Uttarakhand High Court
Unknown vs State Of Uttarakhand on 21 May, 2024
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE MR. JUSTICE ALOK KUMAR VERMA
Reserved on : 14.05.2024
Delivered on : 21.05.2024
CRIMINAL REFERENCE NO. 01 OF 2021
In the matter of capital punishment
awarded to Harswroop ...... Appellant
Versus
State of Uttarakhand ...... Respondent
WITH
CRIMINAL JAIL APPEAL NO. 17 OF 2021
Harswaroop ...... Appellant
Versus
State of Uttarakhand ...... Respondent
WITH
CRIMINAL JAIL APPEAL NO. 21 OF 2021
Pappu ...... Appellant
Versus
State of Uttarakhand ...... Respondent
WITH
CRIMINAL JAIL APPEAL NO. 22 OF 2021
Roopwati ...... Appellant
Versus
State of Uttarakhand ...... Respondent
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Presence:-
Mr. J.S. Virk, learned Deputy Advocate General with Mr. Rakesh
Kumar Joshi, learned Brief Holder for the State of Uttarakhand.
Mr. Arvind Vashistha, learned Amicus Curiae assisted by Mr. Vivek
Pathak and Ms. Disha Vashistha, learned counsel for accused
Harswroop in criminal reference No. 01 of 2021, as well as in
Criminal Jail Appeal No. 17 of 2021.
Ms. Pushpa Joshi, learned Senior Counsel assisted by Mr. S.R.S. Gill,
learned counsel for accused / appellants Pappu and Roopwati in
Criminal Jail Appeal No. 21 of 2021 & CRJA No. 22 of 2021.
The Court made the following:
JUDGMENT:(per Hon'ble the Chief Justice Ms. Ritu Bahri) The present Reference has been sent by the Court of Additional Sessions Judge / FTC / Special Judge (POCSO), Udham Singh Nagar, under Section 366 of the Code of Criminal Procedure, 1973, for affirmation of the sentence of death awarded by said court against the convict Harswroop under Section 302 IPC. Aforesaid convict has been further convicted under Section 364 IPC and sentenced to rigorous imprisonment for a period of seven years and also directed to pay fine of Rs. 5,000/-. He was also convicted under Section 201 IPC, and sentenced to rigorous imprisonment for a period of six years and directed to pay fine of Rs. 5,000/-. The convict was further sentenced under Section 6 of the POCO Act, and sentenced to imprisonment for life along with a fine of Rs.10,000/-. Convicts Pappu and Roopwati 3 were, however, acquitted of the charge of offence punishable under Section 16/17 POCSO Act. Convict Pappu and Roopwati were both convicted under Section 201 IPC, and sentenced to rigorous imprisonment for a period of four years and three years, respectively, along with a fine of Rs. 5,000/- each, vide judgment and order dated 06.03.2021, passed by Additional Sessions Judge / FTC / Special Judge (POCSO), Udham Singh Nagar, in Special Sessions Trial No. 104 of 2019. Against said order, criminal jail appeals have also been filed by all the three convicts.
2) Prosecution story, in brief, is that a complaint (Ext. A-1) was made on 21.02.2019, at 1.20 hours, by the father of the victim to the In-charge Police Station, Transit Camp, District Udham Singh Nagar, stating therein that on 19.02.2019, at about 05:00 hours, his son was playing on the roof. After sometime, when his wife went to bring him he was not there. Victim was searched at all probable places but could not be located. Thereafter, an FIR (Ext. A-10) to this effect was registered against unknown person in the police station under Section 365 IPC.
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3) Investigation was given to S.I. Jitender Kumar, and during investigation an application (Ext. A-
2) was given to the In-charge Police Station, Transit Camp by father of the victim stating therein that he and his family members were searching their missing child whose missing report is lodged in the police station. Father of the victim, his relatives and the neighbours were searching, but their neighbour Harswroop, Pappu, Pawan and Roopwati were not cooperating in the search. In the night there was a noise on the roof and when he and his relatives went there they found Harswroop near the water tank and trying to open the tank. When they tried to catch Harswroop, he pushed them and ran into his house. When they called him and tried to get his door open, he did not come out and his family started hurling abuses. It is further stated in the application that if strict inquiry be conducted against them, then information about his missing son could be received.
4) During investigation the dead body of the missing child was found from the house of accused Harswroop, and the three accused persons namely, Harswroop, Pappu and Roopwati were arrested and arrest memos (Ext. A-15, Ext. A-16 and Ext. A-17) were prepared. The recovery of the body of victim was made 5 and recovery memo of dead body (Ext. A-14) was also prepared. The clothes of the child were also recovered and recovery memo (Ext. A-18) thereof was prepared. Panchayatnama (Ext. A-5), photo lash (Ext. A-6) were prepared and the body was sent for postmortem examination, and police form No. 13 (Ext. A-7) was prepared thereof. Sample of seal (Ext. A-8) was prepared, and samples prepared and handed over by the Medical Officer were sent to F.S.L. Dehradun. The postmortem report (Ext. A-3) was collected and the body of the deceased victim was handed over to his parents. The police also collected other evidences, and prepared site plan (Ext. A-26), recorded the statements of the father of deceased victim and other witnesses.
5) During investigation, statement of accused Harswroop was recorded under Section 161 Cr.P.C., in which the accused stated that he is a mason and addicted to drug. He is the son of his father's first wife. He further stated that on 19.02.2019, the son of his neighbour was playing on the roof. The child was dumb. After seeing him he had bad intention so he enticed and took the child to his room where he did kukarm (unnatural act) with the child. When the child cried, the accused closed his mouth to keep him quite. After two 6 hours, he again did unnatural act with the child, when the child insisted to go out accused pressed his mouth, and as a result of suffocation the child died, and stool came out in his payjama. Being frightened, the accused hid the body in his room. He kept the body in a jute bag and in an attempt to dispose it in the water tank on the roof top, a brick fell down, and hearing such noise family members of the deceased victim wake up. When the accused brought the body in the room his family members noticed it, then he disclosed everything to them. His family members also helped him in hiding the body. The other accused namely, Pappu and Roopwati also stated that on noticing Harswroop carrying the body of the deceased victim, they got frightened and helped him in hiding the body. Before the Magistrate, accused Harswroop made his confessional statement under Section 164 Cr.P.C. He was informed by the Magistrate that he is not bound to make the confessional statement. As per the Magistrate, the entire statement was given voluntarily.
6) During investigation P.W.10 Vidhya Dutt Joshi, I.O. of the case, recorded the statements of the informant and other witnesses, inspected the place of occurrence, prepared site plan, arrested all the accused, 7 prepared panchayatnama, and sent the dead body of the deceased victim for postmortem examination. After completion of investigation, P.W.10 submitted charge sheet (Ext. A-27) against accused Harswroop before the court under Section 364, 377, 302, 201 IPC and under Section 5/6 of POCSO Act; and against accused persons Pappu and Roopwati under Section 201 IPC and Section 16/17 of POCSO Act. Charge sheet was also filed against co-accused Pawan, who was later declared to be juvenile by the court on 29.07.2019, and further trial was to be conducted by the Juvenile Justice Board. All the accused were heard on point of charge. The Court after hearing the prosecution as well as the defence, framed charges under Section 364, 302, 377, 201 of IPC, and Section 5/6 POCSO Act against the accused Harswroop, while against accused person Pappu and Roopwati charges under Section 201 IPC and Section 16/17 POCSO Act were framed. All of them pleaded not guilty and claimed to be tried.
7) As many as 11 prosecution witnesses were examined. P.W.1 (father of deceased victim / complainant); P.W.2 (maternal uncle of deceased); P.W.3 (mother of deceased victim); P.W.4 (cousin brother of complainant); P.W.5 Dr. Nagender Singh, 8 Medical Officer (who conducted the postmortem examination); P.W.6 S.I. Harvinder Kumar; P.W.7 Constable Hemraj Singh, P.W.8 S.I. Jitender Kumar, P.W.9 Rashid Ahmed (Govt. officer who proved the age of the deceased victim), P.W.10 Vidhya Dutt Joshi (I.O. of the case) and P.W.11 Dr. Rajeev Kumar (Medical Officer who conducted medical examination of accused Harswroop).
8) The prosecution also submitted documentary evidence viz. Tahrir (Ext. A-1), Application dated 21.02.2019 (Ext. A-2), postmortem report (Ext. A-3), letter to CMO by the SI (Ext. A-4), Panchayatnama (Ext. A-5), photo lash (Ext. A-6), challan of dead body (Ext. A-7), specimen seal (Ext. A-8), ravangi of panchayatnama (Ext. A-9), copy of FIR (Ext. A-10), copy of G.D. (Ext. A-11), memo of recovery of body (Ext. A-14), arrest memos of accused persons (Ext. A- 15, Ext. A-16, Ext. A-17), site plan (Ext. A-26), memo taking into possession the clothes (Ext. A-18), and medical examination report of accused Harswroop (Ext. A-29).
9) Statements of the accused persons were recorded under Section 313 Cr.P.C. Accused 9 Harswroop retracted from his confessional statement made before the learned Magistrate and stated that it was made under police pressure. Accused Pappu and Roopwati also stated that the evidence adduced by prosecution against them was false.
10) P.W.9 Rashid Ahmed, Asstt. Development Officer, Panchayat, Vikas Khand Amariya, District Pilibhit (U.P.) was summoned by the Court for proving the age of the deceased victim. The birth certificate issued by the A.D.O., Block Amariya, District Pilibhit, U.P. was released on 08.05.2019, in which the date of birth of the deceased was entered as 11.06.2012, along with the names of father and mother. This birth certificate of the deceased was issued online by the Jan Sewa Kendra, Amariya, Pilibhit, U.P. P.W.9 also produced the online application form in original bearing signatures of A.D.O. Amariya, which was marked as Ext. A-25. Hence, keeping in view the date of birth 11.06.2012, the age of the deceased victim was 07 years on the date of incident, i.e., 19.02.2019, and no objection was raised with respect to the age of the deceased victim. The trial court thereafter proceeded to examine the oral and documentary evidence. 10
11) The material fact witnesses are P.W.1, P.W.2, P.W.3 and P.W.4, who are all family members of the deceased victim, i.e., father, maternal uncle, mother and cousin of the complainant / P.W.1.
12) As per the consistent evidences given by all these witnesses the deceased victim was not able to speak, and his age was 7 years. On 19.02.2019, the victim disappeared while playing in the evening on the roof. P.W.2 is the maternal uncle of the victim, and he was given this information by P.W.1, father of the victim. P.W.2 came to his sister's house at Rudrapur. The victim was searched everywhere after he went missing. Harswroop, Pappu, Pawan and Roopwati used to live in the neighbourhood of P.W.1. Accused Harswroop was a drug addict. The family of Harswroop was stealing eyes from them and did not cooperate in the search of the child. In the night of 21.02.2019, P.W.1 and his family members heard some noise on the roof top. When all of them went to the roof, they saw accused Harswroop opening the lid of the water tank kept on the roof top. When Harswroop was called by them, he ran away to his house, and started hurling abusing. This raised a doubt in the minds of above said witnesses, and this information was given to the Police 11 Station, Transit Camp. On 21.02.2019, the police took them along with the accused. Police told them that accused Harswroop wanted to give some information about the missing child. After this P.W.1, P.W.2 and the accused Harswroop proceeded with the police to the house of accused. They went towards the main gate of the house and opened the gate. The father, mother and brother of the accused Harswroop were present in their house. Accused Harswroop moved towards the right side of his room and removed a blanket lying there. From beneath the blanket he took out a jute bag of khaki colour, opened its mouth and told that this is the deceased body, who was murdered by him by throttling his neck after doing duskarm and the naked body was hidden by him there. He told that Roopwati and Pawan helped him in hiding the body.
The dead body was identified by P.W.1, father of the deceased victim. The police in their presence took the body out from the bag, examined it and found that there were finger impression on the neck and stool was coming out of the anal region. The tongue of the deceased was protruding out. Near the body of the deceased there were his clothes and the slippers which were soiled with stool. On 21.02.2019, 12 at about 12-12:30 hours, the police prepared the panchnama. Signatures were taken of P.W.1 and P.W.2 on paper No. 3Ka/36 to 3Ka/38. The accused Harswroop was caught on the spot by the police and a memo (Ext. A-14) of the recovered body was prepared. Police took possession of the clothes of the deceased, which include one brown colour jacket, blue lower, a red and black colour checked shirt, one pair of slippers, brown colour underwear and a white baniyan. All these articles were sealed in a white cloth. The jute bag from which the naked body of the victim was recovered was also sealed. The sealed packet was marked as Material Ext. A-8 and the jute bag as Material Ext. A-9.
13) All the four witnesses were cross-examined by the defence, and their version given in their examination-in-chief remained consistent. Medical evidence
14) P.W.5 Dr. Nagender Singh, who was posted as Medical Officer on 21.02.2019, stated that on that day in the evening at about 5.00 hours, he along with Dr. R.D. Bhatt conducted the postmortem of the deceased, aged 07 years, who was brought in white stitched, sealed and stamped cloth. The dead body 13 was identified by Constable Neeraj Shukla and Kuldeep of P.S. Transit Camp, Rudrapur, District Udham Singh Nagar.
15) On conducting postmortem it was found that the rigor mortis has after coming on the upper, lower portion of the deceased had passed off from the neck region of the deceased. From the external examination of the body it was found that the muscularity was average. The eyes of the deceased were closed and shrinked. The tongue was protruding outside. During postmortem, following ante mortem injuries were found on the body of the deceased :
Injury No. 1 A scratch mark on the right side of the neck and 4 x 2 cm in length just below the right jaw.
Injury No. 2 A scratch mark on the left side of the neck and 3 x 2 cm in length just below the jaw.
Injury No. 3 A scratch mark measuring 10 x 5 cm on the right side of stomach and just above the hip bone.
Injury No. 4 A scratch mark measuring 2 x 0.5 cm in size on left and outer side of stomach just above the Illise crest (Hip Bone).
Injury No.5 A scratch mark measuring 4 x 3 cm in size just above the back over medal to left forearm. (The Y on the back was in line with the forearm).14
16) On examination of the anal portion of the dead body the panel of doctors found that the outer area of anal passage was 4 cm and the anal canal depth was 6 cm and broadened. It was visible easily.
The stool was present on the outer area of the anal canal and outside the anal some hairs were present. The colour of the nails, face, mouth and the ears (lower soft part) colour was bluish. The tongue was protruding outside the mouth. As per the opinion of panel of doctors, the death of the deceased child was about 36-42 hours ago, and the cause of death of the deceased was due to asphyxia as a result of ante mortem strangulation. The postmortem report was marked as Ext. A-3. The postmortem report was signed by Dr. R.D. Bhatt, who was another panel doctor, in the presence of P.W.5 Dr. Nagender Singh.
17) P.W.5 further stated that blood sample was taken for DNA test of accused Harswroop by Senior Pathologist of District Hospital, Rudrapur on FTA card, which was sealed and stamped. Application in this regard was made before the court for collection of the blood sample for DNA test of accused Harswroop, and the same was marked as paper No. 3Ka/4. On 14.03.2019, the blood sample of accused, case 15 property for examination was send with the permission of the court by special messenger Constable Devender Singh to FSL Dehradun. The above report was marked as paper No. 3Ka/55 to 3Ka/57.
18) The medical examination of the accused Harswroop was done by P.W.11 Dr. Rajeev Kumar, Orthopedic surgeon at L.D. Bhatt, Hospital, Kashipur, who was posted as EMO in Jawahar Lal Nehru Hospital on 21.02.2019. P.W.11 stated that on medical examination of the accused it was found that the colour of the glans penis was reddish especially base of glans penis was red, pubic hair present. In the opinion of P.W.11 the penis glans will be reddish when some forceful act is done. At about 2.10 afternoon, this witness did the medical examination of the accused and prepared the medical report on which the left hand thumb impression of the accused was taken. The paper no. 3 Ka/24 i.e. medical report of the accused is in the file and in the handwriting of this witness, on which there is the stamp of the hospital and after identification the same was marked as Ext. A-29.
On cross-examination, P.W.11 deposed that the redness on the penis of the accused could have been 24 to 48 hours. There was no scratch mark. 16 There was no smegma present on the penis. When there is redness there is no smegma. The injury on the private part of the victim was also deposed by P.W.11. Police witnesses
19) The prosecution examined P.W.6 S.I. Harvinder Kumar, P.W.7 Constable Hemraj Singh, P.W.8 S.I. Jitender Kumar and P.W.10 S.H.O. Vidhya Dutt Joshi. All the above said prosecution witnesses deposed with respect to the registration of the FIR No. 30 of 2019 under Section 365 IPC of the missing of child. Thereafter on 21.02.2019, on the information given by accused Harswroop to P.W.8 S.I. Jitender Kumar, the body of the deceased and his clothes were recovered. After said recovery the investigation of the case was further made in respect of offences punishable under Section 302, 364, 201, 377 IPC and Section 5/6 and 16/17 of POCSO Act. Panchnama of the deceased was done by P.W.6 S.I. Harvinder Kumar on the spot. Accused Harswroop, Pappu and Roorwati admitted the offence. Postmortem of the deceased was conducted by a panel of doctors, who opined that the cause of death was due to asphyxia as a result of ante mortem strangulation. The unnatural act committed 17 with the victim was also reflected from the postmortem examination.
20) On 22.02.2019, for getting the statement of the accused recorded under Section 164 Cr.P.C. an application (paper No. 30Ka/3) was presented before the court, where on the same day, the statement was recorded by Judicial Magistrate, Rudrapur. Paper No. 3Ka/1 is the statement of confession of the accused Harswroop. Another application in the file is (paper No. 3ka/2).
On 22.02.2019, the site plan of the recovery was prepared which is paper No. 3ka/32, marked as Ext. A-26. On 24.02.2019, the statement of the memo witness and grandfather of the deceased were recorded. On the same day the witnesses of the memo panchan and the panchnama witness Manoj Gupta and the S.I. who did the proceedings of the panchnama statement were recorded. Panchnama witnesses stated about the grievous offence done by the accused and that the body of the deceased was recovered from the house of the accused.
21) Photographs of the deceased victim were kept on record which are Material Ext. 10, 11, 12 and 18
14. On 27.02.2019, the police officer, who did the proceedings of the panchnama statement, received the panchnama report of the deceased. The police witnesses also deposed that on 11.03.2019, the statements of a panel doctor Dr. Nagender Singh were recorded. The doctor stated of the unnatural act, the enlarged anal, injury on the adjoining area of the anal and the murder done by throttling of the neck of the victim. On the same day, an application paper No. 3Ka/4 was made before the court to collect the blood sample for DNA test of the accused Harswroop. On 13.03.2019, Sr. Pathologist of District Hospital Rudrapur took the sample on the FTA card which was sealed and stamped. The statement of panel doctors Dr. R.D. Bhatt and Dr. Nagender Singh were recorded.
On 14.03.2019 the blood sample of the accused, case property for examination was sent with the permission of the court to FSL, Dehradun. On the same day statement of P.W. 11 Dr. Rajeev Kumar, who had done the medical examination of the accused Harswroop was also recorded.
P.W.11 in his statement stated that during the medical examination, he found the mouth of the private part of the accused open and reddish, the 19 description of which was made in medical report (Ext. A-29) of the accused. He proved the medical report which was in his handwriting.
22) On 20.03.2019, constable Devendra Singh submitted the case property to FSL Dehradun which is entered as Sl. No. 559/19 and the receiving receipt 3Ka/61 to 3Ka/62 bears the FSL Dehradun's seal. On 06.04.2019, majid statement of the complainant and his wife were recorded at their residence. On 16.04.2019, the statement of the memo witnesses Umesh Pant, constable Raj Kumar, Kuldeep, Neeraj Shukla were recorded.
23) The evidence of all the above police witnesses was that they had gone with accused Harswroop, along with the complainant, on 21.02.2019 to his house where he got the dead body of the victim recovered from his room from a jute bag. Recovery was done in the presence of witnesses. After recovery of the dead body information was immediately given to the senior officials and to the forensic team, and panchnama (Ext. A-5) was prepared. These witnesses also proved all the recoveries as enumerated above. 20
24) The lower court had examined the above said evidence with respect to arrest of the accused and recovery from his possession. Accused Harswroop was arrested on 13.30 hours from his house as per Ext. A-
15. Hence, the plea taken by the defence that he was arrested from the fish market, near Govind Temple is against the above said evidence. The arrest of accused persons Pappu and Roopwati was made after the recovery of body of the deceased under Section 27 of the Indian Evidence Act, and memos thereof were prepared as Ext. A-16 and Ext. A-17, respectively.
On the basis of suspicion as raised in application (Ext. A-2), submitted by P.W.1, and taken by the Investigating Officer which is also a custody since the information gathered at the time was confirmed subsequently by the recovery of the jute bag Mat. Ext. 10, which contains the dead body of deceased whose photographs were on record as Mat. Ext. 11 and Mat. Ext. 12. Accused Harswroop was in custody of the police before his actual arrest was made vide arrest memo (Ext. A-15). As per the evidence given by P.W.8 S.I. Jitender Kumar, accused Harswroop was continuously with police after he was found in the fish market near Govind Temple [Ext. A-15 (paper No. 21 3Ka/20)]. The recovery of the dead body was made when accused Harswroop was in the custody of the police under Section 27 of the Indian Evidence Act and after the recovery he has to be taken in the custody by the police officer.
25) The lower court made reference to the judgment rendered by the Supreme Court in State of U.P. Vs Deoman Upadhayaya, AIR 1960 SC 1125, and Aghno Nagesia Vs State of Bihar, AIR 1966 SC 119, where the Supreme Court has held that where the FIR is given by the accused to the police officer that he had committed the murder then Section 27 of the Act serves as an exception to Section 25 of the Indian Evidence Act and assumes that the accused to be in constructive custody of the police and has admitted the information relating to the recovery of bodies and the weapon. Under Section 27 of the Indian Evidence Act, custody does not mean formal custody but includes any surveillance or restriction by police which is more relaxing in the present case as the accused has himself willingly stated about his involvement in taking of the victim to his room, doing unnatural act with him and committing murder.
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Further accused Pappu and Roopwati were also arrested after the dead body of deceased was recovered at 11.45 hours, and accused Roopwati was arrested after a lady Sub Inspector was called. Hence, the proceedings have been correctly followed while recovering the dead body, taking accused Harswroop into custody, and arresting Pappu and Roopwati. Finally, the final opinion taken by the lower court was that since the recovery of deceased victim's dead body (Ext. A-14) and the clothes (Ext. A-18) was made fulfilling all the legal provisions and requirements of Section 27 of the Indian Evidence Act, as per the judgment of Anter Singh Vs State of Rajasthan (2004) 10 SCC 657, the same is relevant and admissible in evidence.
26) P.W.8 had deposed that the dead body of victim was taken out of the jute bag and P.W.1, father of the deceased child, started crying. The prosecution has led all evidence with respect to the identification and description of the recovered body, and how the body was recovered, sealed and sent for postmortem examination, and panchnama (Ext. A-5) of the deceased was prepared by P.W.6 S.I. Harvinder in the 23 presence of the Panches, which is paper No. 3Ka/36 to 3Ka/38 on record.
Kidnapping under Section 364 of IPC
27) As per the deposition given by P.W.1 , P.W.2 and P.W.3 in the court the deceased victim was playing on the roof and subsequently recovery (memo Ext. A-
14) of the body of the victim from the room of the accused Harswroop was identified by the witnesses at the time of preparation of inquest report (Ext. A-5). Hence, the offence punishable under Section 364 IPC was made out against accused Harswroop. Offence under Section 377 IPC and 5/6 of POCSO Act
28) As far as kidnapping is concerned, the offence was made out against accused Harswroop as discussed above. With respect to the offence under Section 377 IPC, the panel of doctors prepared the swab collected during postmortem and sent it to F.S.L., Dehradun. P.W.11 Dr. Rajeev Kumar has also examined the accused on 21.02.2019, who in his cross- examination stated that there was redness on the penis which appears within 24-48 hours. There were no scratch marks. There was no smegma present on the penis. When there is redness there is no smegma present. P.W. 11 further deposed in his examination- 24 in-chief that the penis glans is reddish when it is used to do some work forcefully.
29) Apart from the evidence adduced by P.W.5 Dr. Nagender Singh and P.W.11 Dr. Rajeev Kumar with respect to the offence of unnatural act, the FSL report No. FSL-571(Bio)-914 (DNA) dated 10.06.2019 (Ext. A-
28) reveals that the following exhibits were prepared by P.W.6 S.I. Harvinder Kumar at the time of sending the same to F.S.L. for examination :
Parcel No. Description of Exhibits
1 Exhibit-1 Anal Swab of deceased
Exhibit-2 Hair of deceased
2 Exhibit-3 Hair of accused
3 Exhibit-4 Blood sample of accused on FTA card
(reference DNA sample)
Result of the examination for examination of the semen and blood
1. Semen could not be detected on Exhibit-1 and 2
2. Human blood could not be detected on Exhibit-2 Result of DNA Examination
1. The DNA test was performed for Exhibit -1 and 4
2. The alleles were amplified at each loci to obtain the DNA profiles of the sources of Exhibits -1 & 4
3. The DNA profile obtained from the Exhibit-1 (anal swab of deceased) is from a single male human source and not matching with the DNA profile obtained from the Exhibit-4 (blood sample of accused) CONCLUSION 25 The DNA test performed on the exhibits provided is sufficient to conclude that, the DNA obtained from the Exhibit-1 (anal swab of the deceased) is from a single male human source and not matching with the DNA obtained from the exhibit-4 (blood sample of the accused).
30) Nothing material has come in the FSL report to show that accused had sodomized the deceased victim, but Section 377 of IPC stipulates there must be penetration to constitute the carnal intercourse. The postmortem report (Ext. A-3), paper No. 3Ka/43 was silent with respect to any injury caused in or around the anal region of the deceased victim. Reference was made to the Modi's Medical Jurisprudence where it has been observed that there can be less or no injury when for the offence of 377 of IPC one is consenting or major.
The deceased, in the present case, was neither a major nor consenting. However, as per the deposition of P.W.5 the outer area of anal passage was 4 cm and the anal canal depth was 6 cm and broadened, it was visible easily. Hence the court proceeded to discuss what can be the reason of broadening of the anal canal. Hence the court observed that it was difficult to recourse to the fact that 26 such an observation made at the time of medical examination and the deposition of P.W.5 was a consequence of the act done by the accused Harswroop. Again, reference was made to the evidence adduced by P.W.11 Dr. Rajeev Kumar, who had examined the accused Harswroop. As per P.W.11, there was redness found on the private part of accused Harswroop during medical examination, after his arrest. It transpires that the reason for the absence of smegma was due to some forceful action. Since redness was found on the private part of accused Harswroop during medical examination, it could be a clinching evidence as per the deposition made by this witness. As per this witness the reason probably would be that accused Harswroop could have exercised force at some time other than when he was with the deceased child. The victim was missing from 19.02.2019, the accused Harswroop was medically examined on 21.02.2019 at 2.10 hours in the afternoon which is soon after the commission of crime. As per, P.W.11 the redness caused due to the force used by the accused was soon after the commission of crime. This was a probability that such a force caused the redness and absence of smegma from the private part 27 of accused Harswroop. The accused failed to give any evidence that how this redness came after missing of the child and no evidence was led to prove his availability at some other place. Failure to lead any such evidence that he was elsewhere when the child was went missing, the case of the prosecution has to be taken more favourably.
31) Another fact which the lower court took into account was that the body of the deceased was found in a naked condition in the jute bag, and the body was recovered from the room of the accused Harswroop. The clothes of the victim were also recovered from the room of the accused Harswroop (Ext. no. 18). This fact was further stated by accused Pappu and Roopwati in their statement recorded under Section 313 Cr.P.C., and with respect to the recovery of the dead body in naked condition and the clothes of the deceased recovered from the room of accused Harswroop, a strong presumption about the occurrence of offence under Section 377 IPC was made out. Harswroop used less force due to which noticeable injury was not found during postmortem. Hence the lower court came to the conclusion that Harswroop used less force and due to which no injury was found during postmortem. 28
The victim was only 07 years of age, and the marks of injury Nos. 1, 2, 3 and 4 found on the body of the deceased during postmortem examination was a living example of the situation in front of the eyes that some resistance was offered when the accused was trying to make victim his prey. It is unusual for the accused to grasp in his hand the neck of the deceased victim while committing sodomy.
32) Apart from the above evidence which clinches that the body of the deceased victim was found in a naked condition from the room of Harswroop, and the injury marks found during postmortem also confirms that the deceased had offered resistance while the accused was committing crime under Section 377 IPC. In the above background, the statement given by the accused under Section 164 Cr.P.C. before the Magistrate confessing his crime, and statement under Section 161 Cr.P.C., and as per the photograph Mat. Ext. 12 (paper No. 3Ka/60) of the deceased victim, the stool coming out was visible. All these facts show that the unnatural act was committed with the victim before his death. Since the age of the victim was below 12 years, the offence under Section 5 of POCSO Act which defines aggravated penetrative sexual assault is also 29 made out, keeping in view the fact that the offence punishable under Section 377 IPC is proved beyond reasonable doubt against the accused Harswroop.
33) After the amendment in the POCSO Act, even if body of the victim is touched it amounts to penetrative sexual assault, when the victim is under 12 years of age Section 5(m) of the POCSO Act is attracted. Since the body of the deceased victim was found in a naked condition, a presumption under Sections 29 and 30 of the POCSO Act, of existence of culpable mind and offence to have occurred is also made out.
Offence under Section 302 of IPC
34) As discussed in the preceding paragraphs of the judgment that accused Harswroop in his confession statement made under Section 161 Cr.P.C. stated that he did unnatural act and thereafter committed murder of the victim by pressing his neck through his right hand when the victim started crying and insisted to go outside. Accused committed the murder of the victim with a fear of being caught. In his confession statement under Section 164 Cr.P.C. also, accused Harswroop reiterated the story of committing murder of the victim and the fact of committing rape on him again 30 after his death. Accused also stated that he moved the clothes of the victim kept them aside, covered the body with a blanket and went to sleep. He admitted his offence. Accused even hid the dead body of the victim in a jute bag in order to dispose it off at an appropriate time. It was the fear in his mind which does not allow him to move out and cooperate in the ongoing search of the missing victim. The confessional statement given by Harswroop under Sections 161 and 164 Cr.P.C., and thereafter recovery of the dead body at his instance was evidence sufficient enough to hold that these statements of the accused to the police is barred by limitation of Section 25 of the Indian Evidence Act, while it does not apply on Section 27 of the Act. Based on these confessional statements inference can safely be drawn that the accused had every intention to entice away the victim to his room for fulfilling his sexual desire. This is further corroborated by the fact that both the families had no enmity and they were neighbours, as had come in the statement of all the accused persons recorded under Section 313 Cr.P.C. Accused Harswroop did not adduce any evidence to contradict the prosecution evidence, apart from making a statement that it was a false case against him. The 31 statement recorded under Section 313 Cr.P.C. can not be relied upon to shake the credibility of the prosecution story.
Finally, the evidence adduced by P.W.5 are fully corroborated by the postmortem report (Ext. A-3) that cause of death of the victim was due to asphyxia as a result of ante mortem strangulation, and the death had occurred 30-40 hours before the postmortem. Hence, the cause of death after the dead body was recovered was due to asphyxia as a result of ante mortem strangulation, and strong presumption can be drawn that the death of the victim was not natural, but it was a homicidal death. Keeping in view the above facts, the court below rightly came to the conclusion that offence punishable under Section 302 IPC was clearly made out against accused Harswroop. Offence u/s 201 of IPC against all the accused
35) The dead body of the deceased was recovered from the room of accused Harswroop hidden in a jute bag, and said fact is in the knowledge of his parents viz. accused Pappu and Roopwati, which amply indicates that he and his family members were in an opportunity to dispose off the dead body in order to cause disappearance of the evidence. The recovery of 32 the dead body, seizure memo (Ext. A-14), photographs filed as Mat. Exts. 11 & 12, and the clothes recovered (Ext. A-18) from the room of accused Harswroop which was in his possession proves the case of the prosecution beyond reasonable doubt under Section 201 IPC against the accused Harswroop.
Other accused persons Pappu and Roopwati in their statement under Section 313 Cr.P.C. stated that clothes of the deceased victim were recovered from the room of Harswroop. They admitted it since both the accused Pappu and Roopwati were living with accused Harswroop in the same house, and there was no specific denial about the commission of the offence. Both of them expressed their consent in words regarding investigation done against accused Harswroop to be correct.
With respect to the offence punishable under Section 201 IPC, it has come on record that both the accused Pappu and Roopwati were labourers and they used to go for work everyday in the morning and used to return back in the late evening. They knew nothing about the offence. They did not aid the accused Harswroop in any way, but they played a role in order to save their son Harswroop and helped him in 33 disappearance of the evidence. Hence, the case of the prosecution on this count against accused persons Pappu and Roopwati is also proved beyond reasonable doubt.
However, prosecution led no evidence to prove the case under Section 16 / 17 of POCSO Act against accused Pappu and Roopwati and, hence the charge under Section 16 / 17 of POCSO Act was not proved against them.
36) Thus, the court below after hearing counsel for the parties, came to the conclusion that the prosecution was successful to prove its case beyond reasonable doubt against accused Harswroop in respect of offences punishable under Section 364, 302, 201 of IPC, and the one under Section 5/6 of POCSO Act, and after conviction, sentenced him accordingly. Similarly, the court below also came to the conclusion that prosecution has successfully proved charge for the offence punishable under Section 201 of IPC against the accused persons namely, Pappu and Roopwati, and after convection, sentenced them accordingly.
37) The present case is based on circumstantial evidence, and reference can be made to the case of Sharad Birdhichand Sarda Vs State of Maharastra, 34 AIR 1984 SC 1622, wherein the Supreme Court has laid down the following tests which have to be followed before conviction has to be recorded in cases which are based on circumstantial evidence. The same read as under :
(a) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
(b) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(c) tendency; The circumstances should be of conclusive nature and
(d) They should exclude every possible hypothesis except the one to be proved; and
(e) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
38) As per evidence collected by the prosecution the following facts came to light. The same are enumerated as under:
(1) the house of the complainant and that of the accused persons is adjacent to each other as per the site plan (Ext. A-26). Accused Harswroop in his statement recorded under 35 Section 313 Cr.P.C. also stated that P.W.1 (complainant) was his neighbour. In the site plan the house of the complainant was shown as the house of Roshan Lal (landlord), in which the complainant was staying, and the same was shown adjacent to the house of the accused.
(2) On 21.02.2019, at about 09.05 hours, an application (Ext. A-2) was given by P.W.1 in the police station alleging the role of accused Harswroop, Pappu, Roopwati and Pawan (declared juvenile). It was stated by P.W.1 that in the night, he heard some noise on the roof, when he reached there along with his family members, he saw accused Harswroop trying to open the lid of the water tank. When P.W.1 shouted, Harswroop rushed to his house through the staircase and this raised a suspicion in the mind of P.W.1 and he immediately made a complaint (Ext. A-2) with the police station doubting the role of accused Harswroop with respect to his child went missing. This complaint was made by P.W.1 subsequent to the tehrir dated 21.02.2019 (Ext. A-1).
On the basis of this application (Ext. A-2), the investigation was carried out and the police along with P.W.1 / complainant went in search of the accused Harswroop, and he was found in the fish market near Govind Temple. Accused was taken into custody and at his instance the dead body of deceased was recovered from his room in his house. Harswroop was never arrested, he was merely taken on the basis of information (Ext. A-2).
36(3) As per evidence given by P.W.8 S.I. Jitender Kumar when search was being made for accused Harswroop, they met P.W.1 at the P.S. Transit Camp, who told them that accused was in the fish market. Thereafter, when Harswroop was confronted in the fist market near Govind Temple, he informed the police that he lured the victim by offering toffee and committed bad act (unnatural act) with him, and after 1-2 hours, he again committed unnatural act with the victim, and when the victim started crying for going outside with the fear of being caught, accused throttled his neck with his right hand due to which victim died. There is no occasion to doubt the complaint (Ext. A-2) made by P.W.1. The investigation was thereafter carried out, and Harswroop was apprehended in the fish market from where he was taken to the police station, where he admitted his crime. There are entries in the General Diary that police had taken him there.
Harswroop took them to his house, and then to his room, where the naked dead body of the victim was recovered from a jute bag, and clothes of the deceased victim were also recovered from his room. Harswroop was arrested vide arrest memo (Ext. A-15) at 13.30 hours from his residence. The arrest was made after recovery of the dead body of the victim as per the information given by Harswroop to the police and the recovery of dead body under Section 27 of the Indian Evidence Act is crucial evidence connecting with the chain of circumstances which started with the complaint (Ext. A-2) made by P.W.1. 37 The sustainable evidence that it was Harswroop who had kept the naked dead body of the victim in his room in a jute bag and had taken out the clothes and kept in the room as well, which were soiled with stool. The clothes of the victim, as well as the dead body of the victim, were identified by P.W.1.
(4) Apart from the above, the statement given by parents of Harswroop under Section 313 Cr.P.C. also supports the case of the prosecution. Both the accused Pappu and Roopwati in their statement recorded under Section 313 Cr.P.C. stated that the clothes of the victim were recovered from the room of Harswroop. Roopwati further stated that the mother of Harswroop had died and she is the stepmother of Harswroop, who had brought him up when he was four and a half years old. No other evidence was led by the defence to show that they had doubted anybody else of committing the murder of deceased victim. They admitted that the clothes have been recovered from the room of their son Harswroop.
Hence the whole chain of events as per the judgment of the Supreme Court in Sharad Birdhichand Sarda's case (supra) is complete and does not leave any reasonable doubt for the conclusion with respect to the innocence of the accused. The whole chain of event does not leave any doubt that it was Harswroop who had enticed the child from the roof top to his room, committed unnatural act, and murdered him.
38(5) The postmortem report and the evidence given by the doctors further require to be assessed whether an unnatural act was done by Harswroop or not?
As per the evidence given by P.W.5 Dr. Nagender Singh, who was one of the panel doctors, during postmortem after examining the anal portion of the dead body it was found that the outer area of anal passage was 4 cm. and the anal canal dept was 6 cm. and broadened. It was visible easily. The stool was present on the outer area of the anal canal and outside the anal some hairs were present. The colour of nails, face, mouth and the ears (lower soft part) colour was bluish. The tongue was protruding outside the mouth.
39) Whether this medical examination and the injuries would reflect the commission of offence under Section 377 IPC and Section 5/6 of POCSO Act is to be examined now.
40) Section 6 of the POCSO Act provides for rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, and also liable to fine. As far as aggravated penetrative sexual assault on a child below twelve years is concerned, the same is defined in Section 5(m) of the POCSO Act. The same reads as under :
39
"5. Aggravated penetrative sexual assault
(m) whoever commits penetrative sexual assault on a child below twelve years"
41) Since the victim in the present case was below twelve years of age then for the purpose of punishment committed of an offence of aggravated penetrative sexual assault even an assault can be considered to be covered under the provision of Section 5(m) and the same will be applicable, and the punishment as per Section 6 would be as under :
"6. Punishment for aggravated penetrative sexual assault. -(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death."
42) Now with respect to the offence punishable under Section 377 IPC, the medical opinion given by the panel of doctors in their report, while conducting the postmortem of the deceased victim, is an under :
"From the examination of the anal portion of the dead body by the panel of doctors it was found that the outer area of anal passage was 4 cm. and the anal canal depth was 6 cm. and broadened. It was visible easily. The stool was present on the outer area of the anal canal and outside the anal some hairs were 40 present. The colour of nails, face, mouth and the ears (lower soft part) colour was bluish. The tongue was protruding outside the mouth."
Hence, even if there is such injury or no injury, the offence punishable under Section 6 of the POCSO Act is made out. In the present case, as per the evidence adduced by P.W.5 Dr. Nagender Singh, the court below had rightly observed the reason of broadening of the anal canal.
43) In the present case, as per evidence adduced by P.W.5 Dr. Nagender Singh, on examination of the anal portion of the dead body it was found that the outer area of anal passage was 4 cm and the anal canal depth was 6 cm and broadened, it was visible easily. The above said evidence as per Section 6 read with Section 5(m) of POCSO Act would amount to sexual assault. Even if the offence punishable under Section 377 IPC per se would not be made out, the offence punishable under Section 6 of the POCSO Act is made out.
44) Another finding recorded by the lower court was that on account of presence of stool on the outer area of the anal canal the possibility of committing the crime for sexual assault before the stool came out was 41 more probable. Apart from the postmortem report of the deceased and the opinion given by P.W.5, the opinion given by P.W.11 Dr. Rajeev Kumar, Orthopedic surgeon of L.D. Bhatt, Hospital, Kashipur, who conducted the medical examination of the accused Harswroop on 21.02.2019, at about 2.10 hours, would also be relevant. P.W.11 stated that on medical examination of the accused it was found that the colour of the glans penis was reddish especially base of glans penis was red, pubic hair present. In the opinion of P.W.11 the penis glans will be reddish when some forceful act is done. The said medical examination report is marked as (Ext. A-29). Further, on cross- examination, P.W.11 deposed that the redness on the penis of the accused could have been 24 to 48 hours. There was no scratch mark. There was no smegma present on the penis. When there is redness there is no smegma.
45) As per the evidence given by P.W.11, the reason for absence of smegma was due to some forceful action and redness may occur within 24 to 48 hours. When there is redness smegma is not present, and as per P.W.11, if redness was found during medical examination of accused Harswroop, this would be a 42 clinching evidence that accused Harswroop could have exercised force at some time other than when he was with deceased victim, but this does not completely rule out the possibility that the accused could have also exercised force through the small anal aperture of the deceased victim due to which the smegma was absent.
46) The medical examination of accused Harswroop was conducted on 21.02.2019 afternoon, and the crime was committed on 19.02.2019, and as per P.W.11, the redness caused was due to force used by the accused soon after the commission of crime. Since there was no delay in conducting medical examination of accused Harswroop, and the dead body was recovered from his room, under Section 106 of the Indian Evidence Act, the burden was on the accused to prove how the body came in his room, and where was he after 19.02.2019 till 21.02.2019, when the child went missing in order to prove his non-involvement in the crime. No evidence has been led by the defence to show that Harswroop was not in his house on 19.02.2019. The marks of ante mortem injuries found on the dead body of the victim during postmortem, i.e., injury Nos. 1, 2, 3 and 4 were also living example of the situation in front of the eyes that some resistance 43 was offered when the accused was trying to make deceased victim his prey. The Doctor further stated that it was not unusual for the accused to grasp in his hand the neck of the deceased victim while committing sodomy.
47) Apart from the postmortem examination, and medical examination of accused, proved by Medical Officers P.W.5 and P.W.11, the accused in his statements recorded under Section 164 Cr.P.C. and 161 Cr.P.C. had admitted that this act was done with the victim before or after his death. The accused committed the crime with the victim which is evident from Mat. Ext. 12 (Paper No. 3Ka/60) which is the photograph of the deceased victim, in which stool was seen coming out of anal canal and it means the act was done before the death of the victim.
48) The lower court after going through the above said medical evidence given by P.W.5 and P.W.11; statement of the accused recorded under Section 164 and 161 Cr.P.C.; and photograph of the deceased victim Mat. Ext. 12, has rightly come to a conclusion that the offence punishable under Section 377 IPC was made out. The best evidence could have 44 been given by the victim, and since he had died, hence the prosecution case has been weighed. The trial court observed that the anal swab (Ext. A-28) collected and send to the FSL, even if does not give any findings suggesting the offence of sodomy, it does not neutralize the prosecution case with respect to the offence under Section 377 IPC, and the same has to be appreciated in the light of other evidence available.
49) Reliance has been placed on the judgment of the Supreme Court in State of Uttarakhand Vs Darshan Singh, 2019 SCC Online SC 1431, wherein it has been held that the ocular evidence is primary to the expert evidence. In the present case, even if the body of the victim is touched it amounts to penetrative sexual assault with the victim, who is twelve years of age, under Section 5(m) of POCSO Act. The trial court in para 124 of its judgment observed as under :
"Here it is very important to mention that penetrative sexual assault means not only to penetrate once penis into the vagina of the victim child as earlier the situation was, but now after the amendment under the relevant sections of the IPC and creation of this POCSO Act makes this clear that rape / sexual assault includes penetration of penis or anything into the vagina or anus etc., using of mouth on the vagina, anus etc. or making her to use her mouth on his penis, anus etc. or to manipulate her body in such a way that the act is done in furtherance to commit rape upon her that is the act shows that he is about to penetrate. In the POCSO cases even if the body of the victim is touched it amounts to 45 penetrative sexual assault and when the victim is under twelve years of age, Section 5(m) of the POCSO Act is attracted."
50) For the purpose of convicting the accused, reference was made to Sections 29 and 30 of the POCSO Act, which relates to existence of culpable mind and offence to have occurred, and also holds a presumption for an offence of the murder. The same read as under :
Section 29 POCSO Act - where a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
Section 30 POCSO Act - In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation. -In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
As per the above said provisions if an accused is charged under the section of penetrative sexual assault in POCSO Act, then the court must believe and shall presume that the charge and 46 existence of such mental state is true against the accused unless he himself proves it otherwise.
51) In the facts of the present case, as per the statements of accused persons Pappu and Roopwati recorded under Section 313 Cr.P.C., they admitted that the clothes of the deceased victim were recovered from the room of accused Harswroop, and even naked dead body of the victim was recovered from a jute bag from his room, and as per Sections 29 and 30 of POCSO Act, it was accused Harswroop who had to led evidence to show that the offence has not been committed by him. He led no evidence in defence. Moreover, as per the evidence given by P.W.5, the cause of death was asphyxia as a result of ante mortem injuries. There were ante mortem injuries found on the body of the deceased, stool was found present, which is one of the symptom of death caused due to pressing of the neck. The death had occurred 36-48 hours before, and the time of the death related back to 19.02.2019. Hence, the postmortem report also reflected that the victim had died on 19.02.2019 and the dead body was recovered on 21.02.2019 from the room of accused Harswroop. Thus, the offence punishable under Section 47 302 IPC was made out against accused Harswroop, and he was convicted on said charge.
52) The dead body was recovered at the instance of accused Harswroop, and as per P.W.8 S.I. Jitender Kumar, it was identified by P.W.1, father of the deceased. The recovery was made in the presence of panch witnesses, a panchnama (Ext. A-5) was also prepared, and further as per the confessional statement, postmortem report, evidence adduced by P.W.5, and statement recorded under Section 313 Cr.P.C., the accused Harswroop was convicted under Section 302 IPC.
53) Hence, the prosecution has proved the case beyond reasonable doubt that accused Harswroop has killed the deceased victim with a motive to commit sodomy with him. However, other accused persons Pappu and Roopwati helped the main accused Harswroop for causing disappearance of the evidence, as it has come on record that they knew that dead body was in Harswroop's room and did not inform the police. Hence, they have been rightly convicted under Section 201 IPC.
48
54) Learned Senior Counsel appearing for the accused-appellant Harswroop argued that there is inconsistency in the evidence given by P.W.1, P.W.2 and P.W.3 with respect to the time when they went to the house of accused Harswroop in the morning on 21.02.2019. One of the witnesses had stated 11:00 to 11:30, P.W.1 had stated 11:00 to 11:30, P.W.3 had stated 1 o'clock, P.W.4 stated 11:30 to 12:00, and as per P.W.2 the body was recovered at night and the police did not take the body at night. These are the minor discrepancies in the statements of witnesses P.W.1, P.W.2, P.W.3 and P.W.4. However, in the present case, the evidence given by prosecution and the investigating agency is consistent. These minor discrepancies in giving the date and time wrongly cannot dent the prosecution evidence. Evidence collected by the I.O. after thorough investigation especially keeping in view the fact that the incident took place on 19.02.2019, at night when the child went missing, and on 21.02.2019 the police team went to the fish market and found accused Harswroop there, who accompanied the police to the police station and then he gave his confessional statement under Section 164 Cr.P.C. that he had done unnatural act with the 49 victim and had committed his murder. Accused took the police to his house and opened his room and showed them the naked dead body of the victim under the cover of a blanket in a jute bag. Further, the postmortem report also reflected that as per the medical report of accused Harswroop (Ext. A-29) proved by P.W.11 Dr. Rajeev Kumar, the redness on the private part of the accused Harswroop could have occurred 36 to 48 hours before, and that was the exact time when the murder took place, i.e., 19.02.2019. With respect to the mentioning wrong timing by P.W.1, P.W.2 P.W.3 and P.W.4, the finding recorded by the lower court can not be interfered.
55) Learned Senior Counsel further referred to the judgment of Supreme Court in Dhan Raj alias Dhand Vs State of Haryana, (2014) 6 SCC 745, where while examining a case of circumstantial evidence some extra-judicial confession was made and on the basis of extra-judicial confession some recoveries of robbed articles were made. In that case there were material discrepancies between the two extra-judicial confessions and even with respect to the recovery of robbed articles, it was doubtful. This judgment cannot be applied to the facts of the present case, as in the 50 present case recovery of the naked body of the victim was made from the room of accused Harswroop where he himself accompanied the police and the complainant. Even if the confession made under Section 161 Cr.P.C. and under Section 164 Cr.P.C., it must be taken into account that the recovery of the naked dead body of the victim from his own room casts onus on accused Harswroop under Section 106 of the Indian Evidence Act to lead evidence to show how this dead body came in his room. Moreover, the clothes and naked dead body of the victim were recovered from the room of accused Harswroop, and even this fact was stated by other accused persons Pappu and Roopwati, while giving statements under Section 313 Cr.P.C.
56) In the same backdrop, learned Senior Counsel for the appellant referred to the judgments of Supreme Court in State of Karnataka Vs Mahabaleshwar Gourya Naik, 1992 Supp (3) SCC 179 and Shankarlal Gyarasilal Dixit Vs State of Maharashtra, (1981) 2 SCC 35. He has referred these judgments on the proposition that in a case of offence punishable under Section 376 IPC, as per medical jurisprudence smegma would require 24 hours to re- 51 accumulate after intercourse and presence of smegma perhaps exclude the possibility of recent sexual intercourse but its absence will not necessarily establish that the person has had a recent intercourse.
57) Even the ratio of the above two judgments will not be applicable to the facts of the present case, as in the present case, after medical examination of the accused Harswroop, as per the opinion given by P.W.11 Rajeev Kumar it was found that the colour of the glans penis was reddish especially base of glans penis was red, pubic hair present. In the opinion of P.W.11 the penis glans will be reddish when some forceful act is done.
Apart from the opinion given by P.W.11, the offence punishable under Section 5/6 of POCSO Act, which is similar in nature to an offence punishable under Section 377 of IPC makes it clear that rape, sexual assault includes penetration of penis or anything into vagina or anus, using of mouth on vagina, anus etc. or making her use of mouth on penis etc. or to manipulates her body in such a way that the act is done in furtherance to commit rape. In the POCSO Act cases, even if body of a victim is touched it amounts to penetrative sexual assault, and when the victim is 52 under twelve years of age under Section 5(m) of POCSO Act, said Act is attracted. The medical evidence was sufficient to prove that confession of the accused Harswroop while making his statement under Section 161 Cr.P.C. and 164 Cr.P.C. were correct, and not false.
58) Reference can now be made to a recent judgment of Supreme Court in Perumal Raja @ Perumal Vs State, Rep. by Inspector of Police, 2024 0 AIR(SC) 460, where the Supreme Court while examining a case of circumstantial evidence has held that distinction has to be drawn between incomplete chain of circumstances and a circumstance after a chain is complete and defence or explanation given by accused is found to be false in which event said falsehood is added to reinforce conclusion of court. If defence case is false it would constitute an additional link for the case of prosecution. While dealing with the confessional statements, the Supreme Court observed that the bar under Section 25 of Evidence Act would apply. The expression "accused person" in Section 24, and expression "a person accused of any offence" in Sections 26 and 27 have some connotation, and describe the person against whom 53 evidence is sought to be led in a criminal proceeding. The term "accused of any offence" is descriptive of person against whom a confessional statement made by him is declared not provable and does not predicate a condition of that person at the time of making statement. Confession includes not only admission of offence but all other admissions of incriminating facts related to offence, except to the extent that the ban is lifted by Section 27 of the Evidence Act. Relevant paragraphs of above said judgment of the Supreme Court are reproduced as under :
"32. In State of Maharashtra Vs Suresh, (2000) 1 SCC 471, this Court in the facts therein held that recovery of a dead body, which was from the place pointed out by the accused, was a formidable incriminating circumstances. This would, the Court held, reveal that the dead body was concealed by the accused unless there is material and evidence to show that somebody else had concealed it and this fact came to the knowledge of the accused either because he had seen that person concealing the dead body or was told by someone else that the dead body was concealed at the said location. Here, if the accused declines and does not tell the criminal court that his knowledge of the concealment was on the basis of the possibilities that absolve him, the court can presume that the dead body (or physical object, as the case may be) was concealed by the accused himself. This is 54 because the person who can offer the explanation as to how he came to know of such concealment is the accused. If the accused chooses to refrain from telling the court as to how else he came to know of it, the presumption is that the concealment was by the accused himself.
40. The appellant - Perumal Raja @ Perumal in his statement under Section 313 of the Code of Criminal Procedure, 1973 plainly denied all accusations without furnishing any explanation regarding his knowledge of the places from which the dead body was recovered. In this circumstance, the failure of the appellant - Perumal Raja @ Perumal to present evidence on his behalf or to offer any cogent explanation regarding the recovery of the dead body by virtue of his special knowledge must lead to a reasonable adverse inference, by application of the principle under Section 106 of the Evidence Act, thus forming an additional link in the chain of circumstances. The additional link further affirms the conclusion of guilt as indicated by the prosecution evidence.
41. The whereabouts of Rajini @ Rajinikanth were unknown. The perpetrator(s) were also unknown. It is only consequent to the disclosure statement by the appellant - Perumal Raja @ Permual, that the police came to know that Rajini @ Rajinikanth had been murdered and his body was first dumped in the sump tank and after some months, it was retrieved, cut into two parts, put in sack bags, and thrown in the river/canal. The police, accordingly, proceeded on the leads and recovered the parts of the dead body from the sump tank and sack bags from the river/canal. It has been also established that Rajini @ Rajinikanth was 55 murdered. In addition, there have been recoveries of the motorcycle and other belongings at the behest of the appellant - Perumal Raja @ Perumal. These facts, in the absence of any other material to doubt them, establish indubitable conclusion that the appellant - Perumal Raja @ Perumal is guilty of having committed murder of Rajini @ Rajinikanth. The presence of motive reinforces the above conclusion."
59) The ratio of the above said judgment is directly applicable to the facts of the present case. The recovery was made on the statement given by accused Harswroop while he accompanied the police from fish market to police station, and thereafter to his house. The naked dead body of the deceased victim was recovered from the room of the accused hidden in a jute bag, and clothes worn by the deceased victim along with slippers were also recovered from the same room. Hence, as per Section 27 of the Evidence Act, accused failed to give any explanation as to how these things came in his room, and in this backdrop, the recovery of naked dead body in itself from his own room, whose presence was not explained by the accused Harswroop, completes the chain of circumstantial evidence.
56
60) Another important fact is that the complainant's family and family of the accused were neighbours and there were known to each other. It is the case of the prosecution that on 19.02.2019, accused Harswroop came to his house in a drunkard state and he himself has stated that he had lured the child from the roof to his room by offering toffee. Ante mortem injuries were found on the dead body of victim during postmortem. As per the postmortem report proved by P.W.5 Dr. Nagender Singh there were scratch marks on the neck, forearm and two scratch marks on left and right side of stomach just above the hip bone. On examination of the anal portion of the dead body it was found that outer area of anal passage was 4 cm. and the anal canal depth was 6 cm. and broadened. It was visible easily. The stool was present on the out area of the anal canal. The tongue was protruding outside the mouth. The death of the victim was due to asphyxia as a result of ante mortem strangulation. The prosecution was successful to prove its case beyond reasonable doubt that accused Harswroop had kidnapped the deceased victim with a motive to sodomize him. After the act of sodomy / aggravated penetrative assault, accused murdered the 57 victim and hide the dead body in a jute bag in his room to cause disappearance of the evidence. Hence, accused Harswaroop has rightly been convicted for the offences punishable under Sections 364, 377, 302, 201 of IPC. Also, keeping in view the fact that the victim was 07 years old dumb child, and below 12 years, the accused Harswroop was rightly convicted and sentenced for the offence punishable under Section 6 POCSO Act. Hence, no interference is called for in the judgment of the trial court recording the conviction against the accused Harswroop on above said counts. The appeal filed by accused-appellant Harswroop is liable to be dismissed.
61) With respect to the appeals filed by other accused persons Pappu and Roopwati since the appeal of convict Harswroop has been dismissed keeping in view the statements recorded by them under Section 313 Cr.P.C., even these two accused persons did not lead any evidence in defence to show that Harswroop had not committed the crime, rather they had stated that the clothes of the naked deceased victim were recovered from the room of convict Harswroop, hence their conviction under Section 201 IPC is also proved beyond reasonable doubt, and they have been rightly 58 convicted and sentenced by the court below on said count. Thus, the appeals filed by convicts Pappu and Roopwati are also liable to be dismissed. Quantum of sentence :
62) The lower court has referred to the judgments of the Supreme Court in Shankar Kisanrao Khade Vs State of Maharashtra, (2013) 5 SCC 546; Kamta Tiwari Vs State of M.P., decided on 04.09.1996; State of Karnataka Vs Krishnappa, (2004) 4 SCC 75; and Gurvail Singh @ Gala and another Vs State of Punjab, AIR 2013 SC 1177. In Kamta Tiwari (supra) death penalty was awarded to an accused, who has committed rape on a seven year old girl, and he was in a position of trust.
63) In the case in hand, lower court observed that the victim at the time of the incident was a young boy about 7 years of age. He must have undergone severe pain and found himself helpless. The inability of the victim to speak properly which has come in evidence of the witnesses P.W.1, P.W.2, P.W.3 and P.W.4, and said fact has also been admitted by convict Harswroop in his statement recorded under Section 313 Cr.P.C. Further the court below observed that Harswroop was not seen in pain 59 or no remorse on his face, and he kept smiling whole time when his statements were recorded. He did not even plead for his innocence in front of the court. He did not adduce any defence evidence and even his parents held him responsible for the entire case, and finally the court below held that Harswroop had intentionally and knowingly committed the murder of the victim aged 7 years, and in this backdrop, the convict Harswroop was awarded the death penalty under Section 302 IPC.
64) In the facts of the present case, convict- appellant Harswroop is 24 years old poor person, and had no previous criminal history. He had lost his mother when he was only four and a half years old. He was brought up by his stepmother. Convict- appellant was an alcoholic, and as per the evidence brought on record, he used to do only daily wage work. His mental status could not be of a satisfied person being a daily wager.
65) Reference can now be made to the judgments of the Supreme Court where the sentence of capital punishment was committed to life imprisonment. 60
66) In 1973, the Supreme Court in the case of Jagmohan Singh Vs State of U.P. (1973) 1 SCC 20, examined the question whether death sentence awarded by a court under Section 302 of Indian Penal Code, 1880 was violative of sub-clause (1) of Article 19 of the Constitution. As per Sub-Section (5) of Section 367 of Criminal Procedure Code, there was a discretion with the court either to award capital sentence or life imprisonment. The Supreme Court held that Article 19 of the Constitution does not directly deal with the freedom to live. It is not included in the seven freedoms mentioned in that Article. As far as India is concerned, capital punishment cannot be described as unusual because that kind of punishment has been with us from ancient times right up to the present day though the number of offences for which it can be imposed has continuously changed. The framers of our Constitution were well aware of the existence of capital punishment as a permissible punishment under the law. The other Articles in the Constitution, viz., Section 72(1)(c), 72(3), 21 and 134 and Sections 401 and 402 of the Code of Criminal Procedure and the Entries 1 and 2 in List III of the Seventh Schedule, all indicate that capital sentence 61 has not been regarded per se as unreasonable or not in the public interest.
67) After the amendment by Act 26 of 1955, it was left to the judicial discretion of the court whether the death sentence or the lesser sentence should be imposed. Article 14 cannot be invoked in matters of judicial discretion. If the law has given to the Judges wide discretion in matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there would be at all any discrimination, since facts and circumstances of one case can hardly be the same as the facts and circumstances of another. In a criminal trial, the accused who is charged for murder knows that he is liable to sentence of death in the committing court itself. The accused has a right to examine himself as a witness, and thereafter, give evidence on the material facts. He and his counsel are at liberty to address the court not merely on the question of guilt but also on the question of sentence, and so on. After the prosecution and the accused have had their full say, the court is principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. In this 62 backdrop, the procedure established by law cannot be said to be unconstitutional under Article 21.
68) The Supreme Court also examined several studies made by Western Scholars to show the ineffectiveness of capital punishment either as a deterrent or as an appropriate retribution. The Supreme Court Judges in the above study observed that social conditions are different and also the general intellectual level. The only authoritative study in India is that of the Law Commission of India published in the year 1967. One the basis of its conclusions it is difficult to hold that capital punishment as such is unreasonable or not required in public interest. The policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin and impossibility of laying down standards.
69) The impossibility of laying down standards is at the very core of the Criminal Law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. This discretion in the matter of sentence is liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in 63 the Mode Judicial Code would not serve the purpose. The exercise of judicial discretion of well-recognised principles is, in the final analysis, the safest possible safeguards for the accused. The Code of Criminal Procedure lays down a detailed procedure and this procedure is limited to the finding of the guilt. The Supreme Court finally held that it was necessary to emphasize that the court was principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry.
70) In paragraph 29 of the Jagmohan's case (supra), the Supreme Court observed as under :
"However, it is necessary to emphasize that the court is principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the court. The only thing that remains is for the judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr.P.C. purport to provide for. These provisions are part of the procedure established by law and, unless it is shown that they are invalid for any 64 other reasons, they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid, and, hence, the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article
21."
71) Thereafter, in Bachan Singh Vs State of Punjab (1980) 2 SCC 684, a larger bench of Supreme Court consisting of five judges has affirmed the view taken in Jagmohan's case (supra), and has affirmed the proposition that the provisions of death penalty for an offence punishable under Section 302 IPC, and the sentencing procedure laid down in sub-section (3) of Section 354 of Criminal procedure Code, requires that special reasons have to be recorded for awarding a death penalty, and these provisions are not violative of Article 14, 19 and 21.
72) While approving the judgment in Jagmohan's case (supra), the Supreme Court also referred to the new provision in sub-section (3) of Section 354 of the Criminal Procedure Code, 1973, that award of death sentence was an exception to be made for "exceptional reasons" founded on grave circumstances of the particular case relating to the crime and the criminal. 65
73) In Paragraphs 160, 161 & 162 of the Supreme Court judgment rendered in Bachan Singh's case (supra), it has been observed as under :
"160. In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan's case. These propositions may be summed up as under:
(i) The general legislative policy that underlies the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum punishment therefor, and to allow a very wide discretion to the Judge in the matter of fixing the degree of punishment.
With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where the maximum punishment is the death penalty.
(ii)(a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible. "The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need." (Referred to McGoutha v. California, (1971) 402 US 183.
(b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment.
(iii) The view taken by the plurality in Furman v. Georgia, 408 US 238 (1972), decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un-guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in out Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. 66 There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area.
(iv)(a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime.
(b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.
In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different. Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an unguided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.
(v)(a) Relevant facto and circumstances impinging on the nature and circumstances of the crime can be brought before the Court at the pre- conviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facts and circumstances had been specifically provided. Where counsel addresses the Court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what 67 Sections 306(2) and 309(2), Cr.P.C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin- constitutional under Article 21. (emphasis added).
161. A study of the propositions set out above, will show that, in substance, the authority of none of them has been affected by the legislative changes since the decision in Jagmohan's case. Of course, two of them require to be adjusted and attuned to the shift in the legislative policy. The first of those propositions is No. (iv)(a) which postulates, that according to the then extant CrPC both the alternative sentences provided in Section 302, Penal Code are normal sentences, and the court can, therefore, after weighing the aggravating and mitigating circumstances of the particular case, in its discretion, impose either of those sentences. This postulate has now been modified by Section 354(3) which mandates the Court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are "special reasons" - to be recorded - for such sentence. The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases.
162. In this view we are in accord with the dictum of this Court in Balwant Singh v. State of Punjab , 1976 SCC (Cri) 43, wherein the interpretation of Section 354(3) first came up for consideration. After surveying the legislative background, one of us (Untwalia, J.) speaking for the court, summed up the scope and implications of Section 354(3), thus:
Under this provision the Court is required to state the reasons for the sentence awarded 68 and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. It is unnecessary nor is it possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a case.
While applying proposition (iv)(a), therefore, the Court has to bear in mind this fundamental principle of policy embodied in Section 354(3)."
74) The Supreme Court further observed that there could be no rigid standards which can be laid down in the form of guidelines with respect to area of imposition of death penalty. The purpose of "laying down standards" meant that 'murder' should be categorised beforehand according to the degrees of its culpability and all aggravating and mitigating circumstances should be exhaustively and rigidly enumerated so as to exclude all free play of discretion.
Such standardisation was not possible. Firstly, the degree of culpability cannot be measured in each case; secondly, criminal cases cannot be categorized where there are infinite, unpredictable and unforeseeable variations; thirdly, on such categorisation the sentencing process will cease to be judicial; and, fourthly, such standardization or sentencing discretion is a policy 69 matter belonging to legislation beyond the court's function. In this backdrop, no rigid standard in this area can be laid down. Some broad guidelines consistent with the policy indicated by the legislature in Section 354(3) can be taken. The Court finally has to pay due regard both to the crime and the criminal. What is relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of a particular case. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. Hence, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. The Judges should never be bloodthirsty. Hence, courts aided by the broad illustrative guidelines will discharge the onerous function with evermore scrupulous care and humane concern. As per the legislative policy guidelines in sub-section (3) of Section 354, i.e., for the person convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in 70 the rarest of rare cases when the alternative option is unquestionably foreclosed.
75) The Supreme Court, thereafter, in Machhi Singh and others Vs State of Punjab, (1983) 3 SCC 470, followed the guidelines laid down by it in Bachan Singh's case (supra), and examined the case of a death sentence imposed on Machhi Singh, Kashmir Singh, Jagir Singh by the Sessions Court as confirmed by the High Court. They confirmed the death sentence awarded to the above said three accused. While, affirming the death sentence, in paragraph 32 of said judgment, the Supreme Court observed as under :
"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in 'death sentence-in-no-case' doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of 'reverence for life' principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The every existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self- preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so 'in rarest of rare cases' when 71 its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti- social or abhorrent nature of the crime."
76) All the three accused had murdered two innocent and helpless women named Ghamo Bai and Rajo Bai in a helpless and defenceless state in their own house. A couple namely Bishan Singh and his wife Paro Bai were killed in similar circumstances. Sahib Singh, Mukhtiar Singh, Manto Bai, Palo Bai and Jita Singh were killed by five men including Machhi Singh and Jagir Singh. They put to death a young newly married couple and rendered a young woman a widow. The appeal filed by above accused was dismissed by the Supreme Court following the guidelines indicated in Bachan Singh's case (supra).
77) Recently, the Supreme court in the case of Digambar Vs The State of Maharashta, 2023 2 CriCC 647, had an occasion to examine whether death penalty could be awarded in case of an honour killing. In that case, the Supreme Court observed that the appellant Digambar was a young boy of 25 years at the time of incident and had not acted in a brutal manner as there 72 was one single injury inflicted on both deceased. As far as offence punishable under Section 302 is concerned, the Supreme Court held that the prosecution had established that the deceased and accused persons left the house together and soon thereafter the death of deceased person had occurred. The accused were held guilty of the offence punishable under Section 302 IPC. However, keeping in view the fact that appellant Digambar was 25 years of age, it was not considered to be a 'rarest of rare' case. He was held to be not a person with criminal mindset and criminal records, and in this backdrop, the sentence of capital punishment was committed to life imprisonment. The Supreme Court had also taken into account the report of the Probation Officer. As per said report, the Sarpanch and people of the village had stated that inter-caste marriage of deceased friend Govind and deceased sister Pooja was putting social pressure and being angry about it, the incident took place in sudden provocation by Digambar. However, overall behaviour of Digamber was found to be good.
78) The Supreme Court also referred to the case of Gandi Doddabasappa alias Gandhi Basavaraj Vs State of Karnataka, (2017) 5 SCC 415, wherein the 73 accused had committed murder of his daughter, who was in the advanced stage of pregnancy. The Supreme Court had upheld the conviction of the accused in respect of offence punishable under Section 302 IPC, but commuted the sentence from capital punishment to imprisonment for life.
79) Similarly, in the case of Prakash Dhawal Khairnar (Patil) Vs State of Maharashtra, (2002) 2 SCC 35, the appellant was a Senior Scientific Assistant. He wiped out his brother's entire family. The Supreme Court found that this was done by him on account of frustration as his brother was not partitioning the alleged joint property. The Supreme Court held that the crime was heinous and brutal, but the same could not be considered to be 'rarest of rare' case. It is, however, held that it was difficult to hold that the accused was a menace to the society, and that there was no reason to believe that he could not be reformed or rehabilitated.
80) Also, Mohinder Singh Vs State of Punjab, (2013) 3 SCC 294, was a case where the accused had committed murder of his wife and daughter, and the Supreme Court had held that it could not be considered 74 to be 'rarest of rare' case to inflict the capital punishment.
81) The Supreme Court also referred to the case of Sundar @ Sundarrajan Vs State by Inspector of Police [Review Petition (Criminal) Nos. 159-160 of 2013, in Criminal Appeal Nos. 300-301 of 2011, dated 21.03.2023], wherein it was held that 'rarest of rare' doctrine does not require that in such a case only death sentence has to be imposed. The Court has to consider not only the grave nature of crime, but also as to whether there is possibility of reformation of a criminal.
82) Supreme Court in the case of B.A. Umesh Vs Union of India and others, Criminal Appeal No. 1892 of 2022 (arising out of SLP (Crl.) No. 890 of 2022, decided on 04.11.2022, has also examined the issue whether delay in execution of death sentence could be a sufficient ground for substituting death sentence by imprisonment for life.
83) In the above matter, the Supreme Court was examining the case where the execution of death sentence was due to the delay which took place in execution of the death sentence due to pendency of mercy petition and reference was made to a judgment of 75 Ajay Kumar Pal Vs Union of India and another, 2015 (2) SCC 478. In that case there was a delay of 03 years and 10 months, which was found to be inordinate and the delay was not attributed to the accused / petitioner but the delay was found on account of functionaries and authorities in question.
84) In paragraph 14 of the above said judgment, the Supreme Court observed as under :
"Paras 44 and 48 of the decisions of this Court in Shatrughan Chauhan and another Vs Union of India and others, (2014) 3 SCC 1, which were quoted in Ajay Kumar Pal (supra), had laid down that undue long delay in execution of death sentence would entitle the condemned prisoner to pray for commuting the death sentence to that of life imprisonment. The individual cases were thereafter dealt with in Shatrughan Chauhan (supra) and paragraph 105 onwards of said decision show that in cases where there was a delay of 12 years (para 118), 9½ years (para 137), 9½ years (para 147), 7 years and 8 months (para 161), 5 years and 8 months (para 175) and 7 years and 5 months (para 209), the benefit of commutation was extended by this Court."76
85) In the case before the Supreme Court the mercy petition was received by the Central Government on 03.03.2011, and it was disposed of on 15.05.2013. In between, the Ministry of Home Affairs, Government of India, forwarded the mercy petition to the Principal Secretary, Home Department, Karnataka so that the Governor, Karnataka could consider the mercy petition. Thereafter, in the meantime, on 09.03.2011 in Writ Petition No. 52 of 2011, preferred by the accused- appellant, Supreme Court granted stay of execution of death sentence. Before the Central Government authorities, the State Cabinet on 07.05.2012, decided to approve the note prepared by the Home Department recommending rejection of mercy petition. The Governor also rejected the mercy petition on 06.06.2012, and subsequently, the matter was referred to the Central Government on 30.08.2012, and finally, the Hon'ble President after considering the mercy petition, rejected the mercy petition on 12.05.2013. Hence, a period of 02 years and 03 months was taken to dispose of the mercy petition.
86) In A.G. Perarivalan Vs State through Superintendent of Police and another, 2022 SCC Online SC 635, a bench of three Judges of Supreme Court had 77 commuted the sentence of death to life in a petition filed under Article 161 of the Constitution keeping in view the fact that the petition remained pending for 2½ years with the Hon'ble Governor, despite recommendation of the State Cabinet for remission of the sentence.
87) In the present case, the judgment was passed on 06.03.2021, and the Reference is now being decided after a gap of almost more than three years. If there is a delay in deciding the Reference that is one of the reasons this Court can take into account for commuting the death penalty.
88) It must also be borne in mind that imposition of death penalty is exception rather than a rule, and further special reasons must be given. The extreme penalty of death is to be awarded to a convict only in those discerning few cases where the murder committed by him is shocking, brutal diabolical and revolting and the tremors of which are felt far and wide. In the present case, the convict is 24 years of age and did not have the criminal background. There is scope for reformation of the convict. There is every hope that by associating him with counselors, his mindset could be reformed while in custody and even while he is in 78 custody, he can be given training to lead a good life by giving him technical skills to make a good livelihood so that he can be reformed. Hence, it will be in the interest of justice that the death sentence awarded to convict Harswroop be commuted to imprisonment for life.
89) In view of the foregoing discussion, Criminal Reference No. 01 of 2021 in respect of convict-appellant Harswroop made by the trial court so far as the confirmation of sentence of death to him is concerned is answered in negative.
90) Instead of confirming the sentence of death awarded by the trial court, (in exercise of powers conferred under Section 368(a) Cr.P.C.) the sentence of death is commuted to imprisonment for life against convict Harswroop.
91) The conviction recorded by the trial court in S.S.T. No. 104 of 2019, under Section 364, 302, 201 IPC, and the one under Section 6 of POCSO Act, against accused-appellant Harswroop is affirmed. Convict Harswroop is sentenced to undergo imprisonment for life with the stipulation that he shall not be entitled to premature release or remission 79 before undergoing actual imprisonment for a period of 20 years.
92) The conviction recorded by the trial court in S.S.T. No. 104 of 2019, under Section 201 IPC against accused-appellants persons Pappu and Roopwati is affirmed.
93) The other terms of sentences awarded to all the convicts including fine amount and default stipulations also stand confirmed. All the substantive sentences awarded to the convict Harswroop shall run concurrently.
94) The Criminal Jail Appeal filed by the accused-appellant Harswroop against the conviction and sentences awarded by the trial court in S.S.T. No. 104 of 2019 in respect of offences punishable under Section 364, 302, 201 IPC, and one under Section 6 of the PCSO Act stands dismissed.
95) The Criminal Jail appeals filed by accused- appellants Pappu and Roopwati against their conviction and sentence awarded by the trial court in S.S.T. No. 104 of 2019 in respect of offence punishable under Section 201 IPC also stand dismissed.
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96) The Criminal Jail Appeal filed by accused- appellant Harswroop in respect of offences punishable under Section 364, 302 and 201 IPC, and one under Section 6 of the POCSO Act, having been dismissed, his sentence is modified as directed in Paras 91 and 93 above.
97) Let a copy of this Judgment be sent to the trial court with reference to its letter dated 08.03.2021, in S.S.T. No. 104 of 2019. A copy of this judgment be also sent to the Superintendents of Jail concerned where the convicts are presently serving out their sentences, for ensuring compliance of this order. Lower court record be sent back.
______________ RITU BAHRI, C.J.
_________________ ALOK KUMAR VERMA, J.
Dt: 21ST MAY, 2024 Negi