Telangana High Court
Gafafar Ali vs The State Of Telangana on 5 December, 2024
HON'BLE SRI JUSTICE K.SURENDER
and
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
R.T.No.2 of 2024
and
CRIMINAL APPEAL No.1008 OF 2024
COMMON JUDGMENT:(per Hon'ble Sri Justice K.Surender)
1. Learned I Additional District and Sessions Judge, Sangareddy has addressed a letter dated 17.09.2024 which was numbered as R.T.No.2 of 2024 for confirmation of the death sentence passed in POCSO SC No.10 of 2024 on the file of Fast Track Special Court for Expeditious Trial and Disposal of Rape and POCSO Act Cases, Sangareddy.
2. Criminal Appeal No.1008 of 2024 is filed by the legal aid counsel questioning the conviction and death penalty recorded by the Special Court vide judgment in POCSO SC No.10 of 2024 dated 11.09.2024.
3. Heard Sri C.Sharan Reddy, learned legal aid counsel for the appellant and learned Additional Public Prosecutor for the State assisted by Smt.Shalini Saxena, learned counsel.
4. The case of the prosecution is that on 16.10.2023 at 19.15 hours, P.W.20/Inspector of Police received a complaint from 2 P.W.1 stating that he is working as a labour mason in Adithri Constructions of Velimala village. On 16.10.2023 at about 16.00 hours, he was informed through his labours, namely Ganesh and Shankar that his granddaughter aged 5 years was found missing. Upon that P.W.1 along with grandparents of the deceased, Suraj, Guddu, Ganesh, Bajrangi and some others searched for the whereabouts of the missing girl. Meanwhile the security guard of Brickmore Lorence constructions, P.W.3/Harichandra Prabhakar Bale Rao informed them that he saw the girl with one labour by name Gafafar Ali/appellant, aged 61 years, taking the missing girl in between 11.00 hours and 11.30 hours and further P.W.3 noticed that appellant came back alone in between 12.00 hours and 12.30 hours. While the complainant and others were searching for missing girl and appellant, all of them noticed that appellant alone was returning from outside, near the labour camp. As such, they caught appellant at labour camp and enquired about the missing girl, but he did not answer properly and further noticed that appellant was in possession of one knife. Suspecting the behavior of the appellant, the complainant dialed 100 and informed the police about the kidnapping of missing minor girl. Further, on confrontation by the security guard P.W.3, 3 appellant confessed that he took the victim girl with him to the cotton fields and made her lie on the field and inserted his fingers in the girl's vagina repeatedly, as girl started shouting, then appellant closed her mouth, nose, pressed her, resulting in her death. After noticing that the girl was dead, the appellant left the dead body at the same place and went away from there. On hearing his confession, some of the co-labors beat him, meanwhile the Inspector of Police/P.W.20, PS, BDL, Bhanoor reached the spot in response to call to number '100' made by the complainant. The appellant was handed over to P.W.20 by narrating the entire incident to the Police and P.W.1 gave a complaint to take action against the appellant for his act of kidnapping, rape and murder of a minor girl, aged about 6 years.
5. P.W.20 interrogated the appellant and the appellant confessed to his guilt. Accordingly by securing the presence of P.W.9 and L.W.14/Gadde Janaki Ram, conducted confession- cum-seizure panchanama. The appellant voluntarily confessed that he kidnapped the minor girl, raped and murdered her and led the panchas and police to the scene of offence, where he committed the offence and shown the dead body of the victim minor girl. P.W.20 seized one knife from the appellant, which was 4 used for threatening the victim girl during the commission of offence. P.W.20 conducted scene of offence cum dead body recovery panchanama before the same panchas, recovered the dead body and also seized blood stained earth and control earth from the scene of offence with the help of clues team, i.e., P.W.12. Since it was late night, the dead body of the deceased was shifted to Government Area Hospital, Patancheru and preserved the dead body. P.W.20 brought the appellant along with seized articles to PS BDL Bhanoor on 16.10.2023 at 22.30 hours and effected his arrest. During the course of investigation, the appellant was sent for medical examination with a request to examine and preserve the swabs of vital organs and his right hand fingers swabs and to seize blood stained clothes of the appellant for analysis at FSL, Hyderabad. Later P.W.20 secured the presence of P.W.2, L.W.3/grandmother of the victim, L.W.4/Guddu Buyya, L.W.5/Suraj Buyya and L.W.6/Ganesh Buyya, examined and recorded their detailed statements.
6. On 17.10.2023, P.W.20 secured the presence of P.Ws.9 and 10 and held inquest over the dead body of the deceased. In the presence of P.Ws.9 and 10, seized one blue colour short frock of the deceased under cover of seizure panchanama. The dead body 5 of the deceased was subjected to postmortem examination. The team of doctors i.e., P.W.13 and L.W.20/Sri Srivani, Civil Assistant Surgeon, Government Area Hospital, Patancheru held autopsy over the dead body of the deceased, preserved material objects i.e., (1) Viscera, stomach, lungs, intestines, kidney (2) nails of both hands of the deceased (3) hair over the dead body. (4) Cervical swabs (5) blood of the deceased for analysis. Doctors opined that the cause of death was due to "Trauma & shock caused due to Rape".
7. It is further the case of the prosecution that the seized material objects i.e., (1) Blood stained earth (2) controlled earth which was seized from the scene of offence (3) Blue colour blood stained pant of the accused (4) white full hands shirt (5) Black colour half-length short of the accused (6) public hairs (7) nails of both hands (8) perineal region swabs (9) blood stains present over the thigh (in smear) (10) Smear swabs (11) Blood of the accused (12) blue colour short frock of the deceased (13) viscera, stomach, lungs, intestines, kidney (14) nails of both hands of the deceased (15) hairs over the dead body (16) Cervical swabs (17) Blood of the deceased were deposited in TFSL, Hyderabad through letter of 6 advise with a request to analyze material objects and furnish opinion.
8. Later P.W.20 also seized CCTV footages of Sri Chaitanya Constructions, Velimela village, which was recorded while the appellant and deceased were proceeding towards Sri Chaitanya labour camps, under cover of panchanama from P.W.7 and collected Certificate under Section 65-B of the Indian Evidence Act. Later P.W.20 secured the presence of P.W.5 and P.W.6, examined and recorded their statements. Thereafter, appellant was produced before the Director, SFSL, Hyderabad for collection of his blood sample for conducting DNA profile with the DNA profile of the deceased to establish the biological evidence. On the requisition of P.W.20, P.W.16 issued 65-B certificate of 100 Dial Voice loggers.
9. On the requisition of P.W.20, the learned Magistrate P.W.17 recorded the statements of P.Ws.1, 2, L.W.3/grandmother of the victim, L.W.4/Guddu Buyya, L.W.5/Suraj Buyya and L.W.6/Ganesh Buyya, P.W.3 and P.W.4 under Section 164 Cr.P.C on 03.11.2023. P.W.17 further conducted test identification parade of the accused before P.W.3 and P.W.4 on 04.11.2023 at 7 District Jail premises at Kandi/Sangareddy, wherein P.Ws.3 and 4 have identified the accused.
10. P.W.15 examined the Viscera, stomach, lungs, intestines, kidney and opined that "ethyl alcohol is found in all of them. No other poisonous substance is found in them", vide file No.TOX/4191/2023, dt.07.11.2023. L.W.23/G.Pandu, Assistant Director, TFSL, Hyderabad examined the material objects and opined that "Human semen and spermatozoa are detected in item No.13, which is frock of the deceased. Human blood is detected on item Nos.1,3,4,12, 13 and 17 but their blood group could not be determined, semen and spermatozoa are not detected on item Nos.3 to 11, 14, 16, 18 and 19. Blood is not detected on item Nos.5, 6, 7, 14 and 15. Blood is not detected on item No.2 which is received as a control for item No.1. Foreign hair is not found on item No.6. Foreign material is not detected on item Nos.7 and 14. DNA extracted from item Nos.1, 3 to 19 are subjected to Autosomal and Y-STR and analysis by using Global Filer and Argus Y-28 QS kit. There is no amplifiable DNA yield obtained from item Nos.1, 3 to 12 and 14 to 19. A male DNA profile has been generated and recorded from seminal stains on source of item No.13 (Frock collected from the deceased). 8
11. P.W.13 and L.W.20/Dri.Srivani, Civil Assistant Surgeon, Government Area Hospital, Patancheru opined that Ethyl alcohol was found in specimens of stomach, small intestine, liver and kidney" and FSL file No.SER/2035/2023, dt.18.11.2023 discloses that "Human semen and Spermatozoa were detected on clothes of the deceased".
12. P.W.21 filed charge sheet against the appellant for the offence punishable under Sections 363, 376AB, 302 of IPC, Section 5 r/w 6 of POCSO Act, 2012 and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. The learned Sessions Judge having considered the evidence on record, found the appellant guilty and inflicted capital punishment.
13. Learned Legal Aid counsel argued as follows:
a) P.Ws.1 to 4 deposed that the appellant was beaten and he confessed about the commission of the offence before them. It is also alleged that the appellant confessed that he took the deceased to the cotton fields. P.W.2 deposed that he along with others searched for the deceased but could not find her.
Thereafter, P.W.1 called the police and after the arrival of the 9 police, the deceased was found in the cotton fields. He argued that when the deceased was not found in the cotton fields prior to the arrival of the police, then it is not explained as to how she was found in the same place after the arrival of the police.
b) P.W.1 deposed that the appellant was seen returning between 12.00 to 12.30 p.m and basing on the information given by P.W.3, they searched for the deceased. Then, P.W.1 further deposed that once again they have seen the appellant returning to the labour camp at about 6.30 p.m and MO1 knife was recovered from him. P.W.1 further deposed that the appellant on questioning, confessed about the commission of the offence. PW.2 deposed that the appellant was caught at 6.00 p.m. P.Ws.3 and 4 deposed that the appellant was caught at about 5.30 p.m. Counsel argued that the above discrepancy in timing is material to the case of the prosecution as P.W.4 deposed that the deceased was taken away from his security cabin between 11.00 and 11.30 a.m. P.W.2 enquired about the deceased and found her missing during their lunch time. The information to the police through 100 helpline was received at about 6.40 p.m. He submits that if the version of P.W.1 is to be believed, then there is no explanation as to why the police were not called for six hours 10 when the appellant was first seen after the disappearance of the deceased. The deceased was found missing by P.W.2 at lunch time but P.W.1 deposed that the appellant was already seen between 12.00 to 12.30 p.m and that PW.3 had already informed them that the deceased was missing. Hence, the case of the prosecution is based on suspicion. If the appellant was caught between 12.00 to 12.30 p.m and the deceased was found after 6.55 p.m (arrival of the police at the scene of offence), then the prosecution has to explain the whereabouts of the deceased in the intervening time.
c) He further argued that the forensic evidence does not support the case of the prosecution. MO13 which is the frock of the deceased was collected by the prosecution at the scene of offence and FSL report reveals that seminal stains were found on MO13. DNA test was conducted but it did not reveal that the same belongs to the appellant. The charge against the appellant is that he committed rape on the deceased with his fingers. There is no penetration with the penis or ejaculation at the scene of offence as per the case of the prosecution. Then, it is for the prosecution to explain the presence of seminal stains belonging to unknown person that were found on MO13. Ex.P18 (medico 11 legal examination report of the deceased) reveals that there was penetration by the penis and emission of semen. Hence, the evidence on record is completely contrary to the charge framed against the appellant. Non-explanation of the above forensic and medical evidence throws any amount of doubt as to whether it was the appellant who committed the offence. He also argued that the offence was not committed on the ground that the deceased belong to SC/ST community and therefore the provision of the said Act is not applicable. The case of the prosecution is that the appellant covered the nose and mouth of the deceased while she was shouting and thereby caused her death. There is no intention on the part of the appellant to intentionally kill the deceased. He argued that in case of circumstantial evidence, the death sentence cannot be imposed. In the present case, there is reasonable doubt as to whether the appellant committed the offence. The chain of circumstances is not complete and the appellant ought to have been acquitted.
14. Learned legal aid counsel relied on the judgments of the Hon'ble Supreme Court in the case of Pappu v. State of Uttar Pradesh 1 and Rajendra Prahladrao Wasnik v. State of 1 (2022) 10 Supreme Court Cases 321 12 Maharashtra2. He submits that no offence is made out against the appellant. Alternatively, he submits that the sentence of death may be converted into life imprisonment. He argued basing on the judgment cited by him that under similar circumstances, the Hon'ble Supreme Court had intervened and set aside the death sentence, since offence is not in the category of rarest of rare cases.
15. Learned Additional Public Prosecutor argued that five year old child was brutally raped and murdered. In fact, the appellant had mixed eythol alcohol in the cool drink that was given to the deceased girl. Traces of ethyol alcohol were found in the FSL report. The postmortem examination report revealed injuries on the private parts of the deceased. Such barbaric acts cannot be shown any leniency. Under similar circumstances, the Hon'ble Division Bench of this Court in the case of Dinesh Kumar Dharne v. The State of Telangana 3 had confirmed the death sentence of the appellant.
16. Learned Additional Public Prosecutor also relied on the judgments of Shivaji @ Dadya Shankar Alha v. The State of 2 (2019) 12 Supreme Court Cases 460 3 RT No.1 of 2021 and Criminal Appeal No.448 of 2023 13 Maharashtra4 and Mohd. Firoz v. State of Madhya Pradesh5 and argued that the capital punishment awarded by the trial Court warrants no interference. She also argued that there cannot be any leniency shown in such acts of depravity resulting in loss of life of a five year old child.
17. The trial Court relied on the following chain of circumstances:
"1) The accused was seen with the victim near Security guard cabin around 11 or 11.30 a.m, as witnessed by P.W.3 and P.W.4 supported by MO.2/CCTV footage;
2) The victim was well known to the accused as they belong to same native place;
3) The accused was last seen together holding the victim's hand as witnessed by P.W.3 and P.W.4 going towards the labour camp tin shed and from there towards cotton field, as appearing in MO.2/CCTV footage and thereafter she was found missing;
4) The victim was searched out from 12.30 or 1.00 p.m onwards as she was not found out in near Security guard cabin and her grand parents and other labours searched for victim minor girl, enquired the accused when he came alone, for which initially he pleaded 4 (2008) 13 SCR 81 5 2022 LiveLaw (SC) 390 14 ignorance with dishonest intention to suppress his misdeeds;
5) Immediately, P.W.1 dialed 100 and informed to the police about kidnapping the victim minor girl and when the Inspector of Police came to the site, Ex.P1 was lodged.
6) The accused was seen along with victim minor girl at labour camp tinsheds which were provided to reside the labours, where the victim girl was following the accuse while drinking cool drink in her hand, as appearing in MO.2/CCTV footage.
7) The accused discovered the dead body of the victim from the place of occurrence while he was in police custody.
8) The place of occurrence was the lonely place with hard surface which is a cotton filed as per rough sketch map, wherein there was no access of common people and the said place was exclusively within the knowledge of the accused.
9) One knife/MO.1 was seized from the accused, which give presumption that the accused threatened the victim girl with knife to have sexual intercourse with her;
10) The Investigating Officer has seized the pant of the accused which is blood stained/MO.6 and the accused failed to give proper explanation as to how blood is detected on his clothes.15
11) The accused cannot prove the fact that whether there was any enmity or disputes between him and the grandparents of the deceased;
12) The videography of the accused in CCTV footage clearly shows that the victim was very much present along with him from 11.39 a.m to 11.56 a.m. Thereafter, the victim found dead and as per PME report, the victim died prior to 12 hours of conducting post-mortem examination, as per the evidence of P.W.1, the accused alone returned around 12.30 hours or so, hence the victim minor died in between 12 to 12.30 hours and in view of such short period, there is no possibility of suspecting any other perpetrator to have to commit such an offence, except the accused.
13) No explanation given by the accused in his examination under Section 313 of Cr.P.C except denial of the facts."
18. Primarily, the argument of the learned legal aid counsel is that at first instance when he was beaten up by P.Ws.1 to 4 and others, he confessed that he had taken the deceased to the cotton fields. However, when they searched for the girl, she was not found. The dead body of the deceased girl was found after arrival of the police, which creates any amount of doubt as to how dead body could be found when the police arrived and not previously when P.Ws.1 to 4 and others went in search of the deceased girl. 16
19. The CCTV footage of Chaitanya Constructions was handed over to the Investigating Officer. MO2 is the pen drive on to which the CCTV footage was copied and provided to the investigating agency. The said footage is dated 16.10.2023 from 11.39 a.m to 11.56 a.m. 65-B certificate under Ex.P6 was also enclosed to the CCTV footage. P.W.7, who provided the CCTV footage has also stated that in the CCTV footage, it was the appellant who was taking the victim girl and proceeding towards Chaitanya Constructions labour camp. When questioned in Section 313 Cr.P.C examination regarding CCTV footage which was provided by P.Ws.6 and 7, the appellant replied that it was false. Further, the appellant stated that he had nothing to say in the matter when questioned by the Court during Section 313 Cr.P.C examination.
20. The appellant was identified in the CCTV footage along with the deceased child. P.Ws.3 and 4 stated that the victim girl was playing near the security guard cabin of Chaitanya Constructions company. Around 11.30 a.m, the appellant came to the main gate of the company and he gave cool drink to the victim girl. After 17 drinking the cool drink, the appellant had taken the victim girl towards Chaitanya Constructions company labour camp.
21. The evidence of appellant taking the victim girl around 11.30 a.m cannot be disputed. It is not the case of the appellant that he was not the person found in the CCTV footage. The burden is cast upon the appellant to explain as to what happened after he had taken the victim girl towards labour camp. The said burden is shifted on to the appellant under Section 106 of the Indian Evidence Act. The Hon'ble Supreme Court in Pappu v. State of Uttar Pradesh's case (supra) held as follows:
"88. As regards the last seen theory and operation of Section 106 of the Evidence Act, in Kashi Ram [State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 : (2007) 1 SCC (Cri) 688] this Court has explained and laid down as follows : (SCC pp. 765-66, paras 23-24) "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company.
He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed, In re [Naina Mohamed, In re, 1959 SCC OnLine Mad 173 : AIR 1960 Mad 218] .
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24. There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."
22. In Mohd.Firoz v. State of Madhya Pradesh's case (supra), the Hon'ble Supreme Court held as follows:
"26. Once the theory of "last seen together" was established, the accused was expected to offer some explanation as to under which circumstances, he had parted the company of the victim. It hardly needs to be reiterated that in the criminal jurisprudence, the entire burden of proving the guilt of the accused rests on the prosecution, nonetheless if the accused does not throw any light upon the facts which are proved to be within his special knowledge in view of Section 106 of the Evidence Act, such failure on the part of the accused may also provide an additional link in the chain of circumstances required to be proved against him. Of course, Section 106 of the Evidence Act does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of "last seen together" as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the victim.
27. In Rajender v. State (NCT of Delhi) [Rajender v. State (NCT of Delhi), (2019) 10 SCC 623 : (2020) 1 SCC (Cri) 63] , this Court has succinctly dealt with the doctrine of "last seen together" in the light of Section 106 of the Evidence Act. The relevant observations read as under : (SCC p. 632, para 12) "12.2.4. Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. Section 106 of the Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable 19 explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances."
23. Mere denial or stating that the evidence produced by the prosecution is false is not sufficient to discharge the burden that has been shifted on to the appellant under Section 106 of the Evidence Act. Though under normal circumstances the burden is always on the prosecution to prove its case, however, Section 106 of the Evidence Act is an exception whereby the burden shifts on to the accused to explain the circumstances when the prosecution lays its foundation of facts against an accused. The appellant was found taking the girl after giving her a cool drink as stated by P.Ws.3 and 4 and also found in the CCTV footage.
24. The dead body of the girl was discovered by the police when the appellant had taken the police to the place where he had committed the murder and dead body of the girl was left. It is the case of P.Ws.1 to 4 that the appellant was taken to the cotton fields, but they did not find the body. The extent of the cotton field is not stated by the prosecution. However, the cotton field is 20 not a place like a room or any place which could be specifically stated. The cotton field would be spread over an extent in the agricultural land. It is not as though the entire fields were searched by P.Ws.1 to 4 and others when the appellant was beaten up and taken to the cotton fields to find the victim girl.
25. After the complaint was filed with the police, the police arrived at the scene. They have questioned the appellant regarding the incident. Pursuant to his confession, the appellant took the police along with others and pointed out the exact location of the dead body.
26. Section 27 of the Evidence Act is by way of a Proviso to Sections 25 and 26 of the Act. Any confession made in custody of police specifically regarding any fact that would be discovered by police would be admissible in the evidence against the accused, to the extent of such discovered fact or recovery. Section 27 of the Act permits any information that is containing in confession resulting in finding of any object or any fact.
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27. The Hon'ble Supreme Court in Raju Manjhi v. State of Bihar6 held as follows:
"13. The other ground urged on behalf of the appellant is that the so-called confessional statement of the appellant has no evidentiary value under law for the reason that it was extracted from the accused under duress by the police. It is true, no confession made by any person while he was in the custody of police shall be proved against him. But, the Evidence Act provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning the alleged offence, such statement can be proved against him. It is worthwhile at this stage to have a look at Section 27 of the Evidence Act:
"27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
17. Moving on to the other limb of argument advanced on behalf of the appellant that the appellant-accused had no motive and the courts below have failed to consider the fact that the evidence on record is not sufficient to establish motive of the accused. Undoubtedly, "motive" plays significant role in a case based on circumstantial evidence where the purpose would be to establish this important link in the chain of circumstances in order to connect the accused with the crime. But, for the case on hand, proving motive is not an important factor when abundant direct evidence is available on record. The confessional statement of the appellant itself depicts the motive of the team of the accused in pursuit of which they committed the robbery at the house of the informant and the appellant being part of it."
28. In Perulam Raja v. State, rep. by Inspector of Police 7, the Hon'ble Supreme Court held as follows:
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(2019) 12 Supreme Court Cases 784 22 "20. In Pulukuri Kottaya v. King Emperor MANU/PR/0049/1946 :
AIR 1947 PC 67, the Privy Council held that the fact discovered embraces the place from which the physical object is produced and the knowledge of the Accused as to this, and the information given, must distinctly relate to this fact.
21. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru MANU/SC/0465/2005 : (2005) 11 SCC 600, this Court affirmed that the fact discovered within the meaning of Section 27 of the Evidence Act must be some concrete fact to which the information directly relates.
Further, the fact discovered should refer to a material/physical object and not to a pure mental fact relating to a physical object disassociated from the recovery of the physical object.
22. However, we must clarify that Section 27 of the Evidence Act, as held in these judgments, does not lay down the principle that discovery of a fact is to be equated to the object produced or found. The discovery of the fact resulting in recovery of a physical object exhibits knowledge or mental awareness of the person Accused of the offence as to the existence of the physical object at the particular place. Accordingly, discovery of a fact includes the object found, the place from which it was produced and the knowledge of the Accused as to its existence. To this extent, therefore, factum of discovery combines both the physical object as well as the mental consciousness of the informant Accused in relation thereto. In Mohmed Inayatullah v. State of Maharashtra MANU/SC/0166/1975 : (1976) 1 SCC 828, elucidating on Section 27 of the Evidence Act, it has been held that the first condition imposed and necessary for bringing the Section into operation is the discovery of a fact which should be a relevant fact in consequence of information received from a person Accused of an offence. The second is that the discovery of such a fact must be deposed to. A fact already known to the police will fall foul and not meet this condition. The third is that at the time of receipt of the information, the Accused must be in police custody. Lastly, it is only so much of information which relates distinctly to the fact thereby discovered resulting in recovery of a physical object which is admissible. Rest of the information is to be excluded. The word 'distinctly' is used to limit and define the scope of the information and means 'directly', 'indubitably', 'strictly' or 'unmistakably'. Only that part of the information which is clear, immediate and a proximate cause of discovery is admissible.
23. The facts proved by the prosecution, particularly the admissible portion of the statement of the Accused, would give rise to two alternative hypotheses, namely, (i) that the Accused had himself deposited the physical items which were recovered; or (ii) only the Accused knew that the physical items were lying at that place. The second hypothesis is wholly compatible with the innocence of the Accused, whereas the first would be a factor to show involvement of the Accused in the offence. The court has to analyse which of the hypotheses should be accepted in a particular case." 7 AIR 2024 SC 460 23
29. The deceased girl's body was found on the basis of the information provided by the appellant. The exclusive knowledge of the appellant about the dead body is one of the circumstance linking the case of the prosecution. Further, from the postmortem examination and the FSL test conducted thereafter, it was found that there was ethyl alcohol in the body of the deceased girl. The appellant had given a cool drink, according to the eye witness account. The said finding of ethyl alcohol in the body of the girl is also another strong circumstance against the appellant.
30. The main thrust of the argument of the learned legal aid is that DNA of the appellant could not be found. The said argument cannot be accepted. It was specifically mentioned that "no amplifiable DNA yield obtained" as stated by P.W.15, which means that, after attempting DNA extraction and amplification, there was not enough DNA available to proceed with further testing or analysis. This could be due to a low initial quantity of DNA, degradation of the sample, or inefficiencies in the extraction process. Essentially, there was no usable DNA to generate a profile or carry out meaningful genetic analysis. 24
31. In the back ground of the other circumstances, which were proved beyond reasonable doubt by the prosecution, FSL not conclusively determining the DNA of the semen stain on the frock of the deceased girl is of no consequence.
32. The prosecution was able to prove that it was the appellant who had taken the victim girl and also responsible for her death. Accordingly, the finding of the learned Sessions Judge i.e., appellant being guilty of rape and consequent death of the girl cannot be found fault with.
33.SENTENCE-CAPITAL PUNISHMENT.
The learned legal aid counsel would submit that the case does not fall within the category of 'rarest of rare cases' and the appellant does not deserve capital punishment.
34. Several parameters were laid down by the Hon'ble Supreme Court in the judgments over a period of time describing what would be a 'rarest of rare case' and also the circumstances under which Court can inflict capital punishment. The circumstances stated by the Hon'ble Supreme Court are not exhaustive and would depend on facts of each case.
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35. The injuries found on the dead body are as follows:
"1. Contusion over right cheek.
2. Nail scratch marks below the right conthus and left side of neck.
3. Bruise over lower lip.
4. Bruise and redness and swelling over the introitus (external Genetalia)
5. Bleeding through cervical OS (opening of the cervical).
36. According to the postmortem examination Doctor/P.W.13, the cause of death was trauma and shock caused due to rape. As seen from the injuries that were received, it appears that the appellant had closed the mouth and nose of the deceased girl to restrain her from shouting. In the said process, there was contusion over right cheek, nail scratch marks below the right canthus (corner of eye) and left side of neck and bruise over lower lip. The version of the prosecution is that while committing rape, since the girl shouted, the appellant forcibly stopped her from shouting so as to not attract any attention from any one nearby.
37. The postmortem examination doctor did not speak about any kind of physical force that was used on the victim girl after committing rape on the victim girl, resulting in her death. He states that the cause of death was trauma and shock caused due to rape. There is no finding of the postmortem doctor that the death was caused by asphyxia.
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38. PUNISHMENT.
The maximum punishment that can be imposed is capital punishment. The Hon'ble Supreme Court in Pappu's case (supra) held as follows:
"139. In Shankar Kisanrao Khade [Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 : (2013) 3 SCC (Cri) 402] , after survey of a wide variety of cases and pointing 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 : (SCC pp. 574-75, para 49) "49. In Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] cases, this Court laid down various principles for awarding sentence :
(Rajendra Pralhadrao case [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] , 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 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 27 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.
(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." ' [Ed. : As observed in Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 at pp. 285-86, para 76 : (2012) 2 SCC (Cri) 382] "
140. This Court further said : (Shankar Kisanrao Khade case [Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 : (2013) 3 SCC (Cri) 402] , SCC p. 576, para 52) "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 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 28 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."
141.Dhananjoy Chatterjee [Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220 : 1994 SCC (Cri) 358] , decided on 11-1-1994, had been that of rape and murder of a young girl about 18 years of age; and this Court found it justified to confirm the death sentence for a cold-blooded and pre-planned murder after committing rape. Therein, this Court essentially referred to the atrocity of the crime on the defenceless and unprotected state of the victim; and observed that imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. This Court, inter alia, observed as under : (SCC p. 239, para 15) "15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.""
39. The appellant is now aged 62 years. He had committed rape on five year old girl. But the death was result of the trauma and shock associated with rape and not on account of any deliberate act of killing the deceased after committing rape to destroy evidence.29
40. In the test of mitigating circumstances, the age of the appellant being 62 years without any criminal antecedent and also the fact that the death was not caused by any premeditation or deliberate attempt to cause death, this Court is inclined to partly allow the appeal. While confirming the conviction, death sentence awarded to the appellant under Section 6 of the POCSO Act and Section 302 IPC, is commuted to imprisonment for life with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing imprisonment of 30 years. Further, the appellant shall not be entitled to parole for 15 years.
41. RT No.2 of 2024 is accordingly answered. Criminal Appeal is partly allowed.
__________________ K.SURENDER, J ____________________________________ ANIL KUMAR JUKANTI, J Date : 05.12.2024 kvs