Rajasthan High Court - Jaipur
Sundar @ Surendra @ Santu Son Of Shri ... vs State Of Rajasthan on 14 March, 2023
Bench: Pankaj Bhandari, Anil Kumar Upman
[2023/RJJP/003860]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Death Reference No. 4/2021
State of Rajasthan, through P.P
----Petitioner
Versus
Sundar @ Surendra @ Santu Son of Nagaji, Aged About 26
Years, Resident of Hokra, Police Station Pushkar, District Ajmer
(At present confined in Central Jail Ajmer)
----Respondent
Connected With
D.B. Criminal Appeal (Db) No. 185/2021
Sundar @ Surendra @ Santu Son of Shri Nagaji, Aged About 26
Years, Resident of Hokra, Police Station Pushkar, District Ajmer
(Raj) (At present confined in Central Jail, Ajmer)
----Petitioner
Versus
State of Rajasthan, through P.P
----Respondent
For Petitioner(s) : Mr. Rajesh Kumar Sharma with
Ms. Zeenat Khan
For Respondent(s) : Mr. Javed Choudhary, AGA
Mr. Dishant Karnawat for
Mr. Kapil Prakash Mathur
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
JUDGMENT
Judgment pronounced on ::: 14/03/2023
Judgment reserved on ::: 02/02/2023
BY THE COURT : (PER HON'BLE ANIL KUMAR UPMAN, J.)
1. This reference has been received from the Court of Special Judge, POCSO Act, 2012 & Commission for Child (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (2 of 26) [CRLDR-4/2021] Rights Protection Act, 2005, No.1, Ajmer (for short, "the trial court") under Section 366 of the Code of Criminal Procedure (for brevity, "Cr.P.C.") for confirmation of the death sentence awarded to the accused Sundar @ Surendra @ Santu vide its judgment and order dated 26.10.2021 passed in Sessions Case No.58/2021 arising out of FIR No.128/2021 registered at the Police Station Pushkar, District Ajmer. Separate appeal (No.185/2021) has also been filed by the accused Sundar @ Surendra @ Santu challenging his conviction and sentence against the very same judgment.
2. The accused-appellant had faced trial in Sessions Case No.58/2021 and vide the aforesaid judgment and order dated 26.10.2021, he has been convicted and sentenced as below:-
Offence Sentences and fine awarded Section 376 (A) Death penalty, subject to confirmation of the High IPC and Section Court 5(j) (iv)/6 of POCSO Act Section 376 (3) Life imprisonment which shall extend to IPC remainder of his natural life with a fine of Rs.1,00,000/- and in default of payment of fine, 3 years' additional simple imprisonment Section 201 IPC 7 years' rigorous imprisonment with a fine of Rs.25,000/- and in default of payment of fine, 1 month's additional simple imprisonment All the sentences were ordered to run concurrently
3. Brief facts relevant and essential for disposal of the instant death reference as well as the appeal preferred by the accused appellant are noted hereinbelow:-
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4. As per the prosecution case, on 21.06.2021 at about 10.00 AM, the deceased went for goat herding on the hills of Baijnath Temple. Usually, she returned home at about 6:30 PM but when she did not return in evening, she was searched at all probable places by her family members and other villagers. In night at about 12.00 PM, her half-naked dead body was found about 300 meters away from the hills of Baijnath temple. Her jeans pant was lying nearby and same was stained with blood. The police was informed about this incident and on this information, SHO Police Station Pushkar along with Special Police team reached at the place of incident and took photographs of the scene. Blood-stained soil, three blood-stained stones, jeans pant of the deceased and one aadhar card belonging to the accused Sundar were also seized and sealed in presence of witnesses.
5. On 22.06.2021 at about 5.00 am, a written report (Ex.P/4) was submitted by PW-3 (father of the deceased) to the SHO PS Pushkar, which reads as under:-
lsokesa] Jheku~ Fkkuk vf/kdkjh th iqfyl Fkkuk iq"dj vtesj fo"k;%& eqdnek ntZ djokus ckcr~A egksn;] fuosnu gS fd eSa lq[kkflag iq= HkS: flag jkor fuoklh gksdjk mez 55 o"kZ dy fnukad 21-06-2021 dks esjh iq=h liuk mez 11 o"kZ lqcg 10 cts ?kj ls cS/kukFk egknso (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (4 of 26) [CRLDR-4/2021] dh igkfM;ksa ij cdjh;k pjkus fudyh 'kke dks jkstkuk djhc 6-30 PM ij ?kj vk tkfr Fkh ysfdu dy 'kke dks ?kj ij ugh vkbZ rc eq>s o ifjokj tuksa dks fpUrk gqbZ rc geus xkao okys dks crk;k fd esjh iq=h liuk ?kj ugh vkbZ ifjokj o xkao okyks us lg;ksx djrs gq, cS/kukFk dh igkfM;ksa ij dkQh ryk'k djus ij djhc jkf= dks 12 cts ds yxHkx cS/kukFk efUnj ds if'pe nf{k.k fn'kk esa igkMh ds mij esjh iq=h liuk e`r voLFkk esa iMh feyh ftldh ftUl dh isUV lkbZM esa iMh Fkh o v.Mj fo;j nk;us ikao esa vVdh gqbZ Fkh flj ij ,d eksVk iRFkj iMk gqvk Fkk psgjss o 'kjhj ij pksVs vkbZ gqbZ Fkh o [kwu fc[kjk gqvk FkkA fdlh vKkr O;fDr }kjk esjh ukckfyx iq=h ds lkFk cykRdkj dj mldh gR;k dh xbZ gSA vr% Jheku~ ls fuosnu gS fd vKkr O;fDr ds f[kykQ eqdnek ntZ dj mfpr dkuwuh dk;Zokgh djsaA Hkonh;
xxx
6. On the basis of aforesaid written report (Ex.P/4), a formal FIR No.128/2021 (Ex.P/23) was registered at Police Station Pushkar, District Ajmer for the offences under Sections 376-A, 376-AB, 302 and 201 IPC and Sections 3, 4, 5m and 6 of the POCSO Act. On this FIR, investigation was commenced and the accused-appellant was arrested on 22.06.2021 at 04.45 pm vide arrest memo Ex.P/14. In pursuance of the information given by the accused, the underwear of the accused was recovered and seized vide Ex.P/15. Jeans pant and Kameej (shirt) of the accused-appellant were also recovered and seized vide Ex.P/16 in pursuance of the information given by the accused under Section 27 of the Evidence Act. Post-mortem upon the dead body was conducted by a medical board which issued post-mortem report Ex.P/1, as per which, five injuries were found on the person of the deceased including sign of sexual assault. The medical board (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (5 of 26) [CRLDR-4/2021] opined that death was occurred on account of head injury, i.e. injury No.1. The accused was medically examined wherein as per potency test report (Ex.P/51), he was found potent. Samples of blood on FTA Card and saliva on handkerchief were taken and handed over to the police personnel for FSL. All samples were deposited in FSL on 25.06.2021. DNA report (Ex.P/2) dated 29.06.2021 and FSL report (Ex.P/3) dated 13.07.2021 were also taken on record.
7. Finally, after completion of investigation, the police filed charge-sheet against the accused for the offences punishable under Sections 376(A), 376(3), 302, 201 IPC and Sections 3/4, 5(n)(j)(iv)/6 of POCSO Act.
8. On 27.07.2021, after hearing learned Public Prosecutor, learned counsel for the complainant and learned defence counsel, charges for the offences punishable under Sections 376(A), 376(3), 302 and 201 IPC and Section 5(j)(iv)/6 of POCSO Act were framed against accused. The accused pleaded not guilty and claimed trial.
9. In order to bring home the charges levelled against the accused-appellant, the prosecution examined as many as 20 witnesses and exhibited 51 documents. Thereafter, the accused-appellant was examined under Section 313 Cr.P.C. wherein he stated that the prosecution evidence is wrong and he has falsely been implicated in this case. It was stated by him that on 21.06.2021, he did not meet the deceased, rather he went for labour work and after visiting Baijnath temple, he returned back to home at 07.30 pm along with Lalchand and Goma. It was also (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (6 of 26) [CRLDR-4/2021] stated that his blood and semen samples were not taken. He further stated that the recovered underwear and clothes did not belong to him and his Aadhar card was taken on 23.06.2021 from his father by a police personnel namely Anil. He also stated that at the time of visiting temple, he was carrying his mobile. Inspite of giving opportunity to lead evidence, no witness was produced by the accused-appellant in his defence so the defence evidence was closed. After hearing both the sides, finally, the learned trial court recorded conviction of the accused-appellant and sentenced him as mentioned hereinabove.
10. Shri Rajesh Sharma, learned counsel for the appellant submits that the trial court has erroneously come to the conclusion that the chain of circumstances have proved the guilt of the accused appellant. However, on a proper scrutiny of the evidence, it is perceivable that there are many missing links in version of the prosecution case. Learned counsel further submits that the very presence of the accused-appellant on the site is not established because none of the prosecution witnesses has deposed that he saw the accused-appellant with the deceased. Admittedly, the entire prosecution case rests upon circumstantial evidence and it is well settled law that in case of circumstantial evidence, the prosecution is required to prove the circumstances projected by it beyond all reasonable doubts. The circumstances should establish a close link with each other and form a complete chain unerringly pointing towards the guilt of the accused. There should not be any other hypothesis which is inconsistent with the guilt of the accused. When the prosecution case is examined by (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (7 of 26) [CRLDR-4/2021] keeping these broad principles in mind, it does not inspire confidence. Since there are lot of missing links in the prosecution story, it makes the entire prosecution story doubtful. Learned counsel for the appellant further submits that no incriminating circumstances are available against the accused-appellant as recovery of the jeans pant of the deceased as well as the three blood-stained stones were made from an open place. He further submits that t-shirt and underwear of the deceased were not seized from the place of incident, rather same were seized from mortuary and it creates serious doubt about the prosecution story. He further submits that the alleged recovery of the Aadhar card of the accused is also not established because same was seized on 22.06.2021 at 10.00 am vide Ex.P/9. It is contended by learned counsel that as per the prosecution case, number of villagers and police personnel were present at the place of incident since 12.00 PM but nobody noticed the Aadhar card for about ten hours until it was alleged to be recovered by the police. He further submits that Ex.P-10 which is the inquest report of the dead body was prepared on 22.06.2021 at 07.05 am and in this memo, reference of aadhar card is appearing and as per his submission, this is a fake document as in the third line from top of this memo, FIR number (128/2021) is appearing but by that time, the FIR was not registered.
11. Learned counsel for the appellant further submits that the prosecution has tried to connect the accused with the crime with the help of DNA matching. It is well settled law that DNA test is the most authenticated test available today but if due care is not (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (8 of 26) [CRLDR-4/2021] exercised while collecting, preserving and depositing samples in FSL, then the result may vary. He further submits that human error or manipulation in collecting samples and in depositing process can also not be ruled out. He further submits that the evidentiary value of DNA report is only corroborative and in absence of substantive evidence, conviction cannot be based upon such corroborative piece of evidence. It is also submitted by the learned counsel for the appellant that the Hon'ble Supreme Court, has time and again, held that conviction solely on the basis of DNA matching is dangerous and not safe when the procedure prescribed for collection of samples has not been followed strictly as a slight deviation or negligence from the standard measures may vary the results. Reliance has been placed upon the judgment of Hon'ble Supreme Court in the case of Rajeev Singh Vs. State of Bihar reported in 2015 Vol.16 SCC 369. He submits that that in this case, Hon'ble Supreme Court considering the evidentiary value of DNA report, has disbelieved the DNA report for the reason that due care and caution was not exercised while handling the samples and due procedure was not followed while forwarding samples to the FSL. Learned counsel for the appellant also relied upon the judgment of Hon'ble Apex Court in the case of Rahul vs. State of Delhi, Ministry of Home Affairs & Anr. reported in 2023 Cri.L.J. 1 and submits that only on the basis of DNA report, conviction should not be recorded as forensic evidence in this case was neither scientifically nor legally proved.
12. Learned counsel for the appellant further submits that the prosecution evidence is not reliable and cannot be believed as the (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (9 of 26) [CRLDR-4/2021] same is full of contradictions and improvements. Finally, assailing the sentence part of the judgment, he submits that the present case does not fall in the category of "rarest of rare case" and life imprisonment would be sufficient in view of the gravity of the offence and considering the age of the accused as well as the fact that the appellant is a father of a girl child of about 27 months.
13. Per contra, learned Public Prosecutor and learned counsel for the complainant supported the judgment passed by the trial court and submits that the learned trial court has rightly recorded the conviction of the accused-appellant as the chain of circumstances were proved to be completed. The Aadhar card of the accused was found at the place of incident and blood-stained clothes were recovered at the instance of the accused and same were matched in DNA analysis. They further submits that in vaginal swab, DNA of the accused has also been found, therefore, the trial court has not committed any error in convicting and sentencing the accused- appellant.
14. In order to appreciate the contentions advanced at bar, we perused the entire record and appreciated the evidence.
15. It is evident from the evidence available on record that Aadhar Card of the accused appellant was found at the place of incident and same was recovered vide Ex.P/9. The recovery of the Aadhar Card was proved by the prosecution witnesses namely Heera Singh (PW.4) and Khinya Singh (PW.5). In their testimony, they specifically stated that Aadhar Card of the accused appellant was found at the place of incident and same was seized by the police vide Ex.P/9. This was the first circumstance against the (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (10 of 26) [CRLDR-4/2021] accused appellant and therefore he was interrogated and later on arrested by the police vide arrest memo Ex.P/14. The presence of the accused appellant near the place of incident is also not disputed as the accused-appellant himself admitted that he had gone to visit the temple and he was seen by Poonam Singh (PW.15) who was the priest in the Baijnath temple. The relevant part of the examination-in-chief of the said witness is reproduced hereinbelow for the sake of ready-reference:-
"eSa oStukFk eafnj dk iqtkjh gWwa blfy, eSa eafnj esa esjk dke dj jgk FkkA eafnj ds ckj dq.M gS ogkWa lRrq mQZ lqjsUnz cSBk gqvk Fkk fQj oks dq.M esa ugkus yx x;kA fQj eSaus pk; cukbZ Fkh rks lqjsUnz mQZ lRrq dks Hkh pk; fiykbZA fQj oks eafnj ds ihNs ls jkLrs ls gksdjk dh rjQ igkM ds jkLrs pyk x;kA "
16. In cross-examination, he stated that the deceased had also come to the temple to take sugar to prepare tea. The relevant part of the cross-examination of the said witness is reproduced hereinbelow for the sake of ready reference:-
" ;g dguk lgh gS fd eSus gh liuk ds ?kjokyks dks crk;k fd liuk lk<s pkj cts 'kDdj ysdj igkMh dh rjQ xbZ FkhA "
17. Apart from this, three other witnesses had also seen the accused appellant near the place of incident at the relevant point of time and according to them, the accused appellant was not looking comfortable.
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18. Shatain (PW.17) deposed that on 21.06.2021 about 4:30 PM, he saw the accused appellant on the way and he was going towards temple. The relevant part of the examination-in-chief of the said witness is reproduced hereinbelow for the sake of ready reference:-
" eSa taxy ls yxHkx lk<s pkj cts jokuk gks x;k FkkA lUrw jkLrs esa feyk tks eafnj dh rjQ tk jgk FkkA"
19. Lalchand (PW.18) also deposed that he and Goma went to search their goats near Baijnath temple hills and the accused appellant was sitting near a black-berry (Jamun) tree and he was looking scared and on asking, he did not reply. The relevant part of the examination-in-chief of this witness is reproduced hereinbelow for the sake of ready-reference:-
" ml fnu gekjh cdfj;ka pjdj okfil ugh vk;hA fQj eSa vkSj xksek lk<s Ng cts ds yxHkx cdfj;ka <w<us oStukFk igkMh ij x;sA gekjh cdfj;ka cStukFk igkMh ij fey xbZ ftUgs ysdj ge okfil vk jgs FksA fQj ,d tkequ ds isM ds ikl lUrq cSBk Fkk tks dkQh Mjk gqvk FkkA geusa mls iwNk fd D;k gqvk ysfdu mlus gesa dksbZ tokc ugh fn;kA "
20. Goma (PW.19) further corroborated this fact that the accused-appellant was sitting on rock near a black-berry (Jamun) tree and he was sweating heavily. The relevant part of the examination-in-chief of this witness is also reproduced hereinbelow for the sake of ready reference:-
"ml fnu gekjh cdfj;ka ugh vkbZ rks eSa vkSj ykypUn <w<us egknsoth igkM okys tgkWa cdfj;k tkrh gS ogkWa x;s rks gekjh cdfj;k tgkWa frckjk cuk gSa ogkWa fey (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (12 of 26) [CRLDR-4/2021] xbZ ftudksa ysdj ge jokuk gks x;asA fQj 100 ehVj dh nwjh ij tkequ ds isM ds ikl pVVku ij vfHk;qDr lUrw cSBk Fkk mlds psgjs ij ilhuk vk jgk Fkk eSus mlls iwNk D;k ckr gqbZ mlus dqN ugh crk;k fQj ge gekjh cdfj;k ysdj ?kj ij vk x;sA "
21. In examination under Section 313 Cr.P.C., it was admitted by the accused appellant that he had gone to visit Baijnath temple. It was also stated by him that he returned home along with Lalchand (PW.18) and Goma (PW.19). However, both these witnesses proved presence of the accused appellant near the place of incident and did not state that the accused appellant returned with them.
22. In view of above, it is crystal clear that the accused appellant was present near the place of incident and was not looking comfortable.
23. Dr. Raj Kumar Gupta (PW.1), Dr. Charu Sharma (PW.2) and Dr. Abhijeet Soni (PW.8) were the members of the Medical Board which conducted autopsy on the dead body of the deceased. The post-mortem report (Ex.P/1) was prepared and proved by them. As per the post-mortem report, at the time of post-mortem, following five injuries were noticed on the person of the dead body:-
1. Lacerated wound (crushed) 10 cm x 5 cm x bone deep over left side of forehead with visible fracture of frontal, parietal temporal and left orbital bone. On reflecting scalp, thick SSH (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (13 of 26) [CRLDR-4/2021] noted over left hemi scalp. On further dissection, diffuse with DH noted over fronto parieto temporal region.
2. Bruise 5 x 3 cm, reddish noted over left side cheek.
3. Diffuse swelling noted over right cheek. On dissection, hematoma noted.
4. Avulsed wound 3 cm x 2 cm cartilage deep over right ear pinna with clotted blood and deformity.
5. Perineal tear seen at 6 O' Clock position with exposed muscles etc. and visible clots contaminated with soil.
24. According to them, the cause of death was head injury i.e, Injury No.1. Sign of sexual assault was also found on the person of the deceased. They further deposed that DNA samples were taken for FSL purpose and according to DNA report (Ex.P/2), DNA of the deceased was matching with the DNA sample of the accused. DNA report (Ex.P/2) running into five pages is being reproduced hereinbelow for the sake of ready reference:-
DESCRIPTION OF PACKETS/EXHIBITS AND RESULTS Following packets of the case were received in properly sealed condition, bearing seal impression which tallied with the specimen seal sample forwarded.
Microsatellite loci of Global Filer TM PCR Amplification kit was used for DNA profiling of the samples. Data was analyzed by GeneMapper ID- X software. Result of analysis is given below:-
S. Packet(s) Exhibit(s) Details of Biological Serological DNA No. marked No. Exhibits Examination (As examination examination desired) (As desired)
1. E 1 Soil recovered Human Semen Human blood Male DNA from crime scene detected detected Profile obtained 2 G 2 Underwear of Semen could Human blood Female DNA deceased not be detected detected profile obtained 3 H 3 Underwear of Human Semen Human blood Mixed DNA accused detected detected profile obtained 4 C 4 Vaginal Slide of Human Semen Human blood Mixed DNA deceased detected detected profile obtained (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (14 of 26) [CRLDR-4/2021] 5 Vaginal Swab of Human Semen Human blood Mixed DNA deceased detected detected profile obtained
5. D 6 Blood sample of -- -- Female DNA deceased on FTA profile obtained card
6. 7 Blood sample of -- -- Male DNA accused on FTA Profile obtained Card
7. A 8 Blood smeared -- Human blood Female DNA stones recovered detected profile obtained from crime scene
8. B 9. Blood smeared Semen could Human blood Female DNA jeans pants of not be detected detected profile obtained deceased.
9. C 10. Blood smeared -- Human blood Female DNA soil recovered detected profile obtained from crime scene 10 F 11 Blood smeared T- Semen could Human blood Female DNA shirt of deceased not be detected detected profile obtained 11 I 12 Blood smeared Human Semen Human blood Mixed DNA jeans pants of detected detected profile obtained accused 13 Blood smeared Semen could Human blood Female DNA kameej of not be detected detected profile obtained accused 12 A - Saliva of accused Not required for examination 13 D - Control soil --
recovered from crime scene Note:- Exhibit 1, 10 and packet marked D (as such) have been forwarded to Physics Division for the necessary examination.
Conclusion On the basis of DNA analysis (enclosed allele data table), it is concluded that:-
1. The male DNA profile obtained from exhibit no.7 (Blood sample of accused on FTA card) is matching with the DNA profiles obtained from exhibit no.1 (soil recovered from crime scene), 3 (Underwear of the accused), 4 (Vaginal slide of deceased), 5 (Vaginal swab of deceased) and 12 (blood smeared jeans pants of accused)
2. The female DNA profile obtained from exhibit no.6 (Blood sample of deceased on FTA card) is matching with the DNA profiles obtained from exhibit no.2 (Underwear of deceased), 3 (Underwear of accused), 4 (Vaginal slide of deceased), 5 (Vaginal swab of deceased), 8 (Blood smeared stones recovered from crime scene), 9 (Blood smeared jeans pants of deceased), 10 (Blood smeared soil recovered from crime scene), 11 (Blood smeared T-shirt of deceased), 12 (Blood smeared jeans pants of accused) and 13 (Blood smeared Kameej of accused). (Downloaded on 11/11/2023 at 04:30:42 PM)
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25. From bare perusal of the report, it appears that human semen was detected from Exhibits No.1, 3, 4, 5 & 12. Mixed DNA profile was also obtained from all these samples except in Exhibit No.1 i.e., soil recovered from crime scene but male DNA profile was obtained from it. On the basis of analysis, the expert reached to the following conclusion:-
1. The male DNA profile obtained from exhibit no.7 (Blood sample of accused on FTA card) is matching with the DNA profiles obtained from exhibit no.1 (soil recovered from crime scene), 3 (Underwear of the accused), 4 (Vaginal slide of deceased), 5 (Vaginal swab of deceased) and 12 (blood smeared jeans pants of accused).
2. The female DNA profile obtained from exhibit no.6 (Blood sample of deceased on FTA card) is matching with the DNA profiles obtained from exhibit no.2 (Underwear of deceased), 3 (Underwear of accused), 4 (Vaginal slide of deceased), 5 (Vaginal swab of deceased), 8 (Blood smeared stones recovered from crime scene), 9 (Blood smeared jeans pants of deceased), 10 (Blood smeared soil recovered from crime scene), 11 (Blood smeared T-shirt of deceased), 12 (Blood smeared jeans pants of accused) and 13 (Blood smeared Kameej of accused).
26. It is apposite to mention here that in this case, we do not find any ambiguity in collecting, preserving and depositing procedure of the samples. We appreciate the efforts made by the Investigating Agency in this case as within a very short span, (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (16 of 26) [CRLDR-4/2021] samples were deposited in the FSL and thereafter within four days, DNA reprot was obtained from the FSL.
27. The judgment passed in the case of Rahul (supra), relied upon by counsel for the appellant does not apply to the facts of the present case as in that case, the samples were deposited in the FSL after a great delay and no explanation in this regard was given by the prosecution, therefore, it was observed by Hon'ble Apex Court that possibility of tampering with the samples collected, cannot be ruled out but in the present case, immediately after taking the samples, same were deposited in the Malkhana and without any delay on 25.06.2021, same were sent to FSL and on 29.06.2021, FSL reprot was obtained by the Investigating Agency.
28. In view of the above factual matrix, it is crystal clear that within eight days, FSL report was obtained and from this report, male DNA of the accused was found in vaginal slide and vaginal swab of the deceased.
29. So far as the argument of the counsel for the appellant with regard to mentioning of FIR number in Ex.P/10 which was prepared one hour before the registration of FIR is concerned, we are of the view that this little ambiguity does not affect the prosecution case adversely. The written report (Ex.P/4) was submitted at 5:00 AM at the place of incident and the possibility cannot be ruled out that the officer concerned was aware about the next number of the FIR in his police station or he would have asked through phone about next FIR number from the police station. Further, no cross-examination was done by the defence (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (17 of 26) [CRLDR-4/2021] counsel on this issue. Otherwise, explanation in this regard could have come on record.
30. Thus, all incriminating circumstances have been proved against the accused by cogent and reliable evidence and all these cumulatively form a complete chain of circumstances unerringly pointing towards the guilt of the accused and nothing else which are compatible with any other hypothesis except the one of the guilt of the accused.
31. On the basis of the evidence adduced in this case, the prosecution had been successful in bringing home guilt of the accused appellant for the offences under Sections 376(A), 376(3), 302 and 201 IPC and Section 5(j)(iv)/6 of the POSCO Act while establishing following circumstances:-
(i) Recovery of Aadhar Card of the accused (Ex.P/9) at the place of incident and same was proved by the recovery witnnesses.
(ii) Presence of the accused near the place of incident is established and same was admitted by the accused himself.
(iii) Recovery of blood stained clothes of the accused, i.e, jeans pant and kameej (shirt).
(iv) Mixed DNA profile was obtained from jeans pant of the accused.
(v) Sign of sexual assault was found by the medical experts while conducting postmortem.
(vi) The male DNA profile obtained from exhibit no.7 (Blood sample of accused on FTA card) is matching with the DNA profiles obtained from exhibit no.1 (soil recovered from crime scene), 3 (Underwear of the accused), 4 (Vaginal slide (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (18 of 26) [CRLDR-4/2021] of deceased), 5 (Vaginal swab of deceased) and 12 (blood smeared jeans pants of accused)
(vii) The female DNA profile obtained from exhibit no.6 (Blood sample of deceased on FTA card) is matching with the DNA profiles obtained from exhibit no.2 (Underwear of deceased), 3 (Underwear of accused), 4 (Vaginal slide of deceased), 5 (Vaginal swab of deceased), 8 (Blood smeared stones recovered from crime scene), 9 (Blood smeared jeans pants of deceased), 10 (Blood smeared soil recovered from crime scene), 11 (Blood smeared T-shirt of deceased), 12 (Blood smeared jeans pants of accused) and 13 (Blood smeared Kameej of accused).
(viii) The accused has failed to establish his defence, as set up by him in his examination under Section 313 Cr.P.C.
32. All the above circumstances form complete chain of links leading towards the guilt of the accused and negates his innocence. The possibility that someone else might have committed the offence is also ruled out.
33. In view of above discussion, we are of the considered view that the trial court has not committed any illegality in convicting the accused appellnat for the offences under Sections 376(A), 376(3), 302 and 201 IPC and Section 5(j)(iv)/6 of POSCO Act.
34. The next question which requires consideration is as to whether, death penalty awarded to the accused appellant by the trial court vide impugned judgment dated 26.10.2021 is liable to be confirmed. For this purpose, now, we proceed to examine the (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (19 of 26) [CRLDR-4/2021] present case in light of the following cases where death penalty has been converted into life imprisonment:-
35. State of Tamil Nadu v. Suresh (1998) 2 SCC 372 was a case of the rape and murder of a pregnant housewife. The Hon'ble Supreme Court took the view that though the crime was dastardly and the victim was a young pregnant housewife, it would not be appropriate to award the death penalty since the High Court had not upheld the conviction and also due to the passage of time. This is what was observed:
"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."
36 Nirmal Singh v. State of Haryana, (1999) 3 SCC 670 was a case in which Dharampal had raped 'P' and was convicted for the offence. Pending an appeal the convict was granted bail. While on bail, Dharampal along with Nirmal Singh murdered five members of P's family. Death penalty was awarded to Dharampal and Nirmal Singh by the Trial Court and confirmed by the High Court. The Hon'ble Supreme Court converted the death sentence in the case of Nirmal Singh to imprisonment for life since he had no criminal antecedents; there was no possibility of his committing (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (20 of 26) [CRLDR-4/2021] criminal acts of violence; he would not continue being a threat to society; and he was not the main perpetrator of the crime. It was held:
"There is nothing on record to suggest that Nirmal was having any past criminal antecedents or that there is a possibility that the accused would commit criminal acts of violence and would constitute a continuing threat to the society. The only aggravating circumstance is that he had come with his brother and had given 3 blows on deceased Krishna only after Dharampal chased Krishna and gave kulhari blows hitting on the neck while Krishna was running and on sustaining that blow, she fell down and then Dharampal gave two to three blows to Krishna and only thereafter Nirmal gave burchi blows on the said Krishna. It is no doubt true that the presence of Nirmal at the scene of the occurrence with a burchi in his hand had emboldened Dharampal to take the drastic action of causing murder of 5 persons of Tale's family as a result of which Tale's family was totally wiped off. But because of the fact that Nirmal has not assaulted any other person and assaulted Krishna only after Dharampal had given her 3 or 4 blows, the case of Nirmal cannot be said to be the rarest of rare case attracting the extreme penalty of death. While, therefore, we uphold his conviction under Section 302/34, we commute his sentence of death into imprisonment for life."
37. Akhtar v. State of Uttar Pradesh, (1999) 6 SCC 60 was a case of rape and murder of a young girl. The sentence of death awarded to the accused was converted to one of life imprisonment since he took advantage of finding the victim alone in a lonely place and her murder was not premeditated. It was observed:
"But 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. (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (21 of 26) [CRLDR-4/2021] The medical 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."
38. Raju Vs. State of Haryana (2001) 9 SCC 50 was a case in which the Hon'ble Apex Court took into account three factors for converting the death sentence of the accused to imprisonment for life for the rape and murder of an eleven year old child. Firstly, the murder was committed without any premeditation (however, there is no mention about the rape being not premeditated); secondly, the absence of any criminal record of the accused; and thirdly, there being nothing to show that the accused could be a grave danger to society. This is what was said:
"The evidence on record discloses that the accused was not having an intention to commit the murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick-blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty."
39. In Bantu v. State of Madhya Pradesh, (2001) 9 SCC 615, the Hon'ble Supreme Court converted the death sentence awarded to the accused to imprisonment for life. The accused was a 22 year old man who had raped and murdered a 6 year old child. It was acknowledged that the rape and murder was heinous, but the Apex Court took into account that the accused had no previous criminal record and that he would not be a grave danger (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (22 of 26) [CRLDR-4/2021] to society at large. On this basis, the death penalty was converted to life imprisonment. This is what was said:
"In the present case, there is nothing on record to indicate that the appellant was having any criminal record nor can it be said that he will be a grave danger to the society at large. It is true that his act is heinous and requires to be condemned but at the same time it cannot be said that it is the rarest of the rare case where the accused requires to be eliminated from the society. Hence, there is no justifiable reason to impose the death sentence."
40. Rahul vs State of Maharashtra, (2005) 10 SCC 322 was a case of the rape and murder of a four and a half year old child by the accused. The death sentence awarded to him was converted by Hon'ble Apex Court to one of life imprisonment since the accused was a young man of 24 years when the incident occurred; apparently his behavior in custody was not uncomplimentary; he had no previous criminal record; and would not be a menace to society. It was held:
"We have considered all the relevant aspects of the case. It is true that the appellant committed a serious crime in a very ghastly manner but the fact that he was aged 24 years at the time of the crime, has to be taken note of. Even though, the appellant had been in custody since 27-11-1999 we are not furnished with any report regarding the appellant either by any probationary officer or by the jail authorities. The appellant had no previous criminal record, and nothing was brought to the notice of the Court. It cannot be said that he would be a menace to the society in future. Considering the age of the appellant and other circumstances, we do not think that the penalty of death be imposed on him."
41. The constitutional validity of death penalty was upheld by Hon'ble Apex Court in case of Bachan Singh vs State of (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (23 of 26) [CRLDR-4/2021] Punjab, (1980) 2 SCC 684, but observed that the Court must do a balancing act between the aggravating and mitigating circumstances in a crime and due care must be paid to both crime and criminal while making a choice of punishment. It was also held by Hon'ble Supreme Court that for persons convicted in murder, life imprisonment is the rule and death sentence is exception. The guidelines that were laid down by the Supreme Court in Bachan Singh, while upholding the validity of Section 302 IPC (which authorizes imposition of penalty of death sentence), while concurring with the view expressed by it in earlier judgment in 'Tdiga Annamma Vs. State of Andra Pradesh, (1974) 4 SCC 443, are adhered to till date, are that (i) 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 required 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 circumstance 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, and (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. (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (24 of 26) [CRLDR-4/2021] 42 The Hon'ble Supreme Court in Machhi Singh vs State of Punjab, (1983) 3 SCC 470, while following its earlier dictum in Bachan Singh's case held that life imprisonment is the rule and death sentence is an exception. Apart from guidelines in Bachan Singh's case, the Supreme Court in Machhi Singh's case in paras 33 and 34 additionally observed that in making a choice between the death penalty and that of life imprisonment, the Court has also to take into consideration manner and motive of commission of murder. We reproduce paras 33 and 34 of the judgment of Supreme Court in Machhi Singh in extenso:-
"I. Manner of Commission of Murder:-
33. When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
For instance,
(i) When the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. Motive for Commission of murder:-
34. When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (2) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland." (Downloaded on 11/11/2023 at 04:30:42 PM) [2023/RJJP/003860] (25 of 26) [CRLDR-4/2021]
43. It is a settled proposition of law that death sentence must be imposed only when imprisonment for life appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime. A just balance has to be struck between the aggravating and mitigating circumstances before option is exercised to award death penalty. Imprisonment for life is the rule and death sentence is an exception. Death sentence is to be awarded in the 'rarest of the rare case' when the Court comes to the conclusion that other than death sentence, no other sentence would be appropriate.
44. Considering in light of the above pronouncements, we find that circumstances of the present case are not such where the act of the accused can be said to be of such extreme culpability where, having regard to the circumstances of crime, life imprisonment would be altogether inadequate punishment. When we draw a balance-sheet of all the aggravating circumstances as against all the mitigating circumstances of this case i.e., age of the accused (28 years, at the time of incident), the fact that the accused appellant is having a girl child, aged about 27 months and the fact that there is no criminal antecedent of the accused appellant, and considerig the overall facts and circumstances of the present case and the law laid down by Hon'ble the Apex Court, in our view, this case does not fall within the category of "rarest of rare case" and therefore, we commute the death penalty to that of life imprisonment which shall extend to the full natural life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. (Downloaded on 11/11/2023 at 04:30:42 PM)
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45. Consequently, by upholding the conviction of the accused for offences under Sections 376(A), 376(3), 302 and 201 IPC and Section 5(j)(iv)/6 of POCSO Act, we set aside the death sentence awarded to the appellant by the trial court vide impugned judgment dated 26.10.2021. The death reference (No.04/2021) sent by the trial court stands declined and the appeal (No.185/2021) filed by the accused appellant is partly allowed. The death penalty is commuted to life imprisonment which shall extend to the full natural life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons.
46. The record be returned to the trial court forthwith.
47. A copy of this judgment be placed in each file.
(ANIL KUMAR UPMAN),J (PANKAJ BHANDARI),J
Sudhir Asopa
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