BHAGWANI versus THE STATE OF MADHYA PRADESH

[2022] 8 S.C.R. 1

BHAGWANI

THE STATE OF MADHYA PRADESH

(Criminal Appeal Nos. 101-102 of 2022)

JANUARY 18, 2022

[L. NAGESWARA RAO, B. R. GAVAI ANDB. V. NAGARATHNA, JJ.]

Penal Code, 1860 – ss.363, 366A, 364, 346, 376D, 376A,302 and 201 – Protection of Children from Sexual Offences Act,2012 – s.5(g)(m) r/w s.6 – Kidnapping, rape and murder of 11 yearold girl – Circumstantial evidence – PW-2 (father of victim) alongwith his family members attended ceremony at the house of one‘AM’ in the evening – His 11 years old daughter went missing andwas found dead next morning – Appellant alongwith co-accused-’S’ (since deceased) was convicted and sentenced to death – Onappeal, held: Medical evidence shows that the deceased was rapedand killed – Appellant and ‘S’ had alcohol and were together at thehouse of ‘AM’ – Next day morning, they went to PW-9 and told himthat big blunder took place – Their eyes were red, hair wasscattered and they were scared – Pursuant to the disclosure statement,the clothes of the appellant were seized from the cowshed in hishouse – Insofar as Article D, full pant of the appellant is concerned,according to DNA report multiple peaks were observed – DNAprofiling of the articles Q, R and S which are the vaginal slide,rectal slide and dried blood on the hair of the deceased showed Y(male) STR – Blood sample of ‘S’ matched with the articles foundon Q, R and S – Appellant miserably failed to prove an alibi – Thereis lack of any explanation for the scratch injuries found on hisbody – Appellant guilty of committing the offences as charged –Conviction upheld, however the sentence is converted from deathto that of imprisonment for life for period of 30 years withoutremission.

Code of Criminal Procedure,1973 – s.235(2) – Constitutionof India – Article 21 – Disturbing tendency of Trial Courtsadjudicating criminal cases involving rape and murder in haste –Held: An accused is entitled for fair trial guaranteed under Article

A21 – The object and purpose of s.235 (2), CrPC is that the accusedmust be given an opportunity to make representation against thesentence to be imposed on him – bifurcated hearing for convictingand sentencing is necessary to provide an effective opportunity tothe accused – Adequate opportunity to produce relevant materialon the question of death sentence shall be provided to the accusedBby the Trial Court – In the present case, it is travesty of justice asthe appellant was not given fair opportunity to defend himself –The judgment was dictated on 03.11.2017 and on the same day, theTrial Court passed an order, sentencing him to death penalty –Deprecation.CSentence/Sentencing – Death penalty – Mitigatingcircumstances – Appellant was convicted and sentenced forkidnapping, rape and murder of 11 year old girl – Held: Gravity ofthe crime was taken into consideration while imposing death sentencebut the mitigating circumstances and the probability of reformationDand rehabilitation of the accused wasn’t considered – Appellantwas aged 25 years on the date of commission of the offence andbelongs to ST community, eking his livelihood by doing manuallabour – No evidence to show that there is no probability of hisrehabilitation and reformation and that the question of an alternativeoption to death sentence is foreclosed – Appellant had no criminalEantecedents – Nothing adverse reported against his conduct in jail– Death sentence requires to be commuted to life imprisonment –However, taking into account the barbaric and savage manner inwhich the offences of rape and murder were committed on hapless11 year old girl, the appellant is sentenced to life imprisonment forFa period of 30 years without remission.

Partly allowing the appeals, the Court

HELD: 1.1 The undisputed facts are that PW-2 along withhis family members attended the Chowk Barhon ceremony atthe house of ‘AM’ on the evening of 14.04.2017. His 11 yearsGold daughter went missing and was found dead on the next daymorning. The Appellant and ‘S’ were arrested on the next dayand on the basis of the statements made by them, recoveries oftheir clothes were made. The medical evidence shows that shewas raped and killed. green shirt of check pattern whose twoHfront black buttons were broken, which is torn near the shoulder

and has blood spot was seized from the flowerpot on the roof ofthe cowshed of the Appellant. red colour sando baniyan withblack stripe which is torn near shoulder with dark blood spot wasalso seized along with one jeans pant of sky blue colour with liningof 28 no. and HARW was mentioned on the right side back. Therewas dark blood spot in front of the sky-blue jeans pant. Thereport of the State Forensic Science Laboratory, Civil Lines, Sagarshowed that all the alleles observed in the male DNA profile of‘S’ were found to be the same as the DNA profile observed fromthe prosecutrix’s vaginal and rectal slides. Same female autosomalSTR DNA profile was detected on the source of the deceasedprosecutrix, dhoti and underwear of ‘S’. Insofar as Article whichis full pant of the Appellant is concerned, according to DNAreport multiple peaks were observed. The Appellant and ‘S’ werepresent in the function at the house of ‘AM’ as deposed by PWs-1, 3 and 5. PW-4 deposed that he runs small hotel in the villageand the deceased visited his shop to purchase Kurkure at 9.00p.m. 15 minutes thereafter, the Appellant visited the shop topurchase namkeen. PW-9 stated that the Appellant and ‘S’ visitedhis house on 15.04.2017. Their eyes were red, hair was scatteredand they were scared. They informed him that they have committeda big scandal. At that time, the mother of the Appellant came, and‘S’ and the Appellant went away. Half an hour later, there was anuproar in the village when the body of the deceased was found.[Paras 8 and 9][12-E-H; 13-A-E]

1.2 During the course of examination of ‘S’ under Section313 CrPC, he admitted that he was present at the house of ‘AM’on 14.04.2017 and that he visited PW-9 on the morning of15.04.2017. The Appellant also admitted his presence at ‘AM’s’house on 14.04.2017 and at the house of PW-9 on 15.04.2017 inthe morning. He further stated in his examination under Section313 CrPC that his eyes were red, hair was scattered and he and‘S’ demanded liquor from PW-9. It is relevant to note that theAppellant also stated that he had gone to Sudgaon along with ‘S’for work at 9.00 a.m. on 14.04.2017. While returning, he had liquoralong with ‘S’. He visited ‘AM’s’ house along with ‘S’ at 7.00p.m. They were asked to leave as they were in drunkencondition. The Appellant, thereafter, went to the shop of Chain

ASingh from where his mother took him home. He slept in thehouse of his neighbour. Clothes worn by the Appellant were seizedfrom flowerpot on the roof of the cowshed belonging to himpursuant to the disclosure statement. FSL report pertaining toArticle which is full pant of Appellant on which there was ablood stain near the zip showed multiple peaks. The AppellantBand ‘S’ had alcohol and were together at the house of ‘AM’. Asthey were creating nuisance, they were chased away. The nextday morning, they went to PW-9 and told him that big blundertook place. DNA profiling of the articles Q, R and S which are thevaginal slide, rectal slide and dried blood on the hair of theCdeceased showed Y (male) STR. Blood sample of ‘S’ matchedwith the articles found on Q, R and S. The Appellant miserablyfailed to prove an alibi. Importantly, there is lack of any explanationfor the scratch injuries found on the body of the Appellant. ThisCourt is in agreement with the concurrent findings that theAppellant is guilty of committing the offences as charged andDthere is no fault with the conviction of the appellant. [Paras 10and 12][13-D-F; 14-B-E]

2. It is travesty of justice as the Appellant was not given afair opportunity to defend himself. This is classic case indicatingthe disturbing tendency of Trial Courts adjudicating criminal casesEinvolving rape and murder in haste. An accused is entitled for afair trial which is guaranteed under Article 21 of the Constitutionof India. In respect of the order of conviction and sentence beingpassed on the same day, the object and purpose of Section 235(2) CrPC is that the accused must be given an opportunity to

Fmake representation against the sentence to be imposed onhim. bifurcated hearing for convicting and sentencing isnecessary to provide an effective opportunity to the accused.Adequate opportunity to produce relevant material on thequestion of death sentence shall be provided to the accused by

the Trial Court. The judgment was dictated on 03.11.2017. OnGthe same day, the Trial Court passed an order, sentencing theAppellant and ‘S’ to death penalty. [Paras 13 and 14][14-E-G; 15-C]

3. perusal of the judgments of the Trial Court and theHigh Court would disclose that the gravity of the crime was takenH

into consideration while imposing death sentence. The mitigatingcircumstances and the probability of reformation and rehabilitationof the accused have not been considered. The Appellant was aged25 years on the date of commission of the offence and belongs toa Scheduled Tribes community, eking his livelihood by doingmanual labour. No evidence has been placed by the prosecutionon record to show that there is no probability of rehabilitationand reformation of the Appellant and the question of an alternativeoption to death sentence is foreclosed. The Appellant had nocriminal antecedents before the commission of crime for whichhe has been convicted. There is nothing adverse that has beenreported against his conduct in jail. Therefore, the death sentencerequires to be commuted to life imprisonment. However, takinginto account the barbaric and savage manner in which the offencesof rape and murder were committed by the Appellant on hapless11 year old girl, the Appellant is sentenced to life imprisonmentfor period of 30 years during which he shall not be grantedremission. The conviction of the Appellant under Sections 363,366A, 364, 346, 376D, 376A, 302, 201 of IPC and Section 5(g)(m) read with Section 6 of the POCSO Act is upheld. [Paras 17-19][16-H; 17-A; 18-A-E]

Dalbir Kaur v. State of Punjab (1976) 4 SCC 158 :[1977] 1 SCR 280; Santosh Kumar SatishbhushanBariyar v. State of Maharashtra, (2009) 6 SCC 498 :[2009] 9 SCR 90; Rajendra Pralhadrao Wasnik v. Stateof Maharashtra, (2019) 12 SCC 460 : [2018] 14 SCR585; Mofil Khan and Another v. The State of JharkhandRP (Crl.) No.641 of 2015 in Crl. A. 1795 of 2009;(Rajendra) Pralhadrao Wasnik v. State of Maharashtra(2019) 12 SCC 460 : [2018] 14 SCR 585 – relied on.

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; Bachan Singh v.State of Punjab (1980) 2 SCC 684; Machhi Singh v.State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413;Mohd. Mannan @ Abdul Mannan v. State of Bihar(2019) 16 SCC 584 : [2019] 8 SCR 266 – referred to.

ACase Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 101-102 of 2022.

CFrom the Judgment and Order dated 09.05.2018 of the High Courtof Madhya Pradesh, Jabalpur Bench in Criminal Appeal No.5446 of2017 and Criminal Confirmation Case No. 5 of 2017.

Shri Singh, Amartya Kanjilal, Ms. Sayali Kadu, Ms. AdeebaMujahid, Advs. for the Appellant.

DMs. Ankita Chaudhary, Dy. AG, Gopal Jha, Ms. Rashmi Singhania,Ms. Himanshi Shakya, Kumar Prashant, Nishant Verma, ShreyashBhardwaj, Advs. for the Respondent.

The Judgment of the Court was delivered by

L. NAGESWARA RAO, J.ELeave granted.

1. These Appeals are preferred against the judgment of the HighCourt of Madhya Pradesh by which the conviction and sentence of theappellant by the Trial Court under Sections 363, 366A, 364, 346, 376D,376A, 302, 201 of Indian Penal Code, 1860 (“IPC”) and Section 5(g)(m)Fread with Section 6 of The Protection of Children from Sexual OffencesAct, 2012 (for short “the POCSO Act”) were upheld.

2. At 9.00 p.m. on 14.04.2017, Brijlal Yadav (PW-2) along withhis wife Kalawati (PW-1), two sons and his daughter went to the houseof Anil Maravi to attend function of Chowk Barhon (naming ceremony).GWhile they were returning back at around 11.00 p.m., they realized thattheir daughter was missing. They started searching and at about 5:00AM on the next day, PW-1 found her daughter lying near hand-pump.Her daughter was in an unconscious condition. PW-1 started howling atwhich PW-2 and others reached the place and called the police. TheHDistrict Scientific Officer, Scene of Crime Unit, Dindori, Madhya Pradesh

conducted inspection of the place of incident. According to the inspectionreport, the body of the deceased was lying in supine position and onthe back side of the head of the deceased, there were multiple smallpieces of dry grass and Gokhru (Caltrop) in the hair. There was drybark of drumstick tree also in the hair. Both eyes were closed. Frothfrom the nose was observed, small internal injuries were visible and onthe left side and right side of the chin, there were small marks of injury.Small injury marks were found in front and left side to the neck. Bloodwas present in the genitalia. On the sole of the right leg, there wasblood. Blood was also present above the ankle of the right leg. Therewere scratch marks on the left side of the chest and another scratchtype of mark below the chest. Blood spots were found on both thighs upto genitalia. Blood was found on the back of the thigh and near anus.Small injury marks were present on the entire back and waist. Directionswere given to the investigating officer to send the body for post-mortemand to collect, preserve and pack the visible objects found at the place ofoccurrence. Further direction was given to seize the clothes worn by theprosecutrix and get them examined. Post-mortem was conducted at 4.00p.m. on 15.04.2017 by PW-6 Dr. Sajjan Kumar Uikey who found thefollowing injuries: -“ Rigor mortis present in both lower limb and partially passedin both upper limb. Eye-closed, mouth-closed, fiest-half open,cornea congested, pupil dilated, face- cyanosed, lip-cyanosed,finger and· hand- cyanosed. Blood mixed froth present overthe both nostril. Blood mixed saliva both angle on mouth upto lower margin of mandible. Four contusion mark over leftside of neck, medial aspect of neck. Three contusion mark onleft side of neck middle third size of contusion between 1 ½cmx 1 cm. 1 cm x 1 cm. contusion over both cheek, 1 cm x 1 ‘cm. infraorbital left side. 11/2 cm contusion on the left side ofxiphisternum. One intrascapular contusion 1 Y, cm two 1/2cm x v, cm contusion over the left buttock. Clotted blood foundover the pink colour aspect dry clotted blood present overthe perinea! area lower middle third of both thigh all aroundanal area. Blood present in the vaginal opening three 3 cm.anterior to posterior and full thickness of muscle and skin.Dry clotted blood present over the anal opening and inneraspect of anus. Opening is dilated 2 fingers easily admitted.All injuries are antemortem in nature.”

AThe cause of the death was given as asphyxia, neurogenic shockdue to neck pressing, severe injuries and bleeding in vagina and analopening by committing rape forcefully.

3. On suspicion, the Appellant and Satish s/o Jehar SinghDhoomketi were arrested on 16.04.2017. The statement of Satish wasBrecorded pursuant to which the blanket and shawl of the deceased andclothes worn by him were seized. Similarly, the clothes worn by theAppellant which were concealed in his cowshed were seized pursuantto the statement made by him. On completion of investigation, the finalreport was filed on 27.06.2017. Charges were framed against Satishand the Appellant under Sections 363, 366-A, 364, 346, 376D, 376A or inCthe alternative under Sections 302, 201 IPC and Section 5(g)(m) readwith Section 6 of the POCSO Act. 12 witnesses were examined by theprosecution. The Sessions Judge, Dindori convicted the Appellant andSatish for the offences charged and sentenced them to death. The HighCourt answered the reference against the Appellant and Satish byDupholding the conviction and sentence imposed by the Trial Court.Aggrieved thereby, the Appellant and Satish approached this Court.During the pendency of the Appeals, Satish died and therefore, his Appealhas abated.

4. As there is no direct evidence regarding the kidnapping, rapeEand murder of girl aged 11 years, the case hinges on circumstantialevidence. Keeping in mind the well settled principles settled by this Courtin Sharad Birdhichand Sarda v. State of Maharashtra[1], the TrialCourt scrutinized the evidence on record. Reference was made to thetestimony of PW-1 who stated that the Appellant and Satish were presentat the Chowk Barhon function at Anil Maravi’s house and madeFthemselves scarce after the recovery of the dead body. Reference wasalso made to the oral testimony of PW-4, Chain Singh who runs smallhotel in the village. He deposed that the victim girl had come to his shopat 9.00 pm on 14.04.2017 to purchase Kurkure and she had blanketand shawl with her. Fifteen minutes thereafter, the Appellant also visitedGthe shop for purchasing namkeen. The Trial Court considered thedisclosure statements made by the accused and the recoveries of shawland blanket of the victim girl and the clothes of Satish and the Appellant.The seizure of blanket and button from the place of incident was provedto be from the shirt of Satish. The evidence of Dr. Vijay Paigwar (PW-

H1 (1984) 4 SCC 116

11) who examined the injuries of Satish and the Appellant was consideredby the trial Court. The Appellant had scratch mark of size 1 inch on theupper portion of the left shoulder, scratch mark of size 0.5 inch on leftside below shoulder, scratch mark of size 0.5 inch on the lower portionof the back of the body, scratch marks of 2 inches on the right arm andabrasion mark of 1 cm sized on the cheek and 4 inches sized abrasion onthe ribs. The answers given by the Appellant and Satish during theirexamination under Section 313 of the Code of Criminal Procedure, 1973(“the CrPC”) were also examined by the Trial Court. The admission ofthe Appellant that he had alcohol with Satish on the evening of the dayof incident and that both of them visited Jaipal Singh (PW-9) and requestedfor alcohol on the next day morning was taken note of by the trial Court.The version of the Appellant that he was taken home by his mother onthe night of 14.04.2017 and as she was abusing him, the Appellant wentto the house of his neighbour, Deepa was not accepted by the TrialCourt as neither his mother nor Deepa were examined. Having beenconvinced that the circumstances were consistent with the hypothesisof the Appellant, the Trial Court convicted them for the offences charged.After hearing the Appellant and Satish, the Trial Court sentenced themto death as they were found guilty of committing heinous crimes of rapeand murder. While considering the reference, the High Court re-appreciated the evidence on record and upheld the conviction andsentence imposed by the Trial Court.

5. Mr. Shri Singh, learned counsel appearing for the Appellantsubmitted that none of the discoveries and the recoveries implicate theAppellant. He argued that the disclosure statement of Satish was recordedat 1340 hrs. on 16.04.2017 and the disclosure statement of the Appellantwas recorded one and half hours later. Both the statements were recordedby PW-10. He submitted that the Courts below have committed an errorin relying upon the disclosure statement of the Appellant. He furtherstated that none of the articles that have been recovered from the allegedplace of offence have any connection with the Appellant. According tohim, the packet of Kurkure which was purchased was not identified inCourt by PW-4 from whose shop it was purchased. The black buttonseized from the spot of offence is from the shirt of Satish with which theAppellant had no connection. Commenting on the seizure of the shirt,red sando baniyan and jeans pant, Mr. Shri Singh submitted thatserological testing was not done to prove that the blood found on theclothes was human blood. He argued that the injuries of the Appellant

Acannot be taken as circumstance as he is labourer doing physicalwork. He pointed out that the column of “injury marks” in the arrestmemo was found to be blank. The learned counsel for the Appellantsubmitted that the evidence of the accused last seen together with thevictim has not been properly appreciated by the Courts below. He referredto the evidence of Bhagat Singh (PW-5) and submitted that the AppellantBwas apprehended from his house, and it was only Satish who wasabsconding. He argued that the statements made by the Appellant in hisexamination under Section 313 CrPC were not appreciated properly.The learned counsel for the Appellant pointed out that the admissionsmade by him in the statement under Section 313 CrPC cannot be treatedCas substantive evidence. According to learned counsel for the Appellant,the chain of circumstances is incomplete and is not consistent with onlyone hypothesis, proving the guilt of the Appellant. On the sentence ofdeath, the learned counsel for the Appellant submitted that there is violationof the right to fair trial which is guaranteed under Article 21 of theConstitution of India as effective legal assistance was not afforded inDthe instant case. Sufficient time was not given to the amicus curiaeappointed by the Court to cross-examine witnesses and no opportunitywas given to the Appellant to submit relevant material before sentencing.Mitigating circumstances have not been taken into consideration. Theprobability of reformation of the Appellant and the sentence of lifeEimprisonment being unquestionably foreclosed were not taken into accountby the Courts below. The learned counsel for the Appellant further arguedthat the Appellant could not have been convicted under Section 376AIPC. After the amendment in 2013, gang rape was taken out of theambit of Section 376 (1) and (2) IPC. The prosecution did not produceany evidence to establish any common intention between the AppellantFand Satish to commit an offence under Section 376D IPC. Sentence forcommission of gang rape is imprisonment for life. Therefore, the impositionof death sentence is unsustainable.

6. Ms. Ankita Chaudhary, learned Deputy Advocate General forthe State of Madhya Pradesh defended the judgments of the Trial CourtGand the High Court by submitting that there is no break in the chain ofevents/ circumstances. According to her, the prosecution proved thatthere was function of Chowk Barhon at the house of Anil Maravi, thevictim was seen at the shop of Chain Singh (PW-4) and after shortwhile, the Appellant visited the shop and PW-5 witnessed the deceasedgoing to the house of Satish which was corroborated by Satish in hisHstatement under Section 313 CrPC in which he admitted that the deceasedcame to his house to keep her black shawl. The deceased disappearedthereafter, and her body was found the next day morning. The medicalevidence disclosed brutal rape and murder of the deceased. Scientificevidence clearly showed that Satish committed the offence of rape.Satish and the Appellant were seen together on the evening of 14.04.2017and they had also visited PW-9 on the next day morning. They weredisheveled and requested PW-9 for liquor. Satish went missing thereafterand was apprehended in the afternoon. Pursuant to the disclosurestatement, the clothes of the Appellant were seized from the cowshed inthe house of the Appellant. The learned counsel for the State referred tothe injuries on the body of the Appellant which were not explained byhim. She also relied upon the DNA report prepared by Forensic ScienceLaboratory (FSL), Sagar. Specific reference was made to Article Dwhich was full pant belonging to the Appellant on which there was ablood stain near the zip area. Ms. Chaudhary argued that multiple peakswere observed while examining Article which denotes that there ismore than one DNA trait on Article D. The learned counsel for theState further submitted that the Appellant could not prove his plea ofalibi. The Appellant failed to examine his mother and Deepa in whosehouse he had slept on the night of 14.04.2017. Referring to the answersgiven to questions posed to the Appellant during his examination underSection 313 CrPC, the learned counsel for the State relied upon the lawlaid down by this Court and submitted that mere denial would provideadditional link if the circumstances are proved. It was argued by thelearned counsel for the State that though the statement under Section313 CrPC cannot be made the basis for conviction, it can be used asevidence against the accused to the extent it supports the case of theprosecution. helpless girl at tender age was mauled to death afterbeing raped and the Appellant deserves no lenience. The contention ofthe State is that there is no error committed by the Trial Court in imposingthe sentence of death on the Appellant for the heinous offences committedby him.

7. This Court in Dalbir Kaur v. State of Punjab[2]summarized theprinciples governing interference in criminal appeal by special leave asfollows: -

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

ABCDEF

(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 basedon error of record, misreading of evidence or is inconsistentwith the evidence, for instance, where the ocular evidence istotally inconsistent with the medical evidence and so on;

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

(4) that the Court would interfere where the High Court hasCarrived at finding of fact in disregard of judicial process,principles of natural justice or fair hearing or has acted inviolation of mandatory provision of law or procedureresulting in serious prejudice or injustice to the accused;

(5) this Court might also interfere where on the proved factswrong inferences of law have been drawn or where theconclusions of the High Court are manifestly perverse andbased on no evidence.”

This Court exhorted the counsel for the parties to confine theirarguments within the four corners of the above principles to save time,Eenergy and expertise.

8. The undisputed facts are that PW-2 along with his familymembers attended the Chowk Barhon ceremony at the house of AnilMaravi on the evening of 14.04.2017. His 11 years old daughter wentmissing and was found dead on the next day morning. The AppellantFand Satish were arrested on the next day and on the basis of thestatements made by them, recoveries of their clothes were made. Themedical evidence shows that she was raped and killed. green shirt ofcheck pattern whose two front black buttons were broken, which is tornnear the shoulder and has blood spot was seized from the flowerpot onthe roof of the cowshed of the Appellant. red colour sando baniyanGwith black stripe which is torn near shoulder with dark blood spot wasalso seized along with one jeans pant of sky blue colour with lining of 28no. and HARW was mentioned on the right side back. There was darkblood spot in front of the sky-blue jeans pant. The report of the StateForensic Science Laboratory, Civil Lines, Sagar showed that all the allelesobserved in the male DNA profile of Satish were found to be the same

as the DNA profile observed from the prosecutrix’s vaginal and rectalslides. Same female autosomal STR DNA profile was detected on thesource of the deceased prosecutrix, dhoti and underwear of Satish. Insofaras Article which is full pant of the Appellant is concerned, accordingto DNA report multiple peaks were observed.

9. The Appellant and Satish were present in the function at thehouse of Anil Maravi as deposed by PWs-1, 3 and 5. PW-4 deposed thathe runs small hotel in the village and the deceased visited his shop topurchase Kurkure at 9.00 p.m. 15 minutes thereafter, the Appellant visitedthe shop to purchase namkeen. Jaipal (PW-9) stated that the Appellantand Satish visited his house on 15.04.2017. Their eyes were red, hairwas scattered and they were scared. They informed him that they havecommitted big scandal. At that time, Munni Bai- the mother of theAppellant came, and Satish and the Appellant went away. Half an hourlater, there was an uproar in the village when the body of the deceasedwas found.

10. During the course of examination of Satish under Section 313CrPC, he admitted that he was present at the house of Anil Maravi on14.04.2017 and that he visited PW-9 on the morning of 15.04.2017. TheAppellant also admitted his presence at Anil Maravi’s house on 14.04.2017and at the house of PW-9 on 15.04.2017 in the morning. He furtherstated in his examination under Section 313 CrPC that his eyes werered, hair was scattered and he and Satish demanded liquor from PW-9.It is relevant to note that the Appellant also stated that he had gone toSudgaon along with Satish for work at 9.00 a.m. on 14.04.2017. Whilereturning, he had liquor along with Satish. He visited Anil Maravi’s housealong with Satish at 7.00 p.m. They were asked to leave as they were ina drunken condition. The Appellant, thereafter, went to the shop of ChainSingh from where his mother took him home. He slept in the house ofhis neighbour, Deepa.

11. The Appellant was examined by Dr. Vijay Pegwar (PW-11)on 17.04.2017 and the following injuries were found on his body:

i)Scratch mark of 1 inch on the upper side of theshoulder,

ii)0.5 inch scratch mark on the lower left shoulder,

iii)0.5 inch scratch mark on the lower portion on the backof the body,

Aiv)2 inches scratch marks on the right arm,

v)Abrasion mark of 1 cm on cheek, and

vi)4 inches sized abrasion injury on the right lower lateralrib. Scratch marks that were found on the body of SatishBwere also examined by Dr. Vijay Pegwar.

12. Clothes worn by the Appellant were seized from flowerpoton the roof of the cowshed belonging to him pursuant to the disclosurestatement. FSL report pertaining to Article which is full pant ofAppellant on which there was blood stain near the zip showed multipleCpeaks. The Appellant and Satish had alcohol and were together at thehouse of Anil Maravi. As they were creating nuisance, they were chasedaway. The next day morning, they went to PW-9 and told him that bigblunder took place. DNA profiling of the articles Q, R and S which arethe vaginal slide, rectal slide and dried blood on the hair of the deceasedDshowed Y (male) STR. Blood sample of Satish matched with the articlesfound on Q, R and S. The Appellant miserably failed to prove an alibi.Importantly, there is lack of any explanation for the scratch injuries foundon the body of the Appellant. We are in agreement with the concurrentfindings that the Appellant is guilty of committing the offences as chargedand we find no fault with the conviction of the appellant.E

13. It is travesty of justice as the Appellant was not given fairopportunity to defend himself. This is classic case indicating the disturbingtendency of Trial Courts adjudicating criminal cases involving rape andmurder in haste. It is trite law that an accused is entitled for fair trialwhich is guaranteed under Article 21 of the Constitution of India. InFrespect of the order of conviction and sentence being passed on thesame day, the object and purpose of Section 235 (2) CrPC is that theaccused must be given an opportunity to make representation againstthe sentence to be imposed on him. bifurcated hearing for convictingand sentencing is necessary to provide an effective opportunity to theGaccused[3]. Adequate opportunity to produce relevant material on thequestion of death sentence shall be provided to the accused by the TrialCourt[4].

3 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498

H4 Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460

14. Mr. K.G. Sahu, Advocate appointed through Legal Aid appearedfor the Appellant before the Sessions Court on 04.07.2017 when thematter was adjourned to 25.07.2017 for framing of charges. On25.07.2017, Mr. M.K. Kannaujiya, Advocate filed his appearance memo.On the same date, the Trial Court recorded that arguments were heardon the charges. Charges were framed and the schedule for trial wasgiven. On 02.08.2017, 9 witnesses were scheduled to be examined andon 03.08.2017, the remaining witnesses would be examined. On02.08.2017, Mr. Kannaujiya, Advocate represented to the Court that hewas not willing to defend the accused. Mr. Satyendra Yadav, Advocatewas appointed to represent the accused. On the same day, PWs-1,2 and3 were examined and on the next day, PWs-4 and 5 were also examined.Final arguments were heard on 26.10.2017 and the judgment was dictatedon 03.11.2017. On the same day, the Trial Court passed an order,sentencing the Appellant and Satish to death penalty.

15. After considering the judgements of this Court in BachanSingh v. State of Punjab[5], Machhi Singh v. State of Punjab[6], thisCourt in Mohd. Mannan @Abdul Mannan v. State of Bihar[7] observedas follows: -

“The proposition of law which emerges from the judgmentsreferred to above is that death sentence cannot be imposedexcept in the rarest of rare cases, for which special reasonshave to be recorded, as mandated in Section 354(3)of theCriminal Procedure Code. In deciding whether case fallswithin the category of the rarest of rare, the brutality, and/orthe gruesome and/or heinous nature of the crime is not thesole criterion. It is not just the crime which the Court is totake into consideration, but also the criminal, the state of hismind, his socio-economic background, etc. Awarding deathsentence is an exception, and life imprisonment is the rule.”

16. In Mofil Khan and Another v. The State of Jharkhand[8],this Court observed as follows: -

“8. One of the mitigating circumstances is the probability ofthe accused being reformed and rehabilitated. The State is

5 (1980) 2 SCC 6846 (1983) 3 SCC 4707 (2019) 16 SCC 5848 RP (Crl.) No.641 of 2015 in Crl. A. 1795 of 2009

Aunder duty to procure evidence to establish that there is nopossibility of reformation and rehabilitation of the accused.Death sentence ought not to be imposed, save in the rarest ofthe rare cases when the alternative option of lesserpunishment is unquestionably foreclosed (See: Bachan Singhv. State of Punjab 9 ). To satisfy that the sentencing aim ofBreformation is unachievable, rendering life imprisonmentcompletely futile, the Court will have to highlight clearevidence as to why the convict is not fit for any kind ofreformatory and rehabilitation scheme. This analysis can onlybe done with rigour when the Court focuses on theCcircumstances relating to the criminal, along with othercircumstances (See: Santosh Kumar Satishbhushan Bariyarv. State of Maharashtra 10). In Rajendra Pralhadrao Wasnikv. State of Maharashtra 11, 9 (1980) 2 SCC 684 10 (2009) 6SCC 498 11 (2019) 12 SCC 460 11 | P this Court dealtwith the review of judgment of this Court confirming deathDsentence and observed as under:

45. The law laid down by various decisions of this Courtclearly and unequivocally mandates that the probability (notpossibility or improbability or impossibility) that convict canbe reformed and rehabilitated in society must be seriouslyEand earnestly considered by the Courts before awarding thedeath sentence. This is one of the mandates of the “specialreasons” requirement of Section 354(3) CrPC and ought notto be taken lightly since it involves snuffing out the life of aperson. To effectuate this mandate, it is the obligation on theFprosecution to prove to the Court, through evidence, that theprobability is that the convict cannot be reformed orrehabilitated. This can be achieved by bringing on record,inter alia, material about his conduct in jail, his conductoutside jail if he has been on bail for some time, medicalGevidence about his mental make-up, contact with his familyand so on. Similarly, the convict can produce evidence onthese issues as well.”

17. perusal of the judgments of the Trial Court and the HighCourt would disclose that the gravity of the crime was taken intoconsideration while imposing death sentence. The mitigatingH

circumstances and the probability of reformation and rehabilitation ofthe accused have not been considered. It is relevant to refer to thefollowing observations of this Court in Rajendra Pralhadrao Wasnikv. State of Maharashtra[9]:

“47. Consideration of the reformation, rehabilitation andreintegration of the convict into society cannot beoveremphasised. Until Bachan Singh [Bachan Singh v. Stateof Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] , theemphasis given by the Courts was primarily on the nature ofthe crime, its brutality and severity. Bachan Singh [BachanSingh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri)580] placed the sentencing process into perspective andintroduced the necessity of considering the reformation orrehabilitation of the convict. Despite the view expressed bythe Constitution Bench, there have been several instances,some of which have been pointed out in Bariyar [SantoshKumar Satishbhushan Bariyar v. State of Maharashtra,(2009) 6 SCC 498 : (2009) 2 SCC (Cri) 1150] andin Sangeet v. State of Haryana [Sangeet v. State of Haryana,(2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] where there is atendency to give primacy to the crime and consider thecriminal in somewhat secondary manner. As observedin Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452: (2013) 2 SCC (Cri) 611] “In the sentencing process, boththe crime and the criminal are equally important.” Therefore,we should not forget that the criminal, however ruthless hemight be, is nevertheless human being and is entitled to alife of dignity notwithstanding his crime. Therefore, it is forthe prosecution and the Courts to determine whether such aperson, notwithstanding his crime, can be reformed andrehabilitated. To obtain and analyse this information iscertainly not an easy task but must nevertheless be undertaken.The process of rehabilitation is also not simple one since itinvolves social reintegration of the convict into society. Ofcourse, notwithstanding any information made available andits analysis by experts coupled with the evidence on record,there could be instances where the social reintegration of the

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Aconvict may not be possible. If that should happen, the optionof long duration of imprisonment is permissible.”

18. The Appellant was aged 25 years on the date of commissionof the offence and belongs to Scheduled Tribes community, eking hislivelihood by doing manual labour. No evidence has been placed by theBprosecution on record to show that there is no probability of rehabilitationand reformation of the Appellant and the question of an alternative optionto death sentence is foreclosed. The Appellant had no criminalantecedents before the commission of crime for which he has beenconvicted. There is nothing adverse that has been reported against hisconduct in jail. Therefore, the death sentence requires to be commutedCto life imprisonment. However, taking into account the barbaric andsavage manner in which the offences of rape and murder were committedby the Appellant on hapless 11 year old girl, the Appellant is sentencedto life imprisonment for period of 30 years during which he shall not begranted remission.

19. The Appeals are partly allowed. The conviction of the Appellantunder Sections 363, 366A, 364, 346, 376D, 376A, 302, 201 of IndianPenal Code, 1860 (“IPC”) and Section 5(g)(m) read with Section 6 ofThe Protection of Children from Sexual Offences Act, 2012 is upheldand the sentence is converted from death to that of imprisonment for lifeEfor period of 30 years without remission.

Divya Pandey(Assisted by : Deepak Panwar, LCRA)

Appeals partly allowed.