction of theappellant because of prior enmity, thereby making them interestedwitnesses.

12.7. The learned counsel for the appellant has also referred toseveral decisions in support of his contentions, including those inDSudarshan and Anr. v. State of Maharashtra:(2014) 12 SCC 312,SharadBirdhichand Sarda v. State of Maharashtra: (1984) 4 SCC116, Anjan Kumar Sarma and Ors. v. State of Assam:(2017) 14SCC 359, State (NCT of Delhi) v. Navjot Sandhu:(2005) 11 SCC600,D.K. Basu v. State of W.B.: (1997) 1 SCC 416,Rammi AliasERameshwar v. State of M.P.: (1999) 8 SCC 649,Raj Kumar SinghAlias Raju Alias Batya v. State of Rajasthan:(2013) 5 SCC722,Aghnoo Nagesia v. State of Bihar:(1966) 1 SCR134,Abdulwahab Abdulmajid Baloch v. State of Gujarat:(2009) 11SCC 625, RameshChandra Agrawal v. Regency Hospital Limitedand Ors.:(2009) 9 SCC 709,Noor Aga v. State of Punjab and Anr.:F(2008) 16 SCC 417 and Justin v. Union of India and Ors.: 2020SCC OnLine Ker 4956.

13. In the second limb of submissions, learned counsel for theappellant has contended, without prejudice to his arguments againstconviction, that the sentencing exercise by the Courts below has been inGviolation of settled law and in any case, the sentence of death deservesnot to be confirmed.

13.1. With reference to the judgment of the Trial Court, the learnedcounsel would contend that it had only considered the circumstances ofthe crime but has failed to consider the elements relating to the probabilityH

of reform and rehabilitation of the appellant. The learned counsel wouldcontend that the respondent-State did not adduce any evidence to showeven probability of the appellant committing criminal acts of violence,posing threat to the society. The mitigating circumstances like no criminalantecedents, the family being dependent on the appellant and probabilityof reform were not considered by the Trial Court and no case law wasdiscussed at all. The learned counsel would further submit that the HighCourt also repeated the same errors of sentencing while only discussingthe seriousness of child rape offences and then recording cursoryfinding that no mitigating circumstances were found.

13.2. The learned counsel has argued that the sentencing exerciseby the Courts below in the present case had not been in conformity withthe ratio of this Court in various pronouncements including those in theConstitution Bench decision in Bachan Singh v. State of Punjab: (1980)2 SCC 684, and 3-Judge Bench decision in Mohd. Mannan AliasAbdul Mannan v. State of Bihar: (2019) 16 SCC 584.

13.3. The learned counsel for the appellant has emphasised onthe elements relating to ‘probability of reform’ and has submitted that intaking case in ‘the rarest of rare’ category, the principles are clear thatthe sentence of life imprisonment cannot be said to be ‘unquestionablyforeclosed’ until there is scope or probability of reformation. The learnedcounsel has referred to the decision in Rajendra Pralhadrao Wasnikv. State of Maharashtra: (2019) 12 SCC 460 to submit that the saidcase also related to the rape and murder of minor and therein, 3-Judge Bench of this Court held that the probability that convict couldbe reformed and rehabilitated in society must be ‘seriously and earnestlyconsidered’ by the Courts before awarding the death sentence, and suchan enquiry may require the period between date of conviction andsentencing to be prolonged so as to enable the parties to gather and leadevidence to assist the sentencing Court. The learned counsel would submitthat in the present case, the Trial Court convicted the appellant on07.12.2016 and, on the very next day, i.e., on 08.12.2016, sentenced himto death. Thus, the appellant was not given reasonable opportunity tobring on record material or evidence in relation to the relevant mitigatingcircumstances.

13.4. The learned counsel has further relied upon several factorswhich, according to him, are indeed the mitigating circumstances andfor which, the sentence of death deserves not to be approved.

A13.4.1.It has been argued that the first mitigating circumstance isof the good jail conduct of the appellant where he has also been assignedthe cleaning work of the jail office and the fact that he has pursued aCertificate Course in Food and Nutrition, though he could not clear theexamination. It is submitted that the appellant is using all availableopportunities to reform himself.B

13.4.2. According to the learned counsel, the second mitigatingcircumstance is that the appellant has no criminal antecedents and hehad been decent member of the society, which also shows strongpossibility of reformation. The learned counsel has referred to the caseof Gudda Alias Dwarikendra v. State of Madhya Pradesh: (2013)C16 SCC 596 and Kalu Khan v. State of Rajasthan: (2015) 16 SCC492 to submit that therein, this Court has considered the absence ofcriminal antecedents and the age (35 years) as mitigating factors.13.4.3. The third mitigating circumstance relied upon in this caseis with reference to the family dependence and socio-economicDbackground of the appellant. It is submitted with reference to the affidavitof the wife of the appellant that he had been caring husband to her anda good father to the children; he continues to call his family and askabout their welfare; and even the people in the village are concernedabout his well-being. It is also submitted that the appellant comes fromEan extremely poor dalit family, had been working as daily wage labourerand the family had hardly enough money to make both ends meet withno direct electricity or water connections. Further, the house they live inhas been given to them as part of the Pradhan Mantri Awas Yojana-Gramin in 2016. It has also been pointed out that after the appellant’sarrest in the present case, his brother drowned in river and his motherFalso passed away in the year 2018; that because of poverty, the eldestson of the appellant was required to be sent to Gujarat to live with hismaternal uncle; that his father Rampreet, despite old age, has to exerthimself in order to feed the family and even the children are forced towork but still, the entire income of the family is only about Rs.3000/- perGmonth; and that the appellant’s wife is fragile and weak and the impositionof the death sentence on the appellant has caused her immense mentalagony and stress. With reference to various decisions of this Courtincluding that in M. A. Antony v. State of Kerala: 2018 SCC OnLineSC 2800,it is submitted that such factors are also of mitigatingcircumstance. It is also submitted that the appellant’s continuing

connection with his family and the local community; and the financialand emotional dependence of the family on him, are additional factorssuggesting probability of reformation.

13.4.4. As fourth mitigating circumstance, the learned counselfor the appellant would submit that the present one being case dependanton circumstantial evidence, awarding of extreme punishment is notwarranted. The learned counsel has referred to various decisions of thisCourt including those in the cases of Mohd. Mannan and Kalu Khan(supra). The learned counsel would contend with reference to the decisionin Shatrughna Baban Meshram v. State of Maharashtra: (2021) 1SCC 596 that while considering the imposition of death penalty in acase of circumstantial evidence, the circumstantial evidence must be of‘unimpeachable character’, or lead to an ‘exceptional case’, or be sostrong as to convince the Court that the option of sentence lesser thanthe death penalty is foreclosed. Further, it has been contended, withreference to the decision in Ravishankar Alias Baba Vishwakarma v.State of Madhya Pradesh: (2019) 9 SCC 689, that therein 3-JudgeBench of this Court has invoked ‘residual doubt’, which means that inspite of being convinced of the guilt of the accused beyond reasonabledoubt, there might be lingering or residual doubts regarding such guiltand, therefore, the Court would not consider it safe to impose the deathsentence. The learned counsel has submitted that, there are severalinconsistencies and shortcomings in the prosecution case; and withreference to the contentions urged in assailing the conviction, the learnedcounsel would submit that the present one is clearly case of lingeringresidual doubts, which should act as another mitigating factor in favourof the appellant.13.4.5. The learned counsel has also placed before us table ofcomparable decisions where this Court has commuted the death sentenceinto ‘simple life imprisonment’. Further, the learned counsel has referredto the enunciations in the case of Union of India v. V. Sriharan AliasMurugan and Ors.: (2016) 7 SCC 1, where this Court has approvedthe special category of sentence in substitution of death sentence, (i.e.,life sentence barring remission for specified term beyond 14 years, orlife sentence barring remission for remainder of natural life). The learnedcounsel has also placed before us table of comparable cases of rapeand murder of minors, where remission has been excluded whilecommuting the death sentence into life imprisonment, either for fixedterm or for the remainder of life.

A13.4.6. With reference to the aforesaid and while seeking to drawstrength even from the decisions cited on behalf of the respondent, thelearned counsel has argued that in the present case, the death sentenceawarded to the appellant deserves to be disapproved.

14. Per contra, learned counsel for the respondent-State has dulyBsupported the conviction and sentencing of the appellant with referenceto the material on record and several decisions of this Court.

15. As regards the conviction of the appellant, learned counsel forthe respondent-State has argued that the concurrent findings returnedby the Trial Court and High Court after thorough appreciation of theCevidence do not suffer from any infirmity and call for no interference.

15.1. The learned counsel has reiterated the chain of circumstancesheld proved against the appellant and has submitted that theinconsistencies sought to be referred on behalf of the appellant are ofminor nature and do not prejudice the case of the prosecution. WithDreference to the decision of this Court in the case of Inspector of Police,Tamil Nadu v. John David: (2011) 5 SCC 509, the learned counselhas argued that minor loopholes and irregularities in the investigationprocess cannot form the crux of the case when strong circumstantialevidences are found in the investigation, which logically point towardsthe guilt of the accused.

15.2. The learned counsel has submitted that the entire chain ofevents, from disappearance of the deceased to arrest of the appellantoccurred within 20 hours inasmuch as the victim disappeared at around6:30 p.m. on 13.05.2015 and the appellant was arrested the next day ataround 3:30 p.m.; and the prosecution has established the entire chain ofFsignificant circumstances which lead only to the conclusion of the guiltof the appellant.

15.3. The learned counsel has submitted, with reference to thedepositions of PW-1, PW-2 and PW-3, that the victim was indeed lastlyseen with the appellant when the appellant cunningly dissociated herGfrom the company of her friends with whom she was playing, in pre-planned manner after luring her on the pretext of picking lychees; andthe guilt of the appellant could be deduced from the fact that he scoldedthe friends of the victim when they tried to follow him while he wastaking the victim on his back. Thus, according to the learned counsel, thedeliberate dissociation of victim from her friends itself proves that it wasH

premeditated, pre-planned, cold-blooded case of brutal rape and murderof helpless child.

15.4. The learned counsel would further argue that since thedeceased was last seen with the appellant, the burden was upon him toprove as to what happened thereafter, since those facts were within hisspecial knowledge. According to the learned counsel, in the face ofcredible evidence to prove that the appellant took away the victim childand thereafter the child went missing and then, was only found inhumanelyraped and murdered, heavy burden was on the appellant to explain as towhere he was between 6:30 p.m. of the day when he took the child and3:30 p.m. of the next day when he was arrested; as to why did he nottake the responsibility of bringing back the minor girl since he was theone taking her away; as to when did he part company with the deceasedif he did not commit the crime; and as to how he came to know about thelocation of the dead body of the deceased? Since the appellant has failedto provide any explanation to any of these pertinent questions, it could beconcluded without an iota of doubt that the appellant has failed todischarge the burden cast upon him by Section 106 of the Evidence Act.This, according to the learned counsel, provides strong link in the chainof circumstances which prove his guilt beyond reasonable doubt. Thelearned counsel has referred to the decision of this Court in the case ofState of Rajasthan v. Kashi Ram:(2006) 12 SCC 254. The learnedcounsel has also emphasised on Section 29 POCSO.

15.5. The learned counsel for the respondent-State has alsoreferred to the evidence regarding discovery of the dead body of victimchild on the basis of the information of the appellant; and has submittedthat when the information furnished by the appellant was proximate tothe cause of discovery of material objects of the crime and there was noevidence to signify any involvement or interference of third party in theintervening period between the time when the victim was last seen alivein the company of the appellant and when her dead body was recovered,it provides another strong link in the chain of circumstances against theappellant. It has also been argued that the seizures made by the IO haveneither been challenged nor their authenticity put in question during hiscross-examination. The learned counsel has again referred to the decisionin the case of John David (supra).

15.6. The learned counsel has also referred to the post-mortemreport indicating large number of gruesome injuries on the dead body

Aof the victim child including those on her private parts and has submittedthat those facts indicate heinous nature of inhuman crime committed bythe appellant on the helpless victim, who was only 7 years of age.

15.7. The learned counsel for the respondent-State has alsosubmitted that all the material facts in relation to the FIR have been dulyBproved in the statement of PW-1 and there had not been any contradictionin the cross-examination nor any question was put to her to discredit theinformation given to the police. It is also submitted that nothing hassurfaced in the cross-examination to discredit the testimony of materialwitnesses of the prosecution nor the story of false implication due toenmity is established by the defence; rather the prosecution evidenceCdisproves any such alleged enmity between the parties or their familiesfor which, the appellant would be wrongly prosecuted by the family ofthe victim.

15.8. Thus, learned counsel for the respondent would submit thatthe prosecution case squarely falls within the principles relating toDcircumstantial evidence, as enunciated by this Court in the case ofSharadBirdhichand Sarda (supra) and the concurrent findings leading to theconviction of the appellant call for no interference.

16. Learned counsel for the respondent-State has also counteredthe submissions made on behalf of the appellant in relation to the questionEof sentence and has submitted that the present one is undoubtedly a‘rarest of rare’ case where the sentence of death has rightly beenawarded and deserves to be affirmed.

16.1. The learned counsel has referred to the enunciations of thisCourt in Bachan Singh (supra) and has submitted that within the normsFlaid down and the principles explained by this Court, the punishment ofdeath is called for in the present case, where there are no mitigatingcircumstances and on the contrary, the facts of the case disclose onlyaggravating circumstances against the appellant. The learned counselhas contended that the victim, who was about 7 years of age, must haveGreposed complete confidence in the appellant since he was their next-door neighbour; and on account of such faith and belief, she accompaniedhim under the impression that she was being taken to pluck lychees,completely oblivious to the pre-planned evil designs of the appellant.The victim was totally helpless child, and the appellant had the knowledgeof the fact that there was no one to protect her in the deserted areaHwhere he took her by misusing her confidence to fulfil his lust. The

appellant also had full knowledge of the fact that there was no malemember in the family and hence, he hatched the plan to commit thecrime by resorting to diabolical methods and with that object, took thegirl to lonely place to execute his dastardly act. The learned counselhas also referred to the decision of this Court in the case of ShankarKisanrao Khade v. State of Maharashtra: (2013) 5 SCC 546 andhas submitted that the triple tests laid down therein, i.e., ‘crime test’,‘criminal test’ and ‘rarest of rare test’ stand satisfied against the appellantfor awarding capital punishment in this case.

16.2. In support of his submissions, learned counsel for therespondent- State has also referred to the observations of this Court inthe cases ofMachhi Singh and Ors. v. State of Punjab:(1983) 3 SCC470, Dhananjoy Chatterjee Alias Dhana v. State of W.B.: (1994) 2SCC 220,Laxman Naik v. State of Orissa:(1994) 3 SCC 381andKamta Tiwari v. State of M.P.: (1996) 6 SCC 250.

17. Learned counsel for the respondent-State has also submittedthat though the guilt of the appellant and the beastly manner in which thecrime was committed stand established beyond doubt but, if at all thiscase is not considered falling within the ‘rarest of rare’ paradigm, theappellant does not deserve to be released and even if his sentence iscommuted into life imprisonment, the same is required to be withoutremission and for whole of the remainder of his natural life. The learnedcounsel would submit that looking into the nature of crime committed bythe appellant, if he is released at any time in the future, the ends ofjustice would fail and his release would have an adverse impact on thesociety. The learned counsel has referred to such fixed term sentencesawarded by this Court in cases of Swamy Shraddananda (2) v. Stateof Karnataka: (2008) 13 SCC 767, Mohd. Mannan and RajendraPralhadrao Wasnik (supra).

18. We have given anxious consideration to the rival submissionsand have scanned through the material on record.

The scope and width of these appeals

19. As could be readily noticed, in the wide range of submissionsmade on behalf of the appellant, the concurrent findings leading to hisconviction have been challenged as if it were matter of regular appeal;and are practically to the effect that the entire evidence led in the matterbe reappreciated on its contents as also its surrounding factors. However,

Awhile entering into the process of analysis, we cannot lose sight of thefact that the present one is matter of concurrent findings of fact by theTrial Court and the High Court. Though the periphery of an appeal byspecial leave under Article 136 of the Constitution of India and theparameters of examining the matters in such appeals have been laiddown repeatedly by this Court in several of the decisions but, havingBregard to the submissions made in this case, we feel rather impelled torecapitulate the nuanced principles, particularly on the subtle but relevantdistinction in the scope of regular appeal and an appeal by specialleave.

19.1. Before adverting to the relevant decisions, it would beCworthwhile to notice that the regular appellate jurisdiction of this Courtin regard to the criminal matters is specified in Article 134 of theConstitution of India. For the present purpose, Article 134 and Article136 of the Constitution of India could be reproduced as under: -

“134. Appellate jurisdiction of Supreme Court in regard toDcriminal matters. -

An appeal shall lie to the Supreme Court from any judgment, finalorder or sentence in criminal proceeding of High Court in theterritory of India if the High Court –

E(a) has on appeal reversed an order of acquittal of an accusedperson and sentenced him to death; or

(b) has withdrawn for trial before itself any case from anycourt subordinate to its authority and has in such trial convictedthe accused person and sentenced him to death; or

F(c) certifies under Article 134-A that the case is fit one forappeal to the Supreme Court:

Provided that an appeal under sub-clause (c) shall lie subjectto such provisions as may be made in that behalf under clause (1)of Article 145 and to such conditions as the High Court mayGestablish or require.

Parliament may by law confer on the Supreme Court any furtherpowers to entertain and hear appeals from any judgment, finalorder or sentence in criminal proceeding of High Court in theterritory of India subject to such conditions and limitations as mayHbe specified in such law.”

“136. Special leave to appeal by the Supreme Court. - (1)Notwithstanding anything in this Chapter, the Supreme Courtmay, in its discretion, grant special leave to appeal from anyjudgment, decree, determination, sentence or order in any causeor matter passed or made by any court or tribunal in the territoryof India.

(2) Nothing in clause (1) shall apply to any judgment, determination,sentence or order passed or made by any court or tribunalconstituted by or under any law relating to the Armed Forces.”

19.1.1.Further, the enlarged appellate jurisdiction of this Court inregard to the criminal matters is provided in Section 2 of the SupremeCourt (Enlargement of Criminal Appellate Jurisdiction) Act, 1970[10] thatreads as under: -

“2. Enlarged appellate jurisdiction of Supreme Court inregard to criminal matters. – Without prejudice to the powerconferred on the Supreme Court by clause (1) of Article 134 ofthe Constitution, an appeal shall lie to the Supreme Court fromany judgment, final order of sentence in criminal proceeding ofa High Court in the territory of India if the High Court-

(a) has on appeal reversed an order of acquittal of an accusedperson and sentenced him to imprisonment for life or toimprisonment for period of not less than ten years;

(b) has withdrawn for trial before itself any case from anycourt subordinate to its authority and has in such trial convictedthe accused person and sentenced him to imprisonment forlife or to imprisonment for period of not less than ten years.”

19.2. As back as on 05.05.1950, i.e., at the very early stage of theevolution of constitutional scheme and principles, this Court, in the caseof Pritam Singh v. State: AIR 1950 SC 169, made it clear that evenwhen leave is granted, the entire matter is not at large in such an appealby special leave. This Court said: -

“5.In arguing the appeal, Mr Sethi proceeded on theassumption that once an appeal had been admitted by special leave,the entire case was at large and the appellant was free to contest

10 ‘the Act of 1970’, for short.

all the findings of fact and raise every point which could be raisedin the High Court or the trial court. This assumption is, in ouropinion, entirely unwarranted.The misconception involved in theargument is not new one and had to be dispelled by the PrivyCouncil in England in Ibrahim v. Rex [(1914) Ac 615] in thesewords: “…the Board has repeatedly treated applications for leaveto appeal and the hearing of criminal appeals as being upon thesame footing: Riel Case; Ex-parte Deeming. The Board cannotgive leave to appeal where the grounds suggested could not sustainthe appeal itself; and, conversely, it cannot allow an appeal ongrounds that would not have sufficed for the grant of permissionto bring it.”

6. The rule laid down by the Privy Council is based on soundprinciple, and, in our opinion, only those points can be urged at thefinal hearing of the appeal which are fit to be urged at thepreliminary stage when leave to appeal is asked for, and it wouldDbe illogical to adopt different standards at two different stages ofthe same case.”

(emphasis supplied)

19.3. The scope of Article 136 in relation to the findings of factsand appreciation of evidence came to be further exposited by 3-JudgeEBench of this Court in the case of Ramaniklal Gokaldas and Ors. v.State of Gujarat: (1976) 1 SCC 6 in the following terms: -

“3. It is wholesome rule evolved by this Court, which has beenconsistently followed, that in criminal case, while hearing anappeal by special leave, this Court should not ordinarily embarkupon reappreciation of the evidence, when both the SessionsCourt and the High Court have agreed in their appreciation of theevidence and arrived at concurrent findings of fact. It must beremembered that this Court is not regular Court of appealwhichan accused may approach as of right in criminal cases. It is anextraordinary jurisdiction which this Court exercises when itentertains an appeal by special leave and this jurisdiction, by itsvery nature, is exercisable only when this Court is satisfied that itis necessary to interfere in order to prevent grave or seriousmiscarriage of justice. Mere errors in appreciation of the evidenceare not enough to attract this invigilatory jurisdiction. Or else, this

Court would be converted into regular Court of appeal whereevery judgment of the High Court in criminal case would beliable to be scrutinised for its correctness. That is not the functionof this Court.”

(emphasis supplied)

19.4. few days after the aforesaid decision, 2-Judge Bench ofthis Court in the case of Mst. Dalbir Kaur and Ors. v. State of Punjab:(1976) 4 SCC 158, with reference to several decided cases, summarisedthe principles in the lead judgment as follows: -

“8. Thus the principles governing interference by this Court in acriminal appeal by special leave may be summarised as follows:

“(1) that this Court would not interfere with the concurrentfinding of fact based on pure appreciation of evidence even if itwere to take different view on the evidence;

(2) that the Court will not normally enter into reappraisementor review of the evidence, unless the assessment of the HighCourt is vitiated by an error of law or procedure or is based onerror of record, misreading of evidence or is inconsistent with theevidence, for instance, where the ocular evidence is totallyinconsistent with the medical evidence and so on;

(3) that the Court would not enter into credibility of the evidencewith view to substitute its own opinion for that of the High Court;

(4) that the Court would interfere where the High Court hasarrived at finding of fact in disregard of judicial process,principles of natural justice or fair hearing or has acted in violationof mandatory provision of law or procedure resulting in seriousprejudice or injustice to the accused;

(5) this Court might also interfere where on the proved factswrong inferences of law have been drawn or where the conclusionsof the High Court are manifestly perverse and based on noevidence.”

It is very difficult to lay down rule of universal application, butthe principles mentioned above and those adumbrated in theauthorities of this Court cited supra provide sufficient guidelines

for this Court to decide criminal appeals by special leave. Thus ina criminal appeal by special leave, this Court at the hearingexamines the evidence and the judgment of the High Court withthe limited purpose of determining whether or not the High Courthas followed the principles enunciated above.Where the Courtfinds that the High Court has committed no violation of the variousprinciples laid down by this Court and has made correct approachand has not ignored or overlooked striking features in the evidencewhich demolish the prosecution case, the findings of fact arrivedat by the High Court on an appreciation of the evidence in thecircumstances of the case would not be disturbed.”

(emphasis supplied)

The aforesaid parameters were redefined in the concurring opinionin the following terms: -

“30. The decisions of this Court referred to in the judgment ofDmy learned brother lay down that this Court does not interferewith the findings of fact unless it is shown that “substantial andgrave injustice has been done”. But whether such injustice hasbeen done in given case depends on the circumstances of thecase, and I do not think one could catalogue exhaustively all possiblecircumstances in which it can be said that there has been graveEand substantial injustice done in any case. In the appeals beforeus the findings recorded by the trial court and affirmed by theHigh Court do not disclose any such exceptional and specialcircumstances as would justify the claim made on behalf of theappellants whose appeals we propose to dismiss that there hasFbeen failure of justice in these cases.”

19.5. We need not multiply the case law on the point but mayusefully refer to one of the recent decisions of 3-Judge Bench of thisCourt in the case of Hari & Anr. v. The State of Uttar Pradesh:Criminal Appeal No. 186 of 2018 decided on 26.11.2021. Therein,Gafter referring to the aforesaid enunciations in Mst. Dalbir Kaur (supra),this Court has said: -

“19. In the said judgment, this Court observed that the evidenceand the judgment of the High Court is examined for the limitedpurpose for determining whether or not the High Court hasfollowed the aforementioned principles. If the High Court has

committed no error or violation of the said principles and has notignored or overlooked striking features of the evidence whichdemolish the prosecution case, the findings of fact arrived at bythe High Court on an appreciation of the evidence in thecircumstances of the case would not be disturbed. Article 136 ofthe Constitution of India is an extraordinary jurisdiction which thisCourt exercises when it entertains an appeal by special leave andthis jurisdiction, by its very nature, is exercisable only when thisCourt is satisfied that it is necessary to interfere in order to preventgrave or serious miscarriage of justice. Mere errors in appreciationof the evidence are not enough to attract this invigilatory jurisdiction.It is not the practice of this Court to reappreciate the evidence forthe purpose of examining whether the finding of fact concurrentlyarrived at by the High Court and the subordinate courts is corrector not. It is only in rare and exceptional cases where there issome manifest illegality or grave and serious miscarriage of justicethat this Court would interferewith such finding of fact.

20. Regarding the argument on behalf of the accused personswith respect the contradictions and inconsistencies in theevidence of the eye-witnesses, the High Court found that thecontradictions and inconsistencies indicated in the statements ofthe four eye-witnesses were trivial in nature. Following the lawlaid down by this Court in State of MP v. Ramesh [(2011) 4SCC 786], the High Court ignored the contradictions andinconsistencies…..”

(emphasis supplied)

20. In summation of what has been noticed hereinabove, it is butclear that as against any judgment/final order or sentence in criminalproceeding of the High Court, regular appeals to this Court are envisagedin relation to the eventualities specified in Article 134 of the Constitutionof India and Section 2 of the Act of 1970. The present one is not amatter covered thereunder and the present appeals are by special leavein terms of Article 136 of the Constitution of India. In such an appeal byspecial leave, where the Trial Court and the High Court have concurrentlyreturned the findings of fact after appreciation of evidence, each andevery finding of fact cannot be contested nor such an appeal could bedealt with as if another forum for reappreciation of evidence. Of course,if the assessment by the Trial Court and the High Court could be said to

Abe vitiated by any error of law or procedure or misreading of evidenceor in disregard to the norms of judicial process leading to serious prejudiceor injustice, this Court may, and in appropriate cases would, interfere inorder to prevent grave or serious miscarriage of justice but, such courseis adopted only in rare and exceptional cases of manifest illegality. Terselyput, it is not matter of regular appeal. This Court would not interfereBwith the concurrent findings of fact based on pure appreciation of evidencenor it is the scope of these appeals that this Court would enter intoreappreciation of evidence so as to take view different than that takenby the Trial Court and approved by the High Court.

Concurrent findings of fact: whether requiring interferenceCin these appeals

21. As noticed, the Trial Court and the High Court haveconcurrently recorded the findings that the prosecution has been able tosuccessfully establish the chain of circumstances leading to unmistakableconclusion that the appellant is guilty of the offences of rape and murderDof the victim child as also of concealing her dead body. The fundamentalfact, as held proved against the appellant is that the deceased was lastlyseen in the company of the appellant when he took the deceased alongwith himself while shooing away other children. The other significantfact, as held proved, is that the dead body of the victim child was recoveredEat faraway place near the riverbank at the instance of the appellant.Coupled with the said two aspects is the factor that the appellant hadfailed to satisfactorily explain his whereabouts since he was last seen inthe company of the deceased as also his knowledge of the location ofthe dead body. These facts and factors, taken together with the medicaland other scientific evidence, are said to be of complete chain ofFcircumstances, leading to the conclusion on the guilt of the appellant.

22. The concurrent findings returned by the Trial Court and theHigh Court on conviction of the appellant have been questioned in theseappeals with wide range of submissions directed towards the mattersof appreciation of evidence. As noticed, this Court would not be embarkingGupon wholesome reappreciation of evidence but, of course, the mattermay be examined from the point of view that there ought not be anymisreading of evidence or disregard of any principle of law or procedure,i.e., the findings ought not be suffering from manifest illegality. Whiletaking up this exercise, we may summarise the principles in the citedHdecisions, so far relevant for the present purpose.

22.1. The principles explained and enunciated in the case ofSharad Birdhichand Sarda (supra), referred to and relied upon bylearned counsel for both the parties, remain guiding-light for the Courtsin regard to the proof of case based upon circumstantial evidence.Therein, this Court referred to the locus classicus of Hanumant v.State of Madhya Pradesh: AIR 1952 SC 343, deduced five goldenprinciples, and named them panchsheel of proving case based uponcircumstantial evidence. This Court exposited as follows: -

“152. ...It may be useful to extract what Mahajan, J. has laiddown in Hanumant case:

“It is well to remember that in cases where the evidence is of acircumstantial nature, the circumstances from which theconclusion of guilt is to be drawn should in the first instance befully established, and all the facts so established should beconsistent only with the hypothesis of the guilt of the accused.Again, the circumstances should be of conclusive nature andtendency and they should be such as to exclude every hypothesisbut the one proposed to be proved. In other words, there mustbe chain of evidence so far complete as not to leave anyreasonable ground for conclusion consistent with the innocenceof the accused and it must be such as to show that within allhuman probability the act must have been done by the accused.”

153. close analysis of this decision would show that the followingconditions must be fulfilled before case against an accused canbe said to be fully established:

(1) the circumstances from which the conclusion of guilt is to bedrawn 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] where the observations weremade :

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

CDE

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

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

(4) they should exclude every possible hypothesis except the oneto be proved, and

(5) there must be chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability 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.

155. It may be interesting to note that as regards the mode ofproof in criminal case depending on circumstantial evidence, inthe absence of corpus delicti, the statement of law as to proofof the same was laid down by Gresson, J. (and concurred by 3more Judges) in King v. Horry [1952 NZLR 111] thus:

“Before he can be convicted, the fact of death should beproved by such circumstances as render the commission ofthe crime morally certain and leave no ground for reasonabledoubt: the circumstantial evidence should be so cogent andcompelling as to convince jury that upon no rationalhypothesis other than murder can the facts be accountedfor.”

156. Lord Goddard slightly modified the expression “morallycertain” by “such circumstances as render the commission of thecrime certain”.

157. This indicates the cardinal principle of criminal jurisprudencethat case can be said to be proved only when there is certainand explicit evidence and no person can be convicted on puremoral conviction...”

22.1.1. Learned counsel for the appellant has particularly reliedHupon paragraphs 159 to 161 of the said decision in Sharad Birdhichand

Sarda. In that part of the judgment, this Court dealt with contentionurged by the Additional Solicitor General that if the defence case isfalse, it would constitute an additional link so as to fortify the prosecutioncase. While not accepting such contention, this Court said as follows: -

“159. It will be seen that this Court while taking into account theabsence of explanation or false explanation did hold that it willamount to be an additional link to complete the chain but theseobservations must be read in the light of what this Court saidearlier viz. before false explanation can be used as additionallink, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecutionhave been satisfactorily proved,

(2) the said circumstance points to the guilt of the accused withreasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

160. If these conditions are fulfilled only then court can use afalse explanation or false defence as an additional link to lendan assurance to the court and not otherwise. On the facts andcircumstances of the present case, this does not appear to besuch case. This aspect of the matter was examinedin Shankarlal case [(1981) 2 SCC 35, 39] where this Courtobserved thus: [SCC para 30, p. 43]

“Besides, falsity of defence cannot take the place of proofof facts which the prosecution has to establish in order tosucceed. false plea can at best be considered as anadditional circumstances, if other circumstances pointunfailingly to the guilt of the accused.”

161. This Court, therefore, has in no way departed from the fiveconditions laid down in Hanumant case [AIR 1952 SC 343].Unfortunately, however, the High Court also seems to havemisconstrued this decision and used the so-called false defenceput up by the appellant as one of the additional circumstancesconnected with the chain. There is vital difference between anincomplete chain of circumstances and circumstance which,after the chain is complete, is added to it merely to reinforce theconclusion of the court. Where the prosecution is unable to prove

Aany of the essential principles laid down in Hanumant case [AIR1952 SC 343], the High Court cannot supply the weakness or thelacuna by taking aid of or recourse to false defence or falseplea. We are, therefore, unable to accept the argument of theAdditional Solicitor-General.”

B22.2. In the case of Sudarshan (supra), this Court noted the unusualbehaviour on the part of complainant and his friends who, after the incidentof killing of two persons, approached lawyer living 15 kms away, insteadof registering an FIR straightaway. Then, the FIR was not lodged in thejurisdictional Police Station and there was no date and time marked on it.It was also not shown as to who took, and how, the FIR to the Magistrate.CIn the given set of facts, this Court found the FIR ante-timed.

22.3. The case of Anjan Kumar Sarma (supra) has been citedon behalf of the appellant in support of the contention that when othercircumstances are not proved, solely the circumstances of last seencannot form the basis of conviction. In the said case, the prosecutionDrelied upon nine circumstances to prove the guilt of the accused but thisCourt found that seven of them were to be disregarded as not proved.This Court, thereafter, examined the two circumstances, that the deceasedwas last seen with the accused and they had failed to offer the necessaryexplanation and found that only those circumstances were not completingEthe chain to prove the guilt of the accused, while observing as under: -

“23. It is clear from the above that in case where the other linkshave been satisfactorily made out and the circumstances point tothe guilt of the accused, the circumstance of last seen togetherand absence of explanation would provide an additional link whichFcompletes the chain. In the absence of proof of othercircumstances, the only circumstance of last seen together andabsence of satisfactory explanation cannot be made the basis ofconviction.…”

22.4. The case of Navjot Sandhu (supra) has been cited in supportGof the argument that fact already known cannot be discovered pursuantto the statement made by an accused in police custody. The relevantpart in the relied upon paragraph shows that Section 27 of the EvidenceAct was not found applicable in relation to particular packet of silverpowder which carried the name of the shop and thus, it was found thatthe name and address of the shop were already known to the police.HEven then, this Court said that the conduct of the accused in pointing out

the shop and its proprietor would be relevant under Section 8 of theEvidence Act.

22.5. The decision in D.K. Basu (supra) has been referred insupport of the submission that arrest memo is required to be prepared atthe time of arrest. In the case of Rammi Alias Rameshwar (supra),afterfinding that there was material discrepancy as to the time of arrest ofthe accused, this Court declined to place reliance on the evidence of theIO as to the recovery of weapon on the information furnished by theaccused in police custody. In the said case, the conviction was maintainedwith reference to the reliable testimony of eye-witnesses.

22.6. In the case of Raj Kumar Singh(supra), the requirementof putting relevant circumstances to the accused have been reaffirmedwhile also holding that the circumstances which are not put to the accusedin his examination under Section 313 CrPC, cannot be used against himand have to be excluded from consideration.

22.7. The case of Aghnoo Nagesia (supra) has been cited tosubmit that the incriminating portions of custodial disclosure areinadmissible and therefore, the appellant’s alleged admission of draggingthe dead body would not be admissible.

22.8. The decision in Abdulwahab Abdulmajid Baloch (supra)has been cited in support of the contention that sole circumstance ofrecovery cannot be the basis of conviction. In the said case, this Courtheld thus: -

“38. The learned trial Judge himself opined that the recoveryhaving been made after nine months, the weapon might havechanged in many hands. In absence of any other evidenceconnecting the accused with commission of crime of murder ofthe deceased, in our opinion, it is not possible to hold that theappellant on the basis of such slander evidence could have beenfound guilty for commission of offence punishable under Section302 of the Penal Code.”

22.9. The case of Ramesh Chandra Agrawal (supra) related tothe compensation claim for medical negligence and therein, the issuesinvolved had been concerning the relevance of the expert evidence whereit was alleged that the appellant was impaired because of the faults intreatment by the respondent. As regards the principle concerning expertevidence in terms of Section 45 of the Evidence Act, this Court said: -

“20. An expert is not witness of fact and his evidence is reallyof an advisory character. The duty of an expert witness is tofurnish the Judge with the necessary scientific criteria for testingthe accuracy of the conclusions so as to enable the Judge toform his independent judgment by the application of these criteriato the facts proved by the evidence of the case. The scientificopinion evidence, if intelligible, convincing and tested becomesa factor and often an important factor for consideration alongwith other evidence of the case. The credibility of such witnessdepends on the reasons stated in support of his conclusions andthe data and material furnished which form the basis of hisconclusions…..”

22.10. The principle relating to reverse burden of proof in specialenactments came up for consideration in the case of Noor Aga (supra)wherein this Court dealt with the provisions of Sections 35 and 54 of theNarcotic Drugs and Psychotropic Substances Act, 1985. This Court,Dinter alia, observed as follows: -

“58. Sections 35 and 54 of the Act, no doubt, raise presumptionswith regard to the culpable mental state on the part of the accusedas also place the burden of proof in this behalf on the accused;but bare perusal of the said provision would clearly show thatEpresumption would operate in the trial of the accused only in theevent the circumstances contained therein are fully satisfied. Aninitial burden exists upon the prosecution and only when it standssatisfied, would the legal burden shift. Even then, the standard ofproof required for the accused to prove his innocence is not ashigh as that of the prosecution. Whereas the standard of proofFrequired to prove the guilt of the accused on the prosecution is“beyond all reasonable doubt” but it is “preponderance ofprobability” on the accused. If the prosecution fails to prove thefoundational facts so as to attract the rigours of Section 35 of theAct, the actus reus which is possession of contraband by theGaccused cannot be said to have been established.”

22.11. In the case of Justin(supra), the Kerala High Court, whilerejecting the challenge to the validity of Sections 29 and 30 of POCSO,has underscored the requirement that the duty to rebut the presumptionarises only after the prosecution has established the foundational factsHof the offence alleged against the accused.

22.12. In the case of John David (supra) relied upon by the learnedcounsel for the respondent, this Court has reiterated the principle thatwhen there is recovery of an object of crime on the basis of informationgiven by the accused which provides link in the chain of circumstances,such information leading to discovery is admissible. It has also been heldthat minor loopholes and irregularities in investigating process cannotform the crux of the case on which the accused can rely upon to provehis innocence, when there is strong circumstantial evidence deducedfrom the investigation which logically and rationally point towards theguilt of the accused. This Court, inter alia, said as under: -

“72. It is well-settled proposition of law that the recovery of crimeobjects on the basis of information given by the accused providesa link in the chain of circumstances. Also failure to explain one ofthe circumstances would not be fatal to the prosecution case andcumulative effect of all the circumstances is to be seen in suchcases. At this juncture we feel it is apposite to mention that in Stateof Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715] thisCourt has held that: (SCC p. 720, para 19)

“19. … The court must have predominance and pre-eminence in criminal trials over the action taken by [the]investigating officers. Criminal justice should not be madea casualty for the wrongs committed by the investigatingofficers in the case. In other words, if the court is convincedthat the testimony of witness to the occurrence is true thecourt is free to act on it….”

73. Hence, minor loopholes and irregularities in the investigationprocess cannot form the crux of the case on which the respondentcan rely upon to prove his innocence when there are strongcircumstantial evidences deduced from the said investigation whichlogically and rationally point towards the guilt of the accused.”

22.13. As regards the last seen theory and operation of Section106 of the Evidence Act, in the case of Kashi Ram (supra) this Courthas explained and laid down as follows: -

“23. It is not necessary to multiply with authorities. The principleis well settled. The provisions of Section 106 of the Evidence Actitself are unambiguous and categoric in laying down that whenany fact is especially within the knowledge of person, the burden

Aof proving that fact is upon him. Thus, if person is last seen withthe deceased, he must offer an explanation as to how and whenhe parted company. He must furnish an explanation which appearsto the court to be probable and satisfactory. If he does so he mustbe held to have discharged his burden. If he fails to offer anexplanation on the basis of facts within his special knowledge, heBfails to discharge the burden cast upon him by Section 106 of theEvidence Act. In case resting on circumstantial evidence if theaccused fails to offer reasonable explanation in discharge of theburden placed on him, that itself provides an additional link in thechain of circumstances proved against him. Section 106 does notCshift the burden of proof in criminal trial, which is always uponthe prosecution. It lays down the rule that when the accused doesnot throw any light upon facts which are specially within hisknowledge and which could not support any theory or hypothesiscompatible with his innocence, the court can consider his failureto adduce any explanation, as an additional link which completesDthe chain. The principle has been succinctly stated in Naina Mohd.,Re. [AIR 1960 Mad 218]

24. There is considerable force in the argument of counsel forthe State that in the facts of this case as well it should be heldthat the respondent having been seen last with the deceased,Ethe burden was upon him to prove what happened thereafter,since those facts were within his special knowledge. Since, therespondent failed to do so, it must be held that he failed todischarge the burden cast upon him by Section 106 of theEvidence Act. This circumstance, therefore, provides the missingFlink in the chain of circumstances which prove his guilt beyondreasonable doubt.”

23. Keeping the aforesaid principles in view, we may examine thecontentions urged in this matter as regards conviction of the appellant.

24. Learned counsel for the appellant, while seeking to challengeGthe conviction, has put at the forefront the contentions that the probabilityof ante-timing of FIR cannot be ruled out. In this regard, three majorfactors have been highlighted: first, that according to the witness PW-3,she had seen the dead body at 10:00 a.m. on 14.05.2015 though until thattime, FIR had not been registered; second, that in the FIR itself, motherHof the victim child stated with confidence that the deceased was raped

and murdered and the dead body was concealed by the appellant thoughthere was no reason for her to make such assertions at the time oflodging the FIR; and third, that there had been inconsistencies as regardsthe presence of people at the time of lodging the FIR and as regards thetiming of recording the statement of mother of the victim child underSection 161 CrPC as also that there had been opaqueness as regardscompliance of Section 157 CrPC in dispatching the FIR to the Court.

24.1. We are unable to persuade ourselves with this line ofsubmissions; rather, we are clearly of the view that these factors, whethertaken individually or taken collectively, cannot be decisive of the questionscalling for determination in this case. It is the overall view of the evidenceas regards the chain of circumstances that alone is decisive of the matter.We may, however, indicate that the contentions urged with reference tothe factors aforesaid carry their own shortcomings.

24.2. It is true that the child-witness PW-3 Aashna stated as ifshe had gone to the site and looked at the dead body at 10:00 a.m. in themorning but then, the said child-witness was about 10 years of age atthe time of her deposition and was coming from rural background. Hercomprehension of timings had obviously been crude or amateurish, whichis borne out of the fact that in the other part of statement, she stated thatafter 7 p.m., she and other children kept on playing for 5 hours. Such anarrative about the timing by her had obviously been lacking in therequisite maturity and comprehension. In the process of appreciation ofevidence, the Trial Court and High Court have looked at the crux of thematter emerging from her testimony that she was indeed witness tothe fact that the deceased child was last seen in the company of theappellant when he took her along towards lychee farm.

24.3. Similarly, the overt assertion made in the complaint by PW-1 Nisha, mother of the victim child, that as per her belief, the child wasraped and murdered and the dead body was concealed by the appellant,is also required to be visualised with reference to the backdrop that shehad the knowledge about the appellant having taken her daughter in theevening and had been searching for her daughter for the whole night.This is coupled with the fact that she was undoubtedly rustic villagerand even got the complaint scribed from someone else. Again, in theprocess of appreciation of evidence, the Trial Court and High Courthave looked at the substance and core of the matter emerging from hertestimony while consciously taking note of her background.

A24.4. Yet further, as to who accompanied PW-1 Nisha to PoliceStation is not factor for which, the FIR could be taken as ante-timed.PW-1 Nisha and PW-2 Anita had been consistent that both of them hadgone to the Police Station before the noon hours of 14.05.2015. It has, ofcourse, appeared in the statements of PW-7 Nagendra Singh that PW-4Amebdkar had accompanied PW-1 Nisha to Police Station but, such aBminor discrepancy occurring in the statement of the said police officerposted at the Police Station concerned cannot override the entire evidenceon record. Moreover, he had been the person who registered the FIRand there had not been any specific suggestion to this witness that deadbody had been seen by anyone before lodging of FIR. Similarly, PW-8,Cthe IO initially stated in the cross-examination that he took the statementof the complainant next day after taking over investigation but thereafter,corrected himself to say that he took her statement at about 2.00 p.m.after registration of the case. This aspect has also been duly taken noteof by the Trial Court and the contentions urged on behalf of the appellanthave been rejected with reference to the fact that the IO had deposedDfrom memory after one and half year of the investigation; and PW-7has clarified that the statement of the complainant was taken by theSHO at the date of registration of FIR and thereafter, he proceeded toinvestigate. Further, even if the particulars regarding date and time ofdispatch of FIR to the Court were not stated in the form, that could onlyEbe regarded as procedural fault on the part of the staff of the PoliceStation and that cannot nullify all other material on record. In the case ofSudarshan (supra), the FIR was not lodged immediately and not evenin the jurisdictional Police Station. In the given set of facts, this Courtfound that the FIR was recorded after due deliberation and was ante-timed to give it colour of promptly lodged FIR. The said decision isFhardly of any assistance to the appellant in the present case. Evenotherwise, every irregularity in maintaining the record pertaining to theinvestigation cannot take away the crux and substance of the matter, ifthere are strong substantial evidences deduced from the investigation,which logically and rationally point towards the guilt of the accused, asGheld by this Court in John David (supra).

24.5. It has been repeatedly argued in this matter that fact alreadyknown cannot be said to have been discovered pursuant to the statementmade by the accused-appellant in police custody. As noticed above, thisline of argument has been developed with reference to minor andHirrelevant inconsistencies in the deposition of witnesses, particularly the

child witness PW-3 Aashna. Further, strength is sought to be taken withreference to certain irregularities in maintaining the investigation record.This line of submission is required to be rejected because minorinconsistencies or irregularities cannot take away the substance of thematter and the crucial facts proved in evidence. The decisions, like thatin the case of Navjot Sandhu (supra), about the facts already known tothe police, have no application to the facts of the present case. There isno such material discrepancy as regards the time when the police tookthe appellant into custody, as it has been consistently deposed by thewitnesses and found established by the Courts that the IO started fromthe Police Station at about 2:00 p.m. on 14.05.2015 and apprehended theappellant near the Community Health Centre in the afternoon hours.Then, he started preparing the arrest memo and at the same time, alsotook the appellant to the site after the appellant agreed to lead to thelocation where he had dumped the dead body. Thus, the principles inD.K. Basu and Rammi Alias Rameshwar (supra) also do not enure tothe benefit of the appellant.25. For what has been discussed hereinabove, it is but clear that afew discrepancies here or there do not establish that the FIR was ante-timed or that the dead body had already been seen by anyone beforelodging of FIR. As noticed, while recording the findings against theappellant, the so-called discrepancies/inconsistencies have also been dulytaken note of by the Trial Court and the High Court before finding themeither of trivial nature or duly explained. We find no infirmity in suchappreciation of evidence by the Trial Court and the High Court.

26. Apart from above, learned counsel for the appellant has madeall endeavours to point out some more inconsistencies or shortcomingsin the prosecution case. For example, it is submitted that there has beeninconsistency as regards the location where other children and thedeceased were playing before the appellant allegedly enticed thedeceased; that the witness PW-2 had stated about meeting the appellantbetween midnight and 1:00 a.m. on 14.05.2015 but such facts were notstated by PW-1 or PW-8. These and other such minor factors cannot besaid to be of any relevant inconsistency so as to create reasonabledoubt on the prosecution case; rather, such minor variations are more ofnatural presentation of their versions by the witnesses. The learnedcounsel would further submit that PW-1 and PW-2 could not name asingle villager whose house they visited in search of the deceased. We

Aare unable to find even logic in such an argument. It is too far-stretchedto suggest that even the factum of search of the missing child by hermother and aunt is required to be corroborated by any other evidence.The learned counsel has expanded on his submissions even to the extentthat adverse inference ought to be drawn for the prosecution notexamining the persons whose names had surfaced on the record. SuchBa contention remains bereft of logic. All the necessary witnesses to provethe relevant facts have been examined by the prosecution. The principlesof drawing adverse inference for non- production of material evidenceavailable with the prosecution do not even remotely come into operation

in this case. To put it in nutshell, the so-called inconsistencies do notCtake away the substance of the matter where the prosecution hasestablished fundamental facts leading to the chain of circumstancespointing towards the guilt of the appellant. In an overall view of theevidence, the statements of PW-1, PW-2 and PW-3 appear to be genuineand the discrepancies or inconsistencies therein appear to be rather ofnatural character as are likely to arise from the persons of theirDbackground. It gets, perforce, reiterated that in the present appeal againstconcurrent findings of fact, the whole of the evidence on record is not tobe reappreciated as if it were matter of regular appeal.27. Having examined the matter in its totality, we find no infirmityin the Trial Court and the High Court concurrently finding the prosecutionEcase proved that on 13.05.2015, at around half past six in the evening,while the deceased was playing with PW-3 Aashna and other childrenof the village Sabaya Khas, Kushinagar, appellant gave Rs. 20 to PW-3,for buying sweets for the children. After distributing these sweets amongstthem, the deceased was lured by appellant by suggesting that they goFtogether and pluck lychees from the farm. When the other children soughtto follow them, he sent them away by scolding them, picked and placedthe deceased on his back, and set off towards the farm. The testimonyof child witness PW-3 Aashna is categorical in regard to these facts andthere appears no reason to disbelieve her testimony, even if hercomprehension of time and hours appears to be wanting in maturity. ItGwould be rather unrealistic to expect such maturity from ten-year-oldchild coming from rustic background. PW-2 Anita, the maternal auntof the deceased, has also corroborated PW-3 in regard to these crucialfacts, establishing that the deceased was last seen with the appellant. Infact, the evidence has been categorical that it was the appellant aloneHwho enticed the deceased to go along with him and rather carried the

deceased child on his back. PW-2 Anita has also testified to the fact thatshe saw the appellant taking the deceased child from the window of thehouse while standing and PW-1 Nisha, mother of the deceased childwas sitting. This explains even the statement of PW-1 Nisha that shehad also seen the appellant taking the deceased child. The submissionthat why these women allowed the child to taken in the evening by aman they described as alcoholic is, again, only an attempt at hair-splittingexercise in the matter of appreciation of evidence. In the rural background,where the appellant was neighbour and person of the same community,there could not have been any reason for the ladies to suspect the intentof the appellant towards the child. The assertion that the ladies searchedfor the child for the whole night cannot be cooked-up story because, ifthe seven-year-old girl child did not return home until late hours, theywere, obviously, expected to look for the child. The fact that whilesearching, they indeed reached the house of the appellant, where hiswife stated about his having gone out after quarrelling, has also beenconsistently stated by PW-1 and PW-2. Of course, PW-2 stated aboutherself having met the appellant past midnight but, also made it clearthat PW-1 was not with her at that time. It is also given out that theladies could not take steps for approaching the police because at therelevant point of time i.e., during the night intervening 13.05.2015 and14.05.2015, they were not having any person of support with them.

27.1. The sum and substance of the matter is that we find noinfirmity in the finding that the deceased was lastly seen in the companyof the appellant. This finding remains cogent finding based on properappreciation of evidence and calls for no interference.

28. So far as the factum of discovery of the dead body of thevictim child at the information of appellant is concerned, as indicatedhereinabove, the same stands proved by the evidence of relevantwitnesses including PW-4 Ambedkar and PW-8 IO. As noticed, the IOof this case seems to have not meticulously prepared the papers ofinvestigation and even the memorandum of discovery of dead body andarrest of the appellant was prepared as one document (Ex. Ka-2).However, perusal of the said document Ex. Ka-2, duly proved by therelevant witnesses including PW-4 Ambedkar and PW-8 IO, makes itclear that the relevant facts stand established therefrom and cannot beignored. As already observed, mere irregularity in preparation of memosby the IO would not falsify the factum of information by the accused-appellant leading to the discovery of the dead body.

A29. The submission that the incriminating part in the statement ofthe appellant made to the police while in custody, like that of ‘draggingthe dead body’, has been relied upon by the Trial Court is also not correct.The Trial Court essentially relied upon the site plan (Ex. Ka-15), whereit was indicated that line over the tiled field with trampling of wheatstack was clearly visible at the site (vide paragraph 9.4. hereinabove).BThus, the decision in Aghnoo Nagesia (supra) is of no relevance to thepresent case.

30. The principles in the case of Anjan Kumar Sarma (supra)that solely the circumstance of last seen cannot form the basis ofconviction as also in Abdulwahab Abdulmajid Baloch (supra) that theCsole circumstance of recovery cannot be basis of conviction have norelevance to the present case where both the circumstances of ‘lastseen’ as also ‘recovery pursuant to disclosure by appellant’, formingstrong links in the chain of circumstances, have been duly established onrecord.

31. It is hardly matter of doubt or debate that when ‘last seen’evidence is cogent and trustworthy which establishes that the deceasedwas lastly seen alive in the company of the accused; and is coupled withthe evidence of discovery of the dead body of deceased at far awayand lonely place on the information furnished by the accused, the burdenEis on the accused to explain his whereabouts after he was last seen withthe deceased and to show if, and when, the deceased parted with hiscompany as also the reason for his knowledge about the location of thedead body. The appellant has undoubtedly failed to discharge this burden.Applying the principles enunciated in the case of Kashi Ram (supra),we have no hesitation in endorsing the view of the High Court that theFappellant having been seen last with the deceased, the burden was uponhim to prove as to what happened thereafter, since those facts werewithin his special knowledge. For the appellant having failed to do so, itis inevitable to hold that he failed to discharge the burden cast upon himby Section 106 of the Evidence Act. This circumstance, therefore,Gprovides another strong link in the chain of circumstances against theappellant.

32. For what has been discussed hereinabove, it is also but clearthat the foundational facts of the offences alleged against the appellanthave been established. In the given set of circumstances, it could safelyHbe said that the presumption contemplated by Section 29 POCSO came

into operation and the burden came staying with the appellant; and itwas for him to rebut the presumption and to prove that he had notcommitted the offence. The appellant has failed to discharge this burden.Viewed from this angle too, the decisions in Noor Agha and Justin(supra) do not come to the rescue of the appellant; rather on the principlesstated therein and in terms of Section 29 POSCO, the presumption wouldonly lead to the finding of guilt against the appellant.

33. It has unnecessarily been argued with reference to the caseof Raj Kumar Singh (supra) that the circumstances not put to accusedin his examination under Section 313 CrPC cannot be used against him.The said decision has no application to the present case, particularlywhen we find that all the material and incriminating circumstances haveindeed been put to the appellant.

34. It has also unnecessarily been argued that even if the defencecase is taken to be false, it would not constitute an additional link to thechain of circumstances. It is not of taking any additional link to the chainof circumstances but, from the failed attempt of defence to suggestenmity due to the land dispute, it is clear that there was not even aremote reason for the mother of the victim to direct the imputationsagainst the appellant while allowing the real culprit, if there was anyother but the appellant, to escape. In fact, the haphazard suggestions inrelation to the alleged enmity had also been of strange nature where itwas suggested to PW-1 that the appellant was implicated for ‘villageanimosity’ whereas the suggestion to PW-2 was of ‘factionalism’. TheTrial Court and the High Court have also rightly indicated that nothing ofconcrete evidence towards the alleged land dispute was available onrecord. Even the basic fact is also not clear as to how the appellant orhis family were concerned with any sale made to one Gokul?

34.1. Having examined the baseless defence plea of enmity dueto land dispute and its consideration by the Trial Court and the HighCourt, we are satisfied that this failed defence plea has not been used asan additional link to the chain of circumstances required to be proved bythe prosecution. It has only been referred to as an additional assuringcircumstance, after finding that all other circumstances unfailingly pointtowards the guilt of the appellant. The principles stated in paragraphs159 to 161 of the decision in Sharad Birdhichand Sarda (supra), asrelied upon by the learned counsel for the appellant, do not make out acase for interference in the present appeals.

A35. Yet another distended line of arguments, with reference to thedecision in Ramesh Chandra Agrawal (supra), is also of no assistanceto the appellant. The Forensic Science Laboratory had reported thattraces of ‘spermatozoa and sperms’ were found on the underwear ofthe deceased. Even if the said report was drawn on 10.08.2016, itsveracity cannot be doubted and there is no reason to consider the saidBreport with suspicion. The relevant articles were indeed sealed as provedin evidence and did reach the laboratory in the same sealed condition.The alleged want of upgraded and sophisticated facilities for sealing ofthe articles at the Police Station cannot override and nullify theproceedings otherwise lawfully conducted by the Police Station and theCInvestigating Officer. In any case, it is also far-stretched to argue thatthe offence under Section 376 IPC could not have been imputed in thecharge-sheet before receiving such report. The said report was onlycorroborative scientific evidence but the other facts directly available onrecord, more particularly as per the conditions of the dead body of theseven-year-old girl child, as seen at the site and then the relevant aspectsDof gruesome injuries, including those on private parts, as reported in thepost-mortem report, could not have been ignored. The decision in RameshChandra Agrawal (supra) is of no support to the contentions urged inthis matter on behalf of the appellant.36. rather strange line of submission in this case has been thatEas per post-mortem report, the death had occurred 2-3 days beforeexamination and that opinion would take the time of death even muchbefore the evidence of last seen or that the dead body might have beenseen by other persons much before its recovery at the instance of theappellant. The approximate time of death before examination, as indicatedFin the post-mortem report, cannot be applied as something of mathematicalprecision. The post-mortem examination was conducted in the afternoonof 15.05.2015; and approximation of two days before such examinationmatches the proven time when the deceased was last seen with theappellant i.e., around 6:30 p.m. on 13.05.2015. In fact, the indications inthe post-mortem report are only to the effect that the appellant did notGprovide any time to the child and rather carried out his misdeedsimmediately after taking her along.

37. Thus, even after examining the principal contentions urged onbehalf of the appellant against the concurrent findings returned by theTrial Court and the High Court, we do not find any case of perversity orH

manifest illegality for which any interference in such concurrent findingswould be called for. In an overall view of the matter, it is proved beyonddoubt in this case that the hapless child, seven-year-old daughter of thecomplainant, met with her gruesome end after having been treatedinhumanely and having been subjected to sexual assaults; that the victimwas lastly seen in the company of the appellant when he enticed andtook her along to pluck and eat lychee fruits while shooing away theother children playing with her; that the dead body of the victim childwas recovered at the instance of the appellant; and that the appellantfailed to satisfactorily explain his whereabouts and his knowledge of thelocation of dead body. The medical and other scientific evidence hasbeen consistent with the prosecution case and then, the defence versionof enmity due to land dispute turns out to be false. That being the position,we have no hesitation in holding that the present case of circumstantialevidence answers the panchsheel principles of Sharad BirdhichandSarda (supra). The appellant was rightly convicted by the Trial Courtand his conviction has rightly been maintained by the High Court. Thispart of the submissions on behalf of the appellant stand rejected.

Whether death sentence be maintained or substituted byany other sentence

38. Even when we find no reason to consider interference in theconcurrent findings of fact leading to conviction, the question still remainsabout correctness of the death sentence awarded to the appellant. Thesentence, when being of termination of natural life, obviously requirescloser scrutiny with reference to the statutory requirements of Section354(3) CrPC as also the principles enunciated by this Court.

39. The requirements of Section 354(3) CrPC are as under: -

“(3) When the conviction is for an offence punishable with deathor, in the alternative, with imprisonment for life or imprisonmentfor term of years, the judgment shall state the reasons for thesentence awarded, and, in the case of sentence of death, thespecial reasons for such sentence.”

40. We need not elongate this discussion with dilation on all thecited decisions but, having regard to the issues raised and thecircumstances of the present case, we may usefully summarise theevolution of legal position and norms for dealing with the question ofsentencing in such matters and the connotations of ‘special reasons’ forawarding death sentence.

A40.1. In Bachan Singh (supra), this Court examined two broadquestions: One, as to whether death penalty provided for the offence ofmurder under Section 302 IPC was unconstitutional; and if not, as towhether the sentencing procedure in Section 354(3) CrPC wasunconstitutional on the ground that it invested the Court with unguidedand untrammelled discretion, which allowed death sentence to beBarbitrarily imposed in relation to the offences punishable with death orlife imprisonment.

40.1.1. variety of features and factors including those pertainingto Articles 19(1) and 21 of the Constitution of India were examined bythis Court while answering the first question in the negative, which areCnot of bearing in the present case. The relevant part of enunciations inBachan Singh had been in relation to the second question, where, whileupholding the constitutionality of Section 354(3) CrPC, this Court notedthat the legislature had explicitly prioritised life imprisonment as the normalpunishment and death penalty as being of exception. For operation andDapplication of this legislative policy, this Court also examined several ofthe past decisions, particularly the case of Jagmohan Singh v. State ofU.P.: (1973) 1 SCC 20 and modulated the propositions as follows: -

“164. Attuned to the legislative policy delineated in Sections 354(3)and 235(2), propositions (iv)(a) and (v)(b) in Jagmohan [(1973)1 SCC 20] shall have to be recast and may be stated as below:

“(a) The normal rule is that the offence of murder shall bepunished with the sentence of life imprisonment. The courtcan depart from that rule and impose the sentence of deathonly if there are special reasons for doing so. Such reasonsmust be recorded in writing before imposing the deathsentence.

(b) While considering the question of sentence to beimposed for the offence of murder under Section 302 ofthe Penal Code, the court must have regard to every relevantcircumstance relating to the crime as well as the criminal.If the court finds, but not otherwise, that the offence is ofan exceptionally depraved and heinous character andconstitutes, on account of its design and the manner of itsexecution, source of grave danger to the society at large,the court may impose the death sentence.”

(emphasis supplied)

40.1.2. This Court also said that special reasons in the context ofSection 354(3) CrPC would obviously mean exceptional reasons, meaningthereby, that the extreme penalty should be imposed only in extremecases. This Court said: -

“161. .…The expression “special reasons” in the context of thisprovision, obviously means “exceptional reasons”founded on theexceptionally grave circumstances of the particular case relatingto the crime as well as the criminal. Thus, the legislative policynow writ large and clear on the face of Section 354(3) is that onconviction for murder and other capital offences punishable in thealternative with death under the Penal Code, the extreme penalty”should be imposed only in extreme cases.

(emphasis supplied)

40.1.3. This Court further made it clear that standardisation ofsentencing would not be possible because no two criminal cases wereidentical and standardisation would leave no room for judicial discretionand additionally, standardisation of sentencing discretion was policymatter belonging to the sphere of legislation. This Court, of course, referredto the suggested aggravating circumstances as also mitigating factors,but reiterated that the Court would not fetter judicial discretion byattempting to make an exhaustive enumeration one way or theother[11]. Having said so, this Court ultimately laid down the ‘rarest ofrare case’ doctrine in the following terms:-

“209. There are numerous other circumstances justifying thepassing of the lighter sentence; as there are countervailingcircumstances of aggravation. “We cannot obviously feed into ajudicial computer all such situations since they are astrologicalimponderables in an imperfect and undulating society.” Nonetheless,it cannot be over-emphasised that the scope and concept of mitigatingfactors in the area of death penalty must receive liberal andexpansive construction by the courts in accord with the sentencingpolicy writ large in Section 354(3). Judges should never bebloodthirsty. Hanging of murderers has never been too good forthem. Facts and Figures, albeit incomplete, furnished by the Unionof India, show that in the past, courts have inflicted the extremepenalty with extreme infrequency — fact which attests to the

Acaution and compassion which they have always brought to bearon the exercise of their sentencing discretion in so grave matter.It is, therefore, imperative to voice the concern that courts, aidedby the broad illustrative guide-lines indicated by us, will dischargethe onerous function with evermore scrupulous care and humaneconcern, directed along the highroad of legislative policy outlined inBSection 354(3) viz. that for persons convicted of murder, lifeimprisonment is the rule and death sentence an exception. realand abiding concern for the dignity of human life postulates resistanceto taking life through law’s instrumentality.That ought not to bedone save in the rarest of rare cases when the alternative option is”Cunquestionably foreclosed.

(emphasis supplied)

40.2. In Machhi Singh (supra), 3-Judge Bench of this Courtwas considering as to whether the case fell within the ‘rarest of rare’category where the appellant was convicted of orchestrating conspiracyDand then carrying it out, which resulted in the murder of 17 people due toa family feud. This Court explained the philosophy pertaining to the deathsentence while observing, inter alia, as under: -

“32. …Every member of the community owes debt to thecommunity for this protection. When ingratitude is shown insteadEof gratitude by “killing” member of the community whichprotects the murderer himself from being killed, or when thecommunity feels that for the sake of self-preservation the killerhas to be killed, the community may well withdraw the protectionby sanctioning the death penalty. But the community will not doso in every case. It may do so “in rarest of rare cases” when itsFcollective conscience is so shocked that it will expect the holdersof the judicial power centre to inflict death penalty irrespective oftheir personal opinion as regards desirability or otherwise ofretaining death penalty. The community may entertain such asentiment when the crime is viewed from the platform of themotive for, or the manner of commission of the crime.…”

40.2.1. This Court also explained the propositions of Bachan Singh(supra) and the pertinent queries for applying those propositions in thefollowing passages: -

“38. In this background the guidelines indicated in Bachan Singhcase [(1980) 2 SCC 684] will have to be culled out and applied to

the facts of each individual case where the question of imposingof death sentence arises. The following propositions emergefrom Bachan Singh case [(1980) 2 SCC 684] :

(i) The extreme penalty of death need not be inflicted exceptin gravest cases of extreme culpability.

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

(iii) Life imprisonment is the rule and death sentence is anexception. In other words death sentence must be imposedonly when life imprisonment appears to be an altogetherinadequate punishment having regard to the relevantcircumstances of the crime, and provided, and only provided,the option to impose sentence of imprisonment for life cannotbe conscientiously exercised having regard to the nature andcircumstances of 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 full weightageand just balance has to be struck between the aggravatingand the mitigating circumstances before the option isexercised.

39. In order to apply these guidelines inter alia the followingquestions may be asked and answered:

(a) Is there something uncommon about the crime whichrenders sentence of imprisonment for life inadequate andcalls 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?

40. If upon taking an overall global view of all the circumstancesin the light of the aforesaid proposition and taking into account theanswers to the questions posed hereinabove, the circumstancesof the case are such that death sentence is warranted, the courtwould proceed to do so.”

(emphasis supplied)

A40.3. The decision in Swamy Shraddananda (2) (supra) wasrendered by 3-Judge Bench of this Court in the backdrop that thoughthe 2-Judge Bench of this Court upheld the conviction of the appellant ofoffences under Sections 302 and 201 IPC but, one of the learned Judgesfelt that in the facts and circumstances of the case, punishment ofimprisonment till the end of the natural life of the convict would serveBthe ends of justice, whereas the other learned Judge took the view thatthe appellant deserved nothing but death penalty. In keeping with theever-progressing tenets of penology and the anxiety to evolve just,reasonable and proper course, the 3-Judge Bench adopted the course ofnot awarding death penalty, but conditioning the life imprisonment sentenceCwith the rider of not releasing the convict from the prison for the rest ofhis life. The Courtexplained the logic of such sentencing, which overridesthe availability of remission, in the following terms: -“92. The matter may be looked at from slightly different angle.The issue of sentencing has two aspects. sentence may beDexcessive and unduly harsh or it may be highlydisproportionately inadequate. When an appellant comes to thisCourt carrying death sentence awarded by the trial court andconfirmed by the High Court, this Court may find, as in the presentappeal, that the case just falls short of the rarest of the rareEcategory and may feel somewhat reluctant in endorsing the deathsentence. But at the same time, having regard to the nature of thecrime, the Court may strongly feel that sentence of lifeimprisonment subject to remission normally works out to termof 14 years would be grossly disproportionate and inadequate.What then should the Court do? If the Court’s option is limitedFonly to two punishments, one sentence of imprisonment, for allintents and purposes, of not more than 14 years and the otherdeath, the Court may feel tempted and find itself nudged intoendorsing the death penalty. Such course would indeed bedisastrous. far more just, reasonable and proper course wouldGbe to expand the options and to take over what, as matter offact, lawfully belongs to the Court i.e. the vast hiatus between 14years’ imprisonment and death. It needs to be emphasised thatthe Court would take recourse to the expanded option primarilybecause in the facts of the case, the sentence of 14 years’imprisonment would amount to no punishment at all.

93. Further, the formalisation of special category of sentence,though for an extremely few number of cases, shall have thegreat advantage of having the death penalty on the statute bookbut to actually use it as little as possible, really in the rarest of rarecases. This would only be reassertion of the Constitution Benchdecision in Bachan Singh besides being in accord with the moderntrends in penology.”

(emphasis supplied)

40.4. In Rameshbhai Chandubhai Rathod v. State of Gujarat: (2009) 5 SCC 740, the Court was dealing with the case of rape andmurder of young child by young man. Herein too, the learned Judgesof 2-Judge Bench of this Court differed on the question of sentence.One learned Judge held that death sentence could also be awarded incases of circumstantial evidence, if those circumstances were ofunimpeachable character and it would have nothing to do with thequestion of sentencing. If the circumstantial nature of evidence wasconsidered to be mitigating circumstance, it would amount toconsideration of an irrelevant aspect, since the same material wasfound cogent enough to convict the accused. It was reiterated thatwhat was to be considered for sentencing was the balance-sheet ofaggravating and mitigating circumstances. The other learned Judge,however, observed that the Trial Court had not provided the accusedan opportunity to demonstrate that he could be reformed; and opinedthat the Court must not be oblivious of the right of an accused to fairsentencing policy. Consequently, this matter was also placed before a3-Judge Bench leading to the decision in Rameshbhai ChandubhaiRathod (2) v. State of Gujarat :(2011) 2 SCC 764. The 3-JudgeBench agreed with the view that the Trial Court was obligated to rendera finding on whether the accused could be reformed and rehabilitated;and that the young age of the accused (being only 27 years old), was amitigating factor operating in his favour. However, it was also observedthat the gravity of offence, the behaviour of accused, and the fear andconcern such incidents generate in society, were also the factors whichcould not be ignored. In result, the 3-Judge Bench, following the courseadopted in couple of other decisions, commuted the death sentenceinto that of life imprisonment for the remainder of the natural life ofthe appellant but subject to any remission or commutation at the instanceof the Government for good and sufficient reasons.

EFG

A40.5. Such propositions, whereby this Court had provided forspecial category sentencing by way of life sentence sans remission insubstitution of death sentence gave rise to yet further debate in thisCourt and led to the reference to the Constitutional Bench that came tobe answered in V. Sriharan (supra). There had been several questionsreferred to the Constitutional Bench as regards the powers of remission,Bbut all those aspects need not be dilated herein. The relevant part of thematter is concerning the first question, as stated in paragraph 52.1 of thereferral order. majority of three Judges approved the ratio in SwamyShraddananda (2) (supra) providing for special category of life sentencewithout remission. Though the minority opinion concurred on the pointCthat imprisonment for life in terms of Section 52 read with Section 45IPC only meant imprisonment for the rest of the life of the convict,where the right to claim remission, commutation etc. as provided underArticle 72 or 161 of the Constitution of India would always be availablebut, did not concur with the other part of the majority opinion approvingthe aforesaid special category sentence with the reasoning that such aDcourse of providing mandatory period of actual imprisonment would beinconsistent with Section 433-A CrPC. The majority view, being thedeclaration of law by this Court, reads as under: -

“Question 52.1: Whether imprisonment for life in terms ofSection 53 read with Section 45 of the Penal Code meantEimprisonment for rest of the life of the prisoner or convictundergoing life imprisonment has right to claim remissionand whether as per the principles enunciated in paras 91 to93 of Swamy Shraddananda (2), special category ofsentence may be made for the very few cases where the deathFpenalty might be substituted by the punishment ofimprisonment for life or imprisonment for term in excess offourteen years and to put that category beyond application ofremission?

Answer

177. Imprisonment for life in terms of Section 53 read withSection 45 of the Penal Code only means imprisonment for therest of the life of the convict. The right to claim remission,commutation, reprieve, etc. as provided under Article 72 or Article161 of the Constitution will always be available being constitutionalHremedies untouchable by the Court.

178.We hold that the ratio laid down in SwamyShraddananda (2) that special category of sentence; insteadof death can be substituted by the punishment of imprisonmentfor life or for term exceeding 14 years and put that categorybeyond application of remission is well foundedand we answerthe said question in the affirmative.”

(emphasis supplied)

40.6. In Ravishankar (supra), 3-Judge Bench of this Courtre-affirmed the conviction of the appellant of the offences of kidnapping,rape, and resultant death of 13-year-old girl and destruction of evidence.The case had been that of circumstantial evidence and on the questionof sentence, this Court examined as to whether death sentence wasjustified. Though this Court made it clear that even in the case whereconviction is based on circumstantial evidence, capital punishment couldindeed be awarded but then, proceeded to observe that this Court hadbeen increasingly applying the theory of ‘residual doubt’, whicheffectively create higher standard of proof over and above the“beyond reasonable doubt” standard used at the stage ofconviction, as safeguard against routine capital sentencing,keeping in mind the irreversibility of death. Applying this theory andindicating certain ‘residual doubts’, it was held that the said case fellshort of ‘rarest of rare’ case. In that case too, the Court commuted thedeath sentence into one of life for the remainder of the natural life.40.7. In Shatrughna Baban Meshram (supra), another 3-JudgeBench of this Court considered an appeal against conviction and awardof death sentence for rape and murder of 2½ year old girl by hermaternal uncle. On the question of sentencing, table of 67 cases decidedby the Supreme Court over the past 40 years was perused and it wasobserved that when the offences were of Sections 376 and 302 IPC,and the age of the victim was under 16 years, death sentence wasconfirmed in 15, but in 3, was later on commuted to life in review. Hence,in only 12 of the 67 cases was the death sentence confirmed. As regardsthe guiding factors in sentencing, it was held that death penalty was notentirely impermissible to be awarded in circumstantial evidence casesbut the circumstantial evidence ought to be of unimpeachable characterwith option of lesser sentence foreclosed. The Court also examined thetheory of ‘residual doubt’; and after survey of the decisions of thisCourt and those of the U.S. Supreme Court, observed as under: -

A“75.4. These features are only illustrative to say that the theoryof “residual doubt” that got developed was result of peculiarityin the process adopted. Even then, what is material to note is thatthe theory has consistently been rejected by the US SupremeCourt and as stated by O’Connor, J.: “Nothing in our casesmandated the imposition of this heightened burden of proofBat capital sentencing.”

Thereafter, this Court also referred to some of the decisions ofthis Court where the said theory of ‘residual doubt’ was referred to,including that in Ashok Debbarma Alias Achak Debbarma v. State ofTripura: (2014) 4 SCC 747, and it was pointed out that those mattersCwere considered from the standpoint of individual fact situationwhere, going by the higher or stricter standard for imposition ofdeath penalty, alternative to death sentence was found to beappropriate.

40.8. In the case of Rajendra Pralhadrao Wasnik (supra), theDappellant was convicted of offences under Section 376(2)(f), 377 and302 IPC for rape and murder of three-year-old girl on the basis ofcircumstantial evidence and was sentenced to death. Though his appealto this Court was dismissed and review petition was also dismissed but,his review petition was later on reopened and heard by 3-Judge Bench.EThis Court held that there was no hard and fast rule that death sentencecould not be awarded if conviction was based on circumstantial evidence,but proceeded to commute death sentence into life after finding that theTrial Court and the High Court did not consider various factors includingthe probability of the petitioner to be reformed. This Court, inter alia,held as under: -F

“47. Consideration of the reformation, rehabilitation and reintegrationof the convict into society cannot be overemphasised. Until BachanSingh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :1980 SCC (Cri) 580] , the emphasis given by the courts was primarilyon the nature of the crime, its brutality and severity. BachanGSingh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :1980 SCC (Cri) 580] placed the sentencing process into perspectiveand introduced the necessity of considering the reformation orrehabilitation of the convict. Despite the view expressed by theConstitution Bench, there have been several instances, some ofwhich have been pointed out in Bariyar [Santosh Kumar

Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC498 : (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, notwithstanding hiscrime, 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 and itsanalysis by experts coupled with the evidence on record, there couldbe instances where the social reintegration of the convict may notbe possible. If that should happen, the option of long duration ofimprisonment is permissible.”

40.9. In the case of Kalu Khan (supra), while examining variousfactors concerning the crime and the criminal and the abhorrentcircumstances reflected through the nature of crime, this Court alsotook into consideration that there was no criminal antecedent of accused-appellant and the circumstantial evidence included extra-judicialconfession. In the given set of facts, this Court commuted the sentenceof death into that of imprisonment for life.

40.10. In the case of M.A. Antony (supra), this Court underscoredthat the socio-economic factors relating to convict should also be takeninto consideration for the purpose of deciding whether to award lifesentence or death sentence.

40.11. In Mohd. Mannan (supra), this Court summarised theproposition of law to be applied in the process of sentencing in suchcases in the following terms: -

“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 be

Arecorded, 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. AwardingBdeath sentence is an exception, and life imprisonment is the rule.”

40.12. In Shankar Kisanrao Khade (supra), after survey of awide variety of cases and pointing out the requirement of applying ‘crimetest’, ‘criminal test’ and ‘rarest of rare test’, this Court recounted, withreference to previous decisions, the aggravating circumstances (crimeCtest) and the mitigating circumstances (criminal test) as follows: -

“49. In Bachan Singh and Machhi Singh cases, this Courtlaid down various principles for awarding sentence: (RajendraPralhadrao case, SCC pp. 47-48, para 33)

D“‘Aggravating circumstances — (Crime test)

(1) The offences relating to the commission of heinous crimeslike murder, rape, armed dacoity, kidnapping, etc. by the accusedwith prior record of conviction for capital felony or offencescommitted by the person having substantial history of seriousEassaults and criminal convictions.

(2) The offence was committed while the offender wasengaged in the commission of another serious offence.

(3) The offence was committed with the intention to create afear psychosis in the public at large and was committed in publicplace by weapon or device which clearly could be hazardous tothe life of more than one person.

(4) The offence of murder was committed for ransom or likeoffences to receive money or monetary benefits.

G(5) Hired killings.

(6) The offence was committed outrageously for want onlywhile involving inhumane treatment and torture to the victim.

(7) The offence was committed by person while in lawfulcustody.

(8) The murder or the offence was committed to prevent aperson lawfully carrying out his duty like arrest or custody in aplace of lawful confinement of himself or another. For instance,murder is of person who had acted in lawful discharge of hisduty under Section 43 of the Code of Criminal Procedure.

(9) When the crime is enormous in proportion like making anattempt of murder of the entire family or members of particularcommunity.

(10) When the victim is innocent, helpless or person reliesupon the trust of relationship and social norms, like child, helplesswoman, daughter or niece staying with father/uncle and isinflicted with the crime by such trusted person.

(11) When murder is committed for motive which evidencestotal depravity and meanness.

(12) When there is cold-blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocksnot only the judicial conscience but even the conscience of thesociety.

Mitigating circumstances — (Criminal test)

(1) The manner and circumstances in and under which theoffence was committed, for example, extreme mental or emotionaldisturbance or extreme provocation in contradistinction to all thesesituations in normal course.

(2) The age of the accused is relevant consideration but nota determinative factor by itself.

(3) The chances of the accused of not indulging in commissionof the crime again and the probability of the accused beingreformed and rehabilitated.

(4) The condition of the accused shows that he was mentallydefective and the defect impaired his capacity to appreciate thecircumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, wouldrender such behaviour possible and could have the effect ofgiving rise to mental imbalance in that given situation like persistentharassment or, in fact, leading to such peak of human behaviour

that, in the facts and circumstances of the case, the accusedbelieved that he was morally justified in committing the offence.

(6) Where the court upon proper appreciation of evidence isof the view that the crime was not committed in preordainedmanner and that the death resulted in the course of commissionof another crime and that there was possibility of it beingconstrued as consequences to the commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony ofa sole eyewitness though the prosecution has brought home theguilt of the accused.’”

This Court further said: -

“52. Aggravating circumstances as pointed out above, ofcourse, are not exhaustive so also the mitigating circumstances.In my considered view, the tests that we have to apply, whileawarding death sentence are “crime test”, “criminal test” and the“R-R test” and not the “balancing test”. To award death sentence,the “crime test” has to be fully satisfied, that is, 100% and “criminaltest” 0%, that is, no mitigating circumstance favouring the accused.If there is any circumstance favouring the accused, like lack ofintention to commit the crime, possibility of reformation, youngage of the accused, not menace to the society, no previous trackrecord, etc. the “criminal test” may favour the accused to avoidthe capital punishment. Even if both the tests are satisfied, that is,the aggravating circumstances to the fullest extent and no mitigatingcircumstances favouring the accused, still we have to apply finallythe rarest of the rare case test (R-R test). R-R test depends uponthe perception of the society that is “society-centric” and not“Judge-centric”, that is, whether the society will approve theawarding of death sentence to certain types of crimes or not.While applying that test, the court has to look into variety of factorslike society’s abhorrence, extreme indignation and antipathy tocertain types of crimes like sexual assault and murder ofintellectually challenged minor girls, suffering from physicaldisability, old and infirm women with those disabilities, etc.Examples are only illustrative and not exhaustive. The courts awarddeath sentence since situation demands so, due to constitutionalcompulsion, reflected by the will of the people and not the will ofthe Judges.”

40.13. The case of Dhananjoy Chatterjee (supra), decided on11.01.1994, had been that of rape and murder of young girl about 18years of age; and this Court found it justified to confirm the death sentencefor cold-blooded and pre-planned murder after committing rape. Therein,this Court essentially referred to the atrocity of the crime on thedefenceless and unprotected state of the victim; and observed thatimposition of appropriate punishment is the manner in which the Courtsrespond to the society’s cry for justice against the criminals. This Court,inter alia, observed as under: -

“15. In our opinion, the measure of punishment in given casemust depend upon the atrocity of the crime; the conduct of thecriminal and the defenceless and unprotected state of the victim.Imposition of appropriate punishment is the manner in which thecourts respond to the society’s cry for justice against the criminals.Justice demands that courts should impose punishment befittingthe crime so that the courts reflect public abhorrence of the crime.The courts must not only keep in view the rights of the criminalbut also the rights of the victim of crime and the society at largewhile considering imposition of appropriate punishment.”

40.14. The case of Laxman Naik (supra), decided on 22.02.1994,was that of offence of rape and murder of 7-year-old girl by her ownuncle. This Court analysed the fact situation and said as under: -

“27. The hard facts of the present case are that the appellantLaxman is the uncle of the deceased and almost occupied thestatus and position that of guardian. Consequently the victimwho was aged about 7 years must have reposed completeconfidence in the appellant and while reposing such faith andconfidence in the appellant must have believed in his bona fidesand it was on account of such faith and belief that she actedupon the command of the appellant in accompanying him underthe impression that she was being taken to her village unmindfulof the preplanned unholy designs of the appellant. The victim wasa totally helpless child there being no one to protect her in thedesert where she was taken by the appellant misusing herconfidence to fulfil his lust. It appears that the appellant hadpreplanned to commit the crime by resorting to diabolical methodsand it was with that object that he took the girl to lonely place toexecute his dastardly act.”

A40.15. Kamta Tiwari (supra), decided on 04.09.1996, was againa case of rape followed by murder of 7-year-old girl by person whowas close to the family of the deceased and the deceased used to callhim “Tiwari uncle”. The girl was kidnapped by the accused and wassubjected to rape and then was strangulated to death and later, the deadbody was thrown into the well. The enormity of crime coupled with theBmisuse of trust seem to have weighed with this Court in confirming thedeath sentence.

41. It could readily be seen that while this Court has found itjustified to have capital punishment on the statute to serve as deterrentCas also in due response to the society’s call for appropriate punishmentin appropriate cases but at the same time, the principles of penologyhave evolved to balance the other obligations of the society, i.e., ofpreserving the human life, be it of accused, unless termination thereof isinevitable and is to serve the other societal causes and collectiveconscience of society. This has led to the evolution of ‘rarest of rareDtest’ and then, its appropriate operation with reference to ‘crime test’and ‘criminal test’. The delicate balance expected of the judicial processhas also led to another mid-way approach, in curtailing the rights ofremission or premature release while awarding imprisonment for life,particularly when dealing with crimes of heinous nature like the presentone.E

41.1. We may proceed to deal with the question of sentence inthe present case while keeping in view the principles so evolved andapplied by this Court.

42. It could at once be noticed that both the Trial Court as also theFHigh Court have taken the abhorrent nature of crime alone to be thedecisive factor for awarding death sentence in the present case. Asnoticed, the Trial Court convicted the appellant on 07.12.2016 and on thenext day, proceeded to award the sentence. The impugned sentencingorder of the Trial Court does not indicate if the appellant was extendedGreasonable opportunity to make out case of mitigating circumstancesby bringing relevant material on record. The sentencing order also failsto satisfy if the Trial Court consciously pondered over the mitigatingfactors before finding it to be ‘rarest of rare’ case. The approach ofthe Trial Court had been that the accused-appellant was about 33-34years of age at the time of occurrence and was supposed to be sensible.H

The Trial Court would observe that ‘if such heinous crime is committedby him, it is not justifiable to show any sort of mercy in thepunishment.’ The High Court though has made rather intense commentson the menace of rape and brutal murder of children as also on thesociety’s abhorrence of such crime[12] but has, thereafter, proceeded toconfirm the death sentence with cursory observation that there wereno substantial mitigating factors and the aggravating circumstances wereaplenty.

42.1. In other words, the impugned orders awarding and confirmingdeath sentence could only be said to be of assumptive conclusions, whereit has been assumed that death sentence has to be awarded because ofthe ghastly crime and its abhorrent nature. The tests and the norms laiddown in the relevant decisions commencing from those in Bachan Singh(supra) seem not to have acquired the requisite attention of the TrialCourt and the High Court. It would have been immensely useful andpertinent if the High Court, while taking up the question of confirmationof death sentence and making several comments in regard to the abhorrentnature of crime and its repulsive impact on society, would have alsogiven due consideration to the equally relevant aspect pertaining tomitigating factors before arriving at conclusion that option of any otherpunishment than the capital one was foreclosed. The approach of theTrial Court and the High Court in this matter while awarding sentencecould only be disapproved; and we do so in no uncertain terms.

43. What has been observed and held hereinabove leaves us withthe question as to whether in the present case, capital punishment iscalled for or it should be substituted by any other sentence.

43.1. The heinous nature of crime like that of present one, inbrutal rape and murder of seven-year-old girl child, definitely disclosesaggravating circumstances, particularly when the manner of itscommission shows depravity and shocks the conscience. But, at thesame time, it is noticeable that the appellant has no criminal antecedents,comes from very poor socio-economic background, has familycomprising of wife, children and aged father, and has unblemished jail

12 In the words of the High Court, ‘beastly act of the accused person- appellant Pappushakes the confidence of society and tears to shreds the warp and woof of the socialfabric’

Aconduct. When all these factors are added together and it is also visualisedthat there is nothing on record to rule out the probability of reformationand rehabilitation of the appellant, in our view, it would be unsafe to treatthis case as falling in ‘rarest of rare’ category. Putting it differently,when the appellant is not shown to be person having criminal antecedentsand is not hardened criminal, it cannot be said that there is no probabilityBof him being reformed and rehabilitated. His unblemished jail conductand having family of wife, children and aged father would also indicatetowards the probability of his reformation.

43.2. Having said so, we may observe that so far as the otherCarguments on behalf of the appellant, with reference to the theory of‘residual doubt’, are concerned, in the later 3-Judge Bench decision ofthis Court in Shatrughna Baban Meshram (supra), it was observedthat the said theory, developed as result of peculiarity in the processadopted in U.S. jurisdictions, has not found favour even by the U.S.Supreme Court. We need not dilate on this aspect any further in theDpresent case for the simple reason that the strong mitigating factor ofprobability of reformation and rehabilitation, particularly with referenceto the antecedents and background of the appellant coupled with hissatisfactory jail conduct, make out case for communing death sentenceinto that of imprisonment for life.E44. However, and even when the present case is taken to be notfalling in the category of ‘rarest of rare’ so as to require termination ofthe life of the appellant yet, the impact of the offences in question on theconscience of the society as whole cannot be ignored. Thus, it appearsjust and proper to apply the course adopted in various cases involvingFthe crimes of similar nature where, even while commuting capitalpunishment, this Court has provided for life imprisonment withoutapplication of the provisions of premature release/remission beforemandatory actual imprisonment for substantial length of time.

45. The appellant was about 33-34 years of age at the time ofGcommission of crime in the year 2015. Looking to the overall facts andcircumstances, in our view, it would be just and proper to award thepunishment of imprisonment for life to the appellant for the offence underSection 302 IPC while providing for actual imprisonment for minimumperiod of 30 years. Having regard to the circumstances of this case andother punishments awarded to the appellant, it is also just and proper toHprovide that all the substantive sentences shall run concurrently.

Conclusion

46. Accordingly, these appeals are partly allowed in the followingmanner: -

(i) The conviction of the appellant of offences under Sections376, 302, 201 IPC and Section 5/6 POCSO is upheld and the sentencesawarded to him are confirmed except the death sentence for the offenceunder Section 302 IPC.

(ii) The death sentence awarded to the appellant for the offenceunder Section 302 IPC is commuted into that of imprisonment for life,with the stipulation that the appellant shall not be entitled to prematurerelease or remission before undergoing actual imprisonment for periodof 30 (thirty) years.

(iii) The other terms of sentences awarded to the appellant,including the amount of fine and default stipulations, are also confirmed.The direction for payment of half of the amount of fine to the mother ofthe deceased girl is also confirmed.

(iv) All the substantive sentences awarded to the appellant shallrun concurrently.

47. These appeals and the pending applications stand disposed ofaccordingly.

Devika Gujral

Appeals partly allowed.