Full Judgment Text
REPORTABLE
2024 INSC 987
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos. _________ of 2024
(@ Special Leave Petition (Crl.) Nos. 9015-9016 of 2019)
SAMBHUBHAI RAISANGBHAI
PADHIYAR APPELLANT(s)
VERSUS
STATE OF GUJARAT RESPONDENT(s)
WITH
Special Leave Petition (Crl.) No. 9162/2021
J U D G M E N T
K.V. Viswanathan, J.
Criminal Appeal Nos. _________ of 2024
(@ Special Leave Petition (Crl.) Nos. 9015-9016 of 2019)
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2024.12.17
13:44:28 IST
Reason:
1. Leave granted.
1
th
2. Wednesday, 13 April 2016 dawned normally for the
family of Pravingiri Gosai (PW-9), a farmer, who also
alternated as the temple priest at Piludara village under the
Vedaj Police Station, Bharuch District in the State of Gujarat.
However, by dusk the situation had turned macabre for them,
when their four-year old child was found murdered in the
village outskirts.
3. The appellant herein stood trial for the offences of
kidnapping, sexual assault and murder of the said child and was
convicted and sentenced to death by the Trial Court. The High
Court of Gujarat at Ahmedabad, by the judgment dated
03.04.2019 in R/Criminal Confirmation Case No. 2 of 2018
with R/Criminal Appeal No. 1207 of 2018, confirmed the
conviction and sentence of death imposed on him for the
offences punishable under Sections 302, 364, and 377 of the
Indian Penal Code (for short ‘IPC’) and Sections 4 and 6 of the
Protection of Children from Sexual offences Act, 2012 (for
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short ‘POCSO Act’). The appellant is before us in appeal by
way of special leave.
Brief Facts:
4. Pravingiri Gosai (PW-9) and his wife Artiben (PW-13.2)
left their house at 06:00 a.m. in the morning of 13.04.2016 to
get fodder for their cattle leaving their two small children Rohit
@ Shital, aged about four years, the deceased and Rajeshwari,
aged three months, along with PW-9’s mother at home. When
they returned at 11.00 a.m., PW-9’s mother and children were
at home. PW-9 left again to install a Dish TV in the village and
returned at around 1 O’clock. He noticed that Rohit was not at
home and when he inquired from his wife Arti, she replied that
Rohit was playing near the temple and had not been seen since
long. The desperate father continued his inquiries when PW-10
Jyotsnaben, his sister-in-law, who lived in the neighborhood
told him that when Rohit was playing near the temple about
12:30 PM, the appellant who belonged to their village took the
deceased and when she inquired from the appellant as to where
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he was taking the deceased, the appellant in spite of being
dissuaded from doing so, told her that he will buy the child ice-
cream and return in a while.
5. Since Rohit had not returned, PW-9 continued his search
in the village when he met the appellant under a jamun tree
behind the Pir Dargah at the bank of the lake at about 2
O’clock. When PW-9 inquired about his son with the appellant,
the appellant told him that he gave the deceased ice-cream to
eat and sent him home. PW-9 went home and when Rohit was
not there, he came back to the lake, the appellant was not found.
PW-13.2 Artiben, the mother of the deceased also carried out
the search carried out and after receiving information from PW-
11 Manoj Kumar Parmar that the deceased was taken by the
appellant, she along with her sister-in-law PW-10, and daughter
went to the appellant’s house. The appellant’s mother was there
and the appellant was not there. They left a message with the
appellant’s mother that the appellant may be told to send their
son (deceased) back home.
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6. PW-9 continued his inquiries and search when he received
a call from Manoj Kumar Parmar (PW-11) who asked PW-9 to
come to the bank of the lake behind the Pir Dargah. When
PW-9 reached the spot, he found the dead body of his son lying
naked near the bushes.
7. PW-9 lodged a complaint around 06:45 at the Vedaj
Police Station which resulted in registration of an FIR and the
subsequent proceedings. After the inquest, the body of the
deceased was sent for postmortem to BKS Medical College
Vadodara. The postmortem report reveals that death was due to
asphyxia due to throttling. A number of injuries were found on
the body of the deceased which are as follows:
“The following injuries were observed during the
external examination of the dead body.
(1) Multiple scratch abrasions of size varying from 0.1
cm x 0.5 cm to 1.5 cm x 0.1 cm with underlying
contusions of size varying from 1 cm x 1 cm to 2.5 cm
x 2 cm present over perianal region. Perianal skin
swollen, reddish in colour. Anal orifice dilated, roomy
diameter of anal orifice is 2.5 cm. Part of rectum
protruded out through anal orifice.
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(2) A bite mark in form of pressure abrasion of size 4
cm x 3.5 cm present over right cheek, 3 cm above right
angle of mandible and 4 cm right to midline.
(3) Multiple laceration of size varying from 0.5 cm x
0.2 cm to 1 cm x 0.2 cm x tissue deep with underlying
contusions of size varying from 1 cm x 0.5 cm to 1.5
cm x 1 cm present over inner aspects of both lips.
(4) Multiple crescentic shaped abrasions of size
varying from 0.5 cm x 0.1 cm to 1.2 cm x 0.1 cm in an
area of 5 cm x 3 cm present over left side of neck, 3.5
cm left to midline and 2 cm below chin.
(5) Two abrasions of size 1.5 cm x 0.5 cm and 0.5 cm
x 0.2 cm present over right side of the neck, 1.5 cm
below chin and 2 cm, 3 cm right to midline
respectively.
(6) Multiple scratch abrasions of size varying from 8.5
cm x 0.5 cm to 2.5 cm x 0.5 cm present in an area of
20 cm x 9 cm, over back of right thigh.
Note: All abrasions and contusions are reddish in
colour. Margins of all lacerated wounds are irregular
and contused with red clotted blood over it.
All of the above mentioned injuries were antemortem
in origin.”
It will be clear from the above that the deceased was also
subjected to penetrative sexual assault through the anus. PW-8
Dr. Kalpesh Kumar who led the postmortem team has
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categorically opined that the cause of death was asphyxia due to
throttling. In view of this, there is no iota of doubt that the
deceased had a homicidal death. The only question that arises is
as to whether there is any evidence against the appellant to
convict him for the offences charged.
8. The appellant was arrested (at about 20:45 hrs. to 21:26
hrs.) on 14.04.2016 and his medical examination revealed that
there were injury marks on his genitals as spoken to by PW-7
Dr. Kamlesh Kumar.
9. The prosecution attempts to rely on the discovery
panchnama (Exh.18) to reinforce their case that it was pursuant
to the appellant’s statement that the place of occurrence was
discovered. PW-4 Bharat Kumar and PW-5 Arjun Sinh were
examined in support of the said purported discovery
panchnama. This document, however, is seriously disputed by
the defence. According to the defence, the panchnama (Exh.9)
of the place of the occurrence was already drawn on 14.04.2016
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between 16:00 hrs and 18:30 hrs and by the time the discovery
panchnama (Exh.18) was drawn at around 09:00 a.m. on
15.04.2016, the place of occurrence was already known to the
prosecution.
10. It is also the case of the prosecution that as part of the
same transaction when the place of occurrence was discovered
and after the said panchnama was drawn at around 09:00 a.m.
on 15.04.2016, the accused voluntarily expressed willingness to
show the place where he had thrown the clothes of the victim
and in pursuance thereof the recovery panchnama (Exh.21) was
drawn up between 09:15 hours and 09:45 hrs on 15.04.2016
and a light pink coloured Tshirt and a red coloured leggings
were recovered The prosecution has examined PW-6
Maheshbhai in support of the recoveries. The defence has
strongly objected to the admissibility of the recoveries on the
ground that no statement of the accused was recorded on this
aspect and that what is available is merely a purported recovery
carried out. We have considered this aspect in the later part of
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the judgment coupled with the applicability of Section 8 of the
Evidence Act to see if the conduct of the accused in leading to
the place where the clothes of the deceased were found would
be admissible in evidence.
11. We have heard Ms. Uttara Babbar, learned senior counsel
for the appellant, appearing pro bono, who presented the case
comprehensively and filed detailed written submissions. We
have also heard Ms. Swati Ghildiyal, learned counsel for the
State who in ably advancing the State’s case, left no stone
unturned in countering the submissions of the learned senior
counsel for the appellant. Detailed written submissions were
also filed by her. We have perused the records including the
records of the trial court.
12. The case rests on circumstantial evidence. We are
conscious of the five golden principles repeatedly reiterated by
this Court which are to be borne in mind in cases involved with
circumstantial evidence. In the leading case of Sharad
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Birdhichand Sarda vs State of Maharashtra, (1984) 4 SCC
116 , it was held as under:-
“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:
“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,
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(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.”
Approaching the case at hand with the above principles in
mind, we find the following.
Circumstance No. 1: The appellant last seen with the
deceased
13. It is the consistent case of the prosecution that the
deceased child Rohit @ Shital was barely four years old and
was playing near his house when the accused took him from
there under the pretext of getting him ice-cream. PW-10
Jyotsnaben, who was the aunt of the deceased and who lived
nearby, clearly deposed that on the day of the incident when she
was cooking near the front side of the house, the appellant came
to her and asked for water. Thereafter, while leaving, the
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accused took the victim. When she asked the appellant where
he was taking the victim, the appellant replied that he was
taking the victim to get ice-cream and he will send him after
that. When PW-10 told him not to do so, the appellant stated
that he would send him back after getting the child ice-cream,
and so saying took the child with him.
14. It is undisputed that the family of the deceased knew the
appellant and his family. PW-10 further deposed that when
after a long time the deceased did not return, she informed the
same to her sister-in-law PW-13.2 Artiben. PW-10 maintained
her narration in the cross where it also emerges that she
searched for child at the ice-cream shop of Kabo and Yogesh in
the village and was told that the victim had not been there.
15. The deposition of PW-10 Jyotsnaben is fully corroborated
by the evidence given by PW-11 Manoj Kumar. PW-11 states
that he was running a garment shop at Piludara village; that on
the day of the incident, the appellant Shambhu passed by his
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shop at about 12 O’clock; that Pravingiri’s son was with the
appellant; that on being asked the appellant informed that he
was going to the shop of Kaliya to get ice-cream. PW-11 also
stated that when the appellant was passing by the shop along
with victim, PW-12 Somabhai Ranchhodbhai, Ranjitbhai
Fatesang and Raysangbhai Manorbhai were also present. The
defence contends that PW-12 did not support the case of the
prosecution and was declared hostile. This aspect of the matter
does not detract from the clinching evidence of the evidence of
aunt of the deceased - PW-10 Jyotsnaben which we find very
natural or the evidence of PW-11 Manoj Kumar who had no
reason to falsely depose to the said fact. The only suggestion
given to PW-11 is that he was deposing because he was friend
of the father of the deceased. We are not persuaded to discredit
the testimony of PW-11 on this score.
16. Apart from PW-10 and PW-11, PW-13.1 Sursangbhai also
speaks about the appellant taking the deceased and the appellant
stating that he was going to get the child ice-cream. PW-13.1
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states that thereafter he went inside the house and left for the
farm. It was strongly contended by the defence that in the cross-
examination, he had deposed that he had not seen the appellant
passing by the shop along with the deceased. The portion of the
cross-examination has to be read in the context of the earlier
statements occurring therein. They are as follows:
“It is not true that Manojbhai’s shop is located at the
distance of half kilometer from my house. It is true that
Manojbhai’s shop is in the market it is true that
Manojbhai runs business of ice cream and other goods.
Kaliya’s shop is located in the other market. I had
reached Manojbhai’s shop at about 1 o’clock. It is true
that the market was open and there was movement of
people. It is true that I had not seen Shambhu passing by
the shop along with the son of Pravin. Pravin bhai
Maharaj is my friend. I do not know his family
members.”
It will be seen that PW-13.1 states that he reached Manojbhai’s
shop at about 1 O’clock and that market was open and there
was movement of people and thereafter the statement occurs
that he had not seen appellant passing by along with the son of
Pravingiri. Mrs. Swati Ghildiyal, learned counsel for the State,
14
in her written submissions, has furnished the portion as in
Gujarati which was also read to us and translated at the time of
the oral hearing. According to the learned counsel for the State,
the particular sentence only meant that PW-13.1, did not see the
appellant leaving or going away from the shop and that this was
only because he had gone into his house prior to that. We are
inclined to accept the meaning as it comes out from the Gujarati
version. The small discrepancies insofar as the timings are
concerned are only natural as the witnesses were deposing
nearly two years after the incident. They are not material
discrepancies.
17. Hence, it is undisputed that between 12:00 and 01:00 PM,
the appellant went to the neighborhood of the house of the
deceased and partook water from the aunt PW-10, engaged in a
conversation with her and in spite of being dissuaded, took the
deceased child under the pretext of buying him ice-cream. The
time lag between the accused being last seen and the sighting of
the dead body lying is also extremely short. PW-11 Manoj
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Kumar states that at about 5 O’clock in the evening when they
were searching for the victim and when they were near the
boundary wall of the lake near the Dargah, some persons
informed them that a dead body was lying in the acacia bushes
behind the Dargah.
18. The incident has clearly occurred between 12:00 noon and
05:00 PM on 13.04.2016. The timing is also corroborated by
the doctor PW-8 who did the postmortem on 14.04.2016
between 03:35 PM and 04:45 PM and he further deposed that
death would have occurred 24 to 36 hours before the
postmortem. There are some important aspects which require to
be noticed here and that is what brings out the clinching nature
of the case against the appellant.
19. The deceased, aged between three and a half and four
years, was a small child, just out of toddlerhood and at the pre-
school stage. This is very significant because when the
appellant has from the neighborhood of the house of the
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deceased taken the deceased one would expect that the small
child would be brought back and dropped at the house. The
appellant offered no explanation as to what happened after the
time he spent with the child and has no case that he handed over
the child to any other person or that he dropped the child home.
Unlike in the case of grownups, where an explanation about the
manner of parting company could in a given case be acceptable
in the case of a small child who has been picked up from
neighborhood of his house, it would be normal to expect that
the small child would be dropped back home or an explanation
about entrusting of the child to another person to be safely
taken home is given. The appellant’s lack of explanation is to
say the least baffling.
20. According to PW-9 the father of the deceased, when he
went in search of the child for the second time to the area where
PW-11 had told him about the appellant having proceeded with
child, PW-9 actually met with the appellant and asked about the
deceased. The appellant on asking told PW-9 that he gave ice-
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cream to the deceased and sent him. This statement in the
deposition is also mentioned at the earliest point in the First
Information Report lodged on 13.04.2016 at about 07:30 PM in
the evening.
21. It is well settled that if the accused is last seen with the
deceased and particularly in a case of this nature when the time
gap between the last seen stage and occurrence of death is so
short, the accused must offer a plausible explanation as to how he
parted company with the deceased and the explanation offered
must be satisfactory. Section 106 of the Evidence Act mandates
that when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. It is on this
principle that this Court has repeatedly held that if an accused
fails to offer an explanation, he fails to discharge the burden cast
upon him under Section 106 and if he fails to offer a reasonable
explanation that itself provides an additional link in the chain of
circumstances [See State of Rajasthan Vs. Kashiram (2006) 12
SCC 254 and Pappu Vs. State of UP (2022) 10 SCC 321].
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Circumstance No. 2: Found in the vicinity of the scene of
crime at about the time of crime:
22. Both in the First Information Report and in the evidence,
PW-9 speaks about his going to the lake. It is not in dispute that
it was this place, viz, near the boundary wall of the lake behind
the Dargah of Pir in the acacia bushes, the body of the deceased
was found naked at around 5 O’clock on 13.04.2016. The
presence of the accused at the scene of crime in the afternoon at
about 2 O’clock in the background of the evidence of last seen
of PW-10, 11 and 13.2, is a clear link in the chain of
circumstances which point to the guilt of the accused. If one
couples this fact with the fact that he was not at home around
the time when PW-10 Jyotsnaben and PW13.2 Artiben, the
mother visited the house of the appellant, it reinforces the
evidence of PW-9 that in the afternoon, on the date of crime,
the appellant was at the place of the crime and the deceased
who was taken from the house was not with him at that
moment.
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Circumstance No. 3: Injury on the private parts of the
accused
23. PW-7, Dr. Kamlesh Kumar who examined the accused on
15.04.2016 deposed that there was injury on the genitals of the
accused. Exh.P-27 certificate also reveals that there were
abrasions on the prepuce of the accused. It will be seen from the
injuries on the deceased as reflected in the evidence of PW-8
Dr. Kalpesh and the postmortem report Exh. P.28 that the
perianal region of the deceased had multiple scratch abrasions
with the underlying contusions; that the perianal skin was
swollen and reddish in colour; the anal orifice dilated, roomy
and that part of the rectum protruded out through the anal
orifice. The doctor has also opined that these injuries were
antemortem in origin. The abrasions in the prepuce of the
accused were there even two days after the incident. The only
suggestion in the cross-examination to the doctor raised that if a
person scratches the genitals a lot, signs of contusions could be
observed. No other explanation is offered. Considering the
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overall facts, we are inclined to accept this circumstance as an
additional link in the chain of circumstances.
Circumstance No. 4: Conduct under Section 8 of the
Evidence Act:
24. Irrespective of the admissibility of the discovery,
panchnama (Exh.18) and the recovery panchnama Exh. 21 and
irrespective of the admissibility of the recovery of the clothes of
the deceased on the statement of the accused, we find that the
conduct of the appellant in leading the investigation team and
the panchas and pointing out where the apparel of the deceased
was hidden would be admissible. In this case PW-17, the
Investigating Officer has clearly deposed that the accused
showed willingness to show the place where he had thrown the
clothes. PW-17, his team and the panchas reached by walking
to the place as indicated by the accused. This Court in A.N.
Venkatesh and another v. State of Karnataka (2005) 7 SCC
21
714 relying on Prakash Chand v. State (Delhi Admn.), (1949)
3 SCC 90 held as under:
“9. By virtue of Section 8 of the Evidence Act, the
conduct of the accused person is relevant, if such
conduct influences or is influenced by any fact in issue
or relevant fact. The evidence of the circumstance,
simpliciter, that the accused pointed out to the police
officer, the place where the dead body of the kidnapped
boy was found and on their pointing out the body was
exhumed, would be admissible as conduct under Section
8 irrespective of the fact whether the statement made by
the accused contemporaneously with or antecedent to
such conduct falls within the purview of Section 27 or
not as held by this Court in Prakash Chand v. State
(Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 :
AIR 1979 SC 400] . Even if we hold that the disclosure
statement made by the accused-appellants (Exts. P-15
and P-16) is not admissible under Section 27 of the
Evidence Act, still it is relevant under Section 8. The
evidence of the investigating officer and PWs 1, 2, 7 and
PW 4 the spot mahazar witness that the accused had
taken them to the spot and pointed out the place where
the dead body was buried, is an admissible piece of
evidence under Section 8 as the conduct of the accused.
Presence of A-1 and A-2 at a place where ransom
demand was to be fulfilled and their action of fleeing on
spotting the police party is a relevant circumstance and
are admissible under Section 8 of the Evidence Act.”
22
We take this as an additional link in the chain of circumstances.
Circumstance No. 5: Matching of Blood Group
25. Blood group on the clothes of the deceased tallied with the
blood group of the accused as per Exh.50, the Serological
Analysis Report. PW-9 the father of the deceased identified the
clothes worn by the deceased on the fateful day. PW-17 the
Investigating Officer Gajendra Kumar has clearly deposed that
the apparel of the deceased was recovered near the situs of the
crime. PW-7 Dr. Kamlesh Kumar who medically examined the
appellant deposed that samples of pubic hair, blood, saliva,
semen and nails were obtained of the accused and he further
deposed that the samples were sealed and the Muddamal was
sent for further investigation through police constable to FSL,
Surat. Coming back to PW-17, he deposed about receiving the
sealed samples and keeping it in safe custody. Thereafter, he
deposed that a forwarding note was prepared for analysis of the
aforementioned Muddamal and the sealed samples to FSL,
23
Surat and that a constable was deputed to submit the same to
FSL, Surat. The receipt obtained was duly filed. The Biological
and Serological Reports received from FSL, Surat were marked
as Exh.49 and Exh.50 respectively. The Serological analysis
clearly showed that the small trouser (leggings), the anal swab
(semen) and the perianal swab (semen) had blood of group O.
The accused had also blood group O. We are satisfied with the
chain of custody as emerging from the evidence. The defence
has a case that sample mark H mentioned in Exh.47 which is
the forwarding letter to the forensic science laboratory has
neither been analyzed in the biological analysis Exh.49 or in the
serological analysis Exh.50 and hence tampering cannot be
ruled out. The State has countered the submission by
contending that sample mark ‘H’ in Exh.47 is a Khaki cover
and is not an item recovered from the accused and as such the
State counsel contends that in all likelihood sample mark H was
a cover in which all other samples were put. The matching of
the blood group has occurred in sample F1 which is the anal
24
swab (semen) and F2 perianal swab (semen). The blood group
of the aforesaid semen was found to be O. It should be noted
that the sample of semen of appellant along with blood and
saliva in sample no. G1 to G4 also had blood group O. The
judgment in Prakash Vs. State of Karnataka (2014) 12 SCC
133 cited by the appellant also does not advance the case of the
defence. It is clear from the facts of the case, that the blood
sample therein was decomposed and its original grouping could
not be determined. In any event, coupled with other
circumstances indicated hereinabove, we are inclined to
consider the matching of blood group as an additional link in
the chain as far as the facts of this case is concerned.
26. The argument of Ms. Uttara Babbar, learned senior
counsel is that no DNA test was carried out. No doubt, the
DNA test was not carried out and it would have been better for
the prosecution to have done the same. However, keeping the
overall conspectus of the case in mind, we do not think that not
conducting DNA test was fatal to the prosecution. We draw
25
support from the judgment of this Court in Veerendra v. State
of Madhya Pradesh, (2022) 8 SCC 668, wherein it was held as
under:
“53. In view of the nature of the provision under
Section 53-ACrPC and the decisions referred to, 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, are 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 form a complete
chain pointing to the guilt of the accused alone in
exclusion of all hypothesis of innocence in his favour.”
27. In view of the circumstances elucidated above, we do not
feel the need to comment upon the admissibility of the discovery
panchnama Exh.P.18 and the recovery panchnama Exh.P.21. Even
26
eschewing the aspect of discovery under Section 27, we have
found that other circumstantial evidence does exist pointing to the
guilt of the appellant.
Presumption under the POCSO Act
28. It is clearly established in evidence that the deceased was
subjected to a brutal sexual assault. The injuries as evidenced in
the postmortem report Exh.P.28 particularly injury no. 1 clearly
indicate that the deceased was subjected to aggressive penetrative
sexual assault. The injury on the prepuce of the penis of the
accused along with the matching of the blood group coupled with
other circumstantial evidence clearly constitute foundational facts
for raising presumption under Sections 29 and 30 of the POCSO
Act. Sections 29 and 30 of the POCSO Act reads as under:
“ 29. Presumption as to certain offences .—Where a
person is prosecuted for committing or abetting or
attempting to commit any offence under Sections 3, 5,
7 and Section 9 of this Act, the Special Court shall
presume, that such person has committed or abetted or
attempted to commit the offence, as the case may be
unless the contrary is proved.
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30. Presumption of culpable mental state:- (1) In
any prosecution for any offence under this Act which
requires a culpable mental state on the part of the
accused, the Special Court shall presume the existence
of such mental state but it shall be a defence for the
accused to prove the fact that he had no such mental
state with respect to the act charged as an offence in
that prosecution.
(2) For the purposes of this section, a fact is said to be
proved only when the Special Court believes it to exist
beyond reasonable doubt and not merely when its
existence is established by a preponderance of
probability.”
29. It will be seen that presumption under Section 29 is
available where the foundational facts exist for commission of
offence under Section 5 of the POCSO Act. Section 5 of the
POCSO Act deals with aggravated penetrative sexual assault and
Section 6 speaks of punishment for aggravated penetrative sexual
assault. Section 3 of the POCSO Act defines what penetrative
sexual assault is. The relevant Sections are extracted hereinbelow.
“3. Penetrative sexual assault. - A person is said to
commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or
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5. Aggravated penetrative sexual assault.— ( i )
whoever commits penetrative sexual assault causing
grievous hurt or causing bodily harm and injury or
injury to the sexual organs of the child; or
(m) whoever commits penetrative sexual assault on a
child below twelve years; or
6. Punishment for aggravated penetrative sexual
assault.— (1) Whoever commits aggravated
penetrative sexual assault shall be punished with
rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment
for the remainder of natural life of that person, and
shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be
just and reasonable and paid to the victim to meet the
medical expenses and rehabilitation of such victim.]
30. The manner in which the appellant enticed the deceased
child under the pretext of buying ice-cream in spite of being
dissuaded by the aunt (PW-10) and without the consent of the
lawful guardians also makes out an offence under Section 364 of
IPC. The aggravated penetrative sexual assault clearly establishes
offence under Section 377 of IPC and Sections 4 and 6 of the
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POCSO Act. The appellant has not rebutted the presumption by
adducing proof to the contrary.
31. For the reasons stated above, we are satisfied that the
circumstances enumerated hereinabove are fully established; that
the circumstances so established are consistent only with the
hypothesis of the guilt of the accused and are not explainable by
any other hypothesis; that the circumstances are conclusive in
nature and further that the chain of circumstance is so complete as
to point to the conclusion that the appellant is guilty of the
offences charged. In view of the same, we uphold the conviction
as imposed by the Trial Court and confirmed by the High Court.
Sentence:
32. The Trial Court has imposed the sentence of death and the
High Court has confirmed the same. It is time for us to draw up a
balance sheet of the aggravating and mitigating circumstances to
decide whether the case falls in the category of rarest of rare case.
We also need to examine whether the sentence of life
30
imprisonment is foreclosed and the possibility of reformation is
completely ruled out.
33. Without doubt, the crime committed by the appellant was
diabolic in character. He enticed the innocent child by tempting
him with ice-cream and brutally sodomized and murdered the
four-year old. The appellant also mercilessly strangulated the
deceased. The post-mortem report clearly indicated that death was
due to asphyxia by throttling.
34. On the mitigating side, the appellant was 24 years of age
when the incident happened; he had no criminal antecedents; the
appellant hails from a low socio-economic household as the
Mitigation Investigation Report filed by Ms. Komal of Project
39A, pursuant to the order of this Court dated 05.10.2023
indicates. The mitigation report further indicates that experts have
opined that the appellant is diagnosed with moderate intensity
psychotic features and intellectual disability and that the appellant
had in his early childhood contacted Tuberculosis Meningitis
31
(TBM). The appellant, according to the report, maintains family
ties with his 64-year-old mother who takes care of his 10 year old
daughter. The appellant’s wife has deserted him.
35. By an order of 05.10.2023, we also called for the conduct
and behaviour of the appellant from the Superintendent of
Vadodara Central Jail as well as a report on his mental health. The
report from the Superintendent of Vadoara Jail indicates, that the
behaviour of the appellant in prison is completely normal and that
his conduct in jail is good. The report from the Hospital for
Mental Health indicates that the appellant has no psychiatric
problem at present. The report does indicate a feeling of remorse
in the appellant. The appellant has contended that the projective
test adopted by the Hospital for Mental Health has its limitations
for reliability. Be that as it may.
36. Considering the overall facts and circumstances, we hold
that the present is not a case where it can be said that the
possibility of reformation is completely ruled out. The option of
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life imprisonment is also not foreclosed. The case does not fall in
the category of rarest of rare case. We are of the opinion that ends
of justice would be met if we adopt the path carved out in Swami
Shraddananda Vs. State of Karnataka (2008) 13 SCC 767.
37. Even though the case of the appellant falls short of the rarest
of rare category, considering the nature of the crime, we are
strongly of the view that a sentence of life imprisonment which
normally works out for 14 years would be grossly
disproportionate and inadequate. Having regard to the nature of
the offence, a sentence of imprisonment for a prescribed period
without remission would alone be proportionate to the crime and
also not jeopardize the public confidence in the efficacy of the
legal system.
38. This Court recently in Nawas Alias Mulanavas Vs. State of
Kerala (2024) SCC OnLine SC 315, adverting to this aspect had
the following to say :-
“29. How much is too much and how much is too
little? This is the difficult area we have tried to
33
address here. As rightly observed, there can be no
straitjacket formulae. Pegging the point up to
which remission powers cannot be invoked is an
exercise that has to be carefully undertaken and
the discretion should be exercised on reasonable
grounds. The spectrum is very large. The
principle in Swamy Shraddananda (supra) as
affirmed in V. Sriharan (supra) was evolved as
the normally accepted norm of 14 years was
found to be grossly disproportionate on the lower
side. At the same time, since it is a matter
concerning the liberty of the individual, courts
should also guard against any disproportion in the
imposition, on the higher side too. A delicate
balance has to be struck. While undue leniency,
which will affect the public confidence and the
efficacy of the legal system, should not be shown,
at the same time, since a good part of the
convict's life with freedom is being sliced away
(except in cases where the Court decides to
impose imprisonment till rest of the full life), in
view of his incarceration, care should be taken
that the period fixed is also not harsh and
excessive. While by the very nature of the task
mathematical exactitude is an impossibility, that
will not deter the Court from imposing a period
of sentence which will constitute “a just dessert”
for the convict…..”
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39. Applying this principle, we hold that a sentence of
imprisonment for a period of 25 (twenty-five) years without
remission would be ‘a just dessert’.
40. The trial Court had sentenced the appellant to death under
Section 302 IPC, to simple imprisonment of 10 (ten) years and a
fine of Rs.10,000/- for offence under Section 364 and to life
imprisonment and a fine of Rs.10,000/- for offence under Section
6 of the POCSO Act. No separate sentences were awarded for
offences punishable under Section 4 of the POCSO Act and
Section 377 of IPC. The trial Court had directed that the accused
should suffer all the above ordered punishments together. The
High Court had confirmed the death sentence and dismissed the
appeal of the appellant.
41. In view of what we have held hereinabove, while
maintaining the conviction under Sections 302, 364, 377 of IPC
and Sections 4 and 6 of the POCSO Act, we set aside the sentence
of death for the offence under Section 302 and substitute the same
35
with that of rigorous imprisonment for a period of 25 (twenty-
five) years without remission. We also order that the sentence
imposed for offences under Section 364 IPC (10 years S.I. and
Rs. 10,000/- fine) and Section 6 of the POCSO Act (life
imprisonment and Rs.10,000/- fine) shall run concurrently with
the sentence of rigorous imprisonment for a period of 25 years
without remission, which we have presently ordered.
42. The appeals shall stand partly allowed in the above terms.
Considering the socio-economic condition of the accused on the
facts of the present case, we set aside the fine amounts imposed.
Special Leave Petition (Crl.) No. 9162 of 2021:
43. This Special Leave Petition arises out of an order of the
High Court of Gujarat at Ahmedabad in R/Special Criminal
Application No.18906 of 2021 whereby the High Court denied
parole to the petitioner.
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44. In view of the judgment passed in Criminal Appeal (Arising
out of SLP (Crl.) No. 9015-9016 of 2019, no orders are required
to be passed in this Special Leave Petition. The Special Leave
Petition is, accordingly, dismissed. However, the dismissal of the
Special Leave Petition will not debar the petitioner from availing
such remedies as are available under law and in accordance with
our judgment rendered hereinabove.
………........................J.
[ B.R. GAVAI ]
……….........................J.
[ ARAVIND KUMAR ]
……….........................J.
[ K. V. VISWANATHAN ]
New Delhi;
th
17 December, 2024.
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