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HANG TILL DEATH – CONFIRMED – A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of rarest of the rare case and we unhesitatingly so hold.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.2486-2487 OF 2014
[Arising out of S.L.P. (Crl.) No. 330-331 of 2013]
Vasanta Sampat Dupare … Appellant

Versus

State of Maharashtra … Respondent
J U D G M E N T
Dipak Misra, J.
In these two appeals, we are required to deal with a sordid and despicable
act of a married man who, at the time of incident was in wedlock for more
than two scores having a criminal background, has yielded not only to the
inferior endowments of nature but also has exhibited the gratification of
pervert lust and brutish carnality. The prey of such degradation and
depravity was a minor girl aged about four years, daughter of Pinki, PW-1,
and Krushna, PW-4. The appellant, as per the prosecution version, after
satisfying his uncontrolled, insatiable and rapacious savage desire,
battered the girl to death. This led to his facing trial for the offences
punishable under Sections 302, 376(2)(f), 363, 367 and 201 of the Indian
Penal Code (for short, “IPC”) in Sessions Trial No. 252/2008 before the
Learned Additional Sessions Judge, Nagpur, who considering the evidence on
record and keeping in view the nature of the crime vide judgment dated
23.02.2012 after recording the conviction in respect of aforesaid offences,
imposed the death sentence, apart from other punishment in respect of other
offences and sent, as required under Section 366(1) of the Code of Criminal
Procedure (for short, “CrPC”), for confirmation by the High Court. The
judgment of conviction and the order of sentence was challenged by the
appellant in Criminal Appeal No. 112/2012 and it was heard along with the
Criminal Confirmation Case No.1 of 2012 wherein the Division Bench of the
High Court confirmed the sentence of death awarded by the trial Court and
as a logical corollary dismissed the criminal appeal preferred by him. The
said judgment is the subject of assailment in the present appeal.
2. According to the prosecution case on 3.4.2008 about 9-10 p.m.,
informant, Krushna Dudhraj Sharma, father of the deceased, lodged a report
at the police station Wadi stating that he was staying in a tenanted house
with his wife and two daughters, the kidnapped girl aged about 4 years and
her sister aged about six months. One Subhash Sonawane was residing along
with his wife and son in the neighbourhood of the informant as a tenant of
the common landlord, Kushal Bansod. The appellant, Vasanta Dupare, a
friend of Subhash Sonawane, was a frequent visitor to the house of Subhash.
On the fateful day when the informant, carpenter by profession, returned
home about 7.00 p.m., he found his wife weeping and on a query being made,
she disclosed that Vasanta Dupare had taken the elder daughter on his
bicycle while she was playing in the courtyard of the house and she had not
yet returned home. He, being perturbed, searched for his daughter in the
vicinity, but it was an exercise in futility. Thus, the initial allegation
was that the appellant had kidnapped his minor daughter. On the basis of
the aforesaid report, a crime was registered against the accused for an
offence punishable under Section 363 of the IPC.
3. As the prosecution version further undrapes, on the same day, Santosh
Ghatekar, PW-13, Assistant Police Inspector, while returning to the police
station, received the information that the appellant was moving around Gati
Godown located on Khadgaon Road, and he passed on the said information to
Police Inspector D.J. Chauhan, PW-16, and eventually the appellant was
apprehended and brought to the police station. While in police custody, on
4.4.2008, he took the investigating agency to the spot where he had after
ravishing the minor girl child had murdered her. A memorandum of panchnama
to that effect was prepared in the morning of 4.4.2008 and thereafter he
led the police to the place of incident wherefrom the dead body of the
minor girl was recovered. At his instance, the bicycle used was recovered
from the godown located in between Khadgaon to Kamleshwar road belonging to
one Ashwin Prakash Agrawal. Thereafter, the initial offence registered
under Section 363 IPC was converted to offences under Section 376(2)(f),
367, 302 and 201 of the IPC. The Investigating Agency examined number of
witnesses under Section 161 CrPC and completed all the formalities and laid
the chargesheet before the competent court which in turn committed the
matter to the Court of Session.
4. The accused-appellant pleaded his innocence and non-involvement and
took the plea that he had been falsely implicated due to animosity.
5. The prosecution, to substantiate the charges levelled against the
appellant, examined 17 witnesses. After closure of the evidence of the
prosecution, the accused was examined under Section 313 of the CrPC and he
pleaded complete denial and false implication. The defence chose not to
adduce any evidence.
6. The learned trial Judge, on the basis of the evidence brought on
record came to hold that the mother of the minor girl, Pinki, PW-1, knew
the appellant because of his frequent visits to her neighbour Subhash; that
she had seen the accused in the courtyard where the minor girl was playing
along with other children; that she had also seen him going on a bicycle
from the behind; that Vandana Ramkar, PW-5, had deposed categorically that
while she was present outside Chandrawanshi Hospital after finishing her
work, she saw the appellant going on the bicycle with the deceased and she
had revealed when Pinki had made an enquiry about her daughter; that Baby
Sharma, PW-6, and Minal @ Twinkle, PW-3, the child witness, have also
unequivocally deposed that they had seen the accused taking the minor girl
with him at the relevant time from the locality in question; that Baby
Sharma had further deposed that the minor girl had fallen down from the
bicycle near her shop and the cyclist had purchased ‘Minto Fresh’ for the
girl who was wearing black top and blue skirt; that she had identified the
cyclist and also the photograph of the girl who had accompanied the
appellant at the relevant time; that Subhash Sonawane, PW-11, had stated
that the accused had been to his house for repairing his tape recorder on
that day; that version of Subhash had received corroboration from his wife,
Kavita, who has deposed that her daughter Akanksha and the victim were
playing in the courtyard and at that juncture the appellant was standing
in the courtyard; that the appellant had told Akanksha and the daughter of
PW-1 that he would buy chocolates for them and, therefore, they should
accompany him; that it had come in the testimony of Kavita, PW-12, that
Akanksha, who was not having appropriate clothes on her person came back
home and by that time accused took the victim girl on his bicycle; that
Manisha, PW-2, who knew the appellant, had deposed that he had come to her
house on the bicycle along with the girl and on being asked he had told her
name and she was wearing black top and blue midi and the accused had
mentioned to her that she was the daughter of his friend; that Baby Sharma,
PW-6, had identified the clothes of the deceased which were on her person
on the day of the incident and had also identified him that he was the
person who had taken the girl; that the panch witnesses Ramprasad, PW-7 and
Anand Borkar, PW-8, had stood embedded in their testimony about the
recovery wherefrom the girl was taken and the place where the dead body was
found, and they had also remained firm in their testimony proving the
panchnama to indicate the seized incriminating materials, that is, two
stones smeared with blood, blood mixed sample earth, branches of trees
having blood stains, minto fresh and empty chocolate wrappers and nikar and
other clothes of the accused from the spot; that the other two panch
witnesses, namely, Purushottam Gore, PW-9, and Sanotsh Keche, PW-10, had
stated about the parcels containing clothes of the deceased and various
samples taken from the body of the deceased, received from the hospital and
the recovery of the bicycle from the godown; and that nothing had been
elicited which would create any kind of concavity in the testimony of these
witnesses; and that the investigating officers had not given any room for
doubt; that the examining doctor, Dr. Prashant Barve, who had conducted
autopsy on the deceased had remained inflexible in the testimony as regards
the reports; and that the ocular and the documentary evidence brought on
record established beyond reasonable doubt that the accused by alluring a
minor girl of four years for giving chocolates, had kidnapped her, raped
her and caused injuries; and also had intentionally made disappear the
evidence of the crime committed by him. On the aforesaid reasoning, the
learned trial Judge found the appellant guilty of the offences and treated
the same as a crime of extreme brutality, for he had committed rape on a
minor girl aged about four years without thinking about the effect on the
victim. It was also opined by the learned trial Judge that the accused was
in mid 40s and had caused injuries by crushing stones weighing 8.5 kg. and
7.5 kg with force upon her when she was in unbearable pains because of the
ferocious act of rape and injuries sustained by her; and that the accused
was having criminal antecedents as he was prosecuted for various offences
in four cases. Taking into consideration the totality of circumstances,
that is, the aggravating and the mitigating circumstances, the learned
trial Judge regarded the case as rarest of the rare cases and sentenced the
appellant to suffer death penalty under Section 302 IPC, life imprisonment
and fine of Rs.2,000/- with the default clause for the offence punishable
under Section 376(2)(f) of the IPC; rigorous imprisonment for seven years
and fine of Rs.1000/- with default clause for the offence punishable under
Section 363 of the IPC; rigorous imprisonment for seven years and fine of
Rs.1000/- with default clause for the offence punishable under Section 367
of the IPC; and rigorous imprisonment for three years and fine of Rs.1000/-
with default clause for the offence punishable under Section 201 of the IPC
with the stipulation that all the sentences relating to imprisonment shall
be concurrent and submitted the proceedings to the High Court under Section
366(1) of the Code of Criminal Procedure, 1973 for confirmation of death
sentence by the High Court.
7. As has been stated earlier, the appellant preferred a Criminal Appeal
assailing the conviction and the sentence and the High Court appreciated
the evidence afresh and found that the evidence of the witnesses was
impeccable and totally beyond reproach and the prosecution had been able to
prove the offences to the hilt. While dealing with the confirmation of the
sentence, the High Court referred to various decisions and opined as
follows:
“The accused raped a four years old girl and thereafter battered and
smashed her head by two heavy stones and killed her. The aggravating
circumstance as pointed out by us must be such as would have shocked the
conscience of the community in general. The accused had acted in
diabolical manner and had designedly lured the unsuspecting Muskan to
accompany him on the bicycle. Battering of the head of the girl of tender
years was done by the accused with extreme cruelty. The crime has been
committed by the accused in an extremely cruel manner exhibiting brutality
and utter perversity. The history sheet of the accused which is placed on
record exhibits several prosecutions against him. The accused has not
displayed any remorse or repentance for the act done by him and we do not
find any material to indicate that there is a possibility of the accused
reforming himself. The accused would continue to be a menace to the
society and, therefore, according to us, this is a rarest of rare case
calling for the extreme.

The mitigating circumstances which are brought on record against the
accused are that the accused is middle aged man of 45 years with no
previous conviction so far. The accused is a married person having a
family. However, the aggravating circumstances far out way the mitigating
circumstances and according to us, the extreme penalty of death imposed by
the trial court deserves to be confirmed.”

8. We have heard Mr. Sanjiv Das, learned counsel for the appellant and
Mr. Shankar Chillarge, learned counsel for the respondent-State.
9. It is submitted by the learned counsel for the appellant that the
learned trial Judge as well as the High Court has committed gross
illegality in placing reliance on the testimony of the parents of the
deceased and other witnesses to establish the last seen theory, which has
really not been established. It is urged by him that the leading to
recovery of the dead body of the deceased and the clothes are not in
consonance with Section 27 of the Evidence Act. Learned counsel would
submit that the panch witnesses who have alleged to have supported the
prosecution story have really paved the path of deviancy which has been
lost sight of by the learned trial Judge as well as by the High Court. It
is his further submission that there are material inconsistencies,
contradictions and omissions, which had seriously affected the
prosecution’s case and the chain of circumstances for implicating the
accused in the crime has really not been established. It is propounded by
him that the witnesses who have been cited by the prosecution to establish
the chain of circumstances, fundamentally the last seen theory, cannot be
given credence to regard being had to the unacceptable contradictions and
infirmities. Finally, it is canvassed by the learned counsel for the
appellant that the present case could not fall under the category of rarest
of the rare cases warranting capital punishment and the criminal background
that has been taken into consideration by the learned trial Judge as well
as by the High Court is of not such nature by which the appellant can be
treated or regarded as a menace to the society and, therefore, if this
Court affirms the conviction, it should substitute the punishment to that
of life imprisonment.
10. Mr. Shankar Chillarge, learned counsel for the respondent-State in
support of the view expressed by the High Court, contends that the
prosecution has succeeded in proving the guilt of the appellant beyond
reasonable doubt and the scanning of the evidence by the learned trial
Judge, which has been re-appreciated by the High Court, does not remotely
indicate any contradiction or discrepancy. It is proponed by him that all
the witnesses have remained absolutely unshaken in their version and
nothing substantial has been elicited from them during the cross-
examination which could create a dent in their testimony. Learned counsel
would further contend that if the ocular and documentary evidence is
appreciated in proper perspective, there remains no scintilla of doubt that
the appellant had committed the brutal and heinous crime and in such a
circumstance when the society cries for justice, the Court should not show
any leniency for conversion of the sentence.
11. To appreciate the rival submissions raised at the Bar, we think it
appropriate to refer to the postmortem report of the deceased. The said
report by the doctor, namely, Dr. Prashant Barve, PW-15, which has been
brought on record as Exhibit 55, describes that at the time of postmortem,
the face was flattened, eyes closed, mouth partially opened, tongue was
clinched and lacerated between teeth, blood was oozing through mouth,
nostrils and ears. It was also noticed that dry grass leaves adhered over
body at back side and dry blood-stains were present over face, neck,
perineum and lower limb. He has found the following injuries on the dead
body of the deceased:
“1) Multiple scratch abrasions present over front of chest and front of
neck size varying from 1 cm x 1/4 cm, to 3 cm. x 1/4th cm., reddish
brown.

2) Contused abrasion involving fore-head, eyes, nose, both cheeks and
lips red and dark red coloured, underlying bone fractured, underlying,
muscle lacerated.

3) Multiple scratch abrasion present over left lower leg and left foot
size varying from cm. x 1/4th cm., to 1 cm. x 1/4th cm., reddish brown.

4) Multiple scratch abrasion present over back of trunk upper 2/3rd of
size varying from 1 cm. x 1/4th cm. to 5 cm. x 1/4th cm., reddish brown.

5) Abrasion of size 1 cm. x cm. present over left knee, reddish
brown.”

12. According to the doctor, he had found during internal examination
that under scalp haemotoma was present over left frontal and right frontal
region of size 4 cm. x 4 cm, dark red, the frontal bone was fractured and
depressed, fracture line extended up to occipital bone through right
temporal and parietal bone fracture on interior and middle eranial side.
The subarachined hemorrhage was present all over the brain surface and
meninges was congested. In his opinion, the cause of death was head
injury, associated with the injury on the genital region. He has testified
that the two stones that were sent to him in sealed cover along with the
requisition, Exhibit 62, for opinion, could have been used to cause the
injuries on the victim. He has weighed the stones which is 8.5 kg and 7.5
kg. and has opined that there had been forceful sexual intercourse.
13. From the aforesaid medical evidence, it is clear as crystal that
there was forcible sexual intercourse with the girl and the death was
homicidal in nature.
14. Having analysed the said aspect, it is to be seen whether the
prosecution has really established the complicity of the appellant in the
crime in question. We have enumerated the reasons ascribed by the learned
trial Judge and the concurrence given by the High Court, but to satisfy our
conscience, we have thought it seemly to peruse the evidence with all
insight and concern by ourselves.
15. As is manifest, the father of the victim, Krishna, PW-4, had lodged
the FIR immediately i.e. at 9:10 p.m. The FIR clearly stated that the
accused had taken away the victim. The role of the accused and the
suspicion was thus immediately reported. PW-1, mother of the deceased, has
deposed that her daughter, the deceased girl, was playing in the courtyard
along with other children while she was doing the household work and when
she came back to courtyard, she found that the child was missing and she
saw the appellant going on the bicycle. Be it clarified, she had not
actually seen the accused taking away the victim but, as the evidence
brought on record do reveal, five prosecution witnesses are the eye
witnesses to the factum of accused taking away the minor girl. On a
studied scrutiny of the evidence it becomes graphically clear that when the
mother had gone in search of her, Vandana Ramkar, PW-5, had told her that
the child had gone on bicycle with the appellant. PW-5, in her testimony,
has unambiguously stated about the said fact. It has come in the testimony
of PW-1 that her daughter was wearing a blue midi and black top on her
person, and she has identified the said clothes which have been brought on
record as Articles 6, 9 and 10. From the cross-examination it is manifest
that they knew the appellant earlier, and it is also demonstrable from the
evidence of Vandana Ramkar, PW-5, that the appellant had taken the girl on
the bicycle. It has come in the evidence of Baby Sharma, PW-6, that about
7.30 pm on 3.4.2008 the appellant while going on the bicycle fell down
near grocery shop and, thereafter, the cyclist and the girl came to
purchase “Minto Fresh”. As deposed by her the girl was wearing a black
top and blue skirt on her person. The said witness has identified the
appellant and also identified the photograph of the girl, Article 12. She
has also identified the clothes of the girl. PW-12, Kavita, has deposed
that her husband, Subhash, PW-11 and Krushna, PW-4, father of the girl,
were working at the same place and on the fateful day the appellant had
come to her house and told her husband Subhash, PW-11, who was busy in
repairing a tape-recorder that he could repair the same and after checking
it, he found some parts were damaged and needed to be replaced and for the
said purpose he took Rs.20 from PW-11 and after 15 minutes came with the
part and tried to repair it but could not succeed. He left the house of
PW-11 at 4.00 pm. It is in her testimony that about 6.00 pm the appellant
came to her house again and as she was feeling giddy and had reclined on
the cot, he sprinkled some water on her face. It is deposed by her that
her daughter, Akansha, and the deceased were playing in the courtyard and
at that time the appellant who was standing in the courtyard had told
Akansha and the minor girl that he would buy them chocolates and,
therefore, they should accompany him. As the daughter of PW-12 was not
wearing proper clothes she came back to her and the appellant took the
deceased with him. According to her testimony the girl sat on the rod of
the bicycle. It is testified by her that as the appellant did not bring
back the child, they went in search of her. She has clearly deposed about
the acquaintance of the appellant with her family. It is apt to state here
that nothing has been elicited in the cross-examination to raise any doubt
about the veracity of her version.
16. Manisha, PW-2, has deposed that her father-in-law runs a tea stall
and she had the occasion to know the appellant. She has supported the
version of the prosecution by stating that the appellant had come to her
house about 7.30 p.m. and a girl aged about four years was with him. She
has stated that the girl was dressed in black top and blue apparel and on a
query being made, the appellant had introduced the child as the daughter of
his friend and he was going to ‘Tekdi-Wadi’ along with the girl. In the
cross-examination it has only been elicited that she was not aware of the
character of the appellant. In this context, the evidence of Ku. Minal @
Twinkle, PW-3, aged about 11 years is extremely significant. She has
clearly deposed that PW-1 is a resident of the locality and she knew the
deceased girl as she used to come to their house for playing with her
younger sister. She has emphatically stated that the deceased was going on
a bicycle sitting on the front rod with one person and on being asked she
said she was going to eat chocolates. She has identified the accused.
From the aforesaid evidence, it is quite vivid that the appellant was last
seen with the deceased and there is no justification to discredit the
testimony of the witnesses. Nothing has been brought on record that they
had any axe to grind against the appellant. The fact that the appellant
was taking the minor child on his bicycle, and stopped at shop of Baby
Sharma, PW-6, to purchase chocolate and was also seen at other places as
testified by other witnesses has been proven to the hilt. There are really
no contradictions and discrepancies that would compel the court to discard
their evidence.
17. Be it noted, in appeal the High Court has observed that even if the
testimony of Minal, PW-3, is left out from consideration there is ample
evidence to show that accused had taken the deceased under the guise of
offering her chocolates. In our considered view, there is no justification
not to rely upon the testimony of the said witness. She has identified the
appellant in court and has stood firm in her version. Her identification
of the accused-appellant in the open court is piece of substantive evidence
as has been held in Dana Yadav V. State of Bihar[1] and such identification
by her has not been shaken or contradicted. Be it noted, the High Court
has not rejected the said evidence, but has only opined that even if the
testimony is not accepted, then also the identification has been proved.
We think the testimony of PW-3 further strengthens the case of the
prosecution. Considering the evidence brought on record in totality, the
irresistible conclusion is that the deceased was last seen with the
appellant. In this context, a fruitful reference may be made to the
observations made in Dharam Deo Yadav V. State of Uttar Pradesh[2], wherein
it has been held thus:
“… if the prosecution, on the basis of reliable evidence, establishes
that the missing person was seen in the company of the accused and was
never seen thereafter, it is obligatory on the part of the accused to
explain he circumstances in which the missing person and the accused parted
company.”

In the instant case, the appellant has not offered any explanation.
18. The next circumstance which has been taken note of by the learned
trial Judge as well as by the High Court pertains to leading to discovery
by the appellant. As is evincible, the panch witness, Anand Borkar, PW-8,
has proved Exhibit 29, the statement of the accused relating to discovery
of the spot wherefrom the dead body was found. He has also supported the
seizure panchnama, Exhibit 31, wherefrom the blood stained earth, two
stones, nikar, Minto Fresh chocolate and one empty rapper were seized.
According to the said witness the said articles were seized vide Exhibit
31. PW-10, Santosh Keche, has proved the seizure of the bicycle from the
godown at the instance of the appellant. The spot which was shown by the
appellant and the godown from which bicycle was seized, as has come in the
evidence, is in the vicinity where the dead body was found. Vide Exhibit
34, the clothes, handkerchief and foot wear of the accused were seized.
The stones smeared with blood had been seized at the instance of the
accused.
19. Learned counsel for the appellant has submitted that the seizure
witnesses cannot be believed as the proper procedure has not been followed.
As we find from the evidence on record the appellant was in custody and he
had led to recovery. The search and seizure has also been supported in
minute detail by the Investigating Officer. It is also evident that the
search witnesses are independent witnesses and their evidence inspire
confidence. While accepting or rejecting the factors of discovery, certain
principles are to be kept in mind. The Privy Council in Pulukuri Kotayya
V. King Emperor[3] has held thus:

“It is fallacious to treat the ‘fact discovered’ within the section as
equivalent to the object produced; the fact discovered embraces the place
from which the object is produced and the knowledge of the accused as to
this, and the information given must relate distinctly to this fact.
Information as to past user, or the past history, of the object produced is
not related to its discovery in the setting in which it is discovered.
Information supplied by a person in custody that ‘I will produce a knife
concealed in the roof of my house’ does not lead to the discovery of a
knife; knives were discovered many years ago. It leads to the discovery of
the fact that a knife is concealed in the house of the informant to his
knowledge, and if the knife is proved to have been used in the commission
of the offence, the fact discovered is very relevant. But if to the
statement the words be added ‘with which I stabbed A’, these words are
inadmissible since they do not relate to the discovery of the knife in the
house of the informant.”

20. In Mohmed Inayatullah V. The State of Maharashtra[4], while
dealing with the ambit and scope of Section 27 of the Evidence Act, the
Court held that:-
“Although the interpretation and scope of Section 27 has been [pic]the
subject of several authoritative pronouncements, its application to
concrete cases is not always free from difficulty. It will therefore be
worthwhile at the outset, to have a short and swift glance at the section
and be reminded of its requirements. The section says:

“Provided that, when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody
of a police officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered may
be proved.”

The expression “provided that” together with the phrase “whether it amounts
to a confession or not” show that the section is in the nature of an
exception to the preceding provisions particularly Sections 25 and 26. It
is not necessary in this case to consider if this section qualifies, to any
extent, Section 24, also. It will be seen that the first condition
necessary for bringing this section into operation is the discovery of a
fact, albeit a relevant fact, in consequence of the information received
from a person accused of an offence. The second is that the discovery of
such fact must be deposed to. The third is that at the time of the receipt
of the information the accused must be in police custody. The last but the
most important condition is that only “so much of the information” as
relates distinctly to the fact thereby discovered is admissible. The rest
of the information has to be excluded. The word “distinctly” means
“directly”, “indubitably”, “strictly”, “unmistakably”. The word has been
advisedly used to limit and define the scope of the provable information.
The phrase “distinctly relates to the fact thereby discovered” is the
linchpin of the provision. This phrase refers to that part of the
information supplied by the accused which is the direct and immediate cause
of the discovery. The reason behind this partial lifting of the ban against
confessions and statements made to the police, is that if a fact is
actually discovered in consequence of information given by the accused, it
affords some guarantee of truth of that part, and that part only, of the
information which was the clear, immediate and proximate cause of the
discovery. No such guarantee or assurance attaches to the rest of the
statement which may be indirectly or remotely related to the fact
discovered.

At one time it was held that the expression “fact discovered” in the
section is restricted to a physical or material fact which can be perceived
by the senses, and that it does not include a mental fact (see Sukhan v.
Crown[5]; Rex v. Ganee[6]). Now it is fairly settled that the expression
“fact discovered” includes not only the physical object produced, but also
the place from which it is produced and the knowledge of the accused as to
this (see Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar
Pradesh[7]).”

21. In Aftab Ahmad Anasari V. State of Uttaranchal[8] after
referring to the decision in Palukuri Kotayya (supra), the Court adverted
to seizure of clothes of the deceased which were concealed by the accused.
In that context, the Court opined that:-

“The part of the disclosure statement, namely, that the appellant was ready
to show the place where he had concealed the clothes of the deceased is
clearly admissible under Section 27 of the Evidence Act because the same
relates distinctly to the discovery of the clothes of the deceased from
that very place. The contention that even if it is assumed for the sake of
argument that the clothes of the deceased were recovered from the house of
the sister of the appellant pursuant to the voluntary disclosure statement
made by the appellant, the prosecution has failed to prove that the clothes
so recovered belonged to the deceased and therefore, the recovery of the
clothes should not be treated as an incriminating circumstance, is devoid
of merits”.

22. In State of Maharashtra v. Damu[9] it has been held as follows:

” … It is now well settled that recovery of an object is not discovery of
a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision
of the Privy Council in Pulukuri Kotayya v. King Emperor is the most quoted
authority for supporting the interpretation that the ‘fact discovered’
envisaged in the section embraces the place from which the object was
produced, the knowledge of the accused as to it, but the information given
must relate distinctly to that effect.”

23. The similar principle has been laid down in State of
Maharashtra v. Suresh[10], State of Punjab v. Gurnam Kaur[11], Aftab Ahmad
Anasari v. State of Uttaranchal, Bhagwan Dass v. State (NCT of Delhi)[12],
Manu Sharma v. State (NCT of Delhi)[13] and Rumi Bora Dutta v. State of
Assam[14].
24. In the case at hand, as is perceptible, the recovery had taken
place when the appellant was accused of an offence, he was in custody of a
police officer, the recovery had taken place in consequence of information
furnished by him and the panch witnesses have supported the seizure and
nothing has been brought on record to discredit their testimony.
25. Additionally, another aspect can also be taken note of. The
fact that the appellant had led the police officer to find out the spot
where the crime was committed, and the tap where he washed the clothes
eloquently speak of his conduct as the same is admissible in evidence to
establish his conduct. In this context we may refer with profit to the
authority in Prakash Chand v State (Delhi Admn.)[15] wherein the Court
after referring to the decision in H.P. Admn. V. Om Prakash[16] held thus:
“… There is a clear distinction between the conduct of a person against
whom an offence is alleged, which is admissible under Section 8 of the
Evidence Act, if such conduct is influenced by any fact in issue or
relevant fact and the statement made to a Police Officer in the course of
an investigation which is hit by Section 162 of the Criminal Procedure
Code. What is excluded by Section 162, Criminal Procedure Code is the
statement made to a Police Officer in the course of investigation and not
[pic]the evidence relating to the conduct of an accused person (not
amounting to a statement) when confronted or questioned by a Police Officer
during the course of an investigation. For example, the evidence of the
circumstance, simpliciter, that an accused person led a Police Officer and
pointed out the place where stolen articles or weapons which might have
been used in the commission of the offence were found hidden, would be
admissible as conduct, under Section 8 of the Evidence Act, irrespective of
whether any statement by the accused contemporaneously with or antecedent
to such conduct falls within the purview of Section 27 of the Evidence
Act.”

26. In A.N. Vekatesh and another v. State of Karnataka[17] it has
been ruled that:-

“By virtue of Section 8 of the Evidence Act, the conduct of the accused
person is relevant, if such conduct influences or is influenced by any fact
in issue or relevant fact. The evidence of the circumstance, simpliciter,
that the accused pointed out to the police officer, the place where the
dead body of the kidnapped boy was found and on their pointing out the body
was exhumed, would be admissible as conduct under Section 8 irrespective of
the fact whether the statement made by the accused contemporaneously with
or antecedent to such conduct falls within the purview of Section 27 or not
as held by this Court in Prakash Chand v. State (Delhi Admn.). Even if we
hold that the disclosure statement made by the accused-appellants (Exts. P-
15 and P-16) is not admissible under Section 27 of the Evidence Act, still
it is relevant under Section 8. The evidence of the investigating officer
and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had
taken them to the spot and pointed out the place where the dead body was
buried, is an admissible piece of evidence under Section 8 as the conduct
of the accused. Presence of A-1 and A-2 at a place where ransom demand was
to be fulfilled and their action of fleeing on spotting the police party is
a relevant circumstance and are admissible under Section 8 of the Evidence
Act.”

27. We have referred to the aforesaid authorities only to highlight
that in the present case the provision under Section 27 of Evidence Act is
clearly attracted and we see no illegality in the seizure and the Panch
witness have remained embedded in their version. Nothing has been
suggested to disregard their evidence. Therefore, we have no hesitation in
holding that there is ample proof of seizure of the articles. That apart,
we have also additionally considered the conduct of the appellant that
speaks eloquently, for it is worthy of being considered within the
admissible parameters.
28. The next circumstance which has been accepted by the learned
trail Judge and the High Court is the identification of the clothes and
matching of blood stains of the appellant’s clothes. On the clothes that
has been seized, the stains of human blood of ‘A’ Group are detected. The
chemical analysis report, Exhibit 77, has indicated that stains of human
blood of ‘A’ group which is detected on seized clothes, and the blood group
that has been found on the clothes of the accused including his underwear
and handkerchief is the same. The matching of the blood group gains
signification in such a circumstance. The incriminating articles, namely,
stones smeared with blood, the clothes and the blood group matching is an
important circumstance showing complicity of the appellant in the crime in
question.
29. Another facet which has immense significance is the injury
report. It graphically depicts the injuries on the private parts of the
minor girl which has been caused by sexual intercourse. Stains of human
blood of ‘A’ group have also been noticed on the front portion of the nikar
of the accused as per Exhibit 77 which matches the blood group found on the
stones.
30. The other relevant circumstance that weighs against the appellant is
that the dead body of the deceased was recovered at the instance of the
appellant. It was within his special knowledge. The tap where he had
washed his clothes was quite nearby. In this context, it is worthy to note
that the accused had disclosed the facts and on the basis of his disclosure
statement he had led to the place where the dead body of the victim was
found. In Deepak Chandrakant Patil V. State of Maharashtra[18], it was
observed by this Court:
“… The fact that he knew about the dead body of the deceased lying in the
garden behind the house of A-1 is almost clinching in nature and leaves
nothing to doubt…”

31. Regard being had to the aforesaid circumstances, it is to be seen
whether on the basis of the said circumstances, it can be held whether such
circumstances lead towards the guilt of the accused regard being had to the
principle that they lead to a singular conclusion that the appellant is
guilty of the offence and it does not allow any other probability which is
likely to allow the presumption of innocence of the accused. In this
context, we may refer with profit to the decision rendered more than six
decades back in Hanumant Govind Nargundkar V. State of M.P.[19], wherein it
has been held as follows:

” … It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should in the first instance be fully established, and all
the facts so established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any reasonable ground
for a conclusion consistent with the innocence of the accused and it must
be such as to show that within all human probability the act must have been
done by the accused.”

32. In Sharad Birdhichand Sarda v. State of Maharashtra[20], the five
golden principles which have been stated to constitute the “panchsheel” of
the proof of the case based on circumstantial evidence are that the
circumstances from which the conclusion of guilt is to be drawn must or
should be and not merely “may be” fully established; that the facts so
established should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty; that the circumstances should
be of a conclusive nature and tendency; that they should exclude every
possible hypothesis except the one to be proved; and that there must be a
chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that
in all human probability the act must have been done by the accused.
33. In C. Chenga Reddy v. State of A.P[21] it has been held that in a
case based on circumstantial evidence, the circumstances from which the
conclusion of guilt is drawn should be fully proved and such circumstances
must be conclusive in nature, moreover, all the circumstances should be
complete and there should be no gap left in the chain of evidence. That
apart, the proved circumstances must be consistent only with the hypothesis
of the guilt of the accused and totally inconsistent with his innocence.
34. We may also take note of the fact that the appellant in his statement
under Section 313 CrPC, except making a bald denial, has not stated
anything. In this context, we may refer with profit to a decision in
Suresh (supra) wherein it has been held that there can be three
possibilities when an accused points to the place where the incriminating
material is concealed without stating that it was concealed by himself.
Elucidating on the three possibilities, the Court observed thus:
” … One is that he himself would have concealed it. Second is that he
would have seen somebody else concealing it. And the third is [pic]that he
would have been told by another person that it was concealed there. But if
the accused declines to tell the criminal court that his knowledge about
the concealment was on account of one of the last two possibilities the
criminal court can presume that it was concealed by the accused himself.
This is because the accused is the only person who can offer the
explanation as to how else he came to know of such concealment and if he
chooses to refrain from telling the court as to how else he came to know of
it, the presumption is a well-justified course to be adopted by the
criminal court that the concealment was made by himself.”

35. On a critical analysis of the evidence on record, we are convinced
that the circumstances that have been clearly established are that the
appellant was seen in the courtyard where the minor girl and other children
were playing; that the appellant was seen taking the deceased on his
bicycle; that he had gone to the grocery shop owned by PW-6 to buy Mint
chocolate along with her; that the accused had told PW-2 that the child was
the daughter of his friend and he was going to ‘Tekdi-Wadi’ along with the
girl; that the appellant had led to discovery of the dead body of the
deceased, the place where he had washed his clothes and at his instance the
stones smeared with blood were recovered; that the medical report clearly
indicates about the injuries sustained by the deceased on her body; that
the injuries sustained on the private parts have been stated by the doctor
to have been caused by forcible sexual intercourse; that the stones that
were seized were smeared with blood and the medical evidence corroborates
the fact that injuries could have been caused by battering with stones;
that the chemical analysis report shows that the blood group on the stones
matches with the blood group found on the clothes of the appellant; that
the appellant has not offered any explanation with regard to the recovery
made at his instance; and that nothing has been stated in his examination
under Section 313 CrPC that there was any justifiable reason to implicate
him in the crime in question. Thus, we find that each of the incriminating
circumstances has been clearly established and the chain of circumstances
are conclusive in nature to exclude any kind of hypothesis, but the one
proposed to be proved, and lead to a definite conclusion that the crime was
committed by the accused. Therefore, we have no hesitation in affirming
the judgment of conviction rendered by the learned trial Judge and affirmed
by the High Court.
36. Now we shall proceed to deal with the facet of sentence. In Bachan
Singh v. State of Punjab[22], the Court held thus:-

“(a) The normal rule is that the offence of murder shall be punished with
the sentence of life imprisonment. The court can depart from that rule and
impose the sentence of death only if there are special reasons for doing
so. Such reasons must be recorded in writing before imposing the death
sentence.

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

37. In the said case, the Court referred to the decision in Furman v.
Georgia[23] and noted the suggestion given by the learned counsel about the
aggravating and the mitigating circumstances. While discussing about the
aggravating circumstances, the Court noted the aggravating circumstances
suggested by the counsel which read as follows:-
“Aggravating circumstances: A court may, however, in the following cases
impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves
extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or
of a member of any police force or of any public servant and was committed-

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member
or public servant in the lawful discharge of his duty as such member or
public servant whether at the time of murder he was such member or public
servant, as the case may be, or had ceased to be such member or public
servant; or

(d) if the murder is of a person who had acted in the lawful discharge of
his duty under Section 43 of the Code of Criminal Procedure, 1973, or who
had rendered assistance to a Magistrate or a police officer demanding his
aid or requiring his assistance under Section 37 and Section 129 of the
said Code.”

After reproducing the same, the Court opined:-

“Stated broadly, there can be no objection to the acceptance of these
indicators but as we have indicated already, we would prefer not to fetter
judicial discretion by attempting to make an exhaustive enumeration one way
or the other.”

38. Thereafter, the Court referred to the suggestions pertaining to
mitigating circumstances:-

“Mitigating circumstances.-In the exercise of its discretion in the above
cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or
emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be
sentenced to death.

(3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The
State shall by evidence prove that the accused does not satisfy the
conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed
that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another
person.

(7) That the condition of the accused showed that he was mentally defective
and that the said defect impaired his capacity to appreciate the
criminality of his conduct.”

After reproducing the above, the Court observed:-

“We will do no more than to say that these are undoubtedly relevant
circumstances and must be given great weight in the determination of
sentence.”

39. In the said case, the Court has also held thus:-

“It is, therefore, imperative to voice the concern that courts, aided by
the broad illustrative guide-lines indicated by us, will discharge the
onerous function with evermore scrupulous care and humane concern, directed
along the highroad of legislative policy outlined in Section 354(3) viz.
that for persons convicted of murder, life imprisonment is the rule and
death sentence an exception. A real and abiding concern for the dignity of
human life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed.”

40. In Machhi Singh and Others v. State of Punjab[24] a three-Judge Bench
has explained the concept of rarest of the rare cases by stating that:-

“The reasons why the community as a whole does not endorse the humanistic
approach reflected in ‘death sentence-in-no-case’ doctrine are not far to
seek. In the first place, the very humanistic edifice is constructed on the
foundation of ‘reverence for life’ principle. When a member of the
community violates this very principle by killing another [pic]member, the
society may not feel itself bound by the shackles of this doctrine.
Secondly, it has to be realised that every member of the community is able
to live with safety without his or her own life being endangered because of
the protective arm of the community and on account of the rule of law
enforced by it. The very existence of the rule of law and the fear of being
brought to book operates as a deterrent for those who have no scruples in
killing others if it suits their ends. Every member of the community owes a
debt to the community for this protection.”

41. Thereafter, after adverting to the aspects of the feeling of the
community and its desire for self-preservation, the Court opined that the
community may well withdraw the protection by sanctioning the death
penalty. The Court in that regard ruled thus:-
“But the community will not do so in every case. It may do so ‘in the
rarest of rare cases’ when its collective conscience is so shocked that it
will expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty.”

42. It is apt to state here that in the said case, emphasis was laid on
certain aspects, namely, manner of commission of murder, motive for
commission of murder, anti-social or socially abhorrent nature of the
crime, magnitude of crime and personality of the victim of murder.
43. After so enumerating the propositions that emerged out from Bachan
Singh (supra) were culled out which are as follows:-
“The following propositions emerge from Bachan Singh case:

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

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

(iii) Life imprisonment is the rule and death sentence is an exception. In
other words death sentence must be imposed only when life imprisonment
appears to be an altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and only provided, the
option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and circumstances of
the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances have to be accorded
full weightage and a just balance has to be struck between the aggravating
and the mitigating circumstances before the option is exercised.”

44. Thereafter, the three-Judge Bench opined that to apply said
guidelines, the following questions are required to be answered:-
“(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?”

In the said case, the Court upheld the extreme penalty of death
in respect of three accused persons.

45. In Haresh Mohandas Rajput v. State of Maharashtra[25] while dealing
with the situation where the death sentence is warranted the two-Judge
Bench referred to the guidelines laid down in Bachan Singh (supra) and the
principles culled out in Machhi Singh (supra) and opined as follows:-

“In Machhi Singh v. State of Punjab this Court expanded the “rarest of
rare” formulation beyond the aggravating factors listed in Bachan Singh to
cases where the “collective conscience” of the community is so shocked that
it will expect the holders of the judicial power centre to inflict the
death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining the death penalty, such a penalty
can be inflicted. But the Bench in this case underlined that full weightage
must be accorded to the mitigating circumstances in a case and a just
balance had to be struck between the aggravating and the mitigating
circumstances.”

After so stating, the Court ruled thus:-

“The rarest of the rare case” comes when a convict would be a menace and
threat to the harmonious and peaceful coexistence of the society. The crime
may be heinous or brutal but may not be in the category of “the rarest of
the rare case”. There must be no reason to believe that the accused cannot
be reformed or rehabilitated and that he is likely to continue criminal
acts of violence as would constitute a continuing threat to the society.
The accused may be a menace to the society and would continue to be so,
threatening its peaceful and harmonious coexistence. The manner in which
the crime is committed must be such that it may result in intense and
extreme indignation of the community and shock the collective conscience of
the society. Where an accused does not act on any spur-of-the-moment
provocation and indulges himself in a deliberately planned crime and
[pic]meticulously executes it, the death sentence may be the most
appropriate punishment for such a ghastly crime. The death sentence may be
warranted where the victims are innocent children and helpless women. Thus,
in case the crime is committed in a most cruel and inhuman manner which is
an extremely brutal, grotesque, diabolical, revolting and dastardly manner,
where his act affects the entire moral fibre of the society e.g. crime
committed for power or political ambition or indulging in organised
criminal activities, death sentence should be awarded. (See C. Muniappan v.
State of T.N[26]., Dara Singh v. Republic of India[27], Surendra Koli v.
State of U.P.[28], Mohd. Mannan[29] and Sudam v. State of Maharashtra[30].)

Thus, it is evident that for awarding the death sentence, there must be
existence of aggravating circumstances and the consequential absence of
mitigating circumstances. As to whether the death sentence should be
awarded, would depend upon the factual scenario of the case in hand.”

46. In Dhanjoy Chatterjee alias Dhana v. State of W.B.[31], this Court
was dealing with the murder of a young girl of about 18 years. The Court
took note of the fact that the accused was a married man of 27 years of
age, the principles stated in Bachan Singh’s case and further took note of
the fact that rise of violent crimes against women in recent years, and
thereafter on consideration of aggravating factors and mitigating
circumstances and opined that:-

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

47. After so stating, the Court took note of the fact that the deceased
was a school going girl and it was the sacred duty of the appellant, being
a security guard, to ensure the safety of the inhabitants of the flats in
the apartment but to gratify his lust he had raped and murdered the girl in
retaliation which made the crime more heinous. Appreciating the manner in
which the barbaric crime was committed on a helpless and defenceless school-
going girl of 18 years the Court came to hold that the case fell in the
category of rarest of the rare cases and accordingly affirmed the capital
punishment imposed by the High Court.
48. In Laxman Naik v. State of Orissa[32] the Court has commenced the
judgment with the following passage:-
“The present case before us reveals a sordid story which took place
sometime in the afternoon of February 17, 1990, in which the alleged sexual
assault followed by brutal and merciless murder by the dastardly and
monstrous act of abhorrent nature is said to have been committed by the
appellant herein who is none else but an agnate and paternal uncle of the
deceased victim Nitma, a girl of the tender age of 7 years who fell a prey
to his lust which sends shocking waves not only to the judicial conscience
but to everyone having slightest sense of human values and particularly to
the blood relations and the society at large”.

49. Be it stated, in the said case the High Court had dismissed the
appellant’s appeal and confirmed the death sentence awarded to him. While
discussing as regards the justifiability of sentence the Court referred to
the decision in Bachan Singh’s case and opined that there were absolutely
no mitigating circumstances and, on the contrary, the facts of the case
disclosed only aggravating circumstances against the appellant.
Elaborating further the Court held thus:-
“The hard facts of the present case are that the appellant Laxman is the
uncle of the deceased and almost occupied the status and position that of a
guardian. Consequently the victim who was aged about 7 years must have
reposed complete confidence in the appellant and while reposing such faith
and confidence in the appellant must have believed in his bona fides and it
was on account of such a faith and belief that she acted upon the command
of the appellant in accompanying him under the impression that she was
being taken to her village unmindful of the preplanned unholy designs of
the appellant. The victim was a totally helpless child there being no one
to protect her in the desert where she was taken by the appellant misusing
her confidence to fulfil his lust. It appears that the appellant had
preplanned to commit the crime by resorting to diabolical methods and it
was with that object that he took the girl to a lonely place to execute his
dastardly act.”

After so stating the Court while affirming the death sentence opined
that:-
” …….The victim of the age of Nitma could not have even ever resisted
the act with which she was subjected to. The appellant seems to have acted
in a beastly manner as after satisfying his lust he thought that the victim
might expose him for the commission of the offence of forcible rape on her
to the family members and others, the appellant with a view to screen
[pic]the evidence of his crime also put an end to the life of innocent girl
who had seen only seven summers. The evidence on record is indicative of
the fact as to how diabolically the appellant had conceived of his plan and
brutally executed it and such a calculated, cold-blooded and brutal murder
of a girl of a very tender age after committing rape on her would
undoubtedly fall in the category of rarest of the rare cases attracting no
punishment other than the capital punishment and consequently we confirm
the sentence of death imposed upon the appellant for the offence under
Section 302 of the Penal Code.”

50. In Kamta Tiwari and State of M.P.[33] the appellant was convicted
for the offences punishable under Sections 363, 376,302 and 201 of IPC and
sentenced to death by learned trial Judge and the same was affirmed by the
High Court. In appeal the two-Judge Bench referred to the propositions
culled out in Machhi Singh and expressed thus:-
“Taking an overall view of all the facts and circumstances of the instant
case in the light of the above propositions we are of the firm opinion that
the sentence of death should be maintained. In vain we have searched for
[pic]mitigating circumstances – but found aggravating circumstances
aplenty. The evidence on record clearly establishes that the appellant was
close to the family of Parmeshwar and the deceased and her siblings used to
call him ‘Tiwari Uncle’. Obviously her closeness with the appellant
encouraged her to go to his shop, which was near the saloon where she had
gone for a haircut with her father and brother, and ask for some biscuits.
The appellant readily responded to the request by taking her to the nearby
grocery shop of Budhsen and handing over a packet of biscuits apparently as
a prelude to his sinister design which unfolded in her kidnapping, brutal
rape and gruesome murder – as the numerous injuries on her person testify;
and the finale was the dumping of her dead body in a well. When an innocent
hapless girl of 7 years was subjected to such barbaric treatment by a
person who was in a position of her trust his culpability assumes the
proportion of extreme depravity and arouses a sense of revulsion in the
mind of the common man. In fine, the motivation of the perpetrator, the
vulnerability of the victim, the enormity of the crime, the execution
thereof persuade us to hold that this is a “rarest of rare” cases where the
sentence of death is eminently desirable not only to deter others from
committing such atrocious crimes but also to give emphatic expression to
society’s abhorrence of such crimes.”

51. In Bantu v. State of Uttar Pradesh[34] a five year minor girl was
raped and murdered and the appellant was awarded death sentence by the
trial Court which was affirmed by the High Court. This Court found the
appellant guilty of the crime and thereafter referred to the principles
stated in Bachan Singh, Machhi Singh (supra) and Devender Pal Singh v.
State of A.P.[35] and eventually came to hold that the said case fell in
the rarest of the rare category and the capital punishment was warranted.
Being of this view, the Court declined to interfere with the sentence.
52. In Rajendra Pralhadrao Wasnik v. State of Maharashtra[36], the
appellant was awarded sentence of death by the learned trial Judge which
was confirmed by the High Court, for he was found guilty of the offences
punishable under Sections 376(2)(f), 377 and 302 IPC. In the said case,
the prosecution had proven that the appellant had lured a three year old
minor girl child on the pretext of buying her biscuits and then raped her
and eventually being apprehensive of being identified, killed her. In that
context, while dismissing the appeal, the Court ruled thus:
“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 PW 2. In other words, the accused, by his
conduct, has belied the human relationship of trust and worthiness. 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.”

53. At this juncture, we may refer to some authorities where in cases of
rape and murder, the death penalty was not awarded. In State of T.N. V.
Suresh and Another[37], the Court unsettled the judgment of acquittal
recorded by the High Court and found that the accused was guilty of rape of
a pregnant woman and also murder. While awarding the sentence of life
imprisonment, the Court expressed the view:-
“The above discussion takes us to the final conclusion that the High Court
has seriously erred in upsetting the conviction entered by the Sessions
Court as against A-2 and A-3. The erroneous approach has resulted in
miscarriage of justice by allowing the two perpetrators of a dastardly
crime committed against a helpless young pregnant housewife who was
sleeping in her own apartment with her little baby sleeping by her side and
during the absence of her husband. We strongly feel that the error
committed by the High Court must be undone by restoring the conviction
passed against A-2 and A-3, though we are not inclined, at this distance of
time, to restore the sentence of death passed by the trial court on those
two accused”.

From the aforesaid authority, it is seen that the Court did not think
it appropriate to restore the death sentence passed by the trial court
regard being had to the passage of time.
54. In Akhtar V. State of U.P.[38], the appellant was found guilty of
murder of a young girl after committing rape on her and was sentenced to
death by the learned Sessions Judge and the said sentence was confirmed by
the High Court. The two-Judge Bench referred to the decisions in Laxman
Naik (supra), Kamta Tiwari (supra) and addressed itself whether the case in
hand was one of the rarest of the rare case for which punishment of death
could be awarded. The Court distinguished the two decisions which have
been referred to hereinabove and ruled:-
“In the case in hand on examining the evidence of the three witnesses it
appears to us that the accused-appellant has committed the murder of the
deceased girl not intentionally and with any premeditation. On the other
hand the accused-appellant found a young girl alone in a lonely place,
picked her up for committing rape; while committing rape and in the process
by way of gagging the girl has died. The medical [pic]evidence also
indicates that the death is on account of asphyxia. In the circumstances we
are of the considered opinion that the case in hand cannot be held to be
one of the rarest of rare cases justifying the punishment of death”.

55. In State of Maharashtra V. Barat Fakira Dhiwar[39], a three-year old
girl was raped and murdered by the accused. The learned trial Judge
convicted the accused and awarded the death sentence. The High Court had
set aside the order of conviction and acquitted him for the offences. This
Court, on scrutiny of the evidence found the accused was guilty of rape and
murder. Thereafter, the Court proceeded to deal with the sentence and in
that context observed:-
“Regarding sentence we would have concurred with the Sessions Court’s view
that the extreme penalty of death can be chosen for such a crime. However,
as the accused was once acquitted by the High Court we refrain from
imposing that extreme penalty in spite of the fact that this case is
perilously near the region of “rarest of the rare cases”, as envisaged by
the Constitution Bench in Bachan Singh v. State of Punjab. However, the
lesser option is not unquestionably foreclosed and so we alter the
sentence, in regard to the offence under Section 302 IPC, to imprisonment
for life”.

56. Keeping in view the aforesaid authorities, we shall proceed to
adumbrate what is the duty of the Court when the collective conscience is
shocked because of the crime committed. When the crime is diabolical in
nature and invites abhorrence of the collective, it shocks the judicial
conscience and impels it to react keeping in view the collective
conscience, cry of the community for justice and the intense indignation
the manner in which the brutal crime is committed. We are absolutely
conscious that Judges while imposing sentence, should never be swayed away
with any kind of individual philosophy and predilections. It should never
have the flavour of Judge-centric attitude or perception. It has to
satisfy the test laid down in various precedents relating to rarest of the
rare case. We are also required to pose two questions that has been stated
in Machhi Singh’s case.
57. Presently, we shall proceed to dwell upon the manner in which the
crime was committed. Materials on record clearly reveal that the appellant
was well acquainted with the inhabitants of the locality and as is
demonstrable he had access to the house of the father of the deceased and
the children used to call him “uncle”. He had lured the deceased to go
with him to have chocolates. It is an act of taking advantage of absolute
innocence. He had taken the deceased from place to place by his bicycle
and eventually raped her in a brutal manner, as if he had the insatiable
and ravenous appetite. The injuries caused on the minor girl are likely to
send a chill in the spine of the society and shiver in the marrows of human
conscience. He had battered her to death by assaulting her with two heavy
stones. The injured minor girl could not have shown any kind of
resistance. It is not a case where the accused had a momentary lapse. It
is also not a case where the minor child had died because of profuse
bleeding due to rape but because of the deliberate cruel assault by the
appellant. After the savage act was over, the coolness of the appellant is
evident, for he washed the clothes on the tap and took proper care to hide
things. As is manifest, he even did not think for a moment the trauma and
torture that was caused to the deceased. The gullibility and vulnerability
of the four year girl, who could not have nurtured any idea about the
maladroitly designed biological desires of this nature, went with the uncle
who extinguished her life spark. The barbaric act of the appellant does
not remotely show any concern for the precious life of a young minor child
who had really not seen life. The criminality of the conduct of the
appellant is not only depraved and debased, but can have a menacing effect
on the society. It is calamitous. In this context, we may fruitfully
refer to a passage from Shyam Narain V. State (NCT of Delhi)[40], wherein
it has been observed as follows:
“The wanton lust, vicious appetite, depravity of senses, mortgage of mind
to the inferior endowments of nature, the servility to the loathsome beast
of passion and absolutely unchained carnal desire have driven the appellant
to commit a crime which can bring in a “tsunami” of shock in the mind of
the collective, send a chill down the spine of the society, destroy the
civilised stems of the milieu and comatose the marrows of sensitive
polity”.

In the said case, while describing the rape on an eight year old
girl, the Court observed:

“Almost for the last three decades, this Court has been expressing its
agony and distress pertaining to the increased rate of crimes against
women. The eight year old girl, who was supposed to spend time in
cheerfulness, was dealt with animal passion and her dignity and purity of
physical frame was shattered. The plight of the child and the shock
suffered by her can be well visualised. The torment on the child has the
potentiality to corrode the poise and equanimity of any civilised society.
The age-old wise saying that “child is a gift of the providence” enters
into the realm of absurdity. The young girl, with efflux of time, would
grow with a traumatic experience, an unforgettable shame. She shall always
be haunted by the memory replete with heavy crush of disaster constantly
echoing the chill air of the past forcing her to a state of nightmarish
melancholia. She may not be able to assert the honour of a woman for no
fault of hers.”

58. In the case at hand, as we find, not only the rape was committed in a
brutal manner but murder was also committed in a barbaric manner. The rape
of a minor girl child is nothing but a monstrous burial of her dignity in
the darkness. It is a crime against the holy body of a girl child and the
soul of the society and such a crime is aggravated by the manner in which
it has been committed. The nature of the crime and the manner in which it
has been committed speaks about its uncommonness. The crime speaks of
depravity, degradation and uncommonality. It is diabolical and barbaric.
The crime was committed in an inhuman manner. Indubitably, these go a long
way to establish the aggravating circumstances.
59. We are absolutely conscious that mitigating circumstances are to be
taken into consideration. Learned counsel for the appellant pointing out
the mitigating circumstances would submit that the appellant is in his mid
fifties and there is possibility of his reformation. Be it noted, the
appellant was aged about forty-seven years at the time of commission of the
crime. As is noticeable, there has been no remorse on the part of the
appellant. There are cases when this Court has commuted the death sentence
to life finding that the accused has expressed remorse or the crime was not
pre-meditated. But the obtaining factual matrix when unfolded stage by
stage would show the premeditation, the proclivity and the rapacious
desire. Learned counsel would submit that the appellant had no criminal
antecedents but we find that he was a history-sheeter and had number of
cases are pending against him. That alone may not be sufficient. The
appalling cruelty shown by him to the minor girl child is extremely
shocking and it gets accentuated, when his age is taken into consideration.
It was not committed under any mental stress or emotional disturbance and
it is difficult to comprehend that he would not commit such acts and would
be reformed or rehabilitated. As the circumstances would graphically
depict, he would remain a menace to the society, for a defenceless child
has become his prey. In our considered opinion, there are no mitigating
circumstances.
60. As we perceive, this case deserves to fall in the category of rarest
of the rare cases. It is inconceivable from the perspective of the society
that a married man aged about two scores and seven make a four year minor
innocent girl child the prey of his lust and deliberately cause her death.
A helpless and defenceless child gets raped and murdered because of the
acquaintance of the appellant with the people of the society. This is not
only betrayal of an individual trust but destruction and devastation of
social trust. It is perversity in its enormity. It irrefragably invites
the extreme abhorrence and indignation of the collective. It is an
anathema to the social balance. In our view, it meets the test of rarest
of the rare case and we unhesitatingly so hold.
61. Consequently, we dismiss the criminal appeals preferred by the
appellant and affirm the death sentence.
………………………………….J.
[DIPAK MISRA]

…………………………………..J.
[ROHINTON FALI NARIMAN]

………………………………….J.
[UDAY UMESH LALIT]

NEW DELHI
NOVEMBER 26, 2014.

———————–
[1] (2002) 7 SCC 295
[2] (2014) 5 SCC 509
[3] AIR 1947 PC 67
[4] (1976) 1 SCC 828
[5] AIR 1929 Lah. 344
[6] AIR 1932 Bom 286
[7] 1962 Supp 2 SCR 830
[8] (2010) 2 SCC 583
[9] (2000) 6 SCC 269
[10] (2000) 1 SCC 471
[11] (2009) 11 SCC 225
[12] (2011) 6 SCC 396
[13] (2010) 6 SCC 1
[14] (2013) 7 SCC 417
[15] (1979) 3 SCC 90
[16] (1972) 1 SCC 249
[17] (2005) 7 SCC 714
[18] (2006) 10 SCC 151
[19] AIR 1952 SC 343
[20] (1984) 4 SCC 116
[21] (1996) 10 SCC 193
[22] (1980) 2 SCC 684
[23] 33 L Ed 2d 346 : 408 US 238 (1972)
[24] (1983) 3 SCC 470
[25] (2011) 12 SCC 56
[26] (2010) 9 SCC 567
[27] (2011) 2 SCC 490
[28] (2011) 4 SCC 80
[29] (2011) 5 SCC 317
[30] (2011) 7 SCC 125s
[31] (1994) 2 SCC 220
[32] (1994) 3 SCC 381
[33] (1996) 6 SCC 250
[34] (2008) 11 SCC 113
[35] (2002) 5 SCC 234
[36] (2012) 4 SCC 37
[37] (1998) 2 SCC 372
[38] (1999) 6 SCC 60
[39] (2002) 1 SCC 622
[40] (2013) 7 SCC 77

———————–
65

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