Rajasthan High Court - Jodhpur
State Of Rajasthan-State vs Nokharam @ Bharmaram on 21 March, 2024
Bench: Pushpendra Singh Bhati, Rajendra Prakash Soni
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Murder Reference No. 1/2021
State Of Rajasthan-State, Through Pp
----Petitioner
Versus
Nokharam @ Bharmaram S/o Malaram, Aged About 24 Years,
Profession Kheti, R/o Upla Goliya Telpi Kheda Police Thana
Anadara, Dist. Sirohi.
----Respondent
Connected With
D.B. Criminal Appeal (Db) No. 134/2021
Nokaram @ Bharamaram, S/o Malaram, Profession Agriculture,
R/o Upla Goliya Telpi Kheda Police Thana Anadara, Dist. Sirohi.
----Petitioner
Versus
1. State Of Rajasthan-State, Through P.P.
2. Sh. Sona Ram S/o Kuchha Ram, Bokara Kuva Telapi Kheda,
Sirohi, Anadra, Dist. Sirohi, Raj.
----Respondents
For Petitioner(s) : Mr. Vineet Jain, Senior Advocate
assisted by Mr. Rajeev Bishnoi
For Respondent(s) : Mr. R.R. Chhaparwal, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Judgment
Reportable
Reserved on 19/02/2024
Pronounced on 21/03/2024
Per Dr. Pushpendra Singh Bhati, J:
1. The accused-appellant in this appeal, through Jail, has been
convicted and sentenced as below vide judgment of conviction
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dated 23.09.2021 and order of sentence dated 27.09.2021 (in
Special Sessions Case No.42/2020 - CIS No.42/2020 - State of
Rajasthan Vs. Nokaram @ Bharmaram), passed by the learned
Special Judge, Protection of Children from Sexual Offences Act,
2012 Cases & Commission for Protection of Child Rights Act, 2005
Cases, Sirohi.
Offence Sentence
Section 5 (j)(iv)(m)/6 of Protection of Death Sentence
Children from Sexual Offences Act, 2012
(in short, 'POCSO Act')
Alternatively, under Section 376(a)(ab)
IPC.
AND
Section 302 of the Indian Penal Code (in
short, 'IPC')
1.1. As indicated above, the accused-appellant had been
convicted under the aforementioned offences, and while doing so,
the learned Trial Court, being the Court of Sessions, had passed
the death sentence against the accused-appellant vide the
impugned judgment of conviction and order of sentence,
therefore, in accordance with Section 366 of the Code of Criminal
Procedure, 1973, and thus, the matter has been submitted before
this Hon'ble High Court for confirmation of such sentence, by way
of above-numbered murder reference No.01/2021.
1.2. We also have noticed that on behalf of the accused-
appellant, an appeal being the above-numbered Criminal Appeal
134/2021 has also been preferred against the impugned judgment
of conviction and order of sentence. Accordingly, both the murder
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reference and the appeal have been heard together and are being
decided by this common judgment.
2. Brief facts of the case are that the prosecution was set in
motion by a written report (Ex.P.29) dated 26.09.2020 submitted
by one 'SR' (PW-21), who is father of Mst. 'M' (in short,
'deceased') before the Station House Officer, Police Station,
Anadra, District Sirohi, regarding the alleged incident, which
occurred on 25.09.2020 around 5:00 p.m., whereby his daughter
(deceased), after being sexually assaulted, was strangled to death
by the present accused-appellant Noka Ram @ Bharma Ram s/o
Mala Ram.
3. In the aforementioned report, the father (complainant) of the
deceased narrated that the incident in question had occurred while
the complainant's son namely, 'RR' (PW-10) and cousin 'KR' (PW-
7) had gone to a nearby pond for bathing alongwith the deceased,
which was about half a kilometer away. It was stated that when
'RR' came after three to four hours, he stated that when they were
bathing at the pond at that time Nokaram (accused-appellant)
came and also started taking a bath and caught-hold of the
deceased, and then threatened the children (brothers) PW-10 and
PW-7 to go away from there and also that if they disclose
regarding the same, they shall be killed. The young boys PW-7
and PW-10 were looking anxious and tensed, and in the evening
they told the whole incident to the parents (complainant & his
wife) and thereafter, the complainant PW-21 alongwith Gularam
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s/o Malaram, Malaram s/o Rooparam and Udaram s/o Sungaji
went in search of the deceased with a torch and at a nearby site,
they recovered the body of the deceased in a nude condition; the
clothes were not around, the report also narrated that there were
various injuries on the face, neck, private parts and back of the
deceased. The private parts were bleeding upon which PW-21 took
the body of the deceased home, and in the morning after bathing
her, they put fresh clothes on her; whereafter at about 10:00
a.m., PW-21 went and informed the Police Chowki, Krishanganj.
4. It was also narrated in the report that when they went to the
house of Nokaram @ Bharmaram, then it was told that he has not
come home since the afternoon of 25.09.2020. It was stated that
Nokaram @ Bharmaram s/o Malaram had committed the murder
of eight years old girl (deceased) after raping her by strangulating
her. On the basis of the said report, a First Information Report
bearing No.128/2020 was registered at the Police Station, Anadra
against the present accused-appellant for the offences under
Sections 376-A & 302 IPC and Sections 5(m), 6, 3 & 4 of the
POCSO Act, and the investigation accordingly commenced.
5. During the course of investigation, the place of incident was
inspected and Fard was prepared, Fard of deceased's body was
prepared, Panchnama laash was prepared, deceased's body was
medically examined and postmortem report was obtained;
statements of witnesses under Section 161 Cr.P.C. were recorded,
accused-appellant was arrested and the documents pertaining to
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age of the deceased were obtained from the School, in which she
was studying.
6. After completion of investigation, the charge-sheet under
Sections 376A, 376AB & 302 IPC and Sections 5(m)/6 & 3/4 of the
POCSO Act was filed by the concerned investigating authority,
whereupon after taking cognizance thereof, the accused-appellant
was furnished a copy of the charge-sheet as required under
Section 207 Cr.P.C., and accordingly, the special sessions case
bearing No.42/2020 was registered against the accused-appellant.
7. Thereafter, the charges were read down to the accused-
appellant, and since he denied the same and claimed trial, the trial
of the case accordingly commenced before the learned Trial Court.
8. During the course of trial, on behalf of the prosecution, 24
witnesses were produced for examination and 76 documents were
exhibited.
9. After recording of the evidence of the prosecution witnesses,
during trial, the statement of the accused-appellant was recorded
under Section 313 Cr.P.C., during course whereof, he stood by the
denial to the charges and the contents of the statements of the
prosecution witnesses in toto, however, did not adduce any
evidence in defence, except exhibiting the statements of PW-6
'RD' (grandmother of deceased) & PW-11 'PD' (mother of
deceased) recorded under Section 161 Cr.P.C. Thus, since the
accused-appellant pleaded 'not guilty' and innocence so also
questioned the veracity of the prosecution case and its evidence
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being unworthy of credit, therefore, he was made to stand the
trial, and the trial proceeded accordingly.
10. The learned Trial Court, to reiterate, on a due scrutiny of the
evidence of the record and after duly analyzing the rival
contentions, passed the impugned judgment of conviction and
order of sentence, as above, and thus, since the accused-appellant
failed to secure his acquittal before the learned Trial Court, has
challenged the determination of the learned Trial Court as
reflected in the impugned judgment. At this stage, it is noted that
the prosecution story was developed on the strength of last seen
evidence given by PW-7 and PW-10, and it was supported by the
recovery of clothes of the deceased at the instance of the accused.
The strong evidence of DNA matching from the samples drawn
from the body of the deceased with the samples of the accused
which is Ex.P.25 has also been heavily relied upon by the learned
Trial Court.
11. We have heard Mr. Vineet Jain, learned Senior Counsel
assisted by Mr. Rajeev Bishnoi appearing on behalf of the accused-
appellant and Mr. R.R. Chhaparwal, learned Public Prosecutor
appearing on behalf of the State, as well as perused the record of
the case.
12. Before adverting to the evidence adduced, it would be
expedient to notice the defence plea for a purposeful appreciation
thereof.
13. Learned Senior Counsel for the petitioner has drawn
attention of this Court to the fact that the witnesses of last seen
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were close relatives of the deceased and there is a contradiction
and variation in their evidence.
13.1.Learned Senior Counsel further submitted that PW-7 in his
statement had claimed that he was playing at the place of
occurrence whereas PW-10 had claimed that he had straightway
ran towards the house and disclosed the incident to the parents.
13.2. Learned Senior Counsel also submitted that in the cases like
the present one, even a minor discrepancy in the statements of
the witnesses create a doubt, and moreover, the witnesses have
been examined belatedly, which also mitigates the substance of
their statements.
13.3. Learned Senior Counsel has also drawn the attention of this
Court towards the statements of PW-6 and PW- 11, who are the
grandmother and the mother of the deceased, respectively, and
has submitted that they have made material omissions regarding
the fact that in the evening of 25.09.2020 after the dead body of
the deceased was brought from the place of occurrence, the
accused-appellant was also present there and when they
discovered the injuries and suspected sexual assault on the
deceased, they decided to inform the police whereupon the
accused went away.
13.4. Learned Senior Counsel further submitted that this is an
extremely important digress from the prosecution story, and a
clear contradiction between the last seen evidence and the critical
evidence of the mother and grandmother of the deceased is writ
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large. The presence of the accused was noticed by the mother and
the grandmother until the decision to file the FIR was taken.
13.5. Learned Senior Counsel has further taken this Court to the
Rojnamcha (Ex.P.76) entry of Police Station, Anadra wherein it
was recorded that while the Sub Inspector of Outpost Krishanganj
was informed at 11:55 am. on 26.9.2020 that a body of a girl had
been discovered, but the same entry did not disclose any
allegation of sexual assault or suspicion or allegation against
accused of having committed any offence qua the deceased and is
materially relevant because admittedly as per the FIR, the incident
had been disclosed to the family members at 5:00 pm on
25.9.2020 itself.
13.6. Learned Senior Counsel also submitted that the
discrepancies between the Rojnamcha and the actual FIR acquires
significance because PW-21 was the author of narration of the
whole incident.
13.7. Learned Senior Counsel further submitted that the
circumstantial evidence which was tried to be roped in as a critical
chain for coming to the conclusion of prosecution proving the
crime against the accused-appellant beyond reasonable doubt
seems to be broken at various places. Learned Senior counsel also
submitted that both the child witnesses, who have been given so
much credence are of very tender age and are closely related to
the deceased and the complainant, and therefore, their testimony
being the sole testimony as far as the witnesses are concerned
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who would connect the accused with the crime in question, seems
to be doubtful.
13.8. Learned Senior Counsel further submitted that the recovery
of clothes of the deceased, which was made pursuant to the
information under Section 27 of the Evidence Act, and after the
accused was arrested vide Ex.P.7 and thus, said to have been
informed on 01.10.2020 and according to his information given on
03.10.2020, the undergarment of accused and pant of the
deceased were recovered from the place between the roof and the
wall of the accused-appellant's house.
13.9. Learned Senior Counsel also submitted that the only
supporting witness, who were examined, are police constables i.e.
PW-4 Banney Singh and PW-8 Ganesh Ram. Learned Senior
Counsel further submitted that the original information given by
the accused did not have the disclosure of the exact place from
where the clothes have been said to be recovered, and thus, the
exclusive possession theory does not work in the present
perspective.
13.10. Learned Senior Counsel further submitted that the very
issue of the accused decamping with the pant of the deceased and
hiding it in his house leading to subsequent recovery, does not
find an analogical trustworthy feet; moreover, the learned Senior
Counsel submitted that the accused was not in custody from
25.09.2020 to 01.10.2020 and between the said period nothing
has happened.
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13.11. Learned Senior Counsel also submitted that the whole
incrimination on the part of the prosecution has been brought in
evidence only after the accused was arrested on 01.10.2020. The
complete chain of events is based on circumstantial evidence and
the recovery of the articles is further doubtful.
13.12. Learned Senior Counsel further submitted that the
prosecution has not been able to place the correct perspective of
the earrings, one of which was discovered from the place of
occurrence, and have been stated to be of gold, and in that
perspective, taking away of the clothes by the accused, while
leaving behind the gold earrings at the place of occurrence, is an
ultimate crack in the case of the prosecution.
13.13. Learned Senior Counsel also submitted that the DNA report
which has been said to be the critical evidence connecting the
accused with the crime is doubtful because no proper care was
taken to preserve the samples and appropriate chain of custody
right from drawing of samples till they reached the laboratory for
analysis has not been maintained to the strict terms.
13.14. Learned Senior Counsel further submitted that the
prosecution has exhibited Ex.P.57 to Ex.P.60 in connection with
drawing of samples of the accused for comparison and DNA
analysis; Ex.P.57 is the thumb impression of the accused and has
been marked to show his consent, although the consent and the
report make it apparent that the person, who is an illiterate
person, was absolutely not in a position to comprehend the
document. The said document also bears only thumb impression
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and is of even date i.e. 03.10.2020 as Ex.P.57; the documents
have been exhibited and sought to be proved by witness, namely,
PW-23 Dr. Mukesh, who in his statement has exhibited these
documents and as he is the author of the same.
13.14.1. Learned Senior Counsel also submitted that a bare look
at the evidence of witness would reveal that the sampling as done
by him is absolutely worthless, as far as the procedure for drawing
of samples for maintaining their sanctity is concerned. He further
submitted that this witness has admitted that the samples of
saliva and semen were taken of cloth from a kit present with the
investigating officer, he has admitted that vial in which the
samples were taken, was not washed and that it was already
packed and sterilized being a part of kit.
13.15. Learned Senior Counsel further submitted that PW-20
Narendra Singh, the investigating officer did not give any evidence
as to who was the person who took the samples allegedly done on
03.10.2020 by the medical officer in custody, who deposited them
in the Malkhana, wherefrom the samples were kept during the
said period before they were deposited in the Malkhana or that the
samples were taken through a kit, which was in his possession
and was taken by him to the medical officer.
13.15.1. Learned Senior Counsel also submitted that as per
Ex.P.60, the alleged identification form, has been witnessed by
two witnesses, namely, Ganesh Ram and Banney Singh. Banney
Singh has been examined as PW-4, who has not even mentioned
anything about the said identification form; similarly, the other
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witness of the said document i.e. Ganesh Ram has not even been
examined by the prosecution.
13.16. Learned Senior Counsel further submitted that the
prosecution has exhibited Ex.P.25 DNA report to substantiate its
case. He also submitted that Ex.P.25 would reveal that though the
DNA found on the undergarments and blood of the accused is
reported to be matching with the vaginal swab taken from the
deceased as well as hair recovered from the top, but mixed male
DNA profile as obtained from the stains detected on the jeans pant
of the deceased, recovered at the instance of the accused, did not
match with the DNA of the accused.
13.16.1. As per learned Senior Counsel, this casts a grave
suspicion on the case of the prosecution and also makes the
recovery absolutely tainted in addition to as is mentioned in the
earlier part of the submissions, further, in view of the fact that the
story of the prosecution as disclosed in the FIR is suspicious and
the witness of last seen were examined by the police only after
arrest of the accused, the bright possibility of evidence being
planted to connect the accused cannot be ruled out.
13.17. Learned Senior Counsel also submitted that PW-12
Kanaram who handled Malkhana has admitted that no signatures
of depositing of the relevant articles at the time of deposition were
taken in the Malkhana register, nor the articles while being taken
for sending to FSL were taken out under the signatures of the
investigating officer or the SHO, nor the signatures of the person
to whom the articles were handed over were taken in Ex.P.20
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(Malkhana Register); therefore, the evidence of recovery is also
tainted and cannot be relied upon for the purpose of convicting
the accused, more particularly, when there is no evidence about
custody of samples from 26.09.2020 to 02.10.2020.
13.18. Learned Senior Counsel thus, submitted that it is apparent
that DNA report (Ex.P.25) cannot be said to be a conclusive piece
of evidence to convict the accused-appellant, more particularly,
when all the samples allegedly drawn from the accused have been
kept in one bottle and possibility of contamination and
deterioration of the samples in absence of proper preservation of
the same cannot be ruled out.
13.19. Learned Senior Counsel also submitted that the sufficient
doubt has been created on the material evidence, as above, and
thus, it is clear that before awarding the impugned capital
punishment the case was not considered on its gravity and the
mitigating circumstances which were revolving in and around the
prosecution story; further, the present case does not fall under the
category of rarest of rare cases.
13.20. Learned Senior Counsel further submitted that the
petitioner is presently a young boy aged 28 years and having no
criminal antecedents.
13.21. In support of such submissions, learned Senior Counsel
has relied upon the following judgments:
(a) Pradeep Vs. State of Haryana, 2023 SCC Online SC 777;
(b) Jabir & Ors. Vs. State of Uttarakhand, 2023 AIR 488;
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(c) Rahul Vs. State of Delhi, 2022 (9) SCR 1129;
(d) Prakash Nishad Vs. State of Maharashtra, (Criminal Appeal
Nos.1636-1637 of 2023, decided by the Hon'ble Apex Court on
19.05.2023);
(e) State of Rajasthan Vs. Hariom Sharma (D.B. Criminal Death
Reference No.1/2021, decided by a Division Bench of this Hon'ble
Court at Jaipur Bench on 09.07.2023);
(f) Premjibhai Bachubhai Khaslya Vs. State of Gujarat & Anr. 2009
SCC OnLine Guj 12076; and
(g) State of Rajasthan Vs. Shahabudeen & Ors., (D.B. Criminal
Death Reference No.01/2016, decided by a Division Bench of this
Hon'ble Court on 14.05.2019).
14. On the other hand, learned Public Prosecutor appearing on
behalf of the State opposed the aforesaid submissions made on
behalf the accused-appellant.
15. As regards the submission made on behalf of the accused-
appellant that the initial Rojnamcha information Ex.P.76 did not
contain the name of the accused-appellant, learned Public
Prosecutor submitted that the information as contained in Ex.P.76
was given at the first instance by an anonymous person, and not
by any of the family members of the deceased.
16. Learned Public Prosecutor further submitted that during the
cross-examination of the prosecution witnesses before the learned
Trial Court, the issue regarding contamination or tampering with
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the samples in question was not raised on behalf of the accused-
appellant.
17. Learned Public Prosecutor also submitted that as per the FSL
Report (Ex.P.25), in point No.1, DNA profile obtained from the
underwear of the accused is matching with male DNA profile
obtained from vaginal swab of the deceased and hair recovered
from the tops of the deceased.
18. Learned Public Prosecutor further submitted that it is
apparent on the face of the record that there is no contradiction in
the evidence of last seen and the evidence rendered by the other
prosecution witnesses, which is sufficient to uphold the impugned
judgment of conviction and order of death sentence awarded by
the learned Trial Court.
19. Learned Public Prosecutor also submitted that the crime in
question as committed by the accused-appellant is gruesome and
heinous in nature and does not call for any leniency by this Court.
20. We have gone through the impugned judgment and order of
the learned Trial Court and analyzed all the evidence brought on
record through the depositions by the witnesses as well as the FSL
report which are on record alongwith other exhibits.
21. At this stage, this Court deems it appropriate to deal with the
evidence of the prosecution witnesses to the extent necessary for
the present adjudication.
22. PW-7 (witness of last seen), who at the relevant time, was
aged 10 years (minor) and cousin brother of the deceased,
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deposed that it was four months ago that he alongwith the
deceased and her real brother PW-10 had gone to take a bath in
Vara (rain drain) in the afternoon, at that time, accused-appellant
Nokaram @ Bharma Ram also arrived there and threatened the
two brothers and chased them away, and took the deceased
towards the khor (grass); at that time, the accused-appellant was
drunk. The witness also deposed that thereafter, upon reaching
the complainant's (PW-21) house, the complainant asked the
witness about the whereabouts of the deceased, to which the
witness informed that she had been taken away by the accused-
appellant. The witness further deposed that his statement was
recorded in a Court at Pindwara which is Exhibit-12 on which his
thumb impression is at 'X' position. The witness also stated that
his statements were also recorded before the police. He further
stated that he completely knows Nokaram (accused-appellant).
The witness saw the accused in the Court and said that "this is
Naukaram".
22.1.On a conjoint consideration of the testimony of the witness
rendered in examination-in-chief as well as cross-examination,
there is nothing which could be sufficient to discard his evidence
or term the same as doubtful.
23. PW-10 (witness of last seen), who at the relevant time, was
aged 10 years and the real brother of the deceased, deposed that
he alongwith the deceased and cousin brother PW-7 had gone to
take bath in the Vara (rainy drain) in the afternoon, at that time,
the Nokaram accused-appellant came there and took the deceased
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along, but did not do anything with the witness and the cousin
brother and ran after them for beating, whereafter both the
brothers came back to the house. Thereupon, the father
(complainant) asked about the whereabouts of the deceased, to
which the witness stated that Nokaram (accused-appellant) had
come and caught-hold of the deceased and took her towards the
khor (grass). The witness further deposed that his statement was
recorded in a Court at Pindwara which is Exhibit-19 on which his
thumb impression is at 'X' position. He also stated that he
completely knows Naukaram (accused-appellant). The witness saw
the accused in the Court and said that "this is Naukaram".
23.1.On a conjoint consideration of the testimony of the witness
rendered in examination-in-chief as well as cross-examination,
there is nothing which could be sufficient to discard his evidence
or term the same as doubtful.
24. Regarding the fact that the deceased was last seen with
accused Nokaram, other witnesses PW-6, PW-11, PW-13 and PW-
21 have been examined in evidence by the prosecution. These
were the witnesses who were told by PW-7 and PW-10 regarding
the accused Nokaram taking away the deceased upon reaching
home after the incident, and thus, their evidence was in similar
lines as that of the aforesaid two child witnesses.
25. This Court observes that the present case is based on
circumstantial evidence and as per chain of the circumstantial
evidence, it is expedient to have a look at the case laws pertaining
thereto.
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25.1. This Court is conscious of the judgment rendered by the
Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v.
State of Maharashtra, (1984) 4 SCC 116, relevant portion
whereof is reproduced as hereunder-:
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:(1) the
circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal
distinction between "may be proved" and "must be or should
be proved" as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC
(Cri) 1033: 1973 Crl LJ 1783] where the observations were
made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between 'may be' and 'must be' is long
and divides vague conjectures from sure conclusions."
(2) 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,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) 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.
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154.These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence".
25.2.This Court is further conscious of the judgment rendered by
the Hon'ble Apex Court in the case of Haresh Mohandas Rajput
v. State of Maharashtra, (2011) 12 SCC 56, relevant portion
whereof is reproduced as hereunder:-
"Circumstantial evidence
14. In Krishnan v. State [(2008) 15 SCC 430: (2009) 3 SCC (Cri)
1029] represented by Inspector of Police, this Court after
considering a large number of its earlier judgments observed that
when a case rests upon circumstantial evidence, such evidence
must satisfy the following tests : (SCC p. 435, para 15)
"(i) the circumstances from which an inference of guilt is sought to
be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly
pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within
all human probability the crime was committed by the accused and
none else; and
(iv) the circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but should be
inconsistent with his innocence."
26. This Court also observes that the following are relevant
considerations in the present case:
(a) the last seen theory, i.e. the deceased was seen with the
accused-appellant, and the last seen evidence given by PW-7 and
PW-10.
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(b) The accused-appellant forcefully took away the deceased at a
different place and thereupon, committed rape upon her and
thereafter, murdered her.
(c) The DNA samples obtained from the clothes (undergarments of
the accused) and blood samples taken from the accused are
matching with vagina swab of the deceased, and also with the hair
collected from the tops of the deceased, as per Ex.P.25.
(d) The entire evidence shows that the accused-appellant
committed the crime in question and there is no room of doubt at
all in this regard.
(e) There are chain of the incidents and the circumstantial
evidence, which are sufficient to connect the accused-appellant
with the crime in question.
27. This Court further observes that one of the reasons of the
conviction of the accused-appellant is matching of the DNA
obtained from clothes (undergarments of the accused) and blood
samples with vaginal swab of the deceased and the hair collected
from the tops of the deceased. This Court also observes that the
learned Senior Counsel for the accused-appellant raised a ground
that as per the FSL report Ex.P.25 in point no.2, mixed male DNA
was found, "Mixed DNA profile obtained from stains detected from
Ex.P.1 (Jeans pant of deceased) is not matching with male DNA
profile obtained from Ex.P.23 (Blood sample of accused)"
27.1.This Court also observes that even as per the point no.1, the
DNA obtained from clothes (undergarments of the accused) and
blood samples are matching with vaginal swab of the deceased so
also the hair collected from the tops of the deceased; and the
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Court has duty to weigh the other material and evidence to come
to the conclusion about the guilt of the accused, as per the
judgment rendered by the Hon'ble Apex Court in the case of
Veerendra Vs State of Maharastra (2022) 10 SCC 668;
relevant portion of the said judgment is reproduced as
hereunder:-
"28. In view of the nature of the provision Under Section 53A
Code of Criminal Procedure and the decisions referred (supra) we
are also of the considered view that the lapse or omission
(purposeful or otherwise) to carry out DNA profiling, by itself,
cannot be permitted to decide the fate of a trial for the offence of
rape especially, when it is combined with the commission of the
offence of murder as in case of acquittal only on account of such a
flaw or defect in the investigation the cause of criminal justice
would become the victim. The upshot of this discussion is that
even if such a flaw had occurred in the investigation in a given
case, the Court has still a duty to consider whether the materials
and evidence available on record before it, is enough and cogent
to prove the case of the prosecution. In a case which rests on
circumstantial evidence, the Court has to consider whether,
despite such a lapse, the various links in the chain of
circumstances forms a complete chain pointing to the guilt
of the Accused alone in exclusion of all hypothesis of
innocence in his favour.
30. In the light of the above referred decisions, the
contentions of the Appellant founded on the factum of non-
holding of DNA profiling and the provision Under Section
53A, is only to be repelled. As held in Sunil's case (supra), a
positive result of DNA test would constitute clinching
evidence against the Accused. But, a negative result of
DNA test or DNA profiling having not been done would
not and could not, for that sole reason, result in failure
of prosecution case. So much so, even in such
circumstances, the Court has a duty to weigh the other
materials and evidence on record to come to the
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conclusion on guilt or otherwise of the Appellant herein
and that exactly what was done by the trial Court and then
by the High Court, in the instant case."
28. This Court finds that though on a singular perspective it
would have been difficult to convict the present accused-appellant,
but at the same time, when there is a conjoint consideration of the
circumstantial evidence which is the last seen evidence as well as
recovery of clothes of the deceased at the instance of the accused
from his residence at the roof of his private place, which ordinarily
would not be accessible to anyone else, as well as the DNA report
which indicates that there are samples which shows "Visible
genetic abnormalities as NIL", and therefore, the conclusion of the
learned Trial Court is a foregone conclusion and has been rightly
arrived at by the learned Trial Court.
28.1. For ready reference, the relevant portion of the DNA Report,
Ex.P.25 is reproduced as hereunder:
""DESCRIPTION OF ARTICLES
Following packet of the case was received in properly sealed condition,
bearing seal impression which tallied with the specimen seal sample
forwarded.
S.No. PACKET EXHIBIT NO. EXHIBIT NAME
1 D 1 Jeans pant of deceased
2 E 2 Underwear of accused
3 Vaginal swab of deceased
4 Rectal swab of deceased
3 - 5 Throat swab of deceased
6 Blood with EDTA of deceased
7 Blood with EDTA of accused
8 Semen of accused
9 Saliva of accused
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4 - 10 Pubic hair of accused
11 Blood of accused on cloth
12 Saliva of accused on cloth
13 Bindi of accused
14 Iron pin of deceased
15 Iron blade (Yellow) of deceased
16 Tops (Yellow colour) of deceased
5 A 17 Two cloth pieces of deceased
18 Hair (Recovered from Tops)
19 Salwar of deceased
6 C 20 Kameez of deceased
7 B 21 Empty pouch of Vimal gutakha
8 - 22 Blood sample of deceased on FTA
crad
9 - 23 Blood sample of accused on FTA
card
Packets at serial no. 1 to 7 have been forwarded to Biology division
FSL, Jaipur for semen detection and received back. According to
information received from Biology Division, human semen was detected
in exhibit no. 1 (Jeans pant of deceased), 2 (Underwear of accused), 3
(Vaginal swab of deceased), 4 (Rectal swab of deceased) & 5 (Throat
swab of deceased) and human saliva was detected in exhibit no. 21
(Empty pouch of Vimal gutakha). These exhibits along with blood
sample of victim and accused were processed for DNA test. Rest
samples were not used for DNA test. Microsatellite loci of PowerPlex (R) -
Fusion and PowerPlex(R)- Y-23 system kits were used for DNA profiting
of the samples. Suitable results were obtained from PowerPlex (R)-Y-23
system kit. Data was analyzed by GeneMapper ID-X(R) software.
RESULT OF SEROLOGICAL EXAMINATION
On serological test, human blood was detected on exhibit no.1(Jeans
pant of deceased), 3(Vaginal swab of deceased), 4(Rectal swab of
deceased), 5(Throat swab of deceased), 19(Salwar of deceased),
20(Kameez of deceased) and detected in traces on exhibit
no.2(Underwear of accused) and not detected on exhibit no.10(Public
hair of accused), 13(Bindi of deceased), 14(Iron pin of deceased),
15(Iron blade Yellow of deceased), 16(Tops Yellow of deceased),
17(Two cloth pieces of deceased), 18(Hair recovered from Tops).
RESULT OF EXAMINATION
PowerPlex(R)-Y-23 system kit (Table-1)
1. Same male DNA profile obtained from exhibit no. 2 (Underwear of
accused) and 23 (Blood sample of accused) is matching with
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male DNA profile obtained from exhibit no. 3(Vaginal swab of
deceased) and 18(Hair recovered from Tops).
2. Mixed male DNA profile obtained form stains detected from
exhibit no. 1 (Jeans pant of deceased) is not matching with
male DNA profile obtained from exhibit no. 23 (Blood sample of
accused).
3. Incomplete male DNA profile obtained from exhibit no. 4 (Rectal
swab of deceased).
4. No DNA profile obtained from exhibit no. 5 (Throat swab of
deceased) and 21(Empty pouch of Vimal gutakha)."
29. This Court further finds that the prosecution has been able to
prove its case beyond reasonable doubt and the judgment of
conviction recorded by the learned Trial Court is liable to be
upheld in its entirety as far as the facts and conclusions are
concerned.
30. Once this Court has arrived at a conclusion that the
impugned judgment of conviction does not suffer from any
infirmity and the appellant's crime has been demonstrated by the
prosecution with the help of the circumstantial evidence and
scientific evidence as having been true, no case for making any
interference in the impugned judgment of conviction is made out.
31. The second issue which now requires consideration of this
Court is regarding the sentence and this Court is conscious of the
fact that learned Senior Counsel for the appellant submitted that
the capital sentence would require this Court to apply the test of
rarest of rare cases, and also this Court shall have to look at the
gravity and the mitigating circumstances which are applicable in
the present case.
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31.1. While taking into consideration the perspectives raised, this
Court finds that the gravity of the circumstances including the
gruesomeness and heinousness of the crime and condition in
which it was committed are of extreme nature and do not call for
any leniency.
31.2. This Court also observes that the principle of death penalty
has been dealt with in various cases by the Hon'ble Apex Court
from time to time and the principle was laid down to the effect of
"Aggravating circumstances -- (Crime test) and Mitigating
circumstances -- (Criminal test)", to ascertain whether the
case falls under the rarest of rare case or not. A proper evaluation
was laid down by the Hon'ble Apex Court in a recent case of
Manoj Pratap Singh Vs State of Rajasthan (Special Leave
Petition (CRL.) Nos. 7899-7900/2015), decided on
24.06.2022), relevant portion of the said judgment is reproduced
as hereunder:-
"Death sentence: Evolution of principles and norms
.....
44. We may now usefully summarise the salient features of evolution of legal principles and norms for dealing with the question of sentencing in such matters where the sentence of death could also be awarded, particularly with reference to the leading cases and expositions therein.
44.1. In the case of Jagmohan Singh v. The State of U.P.:
(1973) 1 SCC 20, the questions in their broader spectrum were raised about the constitutional impermissibility of death sentence with the submissions: (i) that the death sentence was unreasonable for it would put an end to all the rights guaranteed under clauses (a) to (g) of Article 19(1) of the Constitution of India; (ii) that the discretion vested in the Judges to impose (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (26 of 41) [MREF-1/2021] capital punishment was not based on any standards or policy and hence, the provision suffered from the vice of excessive delegation of legislative function; (iii) that the uncontrolled and unguided discretion in the Judges to impose capital punishment or imprisonment for life was hit by Article 14 of the Constitution of India; and (iv) that under Article 21 of the Constitution, no person shall be deprived of his life except according to the procedure established by law but, the provisions of law did not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital punishment and imprisonment for life.
44.2. Two major factors/events after the decision in Jagmohan (supra) led to another reference to the Constitution Bench of this Court in regard to the constitutional validity of death penalty for the offence of murder as also of the sentencing procedure. One had been the amendment of the law relating to criminal procedure with advent of the Code of the Criminal Procedure, 1973 in replacement of the old Code of 1898, which introduced, as regards sentencing procedure, the above-quoted subsection (2) of Section 235 and sub-section (3) of Section 354. Several persons convicted of murder and sentenced to death filed the petitions under Article 32 of the Constitution of India challenging the constitutional validity of death penalty provided in Section 302 IPC for the offence of murder and that of the sentencing procedure provided in sub-section (3) of Section 354 CrPC. The other one had been the majority opinion of a 3 Judge Bench of this Court in the case of Rajendra Prasad v. State of Uttar Pradesh: (1979) 3 SCC 646, purportedly seeking to whittle down the ratio of Jagmohan (supra); and correctness of such an opinion having been doubted by another Bench of this Court. The reference so made to the Constitution Bench came to be answered in locus classicus Bachan Singh (1980) 2 SCC 684 with its 'rarest of rare' doctrine. The opinion of majority in Bachan Singh is the guiding light and foundational discipline for all the later developments and enunciations on the subject.
.....
44.3. In Bachan Singh (supra), the Constitution Bench of this Court examined two major questions, i.e., as to whether death (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (27 of 41) [MREF-1/2021] penalty provided for the offence of murder under Section 302 IPC was unconstitutional; and if not, as to whether the sentencing procedure in Section 354(3) CrPC was unconstitutional on the ground that it invested the Court with unguided and untrammelled discretion. 44.3.1. After having examined a variety of features and factors pertaining to Articles 19(1) and 21 of the Constitution of India, the Court (per majority of the Constitution Bench) answered the first question in the negative, while observing and pointing out, inter alia, as under: -
"132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware -- as we shall presently show they were
-- of the existence of death penalty as punishment for murder, under the Penal Code, 1860, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for presentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302 of the Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19. ....
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[2024:RJ-JD:9722-DB] (28 of 41) [MREF-1/2021] 44.4. In fact, Bachan Singh (supra) judgment has been succinctly summarised and its principles explained by another Constitution Bench of this Court in the case of Mithu v. State of Punjab: (1983) 2 SCC 277 while dealing with the question of constitutional validity of Section 303 IPC, which provided for death sentence as the mandatory punishment for a person who, being under sentence of imprisonment for life, would commit murder. In the course of declaring the said provision contained in Section 303 IPC constitutionally invalid, the Constitution Bench dealt with a large number of arguments; and one of them had been that the validity of death sentence had already been upheld in Bachan Singh (supra ) and, therefore, such questions should not be allowed to raise their head over again. While pointing out the fallacy of this argument, the Constitution Bench explained as to what exactly had been the ratio of Bachan Singh in the following words: -
"7.....The majority did not lay down any abstract proposition in Bachan Singh that "death sentence is Constitutional", that is to say, that "It is permissible under the Constitution to provide for the sentence of death". To be exact, the question which arose for the consideration of the Court was not whether, under the Constitution, it is permissible to provide for the sentence of death. The precise question which arose in that case was whether Section 302 of the Penal Code which provides for the sentence of death as one of the two alternative sentences is valid. It may be recalled that Section 302 provides for the sentence of death as an alternative sentence which may be imposed. The normal sentence for murder is life imprisonment; and if the death sentence has to be imposed, the Court is under a legal obligation under Section 354(3) of the Criminal Procedure Code to state the special reasons for imposing that sentence. That explains why, in Bachan Singh, Sarkaria J., who spoke for the majority, underscored the words "alternative"
and "may" in paragraph 19 of the judgment, whilst observing that prescribes death as an alternative punishment to which the offender may be sentenced in cases relating to seven kinds of offences. The majority concluded that of the Penal Code is valid for three main reasons: Firstly, that the death sentence provided for by Section 302 is an alternative to the sentence of life imprisonment, secondly, that special reasons have to be stated if the normal rule is departed from and the death sentence has to be imposed; and, thirdly, because the accused is entitled, under Section 235(2) of the Code of Criminal Procedure, to be heard on the question of sentence. The last of these three reasons becomes relevant, only because of the first of these reasons......
44.5. Thereafter, in Machhi Singh (supra), a 3-Judge Bench of this Court, while considering a case where the appellant was convicted of orchestrating and executing a conspiracy, which (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (29 of 41) [MREF-1/2021] resulted in the murder of as many as 17 people due to a family feud, explained the philosophy pertaining to the death sentence in the following words: -
"32. ...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 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...."
(emphasis supplied) 44.5.1. The Court also explained the relevant propositions of Bachan Singh (supra) and the pertinent queries for applying those propositions in the following terms: -
"38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case: (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.(Downloaded on 21/03/2024 at 08:44:16 PM)
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39. In order to apply these guidelines inter alia the following questions may be asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."
(emphasis supplied) 44.6. Another relevant decision to be noticed is that in the case of Swamy Shraddananda (2) v. State of Karnataka: (2008) 13 SCC 767. The said decision was rendered by a 3- Judge Bench of this Court in the backdrop that though a 2-Judge Bench of this Court upheld the conviction of the appellant of offences under Sections 302 and 201 IPC but, one of the learned Judges felt that in the facts and circumstances of the case, punishment of imprisonment till the end of the natural life of the convict would serve the ends of justice, whereas the other learned Judge was of the view that the appellant was liable to the punishment of death. In keeping with the ever-progressing canons of penology, the 3-Judge Bench carved out a different course, being of not awarding death penalty but, of conditioning the sentence of imprisonment for life with a rider that the convict shall not be released from the prison for the rest of his life. The Court explained the logic of such sentencing, which overrides the availability of remission, in the following terms: -
"92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (31 of 41) [MREF-1/2021] present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all.
93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh besides being in accord with the modern trends in penology." (emphasis supplied) 44.7. We need not elongate this discussion by assembling various other decisions rendered in variegated circumstances and factual matrices but deem it appropriate to refer to the decision in the case of Shankar Kisanrao Khade v. State of Maharashtra: (2013) 5 SCC 546, wherein this Court surveyed a large number of cases on either side that is, where death sentence was upheld/awarded or where it was commuted; and pointed out the requirement of applying 'crime test', 'criminal test' and 'rarest of rare test'. This Court recounted, with reference to previous decisions, the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) as follows: -(Downloaded on 21/03/2024 at 08:44:16 PM)
[2024:RJ-JD:9722-DB] (32 of 41) [MREF-1/2021]
49. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence: (Rajendra Pralhadrao case, SCC pp. 47-48, para 33) "Aggravating circumstances -- (Crime test) (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is 51 of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness.
(Downloaded on 21/03/2024 at 08:44:16 PM)[2024:RJ-JD:9722-DB] (33 of 41) [MREF-1/2021] (12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances -- (Criminal test) (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused."
This Court further said: -
"52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (34 of 41) [MREF-1/2021] death sentence are "crime test", "criminal test" and the "R-R test" and not the "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is "society-centric" and not "Judge-centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability , old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges."
(emphasis and extra emphasis supplied)"
31.3. This Court further observes that after evolution of the death penalty (capital punishment), there are two relevant factors, namely, Aggravating Circumstances -- (Crime test) and Mitigating Circumstances -- (Criminal test). The Aggravating Circumstances (Crime Test) is for awarding the death penalty, wherein the parameters to ascertain that the case is falling under the rarest of rare category are laid down. As regards the present case, the same leaves no room for doubt and this Court is satisfied that the case is not falling under the rarest of rare category and comes (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (35 of 41) [MREF-1/2021] under the Mitigating Circumstances -- (Criminal test). This Court further observes that the Mitigating Circumstances -- (Criminal test) basically comes into play where there is a doubt and this Court is satisfied to avoid the death sentence (Capital Punishment) in the present case, as it was stated by the Hon'ble Apex Court, in a catena of judgments from time to time "To award death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused"."
32. The Court has to respond to the cry of justice, against the accused, of the complainant family on one hand, and the society on the other hand while imposing the punishment befitting to the crime, but at the same time, has to balance the parameters of rarest of rare cases for awarding the capital punishment.
33. This Court also observes that as per the above quoted Aggravating Circumstances -- (Crime test) and Mitigating Circumstances -- (Criminal test), as well as the possibility of reformation, young age of the accused, the accused not being a menace to the society, no previous criminal record, the award of capital punishment to the accused-appellant can be avoided as his case is considered under the Mitigation Circumstance (Criminal Test) for his re-integration in the society, after serving his sentence, as has been held by the Hon'ble Apex Court in the case of the State of Haryana Vs Anand Kindo & Anr. (Criminal Appeal Nos. 1797-1798/2010 along with other connected (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (36 of 41) [MREF-1/2021] matters, decided on 08.09.2022)' the relevant portion of the said judgment is reproduced as hereunder: -
"12. On consideration of the matter, we consider appropriate to impose a fixed term sentence of 30 years. Even at that age, the convicts would be in their 50s and we hope and pray that they would have learned their lesson and joined the society as responsible members at that stage.
13. In Shankar Kishanrao khade vs. State of Mahrashtra (2013) 5 SCC 546, it was held that if there is any circumstance favouring the accused such as lack of intention to commit the crime, possibility of reformation, young age of the accused, accused not being a menance to the society, no previous criminal record etc., the accused may avoid capital punishment.
The Court opined that the crime is important but so is the criminal and hence the Supreme Court in recent past has substituted death penalty with fixed term sentences exceeding 14 years. In appropriate cases such as the present case, imposing a fixed term sentence creates a possibility for the convict to re-integrate into society after serving his/her sentence. It strikes a delicate balance between the victims' plea for justice and rehabilitative justice for the convicts."
33.1. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the judgment rendered in Kashi Nath Singh alias Kallu Singh Vs. State of Jharkhand, (2023) 7 SCC 317 as hereunder:
"6. The argument raised by the learned counsel for the appellant was that there is no reasoning given by the High Court that there are no chances of his reformation. As there is no criminal history of the appellant, there are chances of his reformation. Therefore, this Court may modify the sentence awarded to the appellant while granting him benefit of remission, to whatever he is entitled to. He has further submitted that if the benefit of (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (37 of 41) [MREF-1/2021] remission cannot be granted, the sentence awarded to the appellant may be reduced to certain limited period instead of whole of his biological life. Reference was made to the decision of this Court in Shiva Kumar alias Shivamurthy v. State of Karnataka (2023) 9 SCC 817.
7. On the other hand, learned counsel for the respondent submitted that it is a case of brutal rape and murder of a 14 year old girl. The appellant, after committing the rape, was in the process of killing her by hitting her head and body with stone. He was trying to deface her face so that she could not be recognised. He was seen doing so by family members of the deceased when they went out for search. Keeping in view the mindset of the appellant, he does not deserve any further leniency in sentencing as the High Court had already commuted the death sentence to life imprisonment.
10. Though notice was issued only to consider whether the appellant could be extended the benefit of remission, however, considering the severity of the offence committed by the appellant, we do not find any merit in that submission. However, still considering the fact that the appellant was 26 years of age when the offence was committed and there may be chances of his reformation, but still undue leniency in sentencing shakes public confidence in the criminal justice system, the deterrent effect may not be there. The rights of the victim and his family members are also to be considered.
11. Keeping in view the totality of circumstances, the sentence of life imprisonment for the whole of the biological life of the appellant, without any benefit of remission deserves to be modified to the fixed term sentence for a period of 30 years without any benefit of remission so that prime period of his life is spent in jail. The appellant shall be released from jail only after undergoing full sentence of 30 years, excluding the period of imprisonment already undergone."(Downloaded on 21/03/2024 at 08:44:16 PM)
[2024:RJ-JD:9722-DB] (38 of 41) [MREF-1/2021] 33.2. This Court also considers it appropriate to reproduce the relevant portion of the judgment rendered by the Hon'ble Apex Court in the case of Navas @ Mulanavas Vs. State of Kerala (Criminal Appeal No.1215/2011, decided on 18.03.2024), as hereunder:
"57. A journey through the cases set out hereinabove shows that the fundamental underpinning is the principle of proportionality. The aggravating and mitigating circumstances which the Court considers while deciding commutation of penalty from death to life imprisonment, have a large bearing in deciding the number of years of compulsory imprisonment without remission, too. As a judicially trained mind pores and ponders over the aggravating and mitigating circumstances and in cases where they decide to commute the death penalty they would by then have a reasonable idea as to what would be the appropriate period of sentence to be imposed under the Swamy Shraddananda (supra) principle too. Matters are not cut and dried and nicely weighed here to formulate a uniform principle. That is where the experience of the judicially trained mind comes in as pointed out in V. Sriharan (supra). Illustratively in the process of arriving at the number of years as the most appropriate for the case at hand, which the convict will have to undergo before which the remission powers could be invoked, some of the relevant factors that the courts bear in mind are:- (a) the number of deceased who are victims of that crime and their age and gender; (b) the nature of injuries including sexual assault if any; (c) the motive for which the offence was committed; (d) whether the offence was committed when the convict was on bail in another case; (e) the premeditated nature of the offence; (f) the relationship between the offender and the victim; (g) the abuse of trust if any; (h) the criminal antecedents; and whether the convict, if released, would be a menace to the society. Some of the positive factors have been, (1) age of the convict; (2) the probability of reformation of convict; (3) the convict not being a (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (39 of 41) [MREF-1/2021] professional killer; (4) the socioeconomic condition of the accused; (5) the composition of the family of the accused and (6) conduct expressing remorse.
These were some of the relevant factors that were kept in mind in the cases noticed above while weighing the pros and cons of the matter. The Court would be additionally justified in considering the conduct of the convict in jail; and the period already undergone to arrive at the number of years which the Court feels the convict should, serve as part of the sentence of life imprisonment and before which he cannot apply for remission. These are not meant to be exhaustive but illustrative and each case would depend on the facts and circumstances therein.
Conclusion:
60. For the reasons stated above, we uphold the judgment of the High Cout insofar as the conviction of the appellant under Sections 302, 449 and 309 IPC is concerned. We also do not interfere with the sentence imposed on the accused for the offence under Section 449 and Section 309 of IPC. We hold that the High Court was justified on the facts of the case in following Swamy Shraddananda (supra) principle while imposing sentence for the offence under Section 302 IPC.
However, in view of the discussion made above, we are inclined to modify the sentence under Section 302 imposed by the High Court from a period of 30 years imprisonment without remission to that of a period of 25 years imprisonment without remission, including the period already undergone. In our view, this would serve the ends of justice."
34. This Court while applying the above test finds that the present accused-appellant is a poor person of 24 years of age with no criminal antecedents and does not fall within the domain of rarest of rare case although the nature of crime is extremely heinous. This Court also finds that the mitigating factors which have been settled in the precedent law settled by the Hon'ble (Downloaded on 21/03/2024 at 08:44:16 PM) [2024:RJ-JD:9722-DB] (40 of 41) [MREF-1/2021] Apex Court and also the Hon'ble Apex Court's pronouncements making it clear that merely because a crime is heinous and gruesome, it cannot become a sole ground for awarding capital punishment to the perpetrator without weighing the other factors.
35. This Court, while weighing the different parameters which has been observed as above, as well as the precedent laws cited above, is of the view that the fixed term of thirty years will serve the purpose of justice in the present case.
36. Thus, in view of the above the above-numbered murder reference for confirmation of death sentence is answered in negative. The appeal preferred by the accused-appellant to assail the impugned judgment is partly allowed. His conviction as recorded by the learned Trial Court for the offences mentioned above is affirmed. For the offence under Section 5 (j)(iv)(m)/6 of POCSO Act and Section 302 IPC, the death sentence awarded to the accused-appellant is commuted to 30 years imprisonment, without any possibility of parole or premature release. The sentence of fine and default stipulation is also maintained.
36.1.The victim's (deceased) family shall be granted maximum possible compensation under the Rajasthan Victim Compensation Scheme at the rates prevailing today. The District Legal Services Authority, Sirohi shall ensure compliance of this judgment. The record be returned to the learned Trial Court forthwith.
37. The above-numbed Murder Reference is disposed of accordingly.
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38. This Court is thankful to Mr. Vineet Jain, learned Senior Counsel assisted by Mr. Rajeev Bishnoi for the pro bono assistance so provided by appearing for the accused-appellant, who have not only provided detailed precedent laws and have taken this Court to each and every prosecution witness but also the exhibits to demonstrate the criminal jurisprudence applicable in the present case.
(RAJENDRA PRAKASH SONI),J (DR.PUSHPENDRA SINGH BHATI),J SKant/-
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