Madhya Pradesh High Court
In Reference vs Ramnath Kewat @ Bhursoo Kewat on 29 July, 2022
Author: Sujoy Paul
Bench: Sujoy Paul, Prakash Chandra Gupta
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
CRRFC No.04 OF 2019
Between :-
IN REFERENCE
ADDITIONAL SESSIONS JUDGE/SPECIAL
JUDGE, BUDHAR DISTRICT SHAHDOL M.P.
....APPELLANT
(BY SHRI SANJAY AGRAWAL, SENIOR ADVOCATE WITH SHRI
ANUJ AGRAWAL - ADVOCATE AS AMICUS CURIAE)
AND
RAMNATH KEWAT ALIAS BHURSOO,
S/O HEERALAL ALIAS HEERU KEWAT,
AGED ABOUT 28 YEARS, BY
OCCUPATION- LABOURER, R/O
VILLAGE JHAGARHA KHALE TOLA
WARD NO.5 P.S. AMLAAI, DISTRICT
SHAHDOL (M.P.).
....RESPONDENT
(BY SHRI R.S. SHUKLA- ADVOCATE AS AMICUS CURIAE)
CRIMINAL APPEAL No.2754 OF 2019
Between :-
RAMNATH KEWAT ALIAS BHURSOO,
S/O HEERALAL ALIAS HEERU KEWAT,
AGED ABOUT 28 YEARS, BY
OCCUPATION- LABOURER, R/O
VILLAGE JHAGARHA KHALE TOLA
WARD NO.5 P.S. AMLAAI, DISTRICT
SHAHDOL (M.P.).
....APPELLANT
(BY SHRI ABHAY GUPTA - ADVOCATE)
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AND
STATE OF MADHYA PRADESH,
THROUGH, POLICE STATION AMLAAI,
DISTRICT SHAHDOL (MP)
....RESPONDENT
(BY SHRI YOGESH DHANDE- GOVERNMENT ADVOCATE)
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Reserved on : 25/7/2022
Delivered on : 29/7/2022
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JUDGMENT
Sujoy Paul, J. :-
The Death Reference and Criminal Appeal are arising out of impugned judgment dated 05.03.2019 passed in Case No.400160/2015 whereby appellant was held guilty for committing the offences and sentenced as under :-
Serial CONVICTION SENTENCE
No.
1. Under Section 376(2) (I) New Death Sentence to be hanged till
Section of April 2, 2013 in death and fine of Rs.200/-(Rs. Two
Criminal Proceeding is Jointly Hundred) Only. In default of
with 5/6 Sexual Offences in payment of fine further R.I. for 01
Connection with the Child's month.
Crime 376-A of the I.P.C.
2. Under Section 302 of the I.P.C. Death and fine of Rs.200/-(Rs. Two
Hundred Only. In default of
Payment of fine further R.I. for 01
month.
3. Under Section 201 of the I.P.C. R.I. for seven years and fine of
Rs.200/- only. In default of
payment of fine further R.I. for 1
month.
All sentences shall run concurrently. In the above death sentence it is directed that the appellant be hanged by the neck till his death.
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FACTUAL BACKGROUND :-
2. The case of the prosecution before the Court below was that on 09.06.2015 at around 1:30 P.M. in village Jhagraha, Police Station Amlai, District Shahdol, the appellant raped and murdered 12 years old girl in the vacant room of Kailash Kewat and tried to hide her dead body under the paddy straws.
3. To elaborate, on 09.06.2015 the family members of victim were taking rest in their house. The father of victim was sleeping. The younger sister of victim (P.W.3) was watching T.V. with the victim. The victim told her younger sister (P.W.3) that she is going to answer the call of the nature. When she did not return for quite sometime, (P.W.3) came out of the house and found that in the house of Kailash Kewat, there is a vacant room which is opened. Out of curiosity, (P.W.3) went in front of that door and found that appellant is trying to hide. Out of fear, she came back. Thereafter, family members started searching for the victim. During search at around 7:00 P.M., the uncle of deceased (P.W.5) found that the dead body of victim is lying on the floor of a room of Kailash Kewat (P.W.9). The said room was being used to keep paddy straws & chaff.
The legs of deceased were covered by using a heap of paddy straws.
4. The father of deceased (P.W.1) received an information on phone from his younger brother (P.W.5) about the dead body of her daughter. He, in turn, lodged the merg intimation. The police reached the scene of crime and prepared a punchnama of the dead body. Thereafter, the post mortem of dead body of the victim was conducted. The relevant educational qualification documents of victim were obtained from her father (P.W.1). During investigation, the statement of (P.W.3) was recorded under Section 164 of the Cr.P.C.
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5. A site map was prepared. The undergarments and clothes of victim were recovered. In addition, the plain and blood stained soil were recovered. All the seized materials were sealed and a seizure memo was prepared. The appellant was arrested on 10.6.2015 and on the basis of his statement, from his house a blood stained T-shirt and underwear was recovered. The statement of accused was recorded in a DVD. The medical examination of appellant was conducted and during examination, his semen sample was also taken. The semen of accused, his clothes and blood sample were seized and were sent for examination to the Forensic Science Laboratory (FSL) and to the DNA Laboratory.
6. Thereafter, in due course, a charge-sheet was filed before the Special Court for committing offences under Sections 302, 376 and 201 of the I.P.C. read with Section 5/6 of Protection of Children From Sexual Offences Act, 2012 (POCSO Act). In turn, matter was committed to the Special Court. In the said Court, the appellant abjured the guilt and prayed to conduct a full-fledged trial. The appellant stated that he does not wish to lead evidence in defence. The Court below framed eight questions for its determination.
7. After recording the evidence and hearing the parties, the impugned judgment was passed convicting the appellant and imposing the sentences mentioned hereinabove.
8. The first determination was regarding the age of the victim. In order to prove the age, the father of victim (P.W.1) deposed that the age of victim at the time of death was 12 years. This statement could not be demolished during cross-examination.
9. P.W.2 (mother of deceased) deposed that the age of her daughter was about 11 years. This statement was also not put to challenge during the cross-examination.
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10. P.W.4 (grandmother of deceased) also stated in her court statement that deceased was studying in class-VI of a Government School and was aged about 12 years. This statement was further supported by P.W.5, P.W.6 and P.W.7. These statements were also not called in question during cross-examination.
11. Dr. R. K. Verma (P.W.16) and Dr. Radha Chaturvedi (P.W.19) conducted the post mortem. Dr. Radha Chaturvedi (P.W.19) stated that the age of deceased was about 12 years.
12. Vinod Kumar Singh (P.W.18), Headmaster of Government Middle School, Bakho entered the witness box and produced the Admission Register of the school. In addition, he produced the progress report (Pragati Patrak) of the deceased which were duly marked as Exhibits. In both the documents, namely Admission Register and Progress Report, the date of birth of deceased is mentioned as 15.8.2004. This witness (P.W.18) further deposed that a certificate Ex.P/22-A was produced which contains the date of birth of deceased as 15.8.2004. The original record on the strength of which this certificate was produced was also brought and exhibited as Ex.P/23. In candid terms, he stated that the Ex.P/22-A certificate contains the signature of the then Headmaster Shri Ramesh Namdeo, who retired on attaining the age of superannuation. He identified the signature of Ramesh Namdeo.
13. In view of foregoing documentary evidence, the Court below opined that on 09.8.2015, the age of victim was less than 12 years.
14. The Court below on the strength of statements of Dr. R. K. Verma (P.W.16) and Dr. Radha Chaturvedi (P.W.19) opined that the victim was subjected to rape/sexual assault and thereafter she was murdered by throttling/strangulating her. The incident had taken place before 24-36 hours. The post mortem report was exhibited as Ex.P/20. Importantly, the
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doctors also opined that the deceased resisted the sexual assault made by the accused.
15. Dr. R. K. Verma (P.W.16) further stated that there were bleeding from private parts of the deceased. Labia Majora & Minora and hymen were ruptured. In order to get correct opinion, the vaginal swab of deceased and blood samples were taken and sent for FSL and DNA Test. During the cross-examination, the suggestion given by defence that injuries caused to the deceased could have been received if somebody fell down was denied by both the doctors. The Court below further recorded that a video recording of dead body of deceased was conducted which was provided to the accused and shown during camera trial. The appellant did not deny the same.
16. The statement of sister of deceased (P.W.3) was recorded under Section 164 of the Cr.P.C. Thereafter, her court statement was also recorded in due course. As per her version, she was watching TV along with the deceased. His brother and father were sleeping. The deceased left the house to answer the call of nature but did not return. (P.W.3) out of curiosity, peeped in the room of Kallu Kewat and found that accused Ramnath @ Bhursoo was trying to hide. In due course, the dead body of victim was found. The Court below opined that the appellant fled away after the incident and his this conduct is a relevant fact. The nature of injuries on the person of deceased were substantiated by the statements of P.W.1, P.W.5, P.W.6, P.W.7 and P.W.8.
17. The prosecution witnesses stated that the appellant is a relative of the deceased person and was called as 'Dada' (grandfather). During the investigation, the sealed slides of samples taken from private part of deceased were given to the constable of concerned police station, A.S.I. Gulam Husain (P.W.14). He, in turn, gave it to Head Constable Hari
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Kishore (P.W.15). The medical form requesting examination of victim is exhibited as Ex.P/13-A whereas seizure memo is Ex.P/14. Head Constable Hari Kishore (P.W.15) deposed that it contains his signature and he along with slides and clothes of deceased sent the same by memorandum Ex.P/9 through investigating officer (I.O.) (PW-20). The slides and the clothes were ultimately sent by the Superintendent of Police (S.P.) through Ex.P/26 for DNA Test. The DNA report (Ex.P/31) was received. The Court below held that the blood sample of accused and DNA report shows that prosecution could establish its case beyond reasonable doubt. In para-32 and 33 of the impugned judgment, the Court below gave findings in this regard.
18. In the impugned judgment, the Court below considered the statement of Hari Kishore (P.W.15) who deposed regarding information of death of victim to police station which was recorded at '0' (Zero) by Head Constable Madhav Singh (P.W.17). Sajjan Singh Parihar (P.W.20) stated that upon receiving the information of the dead body, he reached to the scene of crime. Photographer Mukesh Vishwakrama (P.W.12) took the photographs of the deceased and scene of crime. This photographer, in turn, entered the witness box and proved the photographs.
19. Dehati Nalisi (Ex.P/21) was recorded by Sajjan Singh Parihar (P.W.20). This witness further deposed that a spot map (Ex.P/2) was prepared in the presence of witnesses (P.W.7), Hira Kewat and (P.W.1) (father of deceased). The deceased was found to be wearing a yellow frock, green slacks and brown underwear. It is further deposed by him that a tile (khapra) of the roof of room where deceased was found was opened which gives an indication that somebody must have fled away from that place.
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20. Sajjan Singh Parihar (P.W.20) further deposed as to how medical examination of accused was conducted, his blood sample for DNA was taken and sent for DNA examination along with his T-shirt and underwear. Similarly, he described the method by which the deceased's samples mentioned hereinabove were sent for the DNA Test through concerned Superintendent of Police.
22. The Court below from para-47 to 49 of the impugned judgment opined that chain of circumstances establishes the case of the prosecution and upon recording its satisfaction opined that the prosecution could establish its case beyond reasonable doubt and therefore, convicted the appellant for committing offences under Section Sections 302, 376 and 201 of the I.P.C. read with Section 5/6 of the POCSO Act.
23. Thereafter, the appellant was heard by the Court below on the question of sentence. The Court below after considering various judgments opined that appellant deserves the capital punishment. In this backdrop, this matter has come up for hearing before us.
Submissions of Appellant/Amicus Curiae :-
24. Shri Abhay Gupta, learned counsel for the appellant submits that the date of birth of victim determined by the Court below is highly doubtful. The witness namely Vinod Kumar Singh (P.W.18) who entered the witness box and proved the progress report (Pragati Patrak) and Admission Register did not depose as to on what basis the date of birth was recorded. Thus, determination of age is improper.
25. The attention of this Court was drawn on the material seized which was sent for DNA Test in contrast to the DNA report. It is urged that Mr. Vijay Girnar conducted the DNA Test and stated that material for DNA Test from 'A to E' were received through concerned Superintendent
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of Police. A minute reading of the samples sent through a particular coding in juxtaposition to the coding given by DNA Institute shows that the coding was abruptly changed which creates serious doubt on the methodology adopted by DNA Institute. This vitiates the test report.
26. The statement of Sajjan Singh Parihar (I.O.) (P.W.20) was relied upon to contend that frock of deceased was of yellow colour. There is serious doubt whether it is the same frock which was recovered from the body of the deceased. The recovery memo dated 09.6.2015 (Ex.P/8) and Superintendent of Police's letter dated 18.6.2015 gives a different description of the frock. The colour of frock in those documents is shown as 'blue'. Thus, it cannot be safely said that the same frock which was seized from the person of the deceased was examined by the DNA Laboratory.
27. Shri Abhay Gupta, learned counsel also relied on the FSL report which was found to be negative.
28. The statement of P.W.3 recorded under Section 164 of the Cr.P.C. (Ex.P/6) and her court statement were read to show that the story narrated by her is not trustworthy. In her statement recorded under Section 164 of the Cr.P.C. (Ex.P/6), she deposed that the accused caught hold of the deceased by her neck when she was moving near the house of deceased. This part of statement is totally missing in her court statement. She further deposed that at around 4:00 P.M., she came to know that her sister is not traceable and informed her parents. The parents, in turn, lodged the 'Dehati Nalisi' against an 'unknown person'. If P.W.3 had already informed the name and role of appellant to the parents, there was no occasion for them not to mention the name of accused in the 'Dehati Nalisi'. The statement of Sajjan Singh Parihar Investigating Officer (P.W.20) was heavily relied upon wherein during cross-examination, he
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categorically admitted that he tutored P.W.3 to depose her statement (Ex.P/6) under Section 164 of the Cr.P.C.
29. Shri Abhay Gupta, learned counsel for the appellant took this Court to the statement of P.W.6 which shows that a cow entered the room where dead body of deceased was lying. The same witness stated that a person namely Ram Rattan also entered the same room where dead body of deceased was lying. Ram Rattan, Heera and Sahadev were not examined.
30. The statement of PW-7 (aunt of deceased) was relied upon to contend that this witness also stated that a cow and two persons entered the room where dead body of deceased was found. This was absolutely impossible that none of them could notice the dead body when they entered a small room.
31. Learned counsel for the appellant also relied upon the statement of P.W.8 and Kailash Kewat (P.W.9). Kailash Kewat, who is owner of the house where dead body of the deceased was found, stated that his son Rahul took out some 'paira' (paddy straws) from the room where dead body of victim was found. Shri Abhay Gupta, learned counsel submits that various persons entered the said room and Rahul even took out the 'paira' (paddy straws) from the same room. Thus, it is totally unbelievable that none could notice the dead body lying there.
32. Shri Sanjay Agrawal, learned Senior Counsel/Amicus Curiae assisted by Shri Anuj Agrawal, Advocate assisted the Court and urged that P.W.2 (mother of deceased) could not state with accuracy as to when police reached the scene of crime. P.W.4 deposed that Ramnath was trying to hide the dead body of deceased but this witness turned hostile. Learned Senior Counsel also pointed out that there exists a difference in description of frock and other clothes of the deceased. In addition to the
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contradictions pointed out by Shri Abhay Gupta, Advocate, Shri Agrawal, Senior Advocate pointed out that a 'trouser' was sent for DNA examination but DNA report talks about a 'slip'.
33. Learned Senior Counsel further submits that in the FIR, the age of victim was shown as 13 years. The case is based on circumstantial evidence. The reason of death is rape followed by asphyxia and throttling. Dr. R. K. Verma (P.W.16) and Dr. Radha Chaturvedi (P.W.19) proved the post mortem report. In addition, Dr. R. K. Verma (P.W.16) deposed that in the sample taken from the appellant, his photographs was affixed. During the course of hearing, learned Senior Counsel has also drawn our attention to the statement of P.W.3 recorded under Section 164 of the Cr.P.C. and her court statement.
34. Learned Senior Counsel has taken us to the entire legal journey on sentencing policy and urged that the sentence imposed is disproportionate in nature. It is not a fit case for imposing capital punishment.
35. Learned Senior Counsel placed reliance on AIR 1952 SC 343 (Hanumant Govind Nargundkar Vs. State of M.P.), (1984) 4 SCC 116 (Sharad Birdhichand Sarda Vs. State of Maharashtra) and 1989 Supp (2) SCC 706 (Padala Veera Reddy Vs. State of Andhra Pradesh) which are related to circumstantial evidence. It is urged that Panchsheel principles laid down in the case of Sharad Birdhichand (supra) are consistently followed. As per said principles, the prosecution is required to establish a solid convincing chain of circumstantial evidence which must be flawless.
36. Another set of judgments cited by learned Senior Counsel are (2001) 5 SCC 311 (Smt. Kamti Devi Vs. Poshiram), (2010) 9 SCC 747 (Santosh Kumar Singh Vs. State through CBI) and judgment of
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Madhya Pradesh High Court, M.P. dated 17.5.2019 passed in Criminal Appeal No. 458/2019 (Afjal Khan Vs. State of M.P.). These judgments are arising out of cases where conviction is recorded based on DNA report and circumstantial evidence. The relevant portion of these judgments were read out to show that clear chain of circumstantial evidence and DNA report can form basis of conviction.
37. Furthermore, learned Senior Counsel relied on judgments where death sentence is commuted to the sentence of specified term without remission. These judgments are (2008) 13 SCC 767 (Swamy Shraddananda Vs. State of Karnataka), (2012) 5 SCC 766, (Neel Kumar @ Anil Kumar Vs. State of Haryana), (2013) 7 SCC 725 (Ram Deo Prasad Vs. State of Bihar), (2014) 5 SCC 353 (Rajkumar Vs. State of M.P.), (2019) 8 SCC 382 (Parsuram Vs. State of M.P.).
38. Next volume of judgments provided by learned Amicus Curiae are those in which tests were laid down for the purpose of deciding the quantum of sentence. Reliance is placed on (1973) 1 SCC 20, (Jagmohan Singh Vs. State of Uttar Pradesh), (1980) 2 SCC 684, (Bachan Singh Vs. State of Punjab), (1983) 3 SCC 470, (Machhi Singh Vs. State of Punjab), (1994) 2 SCC 220, (Dhananjay Chatterjee Vs. State of West Bengal), (1994) 2 SCC 467 (Bheru Singh Vs. State of Rajasthan), (1998) 7 SCC 177, (Panchhi and others Vs. State of Uttar Pradesh, (2001) 9 SCC 50, (Raju Vs. State of Haryana), (2001) 9 SCC 615 (Bantu @ Naresh Giri Vs. State of Madhya Pradesh), (2003) 8 SCC 92, (Amit Vs. State of Madhya Pradesh), (2006) 12 SCC 79 (Amrit Singh Vs. State of Punjab), (2010) 3 SCC 508 (Mulla and another Vs. State of Uttar Pradesh), (2010) 9 SCC 747, (Santosh Kumar Singh Vs. State through CBI), (2011) 12 SCC 56 (Haresh Mohandas Rajput Vs. State of Maharashtra), (2012) 4 SCC 107,
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(Amit Vs. State of Uttar Pradesh), (2013) 5 SCC 546, (Shankar Kishan Rao Khade Vs. State of Maharashtra), (2014) 4 SCC 69 (Anil @ Anthony Arikswamy Joseph Vs. State of Maharashtra), (2017) 6 SCC 1 (Mukesh & another Vs. State NCT of Delhi) (Nirbhaya Case).
39. It is further urged that in the judgment of Division Bench of this court in CRRFC No.11/2019 dated 20.2.2020 (In Reference vs. Deepak @ Nanhu Kirar), this court has already considered the relevant tests prescribed by the Supreme Court for the purpose of deciding the quantum of sentence which is a case of similar nature where minor girl was raped and murdered. This Court has reduced the capital punishment to that of imprisonment for 35 years (without remission).
40. During the course of argument, Shri Abhay Gupta drew the attention of this Court to the Court's order dated 8.7.2019, whereby the trial court was directed to record the statement of Mr. Vijay Girnar, who conducted the DNA Test. In turn, said Shri Girnar was examined by the court below on 27.9.2019 and said statement is available on record with the appeal memo. Entire statement was read out to show that this statement is also silent about the change of code number on the articles sent for DNA examination. The suspicion regarding colour of frock could not be cleared even as per said statement of Mr. Girnar recorded on 27.9.2019.
Stand of prosecution :-
41. Shri Yogesh Dhande, learned Public Prosecutor supported the impugned judgment and placed reliance on statements of father of victim (P.W.1) and the mother of the victim (P.W.2) wherein they deposed that as per information received by them from their daughter (P.W.3), the appellant was trying to hide in the room from where the dead body of the victim was recovered. Mother of the victim (P.W.2) made it clear that her
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family has no animosity with the appellant. Learned Government Counsel further urged that the statements of father of the victim (P.W.1), mother of the victim (P.W.2) and sister of the victim (P.W.3) on the specific fact that the appellant was trying to hide in the said room could not be demolished. It is also not in dispute that deceased was elder sister of P.W.3, who was a student of class VIth. No cross-examination was made on the statements of prosecution witnesses that the appellant was relative 'Dada' (grandfather) of the deceased.
42. Furthermore, reliance was placed on the statements of P.W.4 and P.W.5 and also on the photographs taken by the photographer Mukesh Vishwakrama (P.W.12) regarding the scene of crime and dead body etc.
43. The statements of Dr. R.K. Verma (P.W.16) and Dr. Chaturvedi (P.W.19) were relied upon to submit that the reason of death was rape and throttling. The death was homicidal in nature. This further shows that from the dead body, blood sample was collected with the consent of family members for DNA Test. Dr. Chaturvedi (P.W.19) made it clear that colour of frock of deceased was yellow. When all this incriminating material was brought to the notice of the appellant, he did not furnish any explanation in his statement recorded under Section 313 of Cr.P.C.
44. Shri Yogesh Dhande, learned Government Advocate further urged that the totality of evidence shows that date of birth of deceased was satisfactorily proved by prosecution through Vinod Singh (P.W.18), Upper Division Teacher who produced the Admission Register and 'Progress Report' which contains the date of birth of victim as 15.08.2004. Thus, there is no manner of doubt that victim was a minor.
45. In view of foregoing argument, Shri Dhande urged that it was clearly established that-
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(i) Victim was below the age of 12 years.
(ii) The death was homicidal in nature and was outcome of rape and throttling.
(iii) Injuries were found on the body of appellant.
(iv) Appellant neither gave any explanation in his statement recorded under Section 313 of the Cr.P.C. about the injuries on his body nor gave any explanation about other incriminating materials which were confronted to him.
(v) The scientific report of DNA conclusively establishes the factum of rape on the deceased.
46. In support of aforesaid submissions, Shri Dhande, Government Advocate placed reliance on (2009) 6 SCC 600 (State of Uttar Pradesh Vs. Shobhanath and Ors.) and (2016) 12 SCC 660 (Anil Alias Bawa Vs. State of Haryana). It is canvassed that there is no reason why close relatives of appellant will unnecessarily rope-in the appellant by making wrong allegations against him. There is no reason to disbelieve the statement of close relatives of the deceased. Namdeo v. State of Maharashtra, (2007) 14 SCC 150 was pressed into service to bolster the submission that one eye-witness is sufficient to record conviction as per Section 134 of the Evidence Act. It is the quality of evidence which matters and not the quantity/number of witnesses. In absence of any inherent improbability in the statements of prosecution witnesses, court below has not committed any error in passing the impugned judgment.
47. The Division Bench judgment of this Court in Cr.A. No. 7544/2019 was referred to submit that on the basis of scientific report of DNA alone conviction can be recorded. Recent judgment of Gwalior Bench reported in 2021 SCC Online MP 1628 (Yogesh Nath Vs. State
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of M.P.) was referred to establish the importance of DNA report. Lastly, (2019) 9 SCC 622 (Ravi S/o Ashok Ghumare Vs. State of Maharashtra) was cited which is related to sentencing policy. Shri Dhande also supported the capital punishment awarded in the impugned judgment.
48. Shri Abhay Gupta, Advocate in his rejoinder submission urged that a bare perusal of stand of appellant taken in the statements made under Section 313 of Cr.P.C. makes it clear that he has not admitted anything regarding collection of blood sample or DNA report etc. whereas the appellant of Cr.A. No. 7544/2019 in his statement recorded under Section 313 of Cr.P.C. admitted the factum of collection of blood sample from him for the purpose of DNA Test. At last, Shri Abhay Gupta, placed reliance on the judgment of this court in Cr.A. No. 646/2019 (Anand Kushwaha Vs. State) wherein this Court opined that since appellant therein was represented before the court below through a counsel provided by Legal Aid Committee, this is a mitigating circumstance in favour of the appellant.
49. Parties confined their arguments to the extent indicated above. We have bestowed our anxious consideration on rival contentions and perused the record.
FINDINGS :-
Age of the victim :-
50. In order to prove the age of deceased, prosecution produced Vinod Singh (P.W.18), an Upper Division Teacher of the Government School. This witness produced original Admission Register before the Court and copy thereof was marked as Ex.P/23. He also produced the progress report Ex.P/3 and categorically deposed that in the Admission
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Register at relevant entry regarding date of birth of deceased, the signature of Shri Ramesh Namdeo, the then Head Master is there. He identified the said signature and mentioned that as per Admission Register and progress report, the date of birth of deceased was recorded as 15.8.2004. He was put to cross-examination and singular question asked was whether he was present at the time of admission of deceased ? He replied that since he was not posted in the school at that time, he cannot state as to on what basis date of birth of deceased was recorded.
51. Shri Abhay Gupta, learned counsel for the appellant argued that since source of recording date of birth in the Admission Register is not established, date of birth so recorded is not trustworthy. We do not see any merit in this contention. In (2012) 9 SCC 750 Ashwani Kumar Saxena vs. State of M.P., the Apex Court opined as under :-
"38. We fail to see, after having summoned the admission register of the Higher Secondary School where the appellant had first studied and after having perused the same produced by the Principal of school and having noticed the fact that the appellant was born on 24-10- 1990, what prompted the court not to accept that admission register produced by the Principal of the school. The date of birth of the appellant was discernible from the school admission register. Entry made therein was not controverted or countered by the counsel appearing for the State or the private party, which is evident from the proceedings recorded on 11-2-2009 and which indicates that they had conceded that there was nothing to refute or rebut the factum of date of birth entered in the school admission register."
(Emphasis Supplied)
52. In 2013 SCC Online MP 10475 (Raje vs. State of M.P.) this Court followed the ratio of Ashwani Kumar Saxena (supra) and opined as under :-
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"Since in the recent judgment, the Apex Court has considered the case of Jabar Singh (supra) and opined that the admission register of the school fulfills the requirement of 2007 Rules, the argument of Shri. Maheshwari fails. The bone of contention of Shri. Maheshwari is that the Rule only talks about the date of birth certificate and not about the admission register. However, the Apex Court in Ashwani Kumar Saxena (supra) has made it clear that the admission register is also an important piece of evidence."
(Emphasis Supplied)
53. Supreme Court in its recent judgment reported in 2021 SCC OnLine SC 1079 (Rishipal Singh Solanki v. State of U.P.), considered the relevant judgments on the question of determination of age and broadly laid down the principles in para-29 of the judgment. The relevant clauses are as under :-
(iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.
(iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.
(vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.
(ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35
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of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.
(Emphasis Supplied)
54. As per the ratio decidendi of Rishipal Singh Solanki (supra), it is clear that it is neither proper nor justifiable to apply any strict or abstract formula for determination of age of a person. The Court must examine the material available before it and on appreciation of evidence adduced by the parties in each case, should determine the age of victim/accused.
55. In the said judgment it was further made clear that determination of age when based on evidence, such as school record, the necessary requirement of Section 35 of Indian Evidence Act must be complied with.
56. We record our satisfaction in the manner prosecution has proved the date of birth/age of the victim. Original Admission Register and progress report of victim from a school first attended by her were produced and marked as Exhibits. The Government employee produced it, which shows that documentary evidence is produced from proper custody. The official documents were maintained in the discharge of official duty. The relevant entry of Admission Register shows that against each entry, there exists a certification of correctness of the said entry made by the concerned officer at the relevant time. Thus, there is no manner of doubt that date of birth of the victim was 15.8.2004 and she was a minor when she was raped and murdered.
Statement under Section 164 of Cr.P.C. and Court statement :-
57. The younger sister of deceased (P.W.3) in her statement recorded under Section 164 Cr.P.C. narrated somewhat a different story, if
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compared with her Court statement, was a submission made by Shri Abhay Gupta. The comparison thereof shows that her Court statement is not reliable. The argument on the first place appears to be attractive but lost its complete shine when examined in the teeth of principle and purpose behind insertion of Section 164 of Cr.P.C. in the statute book.
58. In AIR 1951 SC 441 (Tara Singh v. State), Vivian Bose, J. speaking for the Bench expressed the view as under :-
"38. ...........I hold that the evidence in the committal court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required by Section 145 of the Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 288. As two of the eyewitnesses were not confronted in the manner required by Section 145, their statements will have to be ruled out, and if that is done the material on which the conviction is based is considerably weakened."
(Emphasis Supplied)
59. The contention of learned counsel for the appellant deserves to be out-rightly rejected in view of authoritative pronouncement of Supreme Court in (2010) 6 SCC 493 (Utpal Das v. State of W.B.). The curtains are finally drawn on this issue by holding thus :-
"16. Likewise, the statement recorded under Section 164 CrPC can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it. The statement
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made under Section 164 CrPC can be used to cross- examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness. In the present case it was for the defence to invite the victim's attention as to what she stated in the first information report and the statement made under Section 164 CrPC for the purposes of bringing out the contradictions, if any, in her evidence. In the absence of the same the court cannot read the Section 164 statement and compare the same with her evidence."
(Emphasis Supplied)
60. It is noteworthy that in the cross-examination of P.W.3 in the Court, she was not confronted with her previous statement recorded under Section 164 of Cr.P.C. Thus, neither said statement under Section 164 of Cr.P.C. can be read as substantive evidence nor it can be read by the Court to demolish the Court statement of P.W.3. Putting it differently, as held in Utpal Das (supra), the Court cannot compare the statement recorded under Section 164 of Cr.P.C. and Court statement in a case of this nature where the relevant witness was not put to test during cross- examination based on her previous statement recorded under Section 164 of Cr.P.C.
Ocular evidence :-
61. P.W.3, sister of deceased is an important witness. She in clear terms deposed that she was watching TV with her deceased sister. Deceased sister left the room and went outside the house in order to answer the call of nature. Since she did not turn up for quite some time, came out of house and found that front door of a room in front of her house is kept opened. When she peeped into it, she found the appellant there who made an attempt to hide himself. She informed this to her parents in due course of time. Father (P.W.1) and mother (P.W.2) of the
- 22 -
deceased supported this statement. Other prosecution witnesses also narrated that they came to know that appellant was trying to hide and while doing so was seen by P.W.3.
62. The site map (Ex.P/2) shows that the house of deceased is situated right in-front of the room where body of deceased was found. Thus, it is quite natural that when P.W.3 came out of her house in order to search her sister and found the door of the said room opened, she peeped inside the room and found the appellant attempting to hide himself. The story cannot be said to be unbelievable.
63. No doubt, there are little variations in the statement of prosecution witnesses regarding actual time of recovery of the dead body etc. but said minor contradictions are normal in a case of this nature where multiple witnesses have deposed their statements. No material contradictions could be established which can cause serious dent to the story of prosecution.
64. Apart from this, Vijay Kewat (P.W.10) is a recovery witness who proved the recovery of underwear and T-shirt of appellant which were marked as Ex.P/9. He proved his signature and seizure memo (Ex.P/10). The blood stained underwear and T-shirt were shown to him by prosecution before sealing the same. Sujeet Kewat (P.W.11) also supported the recovery and proved Ex.P/9 and seizure memo Ex.P/10.
65. Dr. R.K. Verma and Dr. Radha Chaturvedi conducted the post mortem and proved the relevant post mortem report. It is important to note that when Naksha Panchnama (Ex.P/7) was prepared, the description of clothes of deceased was given. It is mentioned that deceased was wearing a cream yellow colour half frock. Both the doctors opined that the reason of death is rape followed by
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throttling/strangulation. The injury caused on the person of deceased must have been caused because of her resistance when she was subjected to sexual assault. It was further deposed that 3 ml. blood of accused was taken out for DNA Test which was handed-over to Sajjan Singh Parihar for DNA Test. The signature of appellant were also taken on the slip which was marked as Ex.P/34. In the said document, the signature of doctors are mentioned from "C - C" and "D - D" whereas appellant's signatures are mentioned at "B - B".
66. In view of the aforesaid ocular evidence, it is clear that victim was a minor. She was subjected to rape and murdered in a room situated in-front of her house. Appellant's blood stained clothes were recovered in the presence of witnesses. Post mortem report of deceased shows the aforesaid reason of death. The appellant was seen by P.W.3 in the room where body of deceased was found.
67. A cumulative reading of statements of prosecution witnesses show that they have proved the aforesaid aspect beyond reasonable doubt.
Statement under Section 313 of Cr.P.C. :-
68. Dr. R.K. Verma (P.W.16) and Dr. Radha Chaturvedi (P.W.19) examined the appellant soon after the incident. Following injuries were found on his body :-
(i) Abrasion on the right knee of size 1/2 x 1/2 inches,
(ii) similar abrasion on left knee,
(iii) Abrasion on the right forearm of size 4 inches x 1/9 inches
(iv) Abrasion was one and half inch by 1/4 inches on the lower one-third of the right forearm.
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(v) Abrasion on the left arm of size 2 x 1/2 inches.
(vi) Abrasion on right shoulder of size 1/4 x 1/4 inches.
69. The appellant when confronted with this incriminating material including nature of injuries, did not furnish any explanation at all. The purpose of inserting Section 313 of Cr.P.C. in the statute book is taken note of by Supreme Court in catena of judgments. In (2012) 6 SCC 174 (Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra Pradesh through Public Prosecutor, Hyderabad, Andhra Pradesh), the Apex Court has taken stock of previous judgments on this point and held as under :-
"73. It is a settled law that the statement under Section 313 CrPC is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him. In this regard, we may refer to some recent judgments of this Court. "21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.
74. Again, in its recent judgment in Manu Sao v. State of Bihar [(2010) 12 SCC 310 : (2011) 1 SCC (Cri) 370], a Bench of this Court to which one of us, Swatanter Kumar, J., was a member, has reiterated the abovestated view as under: (SCC pp. 316-17, paras 12-14)
- 25 -
"12. Let us examine the essential features of this Section 313 CrPC and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code.
13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is as to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this
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concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.
14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution."
75. In view of the above principles, it was expected of the accused to render proper explanation for his injuries and his conduct. However, he opted to deny the same and in fact even gave false replies to the questions posed to him.
76. If the accused gave incorrect or false answers during the course of his statement under Section 313 CrPC, the court can draw an adverse inference against him. In the present case, we are of the considered opinion that the accused has not only failed to explain his conduct, in the manner in which every person of normal prudence would be expected to explain but had even given incorrect and false answers. In the present case, the Court not only draws an adverse inference, but such conduct of the accused would also tilt the case in favour of the prosecution."
(Emphasis Supplied)
- 27 -
70. In this view of the matter, the Court below has rightly taken into consideration this relevant fact into consideration while recording conviction. We do not find any infirmity or illegality in the said finding.
Photographs :-
71. The photographs of victim and the spot where she was raped and murdered were taken by a photographer Mukesh Upadhyay (P.W.12). The court below in para-38 and 39 of the impugned judgment dealt with these digital photographs and CD. On the basis of a judgment of Delhi High Court in RFA No. 744/2016 (Puneet Prakash Vs. Suresh Kumar Singhal) decided on 13th July, 2018, the court below opined that said statement of photographer and also the photographs and CD are admissible in evidence.
72. In our opinion, the judgment of Delhi High Court in Puneet Prakash (Supra) is based on the judgment of Supreme Court in Shafhi Mohd Vs. State of Himanchal Pradesh (2018) 2 SCC 801. The judgment of Supreme Court in Shafhi Mohd (Supra) was considered by a larger Bench of Supreme Court in (2020) 7 SCC 1 (Arjun Panditrao Khotka Vs. Kailash Kushanrao Gorantyal and Others) and in para-73 of this judgment, the Apex Court specifically overruled the judgment of Shafhi Mohd (supra). Thus, judgment of Delhi High Court in Puneet Prakash (Supra) which was founded upon the judgment of Shafhi Mohd (supra) is impliedly overruled. Thus, we are unable to hold that said photographs are of any assistance to the prosecution.
DNA report :-
73. The DNA report is assailed on three counts.
Firstly, the colour of frock of victim in the DNA report is shown to be 'light yellow' whereas property seizure memo (Ex. P/18) shows that a
- 28 -
blue colour frock was recovered. This is further clear from the letter dated 18.06.2015 written by Superintendent of Police, Shahdol to Director, FSL Sagar. In this letter also frock is shown to be of blue colour.
Secondly, Exhibit 'C' in the report of Centre For DNA Fingerprinting And Diagnostics dated 23 rd October, 2015, a pink colour slip Exhibit 'C' was shown whereas recovery memo does not reflect about any seizure of Exhibit'C'. Indeed a 'trouser' of deceased was allegedly seized.
Thirdly, The document Ex.P/26 shows the description and marking of documents which is as under :-
**mijksDr lHkh lkexzh DNA ijh{k.k gsrq vkidh vkSj vkj- 650 vt; dqekj ckFke ds }kjk fuEu rkfydk vuqlkj Hkstk tk jgk gSA dza- oLrq dk fooj.k dc dgkW ls tIr fd;k x;k izn'kZ
01. ,d lhycan FkeZj esa vkjksih dk jDr fn- 16-06-2015 dks lh-lp-lh- cq<kj lsA A uewuk 3-ml
02. Lkhycan vkjksih dh iTth fn- 10-06-2015 dks lh-lp-lh- cq<kj lsA B
03. 'khycan e`frdk cstkbuy L;so fn- 10-06-2015 dks lh-lp-lh- cq<kj lsA C LykbM
04. 'khy can vkjksih dh Vh&lVZ fn- 10-06-2015 dks vkjksih ls D
05. 'khy can e`frdk dh QzkdA fn- 10-06-2015 dks lh-lp-lh- cq<kj lsA E mijkskDr izn'kZ A,B,C,D,E. Dk DNA izksQkby ijh{k.k dj vfHker nsosa dh D;k bu lHkh izksQkbyksa dh DNA izksQkby ,d leku gS \ layXu & 1&iz-lw-i= dh Nk;kizfr 2&'ko iapukek dh Nk;kizfr 3&ih-,e-fjiksVZ dh Nk;kizfr 4& tIrh i=d dh Nk;kizfr 5& vkbMsaUVhfQds'ku ,oa DNA QkoZM uksV dh ewy izfrA 6& lh-,p-lh- cq<kj dh 'khy uewuk 7& uewuk 'khy Fkkuk veykbZ iqfyl v/kh{kd 'kgMksy ¼e-iz-½
- 29 -
vf/kdkj & i= Fkkuk veykbZ ftyk 'kgMksy ¼e-iz-½ ds vi-dz- 217@15 /kkjk 302] 201] 376] 2¼>½¼´½¼M½] 376d rk-fg- ,oa 5@6 ikLdks ,DV ds izdj.k esa ijh{k.k esa ijh{k.k gsrq Hksts tk jgs izn'kksZa dks vko';drkuqlkj foHkDr djus dh vuqefr iznku dh tkrh gSaA iqfyl v/kh{kd 'kgMksy ¼e-iz-½ **
74. If it is examined in juxtaposition with the DNA report, it will show that the exhibit numbers were rearranged. The description given in the DNA report dated 23rd October, 2015 reads as under :-
DESCRIPTION OF SOURCE Name of the source Received/collected Exhibit Exhibit Code on Two slides said to be vaginal swab slides of 19-06-2015 A Z299 VSL1 deceased victim Light yellow colour frock said to be of 19-06-2015 B Z299 CL1 deceased victim Pink colour slip said to be of deceased victim 19-06-2015 C Z299 CL2 Underwear said to be of accused Mr. Ramnath 19-06-2015 D Z299 CL3 Kewat Green colour T-shirt said to be of accused Mr. 19-06-2015 E Z299 CL4 Ramnath Kewat Blood sample said to be of Mr. Ramnath Kewat 19-06-2015 F Z299 B1 Identification form No.1 (Emphasis Supplied)
75. In addition, attention of this Court was drawn on the order of this court dated 08.07.2019 whereby matter was remitted before court below for a limited purpose of recording statement of Mr. Vijay Girnar who prepared and signed the DNA report dated 23 rd October, 2015. The statement of Vijay Girnar recorded on 27.09.2019 were also read out.
76. No doubt, there is a clear difference in description of colour of frock of victim in the seizure memo, SP's aforesaid letter and the DNA report. Similarly, there exists a difference regarding description of 'slip' of deceased victim. The Naksha Panchayatnama (Ex. P/7) and post
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mortem report Ex.P/20 which were duly proved by P.W.6 were prepared prior in time. This shows that deceased was wearing a half frock of yellow colour. It appears that while preparing the property seizure memo, the colour of frock is wrongly mentioned as 'blue' in place of 'yellow'. This description became foundation for SP's aforesaid letter. Even assuming that to this extent a doubt is created on the DNA report, it cannot be forgotten that as many as six materials were examined by DNA expert which includes -
(i) Two vaginal swab slides of victim.
(ii) Underwear of accused.
(iii) T-shirt of accused &
(iv) Blood sample of the accused - Ramnath Kewat.
77. The result of DNA examination and conclusion reads thus:-
CENTRE FOR DNA FINGERPRINTING AND DIAGNOSTICS RESULT OF EXAMINATION The source of Exhibit A (two slides said to be vaginal swab slides of deceased victim), female fraction of the source of exhibit B (light yellow colour frock said to be of deceased victim) and the source of exhibit C (pink colour slip said to be of deceased victim) yielded identical autosomal DNA profiles of female origin. The source of exhibit D (underwear said to be of accused Mr. Ramnath Kewat) and male fraction of source of exhibit B (light yellow colour frock said to be of deceased victim Ms. Khusboo) yielded identical autosomal DNA profiles of male origin and are matching with the autosomal DNA profile of the source of exhibit F(blood sample said to be of Mr. Ramnath Kewat).
The source of exhibit E (green colour T-shirt said to be of accused Mr. Ramnath Kewat) yielded mixed autosomal DNA profile. The alleles present in the DNA profiles of the source of exhibit A (two slides said to be vaginal swab slides of deceased victim), exhibit B (light yellow colour frock said to be of deceased victim), exhibit C (pink colour slip said to be of deceased victim)and exhibit F (blood sample said to be of Mr. Ramnath Kewat) are accounted for being
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present in the DNA profile of the source of exhibit E at the amplified loci, as shown in the enclosed Table-1.
The sources of exhibit A (two slides said to be vaginal swab slides of deceased victim), one part of exhibit B (light yellow colour frock said to be of deceased victim), Exhibit D (underwear said to be of accused Mr. Ramnath Kewat) and exhibit E (green colour T-shirt said to be of accused Mr. Ramnath Kewat) yielded identical Y-chromosomal DNA profiles and are matching with the Y-chromosomal DNA profile of the source of exhibit F (blood sample said to be of Mr. Ramnath Kewat). The source of exhibit C (pink colour slip said to be of deceased victim) and another part of the source of exhibit B (light yellow colour frock said to be of deceased victim) yielded Y-chromosomal DNA profiles as shown in the enclosed Table-2.
CONCLUSION The DNA test performed on the exhibits provided is sufficient to conclude that the biological fluid present on the sources of exhibit A (vaginal swab slides of deceased victim), exhibit B (light yellow colour frock said to be of deceased victim) and exhibit D (underwear of accused Mr. Ramnath Kewat) are from the source of exhibit F (Mr. Ramnath Kewat).
(Emphasis Supplied)
78. Thus, even if we ignore the report to the extent frock and slip are mentioned, fact remains that the DNA report conclusively proves that biological fluid present on vaginal swab slides were of the source of present appellant.
79. Thus, we are of the considered view, that court below has taken a plausible view while giving finding related to DNA Test.
80. Mr. Vijay Girnar in furtherance of this Court's order dated 8.7.2019 deposed his statement before the trial Court and appellant got an opportunity to cross-examine him. A plain reading of his deposition makes it clear that no amount of cross-examination could be made which could cause dent on the fairness of the DNA Test. In other words, Shri Abhay Gupta, learned counsel although urged that change of coding in
- 32 -
the Articles by DNA Test Laboratory is bad in law. No question in this regard was asked which can be said to be fatal for the DNA Test.
81. The statement of Vijay Girnar recorded on 27.09.2019 does not improve the case of appellant. The conclusion of the report dated 23 rd October, 2015 is not confined to the 'frock' and 'slip' alone. On the contrary, it is wide enough to include the finding based on vaginal swab slides and compared with the biological fluid and Exhibit-D (underwear of present appellant). Since source was same, no eyebrows can be raised on the DNA Test conclusion.
82. The argument of Shri Abhay Gupta that rearranging the exhibit numbers of articles is bad in law, in our opinion, is devoid of substance. A comparative reading of the material sent for DNA Test and material examined shows that although there is a change in exhibit numbers, the material were also identified by 'name of the source'. This is neither shown to be illegal nor could cause any prejudice to the present appellant.
83. In view of aforesaid analysis, we are of the considered opinion, that the court below has rightly relied upon the DNA Test Report. Pertinently, when this DNA Test Report was brought to the notice of the appellant, he did not furnish any explanation in his statement recorded under Section 313 of Cr.P.C. The DNA Test is a scientific test and if this test result conclusively proved the case of prosecution, this alone can be a ground to record conviction. It is profitable to record the legal journey on this aspect.
84. The Apex Court in Santosh Kumar Singh v. State, (2010) 9 SCC 747 opined as under :-
"68. It is significant that not a single question was put to PW Dr. Lalji Singh as to the accuracy of the methodology or the procedure followed for the DNA profiling. The trial court has referred to a large number
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of textbooks and has given adverse findings on the accuracy of the tests carried out in the present case. We are unable to accept these conclusions as the court has substituted its own opinion ignoring the complexity of the issue on a highly technical subject, more particularly as the questions raised by the court had not been put to the expert witnesses. In Bhagwan Das v. State of Rajasthan [AIR 1957 SC 589 : 1957 Cri LJ 889] it has been held that it would be a dangerous doctrine to lay down that the report of an expert witness could be brushed aside by making reference to some text on that subject without such text being put to the expert.
(Emphasis Supplied)
85. Apart from this, in view of scientific accuracy attached to DNA Test result, we are inclined to hold that Court below has rightly recorded the conviction of the appellant. The relevant paragraphs of the judgment of Santosh Singh (supra) needs to be reproduced thus :-
"65. We now come to the circumstance with regard to the comparison of the semen stains with the blood taken from the appellant. The trial court had found against the prosecution on this aspect. In this connection, we must emphasise that the court cannot substitute its own opinion for that of an expert, more particularly in a science such as DNA profiling which is a recent development.
67. The statements of Dr. Lalji Singh and Dr. G.V. Rao reveal that the samples had been tested as per the procedure developed by the laboratory, that the samples were sufficient for the purposes of comparison and that there was no possibility of the samples having been contaminated or tampered with. The two scientists gave very comprehensive statements supported by documents that DNA of the semen stains on the swabs and slides and the underwear of the deceased and the blood samples
- 34 -
of the appellant was from a single source and that source was the appellant.
71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram [(2001) 5 SCC 311 : 2001 SCC (Cri) 892 : AIR 2001 SC 2226]."
(Emphasis Supplied)
86. In a case of this nature, where DNA Test result conclusively proved the involvement of appellant even if the oral evidence is weak or vulnerable, conviction can be recorded. In Hemudan Nanbha Gadhvi v. State of Gujarat, (2019) 17 SCC 523, it was poignantly held that :-
"10. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the rule of law. Neither the accused nor can the victim be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh v. State of Gujarat [Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] and Mahila Vinod Kumari v. State of M.P. [Mahila Vinod Kumari v.State of M.P., (2008) 8 SCC 34 : (2008) 3 SCC (Cri) 414] If the medical evidence had not confirmed sexual assault on the prosecutrix, the TIP and identification therein were doubtful, corroborative
- 35 -
evidence was not available, entirely different considerations may have arisen."
(Emphasis Supplied) QUANTUM OF SENTENCE :-
Balance Sheet :-
87. In the light of judgment of Supreme Court in Bachan Singh and Macchi Singh (supra), it is necessary to prepare a balance sheet of mitigating circumstances and aggravating circumstances.
The mitigating circumstances are :-
(i) The appellant has no criminal record,
(ii) The commission of crime was not extremely barbarous, gruesome, diabolical, brutal or heinous in nature.
(iii) The rape was outcome of the personal lust,
(iv) The murder was not outcome of any pre-meditation and it was done by accused in spontaneity,
(v) The crime was not committed to terrorize or harm a particular or larger section of society.
(vi) No weapons were used.
(vii) The cause of death is rape and asphyxia/throttling.
(viii) The accused is a young person of 28 years of age, The aggravating circumstances are :-
(i) The victim was an innocent minor girl, aged about twelve years,
(ii) She was in a defenseless and unprotected state,
(iii) Rape and murder of innocent minor girl.
(iv) The appellant was a relative i.e. 'dada'. Thus, enjoying a position of trust and domination.
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88. Learned Government Counsel for the State supported the capital punishment imposed by the court below.
89. The Apex Court apart from aforesaid balance sheet, also relied upon other tests namely 'Crime Test', 'Criminal Test' and 'R-R Test'. This court considered these tests in sufficient detail in Cr.A. No.7544/2019 (Deepak @ Nanhu Kirar Vs. State of M.P.).
90. In Deepak @ Nanhu Kirar Vs. State of M.P. the court held as under:-
"62. The sentencing policy was taken note of by Apex Court in large number of cases. In the case of Bachan Singh Vs. State of Punjab, 1980 (2) SCC 684, it was held that the normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only when there are special reason. If the offence is of an exceptionally depraved and heinous character and constitute on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose death sentence. While interpreting Section 354 of Cr.P.C., the Apex Court in Machhi Singh and others Vs. State of Punjab, 1983 (3) SCC 470 opined that a balance sheet of aggravating and mitigating circumstance has to be drawn up and in doing so, the mitigating circumstance has to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances.
The question which needs to be posed is whether the crime is such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstance.
63. In a recent judgment, 2018 SCC Online 2570 (Channulal Verma Vs. State of Chhattisgarh), the Apex Court took note of its previous judgments on sentencing policy and opined that the test discussed in Shankar Kishanrao Khade (supra) needs to be applied
- 37 -
while awarding the death sentence. The test for death sentence are (crime test, criminal test and R-R test) and not the "balance test". To award death sentence, the 'crime test' has to be fully satisfied i.e. 100% and 'criminal test' 0% i.e. no mitigating circumstance favouring the accused. It was poignantly held that if there is any circumstance favouring the accused like young age of accused, 'criminal test' may favour the accused to avoid the capital punishment."
(Emphasis Supplied)
91. Now, it is to be examined whether capital punishment imposed by court below is justified. In catena of judgments, it was held that the death sentence can be imposed only when there is no other alternative. Otherwise imposition of Life Imprisonment is the rule. In the instant case, there are mitigating circumstances which are in favour of the appellant. As per judgment of Apex Court in the case of Chhannu Lal Verma (supra), even if one circumstance favours the accused, which includes his young age, the imposition of capital punishment is not justified.
]] 92. A Division Bench of this Court in Anand Kushwaha Vs. State of M.P. ILR [2019] M.P. 1470 considered judgments of Supreme Court of in tabular form. The first head deals with the cases in which the Apex Court affirmed the death sentence whereas second is relating to the cases where death sentence was commuted to imprisonment for life. It is profitable to quote the said tabular form in order to appreciate the backdrop and 'aggravating' and 'mitigating circumstances' and the result thereof.
Death Sentence Affirmed S. No. Details & Brief Facts of the Aggravating Mitigating case
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1. (1991) 3 SCC 471 (2J)- i. Innocent boys victim. i. Appellant young Sevaka Perumal v. State of man.
Tamil Nadu ii. Conspiracy to entice ii. Bread winner of Offence- u/s 302/34 and boys from affluent the family. Section 364, 392, 120-B read families.
with Section 397 IPC. iii. Dead body could not The accused were indulged in be identified. illegal business of purchase iv. Four murders in a and sale of Ganja. They span of 5 years conspired to entice innocent committed for gain in boys from affluent families, cold clouded, took them to far flung places premeditated and where the dead body could not planned way. be identified. Letters were v. Depravity & hardened written to the parents criminality.
purporting to be by the vi. No regards for deceased to delude the parents precious lives of that the missing boys would innocent young boy. one day come home alive and vii. Crime of murder for that they would not give any gain as a means of report to the police and the living.
crime would go undetected.
Four murders in a span of five years were committed for gain in cold clouded, premeditated and planned way. One of the deceased was the nephew (elder sister's son) of the first accused.
* Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats.
2. (1994) 2 SCC 220 (2J) 1. Atrocity of the 1. Age 27 years.
-Dhananjoy Chatterji @ crime. 2. Concern for dignity Dhana v. State of West Bengal. 2. Conduct of the of human life is required Offence-u/s 302,376 & 380 criminal. to be kept in mind by IPC. the courts while The accused was one of the 3. Defenceless and considering the security guard deputed to guard without any confirmation of sentence the building Anand Apartment. provocation. of death. The deceased, a young girl of 18 4. Unprotected state of years of age, complained to her victim.
mother that the accused had 5. Faith of society been teasing her on her way to shaken.
and back from the school. On 6. Barbaric rape and the complaint by the father of murder.
the deceased, the accused was transferred and another security guard was posted in his place.
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The accused went to the flat of the deceased at about 5.00 pm when she was all alone in her flat and committed rape and murder of the deceased.
3. (1994) 3 SCC 381 (2J)-Laxman i. Accused uncle of the Naik v. State of Orissa. deceased and occupied Offence-u/s 376 & 302 IPC. status of guardian. The accused alongwith his ii. Victim 7 years old, mother and her seven years' old unmindful of the grand daughter i.e. niece of the preplanned, unholy accused had gone to a designs of the accused. neighbouring village to take part iii. Victim was a totally in a funeral ceremony. In the helpless child, no one afternoon, when all the relatives to protect her in the assembled for the ceremony and desert.
were busy in the observance of iv. Misused the the ceremony, the accused commanded the deceased, his seven years' old niece to accompany him back to their village and the deceased followed him in obedience to his command. He sexually assaulted and murdered her, and her dead body was found lying in jungle with serious bleeding, injury in her private part and her clothes found smeared with blood.
confidence to fulfill the lust.
v. Preplanned to
commit by resorting to
diabolic methods.
Calculated, cold
blooded and brutal
murder of girl of tender
age.
4. (1999) 5 SCC 1 (3J)- Jai i. Cold blooded murder i. Age of accused 22 Kumar v. State of M.P. of 2 who were in years. Offence-u/s 302 IPC. hapless and helpless Possibility of The accused entered the house situation without Reformation of his brother and bolted from provocation. outside the mother's room and ii. Calculated Ghastly thereafter removed certain and Cruel murder. bricks from the wall and iii. Sent shock waves Choukat. Thus facilitating the in the society. entry into the room where the iv. Create feeling of deceased sister-in-law was revolt in the
- 40 -
sleeping with the child, the conscience. accused committed the murder v. Subsequent disposal of his sister-in-law at about of the bodies. Living 11.00 pm by parsul-blows and danger in the gruesome then kulhari blows on her neck act severing her head from the body and taking away her eight years' old daughter and killing her in a jungle by axe-blows said to be by offering sacrifice to Mahua Maharaj and buried her in the sand covered with stone and thereafter came back home and carried the body of his deceased sister-in-law tied in a cloth to the jungle and hung the head tied on a branch with the hair and put the body on the trunk of the Mahua Tree.
5. (2004) 2 SCC 338 (2J) - Sushil i. No basic humanness. Murmu v. State of Jharkhand Offence-u/s ii. Lacks the Psyche or mind 302 IPC. set which can be amenable for Human Sacrifice of Child 9 years old for any reformation. prosperity of accused. The recovery of the iii. Accused had a child of dead body was at the behest of the same age as of the victim, yet accused, the severed head was recovered he diabolically designed in a from the bag thrown in the pond. most dastardly and revolting manner to sacrifice hapless and helpless child of another.
iv. Brutality of act is amplified by the grotesque and revolting manner in which the helpless child's head was severed.
v. Carried head in a Gunny bag and threw in the pond, shows diabolic act, cruel in execution. Planned and deliberate act.
6. (2005) 3 SCC 114 (2J)-State of Relying on Principals U.P. v. Satish Offence- u/s 363, 366, 376(2), 302 & 201 (sic : Principles) laid down I.P.C in Bachan Singh's On 16.8.2001 the victim who was case and Machhi Singh's studying in Sarvodaya Public School had case one of the Rarest of gone to school and did not return at the Rare. usual time. On the next morning, her dead body was found in the sugarcane field of one Mulchand around 6.00 am. She was lying in a dead condition and blood was
- 41 -
oozing from her private part and there were marks of pressing of her neck. The victim who was not even six years old lost her life on account of bestial act of the accused who raped her and thereafter murdered her.
7. (2005) 3 SCC 793 (2J) Holiram i. Cold blooded murder. Bordoloi v. State of Assam. ii. Accused leading the gang. Offence- U/S - 147, 148, 436, 326 & iii. Victims did not provoke or 302/1491. P.C. contribute to the incident. On the date of incident in question, the iv. 2 victims were burnt to deceased was present at his house death by locking the house alongwith his wife, three children aged six from outside. years, eight years and sixteen years. The v. One of the victim was a 6 accused and the other accused persons year old boy, who, somehow, who were armed with lathi, Dao, Jathi, managed to come out of the Jong and various other weapons, came to burning house, but he was the house of the deceased and started mercilessly thrown back to pelting stones on the bamboo wall of the the fire by accused. said house. Thereafter, they closed the vi. Dragging of one of the door from outside and set the house on victim by the accused to his fire. The son and one daughter and wife house and then cutting him managed to come out from the house. The into pieces in broad day light, accused and another accused caught hold in the presence bystanders. of him and threw him into the fire again.
The deceased family was completely burnt and died on the spot. Thereafter, the elder brother who was staying in another house at some distance of the house, was vii. The entire incident took caught and dragged to the courtyard of the place in the broad daylight accused, where the accused cut him into and the crime was committed pieces. in the most barbaric manner to deter others from challenging the supremacy of the accused in the village.
viii. Entire incident was preplanned.
Accused when questioned under section 235(2) Cr.P.C.
on sentence did not say anything, silence shows he has no repentance for the ghastly act committed.
8. (2007) 3 SCC 1 (2J) Ram i. Murder committed in Singh v. Sonia Offence u/s - 354(3), 366, diabolic manner. 368, 302 I.P.C ii. Without any provocation. The accused alongwith her husband iii. Cold blooded and murdered her stepbrother and his family, premediated. which included 3 tiny tots aged 45 days, 2 iv. Helpless victims.
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and half year and 4 years, as also v. Not possessed with basic murdered her own father, mother and humanness as the act is brutal, sister in a very diabolic manner so as to grotesque and in revolting deprive her father from giving property to manner. her stepbrother and his family. vi. Completely lacks the psyche or mindset which can amenable for any reformation.
9. (2007) 4 SCC 713Shivu v. Registrar 1. Rarest of Rare Case General, High Court of Karnataka following guidelines of Offence - U/S- 302/34 & 376/34 I.P.C Bachan Singh & Machhi Singh Accused aged about 20 and 22 years 2. Earlier 2 instances of respectively were sexually obsessed Rape Recorded. youngsters, who prior to the alleged incident had attempted to rape two girls of same village, only Panchayat of village elders was called on each occasion and the accused were admonished. Emboldened they committed rape on the deceased, a young girl of 18 years and to avoid detection, committed heinous and brutal act of her murder.
10. (2008) 4 SCC 434Prajeet Kumar i. Brutality in murder as Singh v. State of Bihar Offence u/s-302 several incised wounds.
I.P.C ii. Victims were helpless and The accused was living in the house had no weapon. where he was taking his meals for which iii. Accused was living as he was paying Rs. 500/- per month. For P.G. from 4 years, the act the last several months, he had not paid was preplanned. the amount and owed Rs. 4000/- iv. Act was diabolic of the altogether as rent for the house and for Superlative degree in food to the informant for which the conception and Cruel in informant was making demand regularly. execution and does not fall The day before the incident, the accused witin (sic : within) any came back at 3.00 pm. After having comprehension of the basic dinner, when the informant asked the humanness accused for the dues, the accused told him that he should accompany him to his which indicates the mindset home where he would be paid his money. and cannot be said to be Thereafter, the informant and his wife amenable to any reformation went to sleep in their room which was on the third floor of the house and the accused also went to sleep in the adjoining room on the third floor. All the children of the informant were sleeping on the second floor. The accused picked up dab (dagger like weapon) from the
- 43 -
house, and murdered the son of informant about 16 years, daughter about 15 years and niece about 8 years and caused injuries to the informant and his wife.
11. (2008) 7 SCC 561- Mohan Anna 1. Serial Rapist Chavan v. State of 2. Rarest of Rare Case Maharashtra Offence u/s-302, 363, 376, following guidelines of 201 I.P.C Bachan Singh & Machhi Two young girl aged five years and ten Singh years were sexually assaulted and murdered. The appellant was serial rapist, convicted for kidnapping and raping a minor girl, again convicted for raping a girl less than nine years.
12. (2008) 11 SCC 113 (2J) Bantu v. State 1. The serious kind of rape. of Uttar Pradesh Offence u/s- 364, 376 2. Planned manner. & 302 I.P.C 3. Merciless in insertion of There was Devi Jagran in village, in the wooden stick causing death. eventful night. A number of person of the locality had assembled there. The informant, alongwith his brother and niece (deceased) had also gone there.
Around 9.00 pm the accused, a neighbour of the informant reached there, and after exhibiting playful and friendly gesture with the deceased with whom he was familiar before because of neighbourhood, enticed her away on the pretext of giving her a balloon. The deceased aged six years was raped and murdered. The villagers saw the accused thrusting a stem/stick in the vagina of the deceased. The accused was caught red handed in completely naked state by the villagers and the deceased was lying on the ground with injuries over face, head and neck. A wooden stick of 33 cms was found inside the vagina, the total stick was 57 cms × 0.8 cms in diameters. The uterus was ruptured, perforated intestines and pressure marks were present on the stick.
* In operating the
sentencing system, law
should adopt the corrective
machinery or the deterrence
based on factual matrix. By
deft modulation sentencing
process be stern where it
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should be, and tempered
with mercy where it
warrants to be.
13. (2009) 6 SCC 667 (2J) - Ankush Maruti i. Murder were not only Shinde v. State of Maharashtra. cruel, brutal but were diabolic.
Offence-u/s 397 read with Section 395 ii. Rape and murdered one and 396, Section 307 read with Section victim of 15 years. 34 and Section 376 of IPC. iii. Incident is extremely The accused entered the house of the revolting and shocking to victim at about 10.30 pm demanding conscience of community. money and valuable from them. The iv. Defenceless attack accused also snatched ornaments worn by without provocation and no the family members. Thereafter, they animosity. went out of the hut and consumed liquor.
After some time, they reentered the hut armed, started assaulting the family members and tied hands and legs of all.
Three of accused then dragged a young girl aged 15 years out of the hut to guava garden, gang raped her. She was brought back dead in naked condition with injuries on her body. The other girl was also dragged towards the well and raped by one. She was brought back seriously injured. In the occurrence, five persons were murdered and two raped.
14. (2010) 9 SCC 567- i. Offence had been C. Muniappan v. State of committed after Tamilnadu with D.K. previous planning and Rajendran v. State of extreme brutality.
Tamilnadu Offence-U/S- 302 ii. Murder of helpless
I.P.C and unarmed young
In a public demonstration against a girl students in a totally court verdict, the accused became unprovoked situation. violent, violated prohibitory order iii. This activity is and prevented the free flow of inhuman of the highest traffic and caused nuisance to degree.
general public at large. The iv. Commission of an accused were involved in two offence is extremely incidents. In the first incident, the brutal, diabolical, accused burnt and damaged several grotesque and cruel. buses. In the second incident burnt v. Shocking to the a bus carrying college girls where collective conscience three girls were burnt to death and of the society. twenty were severely injured.
15. (2010) 10 SCC 611Sunder i. Murder committed in i. Age of accused. Singh v. State of a cruel, grotesque and ii. Rash act, without Uttranchal Offence-U/S- 302, 307, diabolic manner. intention.
- 45 -
436 I.P.C ii. Poured Petrol in the In this ghastly incident five persons room set it to fire and iii. Remaining under of the same family were roasted closed the room also. shadow of death alive and died either on the spot or iii. Premeditated and since 2004 till 2010. while being taken to the hospital or cold-blooded mind, as in the hospital, and one suffered the had carried petrol to burn injuries. his own cousins house.
iv. Agony caused by
dying witnesses
because of their burn
injuries would be
enormous.
V. No immediate
provocation though
enmity of family land
was going on.
vi. Deceased were
without arms and
helpless.
16. (2011) 5 SCC 317 - Mohd. Rarest of Rare Case Mannan @ Abdul i. Age of accused, a Mannan v. State of matured man.
Bihar Offence-U/S- 302, 376, 366 ii. Misused the Trust in & 2011. P.C. a calculated and pre-
The accused was working as a planned manner. mason and engaged for the plaster iii. Girl aged 7 years, work at the residence of innocent and did no informant's uncle. The accused provocation for murder gave two rupees to the niece of the and was helpless and informant aged about eight years to defenceless. bring betel from the shop. After iv. Act extreme some time, the accused left the indignation of the work, went to the shop and got community and seated the victim on the carrier of shocked the collective his bicycle, thereafter raped and conscience of the murdered her. The deceased had society.
injuries on the private part, her v. Accused is a menace nails were munched and there were to the society and shall marks of bruises all over the body. continue to be so and cannot be reformed.
17. (2012) 4 SCC 37Rajendra Rarest of Rare Test Pralhadro Wasnik v. State of i. Took advantage of Maharashtra. Offence- U/S - the familiarity with the 302,376(2)(f) & 377 I.P.C family under false name.
The accused came to the house of ii. Belied the human the victim at about 4.00 pm relationship of Trust and after having tea he left. and Worthiness.
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Thereafter, again he came to the iii. Crime is brutal and house at about 6.30 pm and took inhuman; all her the victim to get her biscuit. The private parts swollen victim aged three years was raped and bleeding. and brutally murdered. Bleeding through nose and mouth, bites on chest. The pain and agony of the deceased minor girl is beyond imagination and is the limit of viciousness.
iv. Left the deceased in
badly condition
without clothes, this is
the abusive facet of
human conduct.
18. (2013) 3 SCC 215 (2J) Sunder @ i. Found guilty of Sundarajan v. State by Inspector offence U/S -364-A of Police Offence-U/S - 364-A, IPC.
302, 201 I.P.C ii. Guilty of offence
U/S-302 I.P.C.
The accused was waiting on a iii. Child of 7 years. motorcycle near the school van of iv. No value for human the victim, he told the victim that life, as the child was his mother had instructed him to killed for non- bring the victim to the hospital fulfillment of ransom since his mother and grand mother demand. were not well. Thereafter, the v. Extreme mental family members received a call on perversion not worthy the mobile phone, demanding of human conditions. ransom of Rs. 5 lakhs for the vi. Traits of outrageous release of their son. The accused criminality. strangulated the victim for ransom, put his body in a gunny bag and threw it in the tank.
vii. Well thought and planned manner.
viii. Acquaintance
choice of kidnapping
male child, planned
and consciously
motivated.
19. (2013) 10 SCC 421Deepak i. Time, place, manner i. Young age. Rai v. State of Bihar Offence U/S- of and the motive ii. Army 120-B, 148,302 Read With Section behind commission of background. 149, 307 Read With 149,326,429, crime speaks loud of iii. Custodial 436 & 452 I.P.C premeditated and behavior. The accused came to informant's callous nature of Lack of Criminal offence.
- 47 -
house at 1.00 am, overpowered the ii. Ruthlessness and Antecedents. husband of the deceased (sleeping brutal murder by in the veranda) and on the burning young children instruction of the accused, locked and lady alive to the door of the room where the avenge their cause. wife and their five children aged 3 iii. The threat the to 12 years were sleeping and set incident had instilled the house on fire after trapping amongst the villagers, them. When the informant as no one deposed attempted to save himself, they against the accused. fired at him but he manged (sic : iv. Extremely revolting managed) to escape. The motive and shocks the for the act was that the informant collective conscience had not withdrawn FIR against the of the community.
accused for theft of his buffalo. v. Cold-blooded
murder in a
preordained fashion
without provocation.
20. (2015) 1 SCC 67 - Mofil i. Menace, threat i. No criminal
khan v. State of Jharkhand. and anti-theatrical antecedents.
U/S - 302/449 Read With Section to harmony in the ii. Middle aged having 34 society. dependant who would ii. No provocation. be devastated.
At about 8.30 pm the deceased was iii. Deliberately offering Namaz in the mosque. The preplanned crime. accused and others, who were none Diabolic murder. iii. Reformation other than the deceased's brothers possibility. and nephews approached him, started assaulting him with sharp edged weapon such as sword, Tangi, Bhujali and spade. The deceased succumbed to the injuries.
The accused, proceeded towards the house of the deceased and assaulted the two unarmed brothers with the aforesaid weapons due to which the two brothers collapsed and died.
Thereafter the accused committed murder of the wife of the deceased and his four sons aged between 5 to 12 years.
21. (2015) 6 SCC 632 (3J) i. Murder of own Young age.
- Shabnam v. State of U.P. Offence kith and kin. Accused was pregnant U/S-302/341. P.C. ii. Extreme brutal, and now has a minor The accused daughter involved in calculated and child. relationship with the other accused, diabolic nature of driven by opposition to their crime.
alliance from the deceased family iii. Little likelihood and alive to conception of their of reform and
- 48 -
illegitimate child and to secure abstaining from entire family property had hatched, future crime. depraved plan to first administer the iv. Motive for family sedative mixed in tea commission. prepared by the accused daughter v. Manner of and thereafter bleeding them to execution. death by slitting vital blood vessels in their vi. Magnitude of throats. Murdered seven innocent crime. persons and did not even spare ten vii Remorseless months old infant, so as to leave no attitude. survivor for claiming share in family property in future.
22. (2015) 6 SCC 652 (3J) Purshottam i. No provocation. i. Age. Dasrath Borate v. State of ii. Meticulously Lack of Criminal Maharashtra Offence U/S - 302, executed a antecedents.
376(2)(g), 364, 404 Read With deliberate, cold
Section 120-B I.P.C. blooded and
preplanned crime.
iii. Scant regard to
The deceased was serving as an iv. Sheer brutality associate in a company for about a and apathy for year, where she used to work in the human.
night shift i.e. from 11.00 pm to v. Menace to 9.00 am. The company had society.
arranged for and hired a private cab vi. Impact of crime service to transport its employees on community and from their residence to work place. particularly women Further, to ensure the safety and in night shifts. security of its female employees, Helpless young the company imposed a mandatory woman who had condition upon the owner of the cab reposed trust. that a security guard be present. On the fateful day the cab was deputed to pickup the deceased from her residence at 10.30 pm. The driver of the cab and the security guard took the deceased to a jungle area and committed gang rape with the deceased and thereafter murdered her by means of strangulating her with her own Odhani, slashing her wrist with a blade and smashing her head with a stone, tripped the deceased of her possession and money and left her body in the field.
23. (2017) 4 SCC 124 (3J)B.A. i. Strangulation of i. Accused aged 30 Umesh v. Registrar General, High defenceless woman years.
- 49 -
Court of Karnataka Offence : u/s- after raping her ii. Left seven years 376,302 & 392 of IPC violently. child unharmed.
ii. In addition, iii. Murder was not per-
committed robbery. meditated (sic : pre- The accused raped, murdered and iii. Accused an ex- meditated). committed robbery. The victim, a police official, not widow lady was subjected to brutal an illiterate villager.
rape and murder. iv. Criminal history iv. Previous history not
of 21 cases. of rape & murder.
v. Emboldened v. Case of
committed two circumstantial evidence.
more robbery.
vi. Fled from vi. One H.C. Judge
lawful custody opined life
twice, no chance of imprisonment.
reformation.
24. (2017) 6 SCC 1 i. Family circumstances
(3J) Mukesh v. State (NCT of such as poverty and
Delhi) U/S - 365, 366, 376(2)(g), rural background.
377, 201, 395, 397, 412, 302/120- ii. Young age.
BI.P.C
Gang rape of a girl and murder of iii. Age of parents, ill-
two inside moving bus and health of family
prosecutrix assaulted with hands, members and their
iron rods and kicks. Forced for oral responsibilities.
sex. Entire intestine of prosecutrix iv. Absence of criminal
perforated and splayed open due to antecedents.
repeated insertion of iron rods and
hands repeatedly. Pulled out her
internal organs and
threw the deceased in naked state v. Conduct in jail.
from the moving bus. The friend of vi. Likelihood of
the deceased was also beaten up reformation.
and thrown out of the bus.
25. Cr.A. No. 1433-1434/2014 i. Six innocent
-Khushwinder Singh v. State of persons killed. Punjab. Offence : u/s 302 of IPC. ii. Pre-planned manner.
Accused stolen Rs. 36,70,000/- iii. Death in a after administering pills to six diabolic and victims and threw them in the dastardly manner.
canal. iv. Extreme
brutality.
v. Collective
conscious of
society shocked.
vi. Eyewitness
account.
Death Sentence Commuted to Life Imprisonment
- 50 -
1. (1994) 4 SCC 353 - Jashubha 1. Ten murders Specter of death Bharat Singh Gohil v. State of taken place in hanging over head of Gujrat. broad day light. the accused for more Offence-u/s 302 IPC 12 persons 2. Conscious of the than six years. tried for committing murder of ten state shaken. persons and causing injuries to 3. The manner in others. Trial Court convicted the which the murders accused for life imprisonment and were committed High Court enhanced the exposed its gravity. punishment to death sentence. 4. Unarmed and Supreme Court commuted to Life innocent persons, Imprisonment. returning after offering condolence.
Special reasons to be assigned u/s 354(3) Cr.P.C.
2. (1999) 3 SCC 19 - Om i. Gruesome act. *Noticing the Prakash v. State of ii. Premeditated and mentally depressed Haryana Offence- u/s 302/34 IPC well though murder. condition, caused by and Section 25 of the Arms Act. constant harassment The accused, who were the and dispute.
neighbours of the deceased, Held not rarest of entered into the house from the rare case, as this is rear door and fired at the deceased not a crime and his family members to take committed because of revenge regarding the plot in lust for wealth or dispute and dread anybody to woman; such as confront them at the risk of extortion, decoity (sic elimination. 7 persons murdered. : dacoity) or robbery nor even for lust and rape, it is not an act of anti social element, kidnapping and trafficking a minor girl or dealing in dangerous drugs which affects the entire moral fibers of the society and kills a number of persons, nor it is a crime committed for power or critical ambitions or part of organized criminal activities.
3. (2001) 2 SCC 28 - Mohd. i. Age of victim i. No criminal Chaman v. State (NCT of 1 Vi years. antecedents. Delhi) u/s 376,302 of the IPC. ii. Prey to lust of ii. No possibility of The father of the victim was running a 30 years old man continued threat to tailoring factory near his house. The in a preplanned the society or such; a
- 51 -
accused was residing in the same house in way. dangerous person a room adjacent to the room of the victim's iii. Killed in most that to spare his life parents. The accused sexually assaulted revolting manner will endanger the the victim aged 1 ½ years bitten over the arousing intense community. cheek, injuries in vaginal wall, liver and extreme lacerated with vertical deep laceration, in indignation of the the adjacent room from where the mother community. of the victim picked up the victim in an iv. An act of unconscious state, who was declared dead extreme by the Doctor. depravity and arouses a sense of revolution in the mind of common man.
v. Menace to the
society as it is a
calculated and
cold blooded
murder.
4. (2002) 3 SCC 76 - Lehna v. State of 1. The injuries (i). No evidence of Haryana Offence : u/s 302,458,324 IPC. sustained by the any diabolic accused were of planning to commit very serious the crime.
nature.
The father of deceased and accused had 2. Three persons (ii) Deprived of the given 2 acres of land to the accused for the of the same livelihood on purpose of cultivation but the accused who family died, who account of the land was a person of bad habits tried to alienate were his own kith being taken away. the land that was given to him by his and kins. (iii) Frequency of father. There was constant quarrel between quarrels indicates the family over the ancestral land and the lack of any sinister accused assaulted the deceased and the planning to take family members and three persons of the away lives.
same family died. (iv) The factual
scenario gives
impression of
impulsive act and not
planned assault.
5. (2002) 9 SCC 168 - Vashram Narshi i. Meticulously i. Quarrels and
Bhai Rajpara v. State of Gujrat. planned. continuous
Offence : 302 and 201 IPC. ii. Brutal & a harassment.
The accused, a fruit vendor purchased a gruesome act. ii. Constant nagging
house and started living in the house with well affected the
his family consisting of his wife, four mental balance and
daughters and a son aged 5 years. The wife such sustained
and the daughter of the accused did not provocation.
like the house and started pressurizing him iii. No criminal
to sell and purchase another house. The background and not
accused purchased 5 litres of petrol in menace to the
- 52 -
plastic can and kept in the kitchen. The society.
accused and his son slept on the terrace of iv. Mentally
the house and other members slept in the depressed condition
rear room on the ground floor. At about of the accused.
3.00 am, the accused sprinkled the petrol on his wife and daughters and set them on fire, thereafter, the accused ran away from the room by closing the door from outside. Brutal and cold blooded murder of his wife and four daughters by setting them on fire.
6. (2003) 7 SCC 141 - Ram Pal v. State of i. 21 persons i. Incident was a U.P. Offence : 302,307,436,440/149 of murdered by sequel of murder of IPC. gunshot injuries close relative of The victim's family was accused of having or by burning in accused by the committed the murder of two of the close latched houses. victims family.
relatives of the accused family, who in ii. Young children ii. Sufficient
turn were victims. provocation.
murdered 21 persons including young iii. Spent 17 years in
children by gunshot injury or burning custody after the
them in latched houses. incident.
Balance sheet of the aggravating and mitigating circumstances has to be drawn up and further to accord full weightage to the mitigating circumstances and then to strike a balance between the aggravating and mitigating circumstances before the option is exercised.
7. (2008) 13 SCC 767 -Swamy i. Planned and Standardisation of Shraddanand @ Murli Manohar cold-blooded sentence process Mishra v. State of Karnataka. Offence murder. impossible and tends u/s : 302,201 IPC. ii. Motive behind to sacrifice justice at The accused married the deceased who the crime. the altar of came from a highly reputed and wealthy uniformity. background. She was the grand daughter of a former Deewan of the Princely State of Mysore and held vast and very valuable landed properties in her own right. The accused murdered his wife after giving heavy dose of sleeping pills and put her in a wooden box when she was alive, dug a pit, filled with earth and cemented the surface and covered with stone slab.
8. (2009) 6 SCC 498 - Santosh Kumar i. Manner and i. Deceased was Satish Bariyar v. State of method of friend not enemy of Maharashtra Offence : u/s 302 IPC disposal of the accused.
body of deceased ii. Motive to collect was abhorrent. money.
The accused, who were the friends of the ii. Most foul and iii. Age of accused. victim, hatched a conspiracy to abduct the despicable case iv. No criminal victim for a ransom of Rs. 10 lakhs from of murder. history. the victim's family. v. Not professional
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killer.
The accused called the victim to see vi. All unemployed a movie and after seeing the movie a and searching jobs. ransom call for a demand of Rs. 10 vii. Reformation and lakhs was made but with fear of rehabilitation. being caught, they murdered the victim, cut the body into pieces and disposed it off at different places.
*Doctrine of Rehabilitation and weightage of mitigating circumstances. *Doctrine of Prudence in case of circumstantial evidence.
9. (2010) 9 SCC 747 -Santosh Kumar i. Accused belongs i. Case of Singh v. State through CBI Offence to a category with circumstantial u/s : 302 & 376 IPC. unlimited power or evidence. Deceased student of LLB 6th pelf or even more ii. Age of accused Semester was being harassed and dangerously, a 24/25 years. intimidated by the accused volatile and heady iii. Motive and continuously, thereupon, the cocktail of the two. murder had been deceased made several complaints proceeded by against the accused in different continuous Police stations. On day of incident harassment by the the deceased returned to her deceased over two residence, where she was sexually years. assaulted and murdered by the accused. There were 19 injuries on the body, but no internal injury on private parts.
10. (2011) 3 SCC 685 - Ramesh v. State i. Murder of gains. i. Accused not from of Rajasthan Offence u/s : 302, 392, ii. Criminal record. wealthy background.
120-B, 201, 404, 414, 457 & 460/34 iii. ii. Motive was
IPC Ramesh/appellant money.
Accused Gordhanlal conspired with inflicted injuries on iii. Circumstantial
other accused persons trespassed into both the deceased. evidence. the house of deceased Ramlal by iv. Reformation and night and looted ornaments of gold and silver Rehabilitation. and murdered 2 persons. v. Languishing in Death Cell for more than six years.
11. (2011) 7 SCC 437 - State of i. Brutal and i. 2nd marriage of Maharashtra v. Goraksha Ambaju diabolic killing of 3 father.
Adsul. Offence : u/s- 302,201 of IPC innocent family ii. Continuous
members. quarrels for division
The accused who was serving in the ii. Manner in which of property. Indian Army, used to demand crime committed is iii. Increase of partition of land and other property deplorable. pressure with passage for him and his brother from his of time and father. He and his brother murdered frustration. their father and 2 family members. iv. Intensity of The deceased were administered bitterness between poisonous substance in pedas then members of family
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strangulated with shoe laces and had exacerbated placed bodies in 2 trunks and left thought of revenge them in the train, which were found and retaliation. by the Station Master next day. v. Continuous nagging.
12. (2012) 4 SCC 257- i. Crime has been i. Age of all accused. Ramnaresh v. State of Chhattisgarh. committed brutally. Offence : u/s- 449, 376(2)(g) and ii. Accused Ranjeet ii. Since deceased 302/34 IPC. being brother-in-law was mistress of One of the accused, brother-in law of of deceased owed a brother of accused the deceased, along with the other duty to protect Ranjeet, this may accused entered the house of rather than sexual have been matter of deceased when her husband was assault and murder concern.
away and committed rape and alongwith his
murdered her. friends.
iii. Crime is iii. Possibility of
heinuous committed death of the deceased brutally.
iv. Helplessness of a occurring co-
mother of two infant incidentally as a
at the odd hour of result of act
night in absence of committed on her,
her husband. thus not caused
intentionally.
iv. Not criminals nor
incapable of being
reformed cannot be
terms menace.
Doctorine (sic : Doctrine) of Proportionality - The principle of proportion between the crime and the punishment is the principle of 'Just Deserts' that serves the foundation of every criminal sentence that is justifiable.
13. (2012) 5 SCC 766 - Neel Kumar @ i. Nature of offence. i. The accused can be Anil Kumar v. State of ii. Age of victim. reformed or Haryana Offence : u/s- 376(2)(f), iii. Relationship of rehabilitated. 302 & 201 IPC. victim with accused. ii. Not a continuous The accused, father of the deceased, iv. Gravity of threat to society. raped his own daughter who was 4 injuries. years old and murdered her. Cause of death was Asphyxia because of throttling which was antimortem in nature, lacerated wound was present in vagina extended from anus to urethral, opening admitting 4 fingers.
Underlined muscles and ligaments were exposed and anus was also torn and on dissection, uterus was perforated in the abdomen.
14. (2013) 2 SCC 452 - Sangeet v. State i. Body of Seema was of Haryana. Offence u/s- : burnt below the waist
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302,307,148,449 r/w 149 IPC. with a view to destroy evidence Due to the belief that the family of of sexual assault. injured Amardeep had performed ii. No evidence of black magic leading to death of son being professional of Ramphal, Ramphal & 5 other killers. Rahul was accused killed 3 adults and 1 child blown off by firearm aged 3 years. The 3 adults had bullet injury. injuries other injuries by sharp edged weapon "kukri". Body of Seema was burnt below the waist and upper part of head of child.
15. (2013) 2 SCC 713 -Gurvail Extremely brutal, i. Age of first accused was 34 Singh @ Gola v. State of grotesque, diabolic. years and second was 22 Punjab. years.
Offence- : u/s 302/34 IPC Accused and deceased were ii. Unblemished antecedents.
member of same family and iii. Property dispute which
there was dispute with culminated into death of four
regard to mutation of their persons.
shares in their names, since
property was not mutated.
The accused persons armed iv Reformation and
with Datar, Kirpan and Toka rehabilitation.
assaulted 4 persons of their
family and murdered them.
R-R Test-
1. Depends on the perception of the society and not Judge-centric.
2. Looks into various factors:
1. Society's abhorrence.
2. Extreme indignation and antipathy to certain types of crime, like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women with disabilities.
16. (2013) 5 SCC 546 i. Victim aged 11 i. Previous track record of
-Shankar Kisanrao years, innocent, accused.
Khade v. State of defenceless and
Maharashtra. having moderate
Offence- u/s 363, 366A, intellectual ii. Other options are not
376, 302, 201 IPC disability. unquestionably/foreclosed.
Gruesome murder of a ii. The accused was minor girl, aged 11 years, a fatherly figure of with Intellectual Disability 52 years, father of (moderate) after subjecting two children.
her to a series of acts of rape iii. Ghastly manner by a middle aged, of execution of strangulated and murdered crime.
her.
The cause of death was iv. Ruthless crime as per Asphyxia due to rape was committed
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strangulation and clear followed by murder.
evidence of carnal v. The action of the
intercourse were there. accused was not only
inhuman but also
barbaric.
vi. Shocks not only
judicial conscience but
the conscience of the
society.
vii. Considering the age
of accused reformation
or rehabilitation is
practically ruled out.
17. (2014) 4 SCC 69-Anil @ i. Offence u/s 377 i. No previous criminal Anthony Arikswamy proved. history.
Joseph v. State of ii. Murder was ii. Possibility of Maharashtra. committed in an reformation or Offence-u/s 302,377,201 extremely brutal, rehabilitation at the age IPC. grotesque, diabolical and of 42 years cannot be Gruesome murder of a dastardly manner. ruled out. minor boy, aged 10 years, iii. Victim and innocent who was staying with him boy and only son of his from few days, after mother.
subjecting to carnal iv. Accused was in a intercourse and then dominating position. strangulating him to death. v. Life taken away in a gruesome and barbaric manner, pricked not only the judicial conscience but also the conscience of the society.
18. (2014) 5 SCC 353-Raj i. Heinous crime. Accused aged 32 years. Kumar v. State of M.P.. ii. Innocent, defenceless Offence : u/s 376,450,302 and helpless minor girl. IPC The accused was the iii. Relationship of neighbor of the deceased accused with family of and used to call him deceased.
'Mama'. On the said night iv. Shocked the the accused had taken liquor conscience of society. and meals in the house of the deceased and around midnight he raped the deceased aged 14 years and murdered her. The hymen of the deceased was torn and blood was oozing out from her private parts, some blood was also present in the cavity of her uterus.
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19. (2016) 9 SCC 675 - Tattu i. Brutality. Accused was about 27 Lodhi @ Pancham ii. Helplessness of years and there was no Lodhi v. State of M.P.. victim. material to negate the Offence : u/s 366A, 364, iii. Unprovoked and chance of accused being 376(200/511,201 IPC. premeditated design to reformed and gaining The accused asked the attack. maturity.
victim to purchase and bring gutka for him, thereafter Kidnapped and committed rape of a minor girl, aged 7 year. The deceased put the dead body in a gunny bag and locked it in his house, with a view for destruction of evidence relating to the crime. The victim was throttled to death.
20. (2017) 4 SCC 393 i. Young age of accused.
-Sunil v. State of M.P. Accused, 25 years old taken ii. Can be reformed and his niece (victim) aged 4 rehabilitated.
years on pretext of taking iii. Probability of not
her to the parents and raped committing similar
her and murdered her. crime.
iv. Not a threat to society.
21. 2018 SCC OnLine SC 2570 i. Murder of 3 i. No evidence as to the
- Chhannu Lal persons. uncommon nature of the Verma v. State of ii. Two of the offence or the improbability of Chhattisgarh. deceased and one reformation or rehabilitation Offence-u/s 302,307, 506(2) of the injured of the accused has been & 450 IPC person were the adduced.
The accused entered the women. ii. No analysis undertaken by house of the deceased and the High Court, whether, the caused fatal injuries to 3 person would be a threat to the members of the family. society or whether not Thereafter, the accused granting Death Penalty would entered another house and send a wrong message to the inflicted grievous injuries to society. one person. iii No previous criminal record apart from acquittal in the case under Section 376 I.P.C.
iv. Does not fulfill the test of Rarest of Rare case, where the alternative option is unquestionably foreclosed.
v. Despite having lost all hope, yet no frustration has set on the accused as per the certificate given by the Superintendent of jail, that, his conduct in jail has been good.
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Thus goes on to show that, he is not beyond reform.
vi. Without assistance of psychological/psychiatric assessment and evaluation it would not be proper to hold, that, there is no possibility or probability of reform.
vii. Procedural impropriety of not having a separate hearing for sentencing at the stage of trial. A bifurcated hearing for conviction and sentencing, a necessary condition.
22. (2019) 2 SCC 311Viran Gyanlal i. Dastardly nature i. Young age. Rajput v. State of and manner of ii. Lack of criminal Maharashtra Offence- u/s 363, crime. antecedents. 376, 302 and 201 of IPC and ii. Youth and iii. Post incarceration Section 10 and 4 of POCSO Act. helplessness of the conduct. The accused kidnapped the victim victim. iv. Not a menace to aged 13 years, raped her, murdered society. her by strangulation and buried her v. Possibility of reform. body in the field.
23. 2019 SCC OnLine SC 42 Accused was out i. Disappointed with
- Yogendra @ Joginder on bail in another the deceased, who he Singh v. State of M.P. Offence : u/s case and has believed had deserted 302, 326A and 460 IPC. committed the him.
The deceased was married and had crime. ii. Not a cold blooded two issues. The accused snug into murder. the room of the deceased and iii. Intention was to warned her that, as she doesn't want cause injury or to live with him, he is not going to disfigurement, what let her live neither anybody else and was premeditated was threw acid on her. When the other injury not death. family members tried to save her, v. No particular the accused threw acid on them, in depravity or brutality the attack the deceased sustained in the acts.
90% burn injuries and died and the other three members were disfigured and injured.
*There should be special reasons for sentencing to death. The term, 'Special Reasons' undoubtedly means, reasons that are, one of a special kind and not general reasons.
24. 2019 SCC OnLine SC 43 - Nand "Special Reasons" not Kishore v. State of M.P. Offence : assigned by the High u/s 302, 363, 366, 367(2)(i) IPC. Court within the The accused took away the meaning of section deceased aged 8 years from the 354(3) Cr.P.C. to 'Mela' and committed rape and impose death penalty murdered her in a barbaric manner. on the accused. Both legs of the deceased were fractured. Several injuries on the private parts of the deceased inflicted by the accused due to
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which the intestine had come out.
The headless body of the deceased was recovered.
*Para 14, Ratio of Mukesh v. State of (NCT of Delhi) 25 2019 SCC OnLine SC 81-Raju i. Murder involves i. Murder not Jagdish Paswan v. State of exceptional preplanned. Maharashtra. depravity. ii. Accused young man Offence : u/s 302, 376(2)(f) and ii. Manner of aged 22 years. 201 IPC. commission of The accused dragged the victim crime is extremely iii. No evidence aged 9 year old into the sugarcane brutal. produced by field, forcibly raped her and threw prosecution that the her in the well. The cause of death accused had the was drowning and there was propensity of evidence of vaginal as well as anal committing further intercourse. crimes, causing continuity of threat to society.
iv. The state did not
bring on record any
evidence to show that
the accused cannot be
reformed and
rehabilitated.
26 2019 SCC OnLine SC 363 -Sachine i. Heinous offence i. Case rests on Kumar Singraha v. State of M.P. in a premeditated circumstantial manner. evidence.
Offence : u/s 363, 376A, 302, 201-11 ii. False pretext ii. Probability of IPC & Section 5(i)(m) r/w Section 6 given to the uncle reformation. of POCSO Act. of victim to gain iii. Absence of prior The accused was the owner and custody of victim. offending history. driver of the vehicle in which he had iii. Abused faith. taken the victim aged 5 years to the iv. Exploited the iv. His overall school, from the custody of her uncle innocence and conduct. on the false pretext of going along helplessness of the with her to school as he had to pay child.
fees of his daughter. Thereafter, the victim was raped and murdered and body was found in the well with only an underwear.
27. Criminal Appeal No. I. Age of accused at 1411/2018- Dhyaneshwar Suresh the time of Borkar v. State of commission of Maharashtra Offence-u/s 302, 364, offence was 22 years.
201,34 IPC ii. Spent 18 years in jail. Accused killed a minor child. iii. While in jail, his conduct was good. iv. Tried to join the society and has tried - 60 - to become civilised man, completed his graduation from Jail. He has tried to become reformative. v. Written poem from jail. It appears he has realized his mistake.
93. Before parting with the matter, we record our appreciation for valuable assistance provided by learned counsel for the parties in general and by learned Senior Advocate/Amicus Curiae in particular.
94. In the facts and circumstances of the case, the instant case does not fall in the category of the 'rarest of the rare case' deserving imposition of death penalty. There are other factors as discussed hereinabove which persuades us to hold that imposition of capital punishment is unwarranted in the factual matrix of the present case. The interest of justice would be met, if appellant is sentenced to undergo imprisonment of 35 years (without remission).
95. Resultantly, we partly allow the appeal. While confirming the conviction and other sentences, we modify the death penalty to life imprisonment of appellant for an actual period of 35 years without any remission. The appeal is partly allowed and reference is answered accordingly.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
PK
Digitally signed by PARITOSH KUMAR
PARITOS
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH, ou=JUDICIAL, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=43c946b45c8a66c03b68676e788802 a41cc03b5b9567caf9c2c3b981b8cb6596, H KUMAR pseudonym=5FDD657FF77E3DB41E52E72D7 A39EEED5DBC7BA4, serialNumber=678DC301994B496012A9643D 92E6C6335F11A93DA54F2DFB6E44B8B7A450 44FC, cn=PARITOSH KUMAR Date: 2022.07.30 12:51:52 +05'30'