Tripura High Court
The Special Judge(Pocso) vs The State Of Tripura on 25 February, 2020
Equivalent citations: AIRONLINE 2020 TRI 289
Bench: Akil Kureshi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
Death Sentence Ref. No.1/2019 and Crl. A(J) No.61/2019
A) Death Sentence Ref. No.1/2019
The Special Judge(POCSO), North Tripura, Dharmanagar.
............ Petitioner(s).
Vs.
1. The State of Tripura, represented through the Chief Secretary,
Government of Tripura.
2. Sanjoy Tanti @ Sanju, S/o Lae Bikundtha Tanti resident of
Maheshpur, Bangaljum, Mandap Tilla, P.S - Kadamtala,
District - North Tripura.
.............. Respondent(s).
For Petitioner(s) : None.
For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.
B) Crl. A(J) No.61/2019
Sanjoy Tanti alias Sanju, S/o Late Baikuntha Tanti,
Resident of Maheshpur, Bangalijum, Mandap Tilla, P.S. Kadamtala,
District - North Tripura.
............ Appellant(s).
Vs.
The State of Tripura, represented through the Chief Secretary,
Government of Tripura.
.............. Respondent(s).
For Appellant(s) : Mr. H K Bhowmik, Legal aid counsel.
For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.
_B_E_F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE ARINDAM LODH
Dates of hearing : 24th February and 25th February, 2020.
Dates of judgment : 24th February and 25th February, 2020.
Whether fit for reporting : Yes.
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JUDGMENT & ORDER (ORAL)
Per se - (Kureshi, CJ).
24th February, 2020.
This appeal and reference arise out of a common judgment of the Special Judge (POCSO), North Tripura, Dharmanagar dated 19th/21st August, 2019 by which the learned Judge convicted the accused for the offences punishable under Sections 302 and 376 AB of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred to as the 'POCSO Act', for short). For offence under Section 376AB of IPC, accused was sentenced to life imprisonment. A fine of Rs.50,000/- also imposed. For offence under Section 4 of POCSO Act, similar sentences of life imprisonment and fine of Rs.50,000/- have been imposed. For offence under Section 302 of IPC, the learned Judge awarded death penalty. The conviction and sentence are challenged by the accused. In view of the capital punishment, reference for confirmation of death penalty is also placed for our consideration.
[2] Briefly stated the prosecution version was that one girl aged about 6 and half years (hereinafter to be referred to as the 'victim') the daughter of the complainant Shibcharan Tanti, was playing with the neighbour's children watching TV together on 24th September, 2018 when the accused-Sanjoy Tanti called her out under the pretext that the door of her house was open. The girl did Page - 3 of 37 not return thereafter. In the evening, the complainant returned home and found that his daughter was missing. He lodged a missing person's report. A couple of days later, the dead body of the girl was found in a highly decomposed state from an isolated spot. The post-mortem suggested multiple ante-mortem injuries which had caused the death. According to the prosecution, the accused-Sanjoy Tanti had first taken away the girl to an isolated spot, where he raped her before killing her.
[3] An FIR(Exhibit-12) was lodged by the father of the victim girl before the concerned Police Station on 27th September, 2018 in which he had stated that at about 7.00 o'clock in the morning on 24th September, 2018 after having morning meal with her daughter he had gone out for work leaving her in the house of the neighbour Jiban Prakash Panika. He returned home later in the day. When he went to the house of the Jiban Prakash and called out her daughter, the son and daughter of Jiban Prakash told him that at about 3.30 in the afternoon accused-Sanju had called his daughter and taken her away from the house of Jiban Prakash where she was watching television. He searched for the daughter but could not find her. After the search failed, on 26th September, 2019 he lodged a missing person's report with the Police. On 27th September 2018, at about 12.30 in the afternoon the dead body of his daughter was found from the forest near the edge of a pond.
Page - 4 of 37 [4] A charge was framed against the accused for having committed offences punishable under Sections 376 AB and 302 of IPC as well as Section 4 of the POCSO Act.
[5] The first informant was examined as PW.10. He deposed that he had disputes with his wife. The daughter was residing with the mother at the mother's parental home. He had brought her back to his house in August, 2018 for obtaining her Aadhaar Card and other documents so that she could be admitted in a school. His mother was living with him. On 24th September, 2018 she had gone out. His daughter did not accompany her. She wanted to play with the Sonali Panika and her elder brother who are the neighbours. They would watch television in their house. He left for work in the morning leaving his daughter. She was playing with Sonali and her brother in their house. When he returned home later and went to the house of Jiban Prakash, he came to know that accused-Sanju had come there at about 3.00 o'clock and taken away the daughter with him. He went to the house of Sanjoy but he was not there. He searched for the daughter at other places but could not find her. Two days later, he filed a missing person's report with the police. Eventually, her dead body was found from the forested area when labourers were collecting tea leaves. There was no detail cross- examination of this witness.
[6] Jiban Prakash Panika the neighbour of the complainant was examined as PW.11. He deposed that on 24th September 2018 in Page - 5 of 37 the morning, he and his wife went to the tea estate for daily work leaving behind children Sonali and Sagar. The daughter of the complainant was also there. The father had brought his daughter from the mother to prepare Aadhaar Card. He and his wife returned home at about 12.00 o'clock during lunch break when the victim girl was in their house. She was playing with his daughter Sonali and watching television. They left the house at about 1.30 pm. to join the second shift of work. The victim girl was still there in his hut. His son Swapan returned home at about 2.00 o'clock. The victim girl was still there in his house. He himself returned at about 6.00 pm. The complainant also returned around that time and called for his daughter. His daughter said that the accused Sanju had come at about 3.30 pm when they were watching television and called the victim girl to go to her house to close the door of her hut and the victim had gone with the accused. His son, Swapan, returned home later and also said the same thing. From the next day, according to this witness, accused disappeared from the locality and was not traceable. In his brief cross-examination, he denied that his daughter had not made the above noted revelations.
[7] Swapan Panika PW.8, the son of the neighbour was aged about 17 years at the time of the incident. He deposed that the complainant was his neighbour. On 24th September 2018, he had gone out for work. The complainant had left his daughter at his Page - 6 of 37 house for playing. His sister and the victim girl would play and watch T.V. at home. He returned home at about 3.30 pm. from work. The girls were still at home watching television. After a while, the accused came there, called the victim and told her that the door of the hut was open. She was called to close the door. She went out to close the door. The accused had left the house of this witness along with the victim at which time he had an instrument called Dao (a multipurpose instrument made of an iron blade with a wooden handle which is sharp on one side and blunt on other). He then went out to play football. He returned home at 7.00 o'clock. The complainant was enquiring about his daughter. He told him about the afternoon incident. The dead body was found on 27th September, 2018. In the cross-examination, he denied that his father had a longstanding boundary dispute with the accused. [8] Sonali Panika, daughter of the neighbour with whom the victim was playing was examined as PW.9. She was aged about 7 years. She stated that she along with her brother and the victim girl were watching television when the accused came to their house and called the victim girl to close the door of her house after which the victim did not return.
[9] Smt. Shanti Tanti, PW.18, is the mother of the victim girl. Her deposition is useful to the limited extent of corroborating the version of the complainant that on account of matrimonial disputes, she was residing with her parents with her daughter but the Page - 7 of 37 daughter was taken by the father to prepare her Aadhaar Card and other documents.
[10] PW.1, Hiralal Rajwar was residing in the same locality. His deposition is useful only to the limited extent of the victim girl going missing and her dead body which was recovered ten days later. He was also an important witness in the context of recovery of a gamcha(a napkin sort of a cloth) from nearby a pond and the discovery of the Dao, the murder weapon, from the house of the accused at his instance. He also referred to the confessional statement of the accused of having raped and murdered the victim. [11] PW.2, Anu Tanti was a local resident. He was examined for the limited purpose of the victim girl going missing, not being found despite search and her dead body being recovered ten days later. It was in his presence that the dead body was recovered. He was also a punch witness to the recovery of the gamcha from nearby a pond. He was also a witness to the discovery of Dau recovered from the house of the accused at his instance which was allegedly used for commission of murder of the girl.
[12] Narayan Tanti, brother of the complainant, was examined as PW.12. He had joined his brother for searching the victim girl. According to this witness, they had also enquired from the accused who did not give any answer.
Page - 8 of 37 [13] One Pradip Gaur, PW.14 was the member of the Panchayat and in-charge of the MNREGA work at the village. According to him, on the date of incident besides others, the accused had worked as a labourer from 11 to 3.00 pm. when he had picked up a quarrel with some other labourers.
[14] PW.15, Subodh Tanti, was also working in MNREGA. According to him, on the date of incident, the accused had worked there till about 2.30 or 3.00 o'clock. After which he returned home. On the date of the incident, he was carrying a Dao and a gamcha with him.
[15] PW.16 Manu Tanti had turned hostile. However, in the cross-examination by the prosecution, he supported his police statement and stated that on the date of incident the accused had worked till 3.00 pm. He was carrying a Dao and a Gamcha. He had also referred to a confessional statement by the accused of having raped and murdered the victim girl.
[16] Dr. Soumali Nath, PW.5 had carried out the post-mortem. She deposed that the body was highly decomposed with maggots. She had noted external, crushed and lacerated wounds all over the face, neck and genital region. She found that the scalp and the membranes also carried injuries. There were injuries on brain, spinal cord. Haemorrhage was found. External and internal organs of private parts were crushed. She estimated the time of the death Page - 9 of 37 about 72 hours before post-mortem. On account of decomposition, it was not possible to ascertain whether there was any penetrative sexual assault. In her opinion, the cause of death was due to crush injuries over the scalp, brain damage and haemorrhage. She produced the post-mortem report at Exhibit 10. [17] Dr. Rahul Purkayastha, PW.6 had examined the accused and found nothing to suggest that he was incapable of sexual intercourse.
[18] Based on such evidence, the learned Judge found that the charges were proved both of murder as well as rape. While awarding sentence, the learned Judge held that the offence was committed with great brutality, that the accused had satisfied his lust and then also killed a young girl. The manner in which the incident took place, showed that it was a pre-planned crime. The act of the accused of committing rape and then taking the life a young girl persuaded the learned Judge that this was the rarest of the rare case where capital punishment should be handed down. [19] Appearing for the appellant-accused, learned counsel Mr. Harekirshna Bhowmik submitted that the trial Court committed error in convicting the accused of all the charges. The case rests entirely on circumstantial evidence. Important circumstances have not been proved by the prosecution. The prosecution cannot rely Page - 10 of 37 solely on the last seen theory, even if such factor is stated to have been established.
[20] He submitted that there was total lack of motive on part of the accused for committing the said offence. The prosecution has not even alleged much less establish any motive. Where the case rests solely on circumstantial evidence, motive becomes significant. [21] Learned counsel lastly contended that in any case, there was no proof of the accused having committed rape. In any view of the matter, therefore, this is not the rarest of the rare case where extreme penalty of death sentence should be awarded. [22] On the other hand, learned Public prosecutor submitted that the evidence on record suggests unerringly to the involvement of the accused. It is true that the case rests on circumstantial evidence, nevertheless, the chain of all circumstances is complete and points only to the involvement of the accused in commission of the offence. Counsel further submitted that in view of the heinous crime of rape of a minor girl and the brutal murder, the sentence awarded by the trial Court requires no interference. [23] We may appreciate and assess the evidence on record. From the evidence of the complainant, we can gather that on the date of the incident when he left for work in the morning he had left his daughter behind at the house of his neighbour PW.11 where she would play and watch TV with other children. This witness had Page - 11 of 37 clarified that because of strained relations his wife was residing at her parents' house, ordinarily with their daughter but to prepare her Aadhaar Card and other documents for admitting her in a school he had recently brought her home with him. This was corroborated by the mother of the victim girl PW.18, Shanti Tanti. From the deposition of this witness, we further gather that when he returned home in the evening, he did not find his daughter at the house of the neighbour. The neighbour's daughter and thereafter his son also told him that the accused had called the victim girl at about 3.30 in the afternoon under the pretext that the door of the hut was open. Since then she was not found.
[24] The deposition of this witness gets corroboration from several sources. The neighbour Jiban Prakash, PW.11, had given a substantially similar version. He also supported the complainant and stated that on the date of the incident, when he left home for work with his wife the victim girl was at his house. In fact, when he and his wife returned in the afternoon for lunch the girl was still there. She was there even when they left for second shift of work at about 1.30 pm. She was not there at their house when they returned in the evening. It was in his presence that his daughter and thereafter his son had told the complainant about the accused luring away the victim girl in the afternoon. [25] Most important witness in this context is the son of the neighbour i.e. Swapan Panika, PW.8. He was aged about 17 years.
Page - 12 of 37 He had gone out for work in the morning but returned home at about 3.30 in the afternoon when he found his sister and the victim girl playing and watching TV at his house. Soon the accused came there and called the victim girl saying that the door of the hut was open. Sonali Panika, PW.9 the daughter of the neighbour, though was barely about 7 years, had also given the similar version. [26] Further corroboration is available from the deposition of PW.14, PW.15 and PW.16 who all had worked in MNREGA with the accused. He was at work till around 3.00 in the afternoon and then had left. This linking matches with his appearance at the house of the neighbour of the complainant.
[27] Evidence of these witnesses clearly establishes that on the date of the incident, the complainant had left his house leaving his daughter at the house of the neighbour where she would play and watch TV with the children. The factum of the accused having arrived at the said place in the afternoon and taken away the daughter of the complainant is emerging from the evidence of PW.8 and PW.9. There are no inconsistencies or major contradictions in material aspects of the evidence of these witnesses. The evidence of these witnesses is duly corroborated by the complainant PW.10 and their father PW.11. The father of these witnesses PW.11 had not only seen the children together in the morning but also found the victim girl at his house in the afternoon. The victim girl was still Page - 13 of 37 at his house when he and his wife left their house at about 1.30 in the afternoon to join the second shift of work. [28] The prosecution has thus duly established the most important factor of the accused having lured the daughter of the complainant in the afternoon hours after which she was never seen alive. The prosecution also clarified through the deposition of the complainant and his wife that though the husband and wife had separated and ordinary the girl would reside with the mother at the mother's parental house, shortly before the date of incident the father had brought her home to take out Aadhaar Card and other documents to admit her in a school.
[29] The fact that the dead body of the victim girl was found about 3(three) days later from the bushes by the labourers who were plucking tea leaves is not seriously in dispute. The post- mortem report indicated the time of death about 72 hours before the post-mortem. Thus, the victim girl died an unfortunate death soon after she went missing from the house of the neighbour of the complainant. The last seen theory, therefore, was applicable. The victim girl was found not only last in the company of the accused, she was never seen alive by anyone else thereafter and most importantly going by the medical evidence she was done to death shortly thereafter. This would show that there is no time gap between the victim and the accused being seen together, that too lastly and the victim girl meeting with her unfortunate fate.
Page - 14 of 37 [30] Sri Ratan Debnath, Sub Inspector of Police PW.19 had carried out part of the investigation. He had seized the Gamcha and Dao at the instance of the accused in presence of punch witnesses. He had produced seizure Panchnamas of such articles. Further investigation was carried out by Sri Ajit Debbarma, Sub Inspector of Police PW.20 and Sri Apu Das, Sub Inspector of Police PW.21. [31] PW.19 had recorded the disclosure statements of the accused under Section 27 of the Evidence Act and the discovery of Dau the murder weapon at his instance was made. The punch witnesses PWs.1 and 2 had supported the prosecution. Discovery of Dao at the instance of the accused thus lends credence to the prosecution Case.
[32] From the proved facts it thus emerges that the accused and victim girl were last seen together shortly before the death of the victim. After the accused lured away the daughter of the complainant at about 3.30 in the afternoon, she went missing. Though the dead body was discovered a few days later, the medical evidence brings the time of death within a short-range after the said incident. The accused, therefore, had to explain such adverse factors. In his statement under Section 313 of Cr.P.C., he offered no explanation. His only stand was of false implication. In the cross-examination of the witnesses, he had suggested no plausible defence, no possibility of false involvement. The importance of the statement of the accused under Section 313 of Cr.P.C and his Page - 15 of 37 failure to explain adverse factors was considered by the Supreme Court in case of Neel Kumar alias Anil Kumar Vs. State of Haryana(supra) reported in (2012) 5 SCC 766. Following observations were made :
"This Court in Prithipal Singh & Ors. Vs. State of Punjab & Anr. (2012) 1 SCC 10, considered the issue at length placing reliance upon its earlier judgments including State of West Bengal Vs. Mir Mohammad Omar & Ors. etc. etc., AIR 2000 SC 2988; and Sahadevan @ Sagadevan Vs. State, rep. by Inspector of Police, Chennai, AIR 2003 SC 215 and held as under:
"53. ...............That if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
(emphasis in original).
(See also: Santosh Kumar Singh v. State through CBI, (2010) 9 SCC 747; and Manu Sao v. State of Bihar, (2010) 12 SCC 310).
Page - 16 of 37 Thus, findings recorded by the courts below in this regard stand fortified by the aforesaid judgments.
28. A shirt and pants belonging to the appellant recovered on the basis of his disclosure statement (Ext. P-23) and taken into possession vide Memo Ext. P-25 were sent to the FSL for examination. The Report of FSL (Ext.P-18) shows that shirt and pant of the appellant were stained with blood. However, no explanation has been given by the appellant as to how the blood was present on his clothes.
29. In Pradeep Singh v. State of Rajasthan AIR 2004 SC 3781, accused had not given any explanation for the presence of blood stains on his pant and shirt. He had simply pleaded false implication. Presence of blood on his clothes was found to be incriminating circumstance against him.
30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also: Aftab Ahmad Anasari Vs. State of Uttaranchal, AIR 2010 SC 773)."
[33] We are conscious that the case rests entirely on circumstantial evidence. As is well-settled through series of judgments of the Supreme Court, in a case where the prosecution relies only on circumstantial evidence, all circumstances must be proved through reliable cogent evidence and such circumstances Page - 17 of 37 must form a complete chain which would point to only one hypothesis, namely, that of the guilt of the accused to the exclusion of any other possibility. Reference in this respect can be made to the decision of Supreme Court in case of State of Haryana Vs. Jagbir Singh and Anr. reported in (2003) 11 SCC 261, in which it was observed as under :
"8. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See : Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC
316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
9. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
Page - 18 of 37 "In a case based on circumstantial evidence, the settled law is that 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. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
10. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
[34] In the present case, the prosecution has succeeded in establishing following important circumstances :
(i) The complainant had left his daughter at the house of the neighbour in the morning of the incident. While he went for work, the victim girl Page - 19 of 37 was playing with the daughter and other children of the neighbour.
(ii) She was still there when the neighbour PW.11 and his wife returned home in the afternoon for lunch and left at about 1.30 pm.
(iii) In presence of the son and daughter of the neighbour i.e. Swapan Panika PW.8 and Sonali Panika PW.9, the accused called the victim girl at about 3.30 in the afternoon under the pretext that the door of her hut was open.
(iv) The victim girl did not return after that.
(v) The complainant returned home in the evening when the victim girl was untraceable.
(vi) Her search for a couple of days did not yield any result.
(vii) Her dead body was found from a nearby
forested area about 3 days later she was
murdered.
(viii) There were multiple injuries all over the body caused by hard and blunt substance.
(ix) The post-mortem report suggested that the girl was done to death very soon after the accused had called her from the house of the neighbour.
[35] In our opinion, the chain of circumstantial evidence is complete and unerringly point to the involvement of the accused in causing the death of the victim girl to the exclusion of any other possibility or the hypothesis of innocence of the accused. He was Page - 20 of 37 the person last seen in the company of the girl. The girl was murdered shortly after she went with him. He offered no explanation to such adverse factors.
[36] The question of rape of the victim girl, however, stands on an entirely different footing. Dr. Somali Nath, PW.5 who had carried out the post-mortem of the dead body had stated that it was so decomposed that it was not possible to state whether there was any penetrative sexual intercourse with the victim girl. Quite apart from this evidence, we find no other evidence on record suggesting that the accused had committed rape on the victim girl before her murder. None of the eye-witnesses obviously could have so stated. There is no other evidence collected by the investigating agency and produced before the Court. Even in absence of eye-witness account, the prosecution could have produced the semen-stained clothes of the accused he was wearing at the time of the incident or some other circumstance which could even prima facie suggest a sexual assault. In absence of any other evidence, it is simply not possible to jump to the conclusion that the victim girl was subjected to rape before murder. Brutal injuries on her private part do not necessarily establish this. The allegation of rape is a matter of proof through reliable evidence and not a matter of conjectures. As is well settled, howsoever strong the suspicion, the same in the context of a criminal offence cannot take shape of proof.
Page - 21 of 37 [37] By Amending Act 13 of 2013, Section 375 of the Indian Penal Code defining the offence of rape has been amended. Clause
(b) of Section 375 now includes any insertion to any extent, any object or a part of the body not being the penis into the vagina, urethra or anus of a woman as the offence of rape. Even if the doctors were unable to ascertain penetrative sexual assault on the girl, whether there was insertion of any object at all in her vaginal passage, could have been gathered by the investigating agency. If this was done, by virtue of amended Section 375 of Indian Penal Code defining the offence of rape, the prosecution could have argued that the accused had committed the said offence. In the present case, no such attempt was made. No evidence is brought on record in this respect also.
[38] We cannot be swayed away by the so-called confessional statements of the accused. Firstly, there is no consistent proof of any such confession having been made by the accused. Secondly, both the punch witnesses PWs.1, and 2 and PW.16 when they referred to the confessional statement, the same was at a time when the accused was in police custody. By virtue of Sections 25 of the Evidence Act, such confessional statement would be inadmissible in evidence. Only exception that is carved out in this context is one referred to in Section 27 of the Act which makes such of the information as it relates to the fact discovered Page - 22 of 37 admissible in evidence. The so called confessional statement was thus clearly inadmissible in evidence.
[39] In view of the above discussion, the conviction of the accused under Section 302 of IPC shall have to be confirmed whereas his conviction under Sections 376AB of the penal code and Section 4 of the POCSO Act which prescribes punishment for penetrative sexual assault would have to be set aside. 25th February, 2020.
[40] This brings us to the question of sentence. The trial Court has awarded capital punishment. This was on the basis of the opinion of learned Judge that the accused had committed a brutal, diabolic and gruesome act which was abhorrent and ghastly. The accused had satisfied his sexual lust and thereafter killed a small child. He had thus committed two grave offences of rape and murder. He did not stop at sexually assaulting the child but also committed a brutal murder.
[41] When we come to the conclusion that the charge of rape is not established, the parameters for awarding death sentence must materially change entire basis of the judgment of the trial Court for awarding capital punishment was not only ferocity and brutality of the offences but also the fact that it was a case of rape and murder of a small child. We shall have to address the question of death sentence in light of these changed factors.
Page - 23 of 37 [42] Despite the acquittal of the accused for offence of rape, the fact remains that he committed murder of a young girl barely aged about 6 years in a most brutal manner. He hit her on several parts of her body such as face, head and private parts with hard and blunt substance repeatedly. He knew the child as he was living in the same neighbourhood. He had lured the child into going with him under a wrong pretext. He thus exploited the innocence of a young child.
[43] The question of awarding capital punishment has occupied the minds of the Courts on numerous occasions. In the case of Jagmohan Singh Vs. State of U.P reported in (1973) 1 SCC 20, a Constitution Bench of the Supreme Court highlighted that prior to amendments in the year 1955, Section 367(5) of this Criminal Procedure Code provided that if the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reasons why sentence of death was not passed. Subsequently, however, a major change was effected in 1955. Now in the Criminal Procedure Code, 1973 where sub-section (3) of Section 354 provides that when the conviction is for an offence punishable with death or in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and in the case of sentence of death, the special reasons for such sentence. Significantly, thus, Page - 24 of 37 from the approach of requiring the Court to state reasons for not awarding death penalty, the Legislature now mandates that the Court must state special reasons for awarding death penalty. [44] The said provision came up for consideration before a Constitution Bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab reported in (1980) 2 SCC 684. The Court observed that no exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender is possible. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. It was further observed that discretion in the matter of sentence is to be exercised by the Judge judicially after balancing all the aggravating and mitigating circumstances of the crime. The Court also held that sentence of death ought to be given only in rarest of rare case and it should be given only when the option of awarding sentence of life imprisonment is unquestionably foreclosed. [45] Ever since the judgment of the Supreme Court in case of Bachan Singh (supra), the Courts have been following the test of rarest of rare case in deciding the death penalty. In the later decision in case of Machhi Singh Vs. State of Punjab reported in (1983) 3 SCC 470, while maintaining this principle of rarest of rare case, further observing that extreme penalty of death need not Page - 25 of 37 be inflicted except in gravest case of extreme culpability, the Supreme Court also suggested that a balance-sheet of aggravating and mitigating circumstances should be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option of death penalty or life imprisonment is exercised. These observations of the Supreme Court in case of Machhi Singh(supra), have come up for minute scrutiny in some of the recent decisions. In case of Sangeet and another Vs. State of Haryana reported in (2013) 2 SCC 452, relying to the ratio in the Constitutional Bench decision on the case of Bachan Singh (supra) and also referring to the balance-sheet of aggravating and mitigating circumstances, propounded in case of Machhi Singh(supra), the Court observed as under :
"32. It does appear that in view of the inherent multitude of possibilities, the aggravating and mitigating circumstances approach has not been effectively implemented.
33. Therefore, in our respectful opinion, not only does the aggravating and mitigating circumstances approach need a fresh look but the necessity of adopting this approach also needs a fresh look in light of the conclusions in Bachan Singh. It appears to us that even though Bachan Singh intended "principled sentencing", sentencing has now really become judge-centric as highlighted in Swamy Shraddananda and Bariyar. This aspect of the sentencing policy in Phase II as introduced by the Constitution Bench in Bachan Singh seems to have been lost in transition."
Page - 26 of 37 Be that as it may, the principle of awarding death penalty in rarest of rare case, when all options of awarding life imprisonment are foreclosed, is firmly anchored and has been consistently applied by the Court.
[46] We may now refer to some of the later decisions of the Supreme Court where death penalty was been awarded. In case of Sudam alias Rahul Kaniram Jadhav Vs. State of Maharashtra reported in (2011) 7 SCC 125, the accused had caused murder of a woman who lived as his wife. He also killed two children of the woman out of a previous marriage and his own two children. In such background, holding that it was a rarest of the rare case, the Supreme Court confirmed the death penalty. In case of B A Umesh Vs. Registrar General, High Court of Karnataka reported in (2011) 3 SCC 85, the accused had committed the rape and murder of a woman while she was alone in the house which he had entered for commission of robbery. The Supreme Court confirmed the death penalty. In case of Rajendra Pralhadrao Wasnik Vs. State of Maharashtra reported in (2012) 4 SCC 37, the accused had committed rape and murder of a child barely 3 years old by luring her on the pretext of buying biscuits. Considering the heinousness, brutality and inhuman crime committed by a person who was married by betraying the confidence of a young child the death penalty was confirmed. In case of Mohd. Mannan alias Abdul Mannan Vs. State of Bihar reported in (2011) 5 SCC Page - 27 of 37 317, the accused was convicted for kidnapping, raping and then killing a minor girl and also causing disappearance of evidence of the offence. On the ground that the accused was holding a position of trust which he had misused in a calculated and in a planned manner to rape a girl barely aged 7 years and thereafter killing her, death sentence was confirmed.
[47] In case of Swami Shraddhananda alias Murali Manohar Mishra Vs. State of Karnataka reported in (2008) 13 SCC 767, the Supreme Court evolved the principle of commuting death sentence by awarding a minimum fixed term sentence as a via media where it was found that the death penalty may be too harsh but life sentence with the possibility of remissions may not be sufficient. It was observed as under :
"65. Earlier in this judgment it was noted that the decision in Shri Bhagwan(supra) there is a useful discussion on the legality of remission in the case of life convicts. The judgment in Shri Bhagwan, in paragraph 22, refers to and quotes from the earlier decision in State of M.P. Vs. Ratan Singh (supra) which in turn quotes a passage from the Constitution Bench decision in Gopal Vinayek Godse (supra). It will be profitable to reproduce here the extract from Ratan Singh:
"4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra, (1961) 3 SCR 440 where the Page - 28 of 37 Court, following a decision of the Privy Counsel in Pandit Kishori Lal v. King Emperor, AIR 1954 PC 64 observed as follows:
"Under that section a person transported for life or any other terms before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term. If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.
* * * * A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life".
The Court further observed thus:
"But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act......Under the said rules the order of an appropriate Government under Section 401, Criminal Procedure Code, are a pre-requisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser Page - 29 of 37 sentence for a sentence of transportation for life.
The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release."
It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period the prisoner's death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life."
Further, in paragraph 23, the judgment in Shri Bhagwan observed as follows:
"In Maru Ram vs. Union of India, (1981) 1 SCC 107, a Constitution Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, Page - 30 of 37 in Laxman Naskar (Life Convict) vs. State of W.B. & Anr., (2000) 7 SCC 626, after referring to the decision of the case of Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 SCR 440, the court reiterated that sentence for "imprisonment for life" ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitled the convict to be released automatically before the full life term if served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose."
The legal position as enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Mau Ram, Ratan Singh and Shri Bhagwan and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.
66. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court Page - 31 of 37 carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years' imprisonment and death. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all.
67. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of the rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh (supra) besides being in accord with the modern trends in penology.
68. In light of the discussions made above we are clearly of the view that there is a good and strong basis Page - 32 of 37 for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be.
[48] In case of Gurvail Singh Vs. State of Punjab reported in (2013) 2 SCC 713, the Supreme Court applied the said principle and commuted death sentence to imprisonment of minimum of 30 years without remission. It was a case where the accused was found guilty of causing death of a complete family of four persons in front of PW-1, whose son, daughter-in-law and two grand- children were murdered.
[49] In case of State of U.P Vs. Sanjoy Kumar reported in (2012)8 SCC 537, the Supreme Court commuted the death sentence of the accused convicted for the offence of rape and murder of 18 years old girl to that of fixed term sentence.
[50] In case of Neel Kumar Vs. State of Haryana(supra)[(2012) 5 SCC 766] where the father was convicted for rape and murder of his own minor daughter, the Supreme Court observed that it does not fall within the category of rarest of rare cases and while commuting the death sentence, it was directed that the convict shall serve a minimum of 30 years in jail without remission.
Page - 33 of 37 [51] In the case of Dilip Premnarayan Tiwari Vs. State of Maharashtra reported in (2010) 1 SCC 775, the Supreme Court while commuting the death sentence, awarded minimum of 25 years and 20 years of imprisonment to the accused. In order to commute the death sentence, it was observed as under :
"............No doubt, the murder was brutal. However, it has been pointed out by Shri Gaurav Agrawal as also Shri Raj that this was not a diabolic murder nor had the murderers acted in depravity of their minds by disfiguring the bodies. The incident must have taken place barely within 10-15 minutes when they came, assaulted the family members and left. True it is that the two ladies who were assaulted were helpless and so were Krishnan and Prabhu. But when we weigh all the circumstances, particularly, about the mindset of Dilip, the cruel acts on the part of the accused would not justify the death sentence..........."
[52] In the case of Sebastian Vs. State of Kerala reported in (2010)1 SCC 58, where the accused was convicted for rape and murder of two year old girl, the Supreme Court relying on the decision of Swamy Shraddananda (supra) commuted the death sentence to imprisonment for rest of his life. [53] In case of Sangeet Vs. State of Hariyana(supra), the Supreme Court doubted the ratio of the decision in case of Swami Sraddhananda(supra). In a later decision in case of Union of India Vs. Sriharan alias Murugan and Ors. reported in (2014) 11 SCC 1, a three-Judge Bench of the Supreme Court referred Page - 34 of 37 several questions to the Constitution Bench, one of them being as under:
"52.1 Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda(2), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?"
[54] The Constitution Bench in case of Union of India Vs. V Sriharan alias Murugan and ors. reported in (2016) 7 SCC 1, by a majority opinion upheld the view in case of Swami Shraddhananda(supra). Ibrahim Khalifulla,J it observed as under:
"105. We, therefore, reiterate that, the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other Court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior Court.
Page - 35 of 37
106. Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda (supra) that a special category of sentence; instead of Death; for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative. We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet and Anr. v. State of Haryana 2013 (2) SCC 452 that the deprival of remission power of the Appropriate Government by awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the law and we specifically overrule the same."
[55] This formula of substituting a death sentence with a fixed term sentence without remission has been applied by Supreme Court on numerous occasions thereafter. In case of Ravishankar alias Baba Vishwakarma Vs. State of Madhya Pradesh reported in (2019) 9 SCC 689, where the accused was convicted for the offences of rape and murder, the Supreme Court applied formula of Swami Shraddhananda case as approved in Sriharan case. The death sentence was substituted with imprisonment for life with a direction that no remission shall be granted to the appellant and he shall remain in prison for rest of his life. In case of Sudam alias Rahul Kaniram Jadhav Vs. State of Maharashtra reported in (2019) 9 SCC 388, where the accused was convicted for murder of 4 children and wife, the Supreme Court substituted death sentence with life imprisonment without remission. In case of Sachin Kumar Singhraha Vs. State of Madhya Pradesh Page - 36 of 37 reported in (2019) 8 SCC 371, where the accused was convicted for rape and murder of a young child taking into account aggravating and mitigating circumstances, death sentence was commuted to sentence of life imprisonment with a minimum 25 years of imprisonment without remission. In case of Parsuram Vs. State of Madhya Pradesh reported in (2019) 8 SCC 382, where the accused was convicted for rape and murder of a child by her tutor, taking into account mitigating and aggravating circumstances death sentence was commuted to imprisonment of 30 years without remission.
[56] We may now come to the facts on hand. As noted, what is proved against the accused is that he committed murder of a young girl aged barely about 6 years. The girl lived in the neighbourhood and knew the accused well enough to follow him when he falsely told her that the door of her hut was open. By this act, the accused took her to an isolated spot where he committed the murder in a most brutal manner. He has undoubtedly committed a heinous crime.
[57] Against this, the mitigating circumstances are that the accused does not have criminal record. The prosecution has not brought anything on record to suggest that he is a habitual criminal or there is past criminal history. At the time of the incident, he was a young man, aged about 25 years. He had an old mother to support.
Page - 37 of 37 [58] These factors on record would convince us that while confirming the conviction of the accused for offence under Section 302 of IPC, this is not a rarest of the rare case where the only available option is to snuff out the life of the convict. At the same time, awarding life sentence with all the possibilities of remissions and release of the convict after completion of the mandatory term of 14 years of incarceration, would not serve the ends of justice. Applying the principles laid down by the Supreme Court in case of Swami Shraddhananda(supra) and reiterated in number of decisions later, in facts of the case, therefore, while substituting the death penalty the accused is sentenced to life imprisonment with a direction that he shall serve a minimum of 25 years of jail term without remission. Direction for payment of fine for this offence and default sentence, if fine is not paid, remain unchanged. His conviction under offences punishable under Section 376AB of IPC and Section 4 of POCSO Act is set aside.
Appeal and the reference are disposed of accordingly. Pending application(s), if any, also stands disposed of.
Send down the LCRs forthwith.
(ARINDAM LODH, J) ( AKIL KURESHI ), CJ Sukhendu