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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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REPORTABLE

 


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.145-146 OF 2011

 
Rajendra Pralhadrao Wasnik … Appellant
Versus
The State of Maharashtra
Respondent

 

 

J U D G M E N T

 
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
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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

 

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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,
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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

 

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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
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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.

 
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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

 
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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
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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.

 

 

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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

 

murdered.

 
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

 
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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
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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
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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.

 

 

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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

 

 

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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
15
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

 

16
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.

 

 

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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: –
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“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

circumstances.

 

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

judgments.
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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.

 

 

 

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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

person.

 

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

community.

 

 

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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

society.
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

itself.

 

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

 
22
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

accused.

 

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.
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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

circumstances.

 

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.
24
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.”
25

 
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

 

26
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
27
worthiness.

 
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.

 

 

……………………………..,J.

[A.K. Patnaik]

 

 

……………………………..,J.

[Swatanter Kumar]

New Delhi;

February 29, 2012

 

 

28

 

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