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Rape and murder – who took a female child on pretext of getting biscuits took the child and in isolated place brutally raped and killed her left the body with out any coverage. Apex court confirmed the death penalty as the accused is deserved for it


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Rajendra Pralhadrao Wasnik … Appellant
The State of Maharashtra




Swatanter Kumar, J.

1. The present appeals are directed against the judgment dated


26th March, 2009 passed by the High Court of Bombay, Nagpur


Bench affirming the conviction of the accused under Sections


376(2)(f), 377 and 302 of the Indian Penal Code, 1860 (hereafter


`IPC’) and the sentence of death awarded to the accused-appellant
herein vide judgment of the First Additional Sessions Judge,


Amrawati, dated 10th September, 2008.

2. The facts giving rise to the present appeal fall within a narrow


compass and are as follows :

Mahendra Namdeorao Wasnik, PW12, was living with his wife,


three children and parents in Village Asra. He used to go to Village


Tarkheda for earning his livelihood at the thresher of one Zafarbhai.


Normally, he used to return to his village at about 10.00 p.m. after


doing his day’s work. On 2nd March, 2007, he left his house at 7.00


a.m. and returned from his work at about 9.00 p.m. Upon his


arrival, he was informed by his wife Kantabai Wasnik that at about


4.00 p.m. one person, whose name she did not know, had come to


the house and after taking tea, he left. The said person had again


come at about 6.30 p.m. On his second visit, he told that he would


take out their daughter, namely Vandana, to get her biscuits. After


talking to the mother of Vandana, the accused had taken Vandana


for purchasing biscuits but never brought her back to her house.


Having learnt this, PW12 started searching for his daughter


Vandana along with others, but they were unable to find her. On


3rd March, 2007 at about 8.00 a.m. when he was going to the Police


Station for lodging the report, he saw that some persons had


gathered in the fields of Pramod Vitthalrao Mohod. He went there


and saw the dead body of his daughter in that field. The dead body


of Vandana was lying in a nude condition and there were injuries


on her person. It has come in evidence that the accused had visited


the house of PW12, Mahendra Namdeorao Wasnik to see his ailing


father. He left after a cup of tea. It was on this information


received from his wife that PW12 suspected that the accused was


the person who was a resident of Village Parlam and had taken


away his daughter. Consequently, PW12 lodged the report with the


Police, Exhibit 71 in respect of the incident. As the body of the


deceased minor girl, Vandana, had been recovered, an FIR was


registered being Crime Case No.23/2007 under Sections 376(2)(f),


377 and 302 IPC. The Investigating Officer started the investigation,


prepared the inquest panchnama in respect of the dead body of the


deceased Vandana vide Exhibit 11. Sample of soil, soil mixed with


urine and clothes of the deceased Vandana were seized from the


spot under Panchanama Exhibit 12. The Investigating Officer had


also drawn a sketch map of the spot of the incident on 16th June,
2007 vide Exhibit 64. At the request of the Police, the Judicial


Magistrate recorded statement of the witnesses, namely, Bhimrao


Gulhane, Nilesh Gedam, Ravindra Borkar and Sumit Ramteke


under Section 164 of the Code of Criminal Procedure, 1973


(hereafter `Cr.P.C.’) The accused was arrested on 10th April, 2007


his clothes were seized vide Exhibit 14. He was subjected to


medical examination. The doctor had taken blood and semen


sample of the accused. These samples and the viscera were sent for


medical examination vide Exhibits 21 and 22. The reports thereof


are Exhibits 76 to 79.

3. The accused was produced before the Court and was


committed to the Court of Sessions where he was charged with the


offences punishable under Sections 376(2)(f), 377 and 320 IPC. He


was tried for these offences. Learned Trial Court found him guilty


of all the offences and awarded him punishments as follows :


Offences Punishment/Sentence

302 IPC Sentenced to death and he shall be hanged

by neck till he is dead subject to

confirmation by the Hon’ble High Court,

Bombay, Bench at Nagpur as per the

provisions of Section 366 of Cr.P.C.

376(2)(f) IPC Sentenced to imprisonment for life and to


pay fine of Rs.1,000 (one thousand), in

default to suffer rigorous imprisonment for

six months.

377 IPC Sentenced to rigorous imprisonment for 10

(ten) years and to pay fine of Rs.1,000 (one

thousand) in default to suffer further

rigorous imprisonment for six months.



4. Aggrieved by the said judgment, the accused preferred an


appeal before the High Court which, as already noticed, came to be


dismissed. The High Court upheld the conviction and sentence of


the accused giving rise to the filing of the present appeals.

5. Learned counsel appearing for the appellant-accused


contended that the complete chain of events leading to the


involvement of the appellant in the crime, in question, have not


been established by the prosecution. According to him, the


prosecution has failed to prove its case beyond reasonable doubt.


The case is one of circumstantial evidence and the onus to prove


the case by leading cogent, appropriate and linking evidence is on


the prosecution. The prosecution has failed to establish the charge


against the appellant. All witnesses are interested witnesses as


they are the relatives of the informant or the deceased and as such
cannot be safely relied upon by the Court to hold the appellant


guilty of the alleged offences. Lastly, it is also contended that it was


not a case which fell in the category of `rarest of rare’ cases where


the Court would find that any other sentence except death penalty


would be inadequate and unjustifiable. Thus, the imposition of


penalty of death imposed by the High Court calls for interference by


this Court. Though the accused, in his statement under Section


313 Cr.P.C., while replying to question No.9 about the death of


Vandana and injuries on her body, had stated that it was false but


from the evidence led by the prosecution, it is clear that the death


of the deceased Vandana was homicidal. One can get the idea of


the torture and brutality that the minor girl suffered at the hands of


the accused from the injuries found on her person in the post-


mortem report. They have been described by the doctor as follows:

“External Vaginal Swelling present Vaginal

wall lacerated, wound extending from labia

mejora to inside vaginal canal in lower 1/3rd on

both side 1=” x <” x muscle deep
Stains of semen present on inner side of thigh.
Hymen absent, one finger easily pass.
Swelling present on anal region.

Multiple abrasions with Contusions present on

body on face, chest back & both shoulders and

knees Interiorly.
Bite mark on chest (L) side around Nipple

elliptical with diameters 1=” x 1<“.
Right Lung collapsed, 150 gm, Congested on

section collapsed.
Left Lung Collapsed, 100 gm, Congested on

section collapsed.
Large vessels – contained blood.”

6. Exhibit 11, the inquest panchnama is admitted while the post


mortem report Exhibit 71 has been proved in accordance with law.


Both these documents demonstrate, beyond reasonable doubt, that


it was a case of homicidal death and as per the post mortem report,


the cause of death was rape and asphyxia.

7. There is no doubt that it is not a case of direct evidence but


the conviction of the accused is founded on circumstantial


evidence. It is a settled principle of law that the prosecution has to


satisfy certain conditions before a conviction based on


circumstantial evidence can be sustained. The circumstances from


which the conclusion of guilt is to be drawn should be fully

established and should also be consistent with only one hypothesis,


i.e. the guilt of the accused. The circumstances should be


conclusive and proved by the prosecution. There must be a chain


of events so complete as not to leave any substantial doubt in the


mind of the Court. Irresistibly, the evidence should lead to the


conclusion which is inconsistent with the innocence of the accused


and the only possibility is that the accused has committed the


crime. To put it simply, the circumstances forming the chain of


events should be proved and they should cumulatively point


towards the guilt of the accused alone. In such circumstances, the


inference of guilt can be justified only when all the incriminating


facts and circumstances are found to be incompatible with the


innocence of the accused or the guilt of any other person.


Furthermore, the rule which needs to be observed by the Court


while dealing with cases of circumstantial evidence is that the best


evidence must be adduced which the nature of the case admits.


The circumstances have to be examined cumulatively. The Court


has to examine the complete chain of events and then see whether


all the material facts sought to be established by the prosecution to


bring home the guilt of the accused, have been proved beyond
reasonable doubt or not. It has to be kept in mind that all these


principles are based upon one basic cannon of our criminal


jurisprudence that the accused is innocent until proven guilty and


that the accused is entitled to a just and fair trial. [Ref.


Dhananajoy Chatterjee alias Dhana vs. State of W.B. [JT 1994 (1) SC


33]; Shivu & Anr. v. R.G. High Court of Karnataka & Anr. [(2007) 4


SCC 713]; and Shivaji @ Dadya Shankar Alhat v. State of


Maharashtra [(AIR 2009 SC 56].

8. Now, we will revert to the facts of the present case in light of


the above-stated principles. We must spell out the circumstances


which would show that for the undisputable rape and murder of the


deceased minor girl, the accused is not only the suspect but is also


the person who has committed the crime. These circumstances are:

1. The accused had taken Vandana from her home on the pretext


of purchasing her biscuits.

2. Neither Vandana nor the accused returned to the house.



3. Accused was seen with the deceased Vandana on 2nd March,
2007 at about 6.00 p.m. at the bus stand where, in the normal


course of life, such shops are situated.

4. Thereafter, the nude body of Vandana was found in the field of
Pramod Vitthalrao Mohod on 3rd March, 2007.

5. Exhibit 11 and 71, show beyond reasonable doubt that the


three year old girl was subjected to rape, injuries and then



9. The above circumstances and the chain of events is complete


with regard to the commission of crime and undoubtedly points


towards the accused. Now, we have to examine whether the


prosecution has provided these facts as required in law.

10. PW2, Kanta, is the mother of the deceased Vandana. In her


statement she has stated that she was living along with her


husband, one daughter and two sons. According to her, her in-laws


were residing in the same house, though separately. Vandana was


three years old at the time of her death. According to her, the


occurrence took place on the day of Holi festival. She identified the

accused, who was present in the court and stated that he had come


to their house earlier and then on the date of the incident as well.


Supporting the case of the prosecution, she stated that he had


come to the house at about 3.00 p.m. and then left after having tea


by saying that he wanted to meet his friends and thereafter, he


again came back at 6.00 p.m. Vandana was playing in front of the


house at that time. The accused told her that he would purchase


biscuits for the child and took Vandana with him. They had gone


towards the bus-stand and thereafter, neither Vandana nor the


accused returned home. She had told her husband, PW1, about


the incident on his return from work. PW2 also stated that on the


next day body of deceased was found in the fields. There was blood


in her nostrils and mouth. Marks of bites were found on her


breast. There was swelling in the private parts of her body. She


came to know the name of the accused subsequently. Her


statement remained uncontroverted or nothing material came in her


cross-examination. The accused was also seen in the house of


PW12 by PW3, Preeti, who is the niece of PW12. She also


corroborated the statements of PW12 and PW2. PW4, is the other


material witness, Ravindra, who stated that on the day of the
incident, i.e. 2nd March, 2007, he was present at the S.T. Bus stand


of Asra and he had seen the accused along with Vandana in hotel


Rajendra Bhojane. She was on the waist of the accused and they


had purchased a packet of biscuits. Thereafter, he saw the accused


going on the road which goes to Amrawati. Thereafter, he even


searched for Vandana along with Vikram Meshram. PW5, Bhimrao


Pundlik Gulhane is a witness who owns 13 acres of agricultural


land at Village Khargodi in Village Nagthana. For the purposes of


cultivating his land, he used to engage labourers, and the accused


was engaged by him for doing the work on his agricultural field and


he disclosed the name of accused as Sanjay Manohar Wankhede.


According to this witness, he maintained a regular register for


marking `presence’ and `payment of wages’ to the labourers he


engaged. The said witness deposed that on the date of occurrence,


i.e. 2nd March, 2007, the accused did not come for duty. However,


on that day in the morning, the accused came to him and


demanded Rs. 500/- saying that he wanted to go to Asra and


thereafter, he did not come back. He produced the register which


had been seized by the police earlier and had the signatures and it


was exhibited as Ex.36. PW7, is another witness, who had seen the
accused holding Vandana when he was going back to his house


from the S.T. bus stand Asra.

11. The accused was subjected to medical examination and was


examined by Dr. Ravindra Ruprao Sirsat, PW9 and he noticed no


injuries on his person. Father of the deceased minor girl was


examined as PW12 and he provided the complete chain of events,


right from the time he got the information that his daughter had


been taken away till the time when her dead body was recovered


from the fields. Dr. K.V. Wathodkar, Dr. (Mrs.) V.K. Wathodkar


and Dr. Varsha S. Bhade had prepared the postmortem report, Ex.-


17, which clearly shows that the cause of death of the three-year


old girl was rape and asphyxia. All these factors have been proved


by the prosecution both by documentary as well as oral evidence.


The accused admitted the documents i.e. the sketch map, Ex.64,


spot panchnama, Ex.10, inquest panchnama, Ex.11, seizure


panchnamas Exihibits 12, 13 and 14 in respect of the seizure of


clothes of the accused and in respect of blood sample, public hair


sample, semen sample of the accused, arrest panchnama, Ex.16,


postmortem report Ex.17 and letters Ex.19 to 27.



12. Once these crucial pieces of documentary evidence have been


admitted by the accused and other factual links in the story of the


prosecution have been duly proved by the witnesses by


circumstantial or direct evidence, there is no occasion for this Court


to doubt that the prosecution has not been able to prove its case


beyond reasonable doubt.

13. It has been vehemently argued on behalf of the appellant that


the report of the FSL does not connect the accused to the


commission of the crime. This, being a very material piece of


evidence which the prosecution has failed to establish, the accused


would be entitled to the benefit of doubt. There were two kinds of


Exhibits which were sent by the Police to the Forensic Science


Laboratory for examination – one, the blood-stained clothes of the


deceased and second, the sample of blood, semen and pubic hair


sample of the accused which were sent vide Exhibit 57. The reports


of the laboratory are Exhibits 76, 77, 78 and 79. As far as the


reports in respect of the appellant’s sample of semen and blood are


concerned, they were inconclusive as was stated by the FSL in


Exhibit 76. His clothes which were seized by the Police did not bear



any blood or semen stains and that was duly recorded in Exhibit


78. Exhibit 77 were the clothes of the deceased which were blood


stained. The clothes contained blood group `O’ which was the blood


group of the deceased girl. From the report of the experts, it is clear


that there is no direct evidence connecting the appellant to the


commission of the crime but it is not the case of the defence that


the FSL report was in the negative. Merely because the report was


inconclusive, it is not necessary that the irresistible conclusion is


only one that the accused is not guilty, particularly where the


prosecution has been able to establish its case on circumstantial


evidence as also by direct oral evidence. It is a settled principle of


law that the evidence has to be read in its entirety. If, upon reading


the evidence as such, there are serious loopholes or lacking in the


case of the prosecution and they do not prove that the accused is


guilty, then the Court would be justified in giving the benefit of


doubt to the accused on the strength of a weak FSL report. The


FSL report Exhibit P77 had clearly established that the blood of


group `O’ was found on the clothes of the deceased and that was her


blood group. The prosecution has been able to establish not only


by substantial evidence but clearly by medical evidence as well, that
the minor girl had suffered serious injuries on her private parts and


there were bite marks on her chest.

14. An attempt was also made to cast certain doubts as to the very


identity of the accused but we find this submission without any


substance. The accused has been identified by PW2, PW3 and


PW4. Besides them, even PW7 Sumeet Ramteke had also stated


that he had seen the victim minor girl with the appellant in the


house of PW2, Kantabai and then again seen him with the victim


going towards the ST bus stand. Statement of these four witnesses


successfully stood the lengthy cross-examination conducted on


behalf of the defence. There cannot be any doubt in these


circumstances that the accused had taken away the victim from the


house of PW2 and was seen at the ST stand.

15. In our considered opinion, the tests laid down by this Court in


Baldev Singh v. State of Haryana, AIR 2009 SC 963 in relation to


cases of circumstantial evidence are completely satisfied in the


present case. The circumstances and the chain of events proved by


the prosecution is fully established and the circumstances which


were required to be proven by the prosecution, have been proved by


them successfully. The cumulative effect of the entire prosecution


evidence is that it points unmistakably towards the guilt of the


accused. It is not only a case of circumstantial evidence simpliciter


but also the `last seen together’ principle. There are witnesses who


had seen the accused at the house of PW2 with the deceased minor


girl. Thereafter, he was again seen with the child at the ST bus


stand, Asra and lastly while going away from the ST bus stand with


the minor child. Thus, once the evidence had successfully shown


that the accused was last seen with the minor girl, it was for the


accused to explain the circumstances. The accused in his


statement under Section 313 Cr.P.C., in response to all the 68


questions put to him, answered only one simple answer – `it is


false’. He also stated that the Police had registered a false case


against him and that he did not want to lead any defence. It is very


difficult to assume that as many as 13 witnesses from the same


village, the Police and doctors would falsely implicate the accused.


There are no circumstances which can even remotely suggest that


this plea taken by the accused even deserves consideration. Ex facie


this is an incorrect stand.



16. Having dealt with the contentions of the learned counsel


appearing for the appellant on the merits of the case, now we would


proceed to discuss the last contention raised on behalf of the


appellant that this is not one of the rarest of rare cases where


awarding death sentence is justified. We have already held that the


prosecution has been able to bring home the guilt of the accused for


the offences under Sections 376(2)(f), 377 and 302 of the IPC. In


order to deal with this contention raised on behalf of the appellant,


we may, at the very outset, refer to the basic principles that are to


be kept in mind by the Court while considering the award of death


sentence to an accused. This very Bench in a recent judgment,


considered various judgments of this Court by different Benches


right from Bachan Singh’s case, in relation to the canons governing


the imposition of death penalty and illustratively stated the


aggravating circumstances, mitigating circumstances and the


principles that would be applied by the Courts in determining such


a question. It will be useful to refer to the judgment of this Bench


in the case of Ramnaresh vs. State of Chattisgarh, Crl. Appeal No.


166-167/2010 decided on February 28, 2012 wherein it was held


as under: –
“The above judgments provide us with the

dicta of the Court relating to imposition of

death penalty. Merely because a crime is

heinous per se may not be a sufficient reason

for the imposition of death penalty without

reference to the other factors and attendant



Most of the heinous crimes under the IPC

are punishable by death penalty or life

imprisonment. That by itself does not suggest

that in all such offences, penalty of death

should be awarded. We must notice, even at

the cost of repetition, that in such cases

awarding of life imprisonment would be a rule,

while `death’ would be the exception. The

term `rarest of rare case’ which is the

consistent determinative rule declared by this

Court, itself suggests that it has to be an

exceptional case. The life of a particular

individual cannot be taken away except

according to the procedure established by law

and that is the constitutional mandate. The

law contemplates recording of special reasons

and, therefore, the expression `special’ has to

be given a definite meaning and connotation.

`Special reasons’ in contra-distinction to

`reasons’ simplicitor conveys the legislative

mandate of putting a restriction on exercise of

judicial discretion by placing the requirement

of special reasons.


Since, the later judgments of this Court

have added to the principles stated by this

Court in the case of Bachan Singh (supra) and

Machhi Singh (supra), it will be useful to re-

state the stated principles while also bringing

them in consonance, with the recent

The law enunciated by this Court in its

recent judgments, as already noticed, adds

and elaborates the principles that were stated

in the case of Bachan Singh (supra) and

thereafter, in the case of Machhi Singh (supra).

The aforesaid judgments, primarily dissect

these principles into two different

compartments – one being the `aggravating

circumstances’ while the other being the

`mitigating circumstance’. The Court would

consider the cumulative effect of both these

aspects and normally, it may not be very

appropriate for the Court to decide the most

significant aspect of sentencing policy with

reference to one of the classes under any of the

following heads while completely ignoring other

classes under other heads. To balance the two

is the primary duty of the Court. It will be

appropriate for the Court to come to a final

conclusion upon balancing the exercise that

would help to administer the criminal justice

system better and provide an effective and

meaningful reasoning by the Court as

contemplated under Section 354(3) Cr.P.C.
Aggravating Circumstances :
1. The offences relating to the commission of

heinous crimes like murder, rape, armed

dacoity, kidnapping etc. by the accused with a

prior record of conviction for capital felony or

offences committed by the person having a

substantial history of serious assaults and

criminal convictions.




2. The offence was committed while the

offender was engaged in the commission of

another serious offence.

3. The offence was committed with the

intention to create a fear psychosis in the

public at large and was committed in a public

place by a weapon or device which clearly

could be hazardous to the life of more than one



4. The offence of murder was committed for

ransom or like offences to receive money or

monetary benefits.


5. Hired killings.


6. The offence was committed outrageously

for want only while involving inhumane

treatment and torture to the victim.


7. The offence was committed by a person

while in lawful custody.


8. The murder or the offence was

committed, to prevent a person lawfully

carrying out his duty like arrest or custody in

a place of lawful confinement of himself or

another. For instance, murder is of a person

who had acted in lawful discharge of his duty

under Section 43 Cr.P.C.


9. When the crime is enormous in

proportion like making an attempt of murder

of the entire family or members of a particular




10. When the victim is innocent, helpless or a

person relies upon the trust of relationship

and social norms, like a child, helpless

woman, a daughter or a niece staying with a

father/uncle and is inflicted with the crime by

such a trusted person.


11. When murder is committed for a motive

which evidences total depravity and meanness.


12. When there is a cold blooded murder

without provocation.


13. The crime is committed so brutally that it

pricks or shocks not only the judicial

conscience but even the conscience of the

Mitigating Circumstances :
1. The manner and circumstances in and

under which the offence was committed, for

example, extreme mental or emotional

disturbance or extreme provocation in

contradistinction to all these situations in

normal course.


2. The age of the accused is a relevant

consideration but not a determinative factor by



3. The chances of the accused of not

indulging in commission of the crime again

and the probability of the accused being

reformed and rehabilitated.


4. The condition of the accused shows that

he was mentally defective and the defect

impaired his capacity to appreciate the

circumstances of his criminal conduct.


5. The circumstances which, in normal

course of life, would render such a behavior

possible and could have the effect of giving rise

to mental imbalance in that given situation

like persistent harassment or, in fact, leading

to such a peak of human behavior that, in the

facts and circumstances of the case, the

accused believed that he was morally justified

in committing the offence.


6. Where the Court upon proper

appreciation of evidence is of the view that the

crime was not committed in a pre-ordained

manner and that the death resulted in the

course of commission of another crime and

that there was a possibility of it being

construed as consequences to the commission

of the primary crime.


7. Where it is absolutely unsafe to rely upon

the testimony of a sole eye-witness though

prosecution has brought home the guilt of the



While determining the questions

relateable to sentencing policy, the Court has

to follow certain principles and those

principles are the loadstar besides the above

considerations in imposition or otherwise of

the death sentence.
Principles :
1. The Court has to apply the test to

determine, if it was the `rarest of rare’ case for

imposition of a death sentence.
2. In the opinion of the Court, imposition of

any other punishment, i.e., life imprisonment

would be completely inadequate and would not

meet the ends of justice.

3. Life imprisonment is the rule and death

sentence is an exception.


4. The option to impose sentence of

imprisonment for life cannot be cautiously

exercised having regard to the nature and

circumstances of the crime and all relevant



5. The method (planned or otherwise) and

the manner (extent of brutality and

inhumanity, etc.) in which the crime was

committed and the circumstances leading to

commission of such heinous crime.


Stated broadly, these are the accepted

indicators for the exercise of judicial discretion

but it is always preferred not to fetter the

judicial discretion by attempting to make the

excessive enumeration, in one way or another.

In other words, these are the considerations

which may collectively or otherwise weigh in

the mind of the Court, while exercising its

jurisdiction. It is difficult to state, it as an

absolute rule. Every case has to be decided on

its own merits. The judicial pronouncements,

can only state the precepts that may govern

the exercise of judicial discretion to a limited

extent. Justice may be done on the facts of

each case. These are the factors which the

Court may consider in its endeavour to do

complete justice between the parties.
The Court then would draw a balance-

sheet of aggravating and mitigating

circumstances. Both aspects have to be given

their respective weightage. The Court has to

strike a balance between the two and see

towards which side the scale/balance of

justice tilts. The principle of proportion

between the crime and the punishment is the

principle of `just deserts’ that serves as the

foundation of every criminal sentence that is

justifiable. In other words, the `doctrine of

proportionality’ has a valuable application to

the sentencing policy under the Indian

criminal jurisprudence. Thus, the court will

not only have to examine what is just but also

as to what the accused deserves keeping in

view the impact on the society at large.


Every punishment imposed is bound to

have its effect not only on the accused alone,

but also on the society as a whole. Thus, the

Courts should consider retributive and

deterrent aspect of punishment while imposing

the extreme punishment of death.


Wherever, the offence which is

committed, manner in which it is committed,

its attendant circumstances and the motive

and status of the victim, undoubtedly brings

the case within the ambit of `rarest of rare’

cases and the Court finds that the imposition

of life imprisonment would be inflicting of

inadequate punishment, the Court may award

death penalty. Wherever, the case falls in any

of the exceptions to the `rarest of rare’ cases,

the Court may exercise its judicial discretion

while imposing life imprisonment in place of

death sentence.”

17. We shall tentatively examine the facts of the present case in


light of the above principles. First and foremost is that the crime


committed by the accused is heinous. In fact, it is not heinous


simplicitor, but is a brutal and inhuman crime where a married


person, aged 31 years, chooses to lure a three year old minor girl


child on the pretext of buying her biscuits and then commits rape


on her. Further, obviously intending to destroy the entire evidence


and the possibility of being identified, he kills the minor child. On


the basis of the `last seen together’ theory and other direct and


circumstantial evidence, the prosecution has been able to establish


its case beyond any reasonable doubt. It can hardly be even


imagined that what torture and brutality the minor child must have


faced during the course of commission of this crime. All her private


parts were swollen and bleeding. She was bleeding through her


nose and mouth. The injuries, as described in EX.P17 (the post


mortem report) shows the extent of brutal sexual urge of the


accused, which targeted a minor child, who still had to see the


world. He went to the extent of giving bites on her chest. The pain


and agony that he must have caused to the deceased minor girl is


beyond imagination and is the limit of viciousness. This Court has


to examine the conduct of the accused prior to, at the time as well


as after the commission of the crime. Prior thereto, the accused


had been serving with PW5 and PW6 under a false name and took


advantage of his familiarity with the family of the deceased. He


committed the crime in the most brutal manner and, thereafter, he


opted not to explain any circumstances and just took up the plea of


false implication, which is unbelievable and unsustainable. When


the Court draws a balance-sheet of the aggravating and mitigating


circumstances, for the purposes of determining whether the


extreme sentence of death should be imposed upon the accused or


not, the scale of justice only tilts against the accused as there is


nothing but aggravating circumstances evident from the record of


the Court. In fact, one has to really struggle to find out if there


were any mitigating circumstances favouring the accused. Another


aspect of the matter is that the minor child was helpless in the


cruel hands of the accused. The accused was holding the child in a


relationship of `trust-belief’ and `confidence’, in which capacity he


took the child from the house of PW2. In other words, the accused,


by his conduct, has belied the human relationship of trust and

18. The accused left the deceased in a badly injured condition in


the open fields without even clothes. This reflects the most


unfortunate and abusive facet of human conduct, for which the


accused has to blame no one else than his own self.

19. Thus, for the reasons afore-recorded, we find that the learned


trial court was fully justified in law and on the facts of the present


case, in awarding the extreme penalty of death for an offence under


Section 302 IPC along with other punishments for other offences.


We find no justifiable reason to interfere with the judgment of


conviction and order of sentence under the impugned judgment.


The appeals are dismissed.




[A.K. Patnaik]




[Swatanter Kumar]

New Delhi;

February 29, 2012





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