Full Judgment Text
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 17941796 OF 2017
Prahlad ..Appellant
Versus
State of Rajasthan ..Respondents
O R D E R
These appeals are presented by the convicted
accused/appellant (hereinafter referred to as ‘accused’) against the
judgment dated 1.9.2016 passed by the High Court of Judicature at
Rajasthan in D.B. Criminal Murder (Death) Reference No. 01 of
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2015, D.B. Criminal Appeal Nos. 970 of 2015 and D.B. Criminal
Jail Appeal No. 1011 of 2015. By the impugned judgment, the High
Court confirmed the judgment dated 18.9.2015 passed by the
District and Sessions Judge, Pratapgarh, imposing capital
punishment in Sessions Case No. 149 of 2013 for committing
offences punishable under Section 302 IPC, and under Sections 3
and 4 of The Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as ‘the POCSO Act’).
2. The case of the prosecution in brief is that the minor daughter
(X) of the informant Prabhu Lal, aged about 8 years, was taken at
around 4.00 p.m. on 5.7.2013 while she was playing along with
other children at the informant’s house. She was taken away by the
accused on the pretext of giving her chocolates from a shop.
However, the minor victim (X) did not come back. The informant,
his brother Bhanwar Lal, and other family members were not in the
house that evening at the relevant time and they were informed
about the incident subsequently by the informant’s niece Lali when
they came back to their house. They searched for the girl
throughout the night, however in the morning to the informant’s
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dismay, the body of X was found near the house of Nagji, son of
Gautam Meena. The first information was lodged at 1.00 p.m. on
6.7.2013 by the father of X, with the allegations of rape and murder
against the accused. The Trial Court upon evaluation of the
material on record, convicted the accused for the offences
punishable under Section 302 IPC, and under Sections 3 and 4 of
POCSO Act, vide judgment dated 18.9.2015 and passed the
sentence of capital punishment. Consequently, the Trial Court
made reference to the High Court under Section 366 of Cr.P.C. for
the confirmation of this death sentence. The accused also preferred
appeals against the judgment and order of conviction, and sought
for acquittal. The reference was allowed, and the appeals filed by
the convicted accused came to be dismissed by the High Court.
3. The learned counsel for the accused taking us through the
material on record submits that the Trial Court is not justified in
convicting the accused for the offences under Section 302 IPC as
well as under Section 4 of the POCSO Act. The case rests on
circumstantial evidence and these circumstances are not duly
proved. He further argues that the chain of circumstances is not
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complete and, therefore, the accused is entitled for acquittal. He
also submits that, absolutely no evidence is found on record against
him for the offences under Sections 3 and 4 of the POCSO Act.
Lastly, he submits that the imposition of capital punishment on the
accused is illegal, and the case at hand is not a rarest of the rare
case.
Per contra, the learned counsel for the State argues in support
of the judgments of the courts below.
4. The present case rests on circumstantial evidence. The
evidence of PWs 1, 2, 3 and 4 clearly prove that the mother of the
deceased was treating the accused as her own brother, and on the
eve of Rakhi festival, she even used to tie Rakhi on the hand of the
accused. Hence, the child of the informant was treating the accused
as a maternal uncle and this fact was also known to all the villagers
because the accused used to visit the residence of the informant as
one of their relatives. All the family members of the informant
trusted the accused. Since the deceased was treating the accused
as her uncle, she did not have any reason to disbelieve or doubt the
offer made to go with him for getting the chocolates.
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5. PW2, Lali @ Lalita has deposed that the accused came to the
house of the informant and took his daughter with him. PW4,
Chameli also has deposed that, on the date of the incident, the
accused took the minor victim on the pretext of giving her
chocolates and also deposed that, at the point of time of the
incident, the child was 8 years of age. Because of the cordial
relationship the accused had with the victim’s family, PWs 2 and 4
thought that the accused had taken the child genuinely for getting
her chocolates without any ill intentions.
6. From the evidence of PWs 2 and 4 as well as the evidence of
the informant PW1, it is clear that the accused was treated as a
family member of the informant and that the minor victim believed
that the accused is her Mama (uncle) due to the trust her family
had upon the accused, because of which, the victim went along
with the accused when she was offered the chocolates and toffee.
The evidence also supports the case of the prosecution fully in
respect of the last seen circumstance.
7. PW5, Sattu is a shopkeeper from whom the accused purchased
the chocolates, biscuit and miraz . The evidence of PW7, Shyam Lal
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also supports the evidence of PW5 relating to the purchase of
chocolates and miraz from the shop. PW9, Dashrath also supports
the evidence of the prosecution, more particularly the evidence of
PW1.
8. PW10, Dr. O.P. Dayma, is the member of the Medical Board
along with two other doctors who examined the dead body of the
victim. They preserved smear from the vagina of the deceased girl,
prepared slides and sent it for Forensic Science Laboratory
examination. PW10 deposed that, on medical examination, five
injuries were found which were on the thighs, right leg, nose and
right wrist of the victim. In the post mortem report, PW10 opined
that the cause of death was due to hemorrhage shock. PW11, Dr.
Neelam Gupta reiterated the proceedings of the post mortem
examination as well as the opinion reached.
9. No explanation is forthcoming from the statement of the
accused under Section 313 Cr.P.C. as to when he parted the
company of the victim. Also, no explanation is there as to what
happened after getting the chocolates for the victim. The silence on
the part of the accused, in such a matter wherein he is expected to
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come out with an explanation, leads to an adverse inference against
the accused.
10. We find that there is ample material against the accused to
convict him for the offence under Section 302 IPC. All the
circumstances relied upon by the prosecution stand proved so as to
complete the chain of circumstances in respect of the offence under
Section 302 of the IPC. The Trial Court and the High Court are, on
facts, justified in convicting the accused for the offence under
Section 302 of the IPC. However, we are unable to find reliable
material against the accused for the offences under Section 3 and 4
of the POCSO Act.
11. The postmortem report reveals the following injuries on the
body of the victim:
1. 3x1 cm on left thigh on anterior knee.
2. 6x1 cm on right leg.
3. 2x1 cm abrasion on right thigh.
4. 1x1.5 cm on nose.
5. 1x1 cm on right wrist.
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In the ExaminationinChief itself, the doctor PW10 who
conducted the postmortem examination has deposed that the
genital organs of the victim were normal. The doctor further opined
that the death of the deceased was caused due to acute
hemorrhage. Postmortem report is at Ex. P15. In the cross
examination, the doctor has admitted that all the aforementioned
five injuries are simple in nature and they are likely to be caused by
falling. Fracture on the left rib nos. 10 and 11 mentioned in the
postmortem report can be caused by falling on a stone. PW10
further stated that the genital organs of the deceased were healthy
and no marks of any injury were present on the private parts of the
deceased. Signs of sperm ejaculation were also not found on the
external skin near the genital organs of the deceased. No injury was
present on the head of the deceased. The doctor further deposed
that when forcible sexual intercourse is committed upon a tender
girl, there is a possibility of her vagina getting ruptured and
bleeding from her genitals. There is no such mention in the post
mortem report. The FSL report regarding vaginal swab which was
sent for examination is not helpful for the prosecution to prove the
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offence under Sections 3 and 4 of the POCSO Act. Prosecution,
practically relies upon the doctor’s evidence only for proving the
offence under Section 4 of the POCSO Act. No other material is
placed on record by the prosecution to prove the offence under
Section 4 of the POCSO Act. However, the evidence relating to
penetration into the vagina, mouth, urethra or anus of a child etc.
or any part of the body is not found. The Trial Court as well as the
High Court have not gone into the depth of the evidence relating to
offence of penetrative sexual assault, in detail. Certain casual
observations are made which are not supported by the evidence led
by the prosecution. In light of the aforementioned evidence of PW10
doctor, and in view of the fact that no other reliable evidence exists
to prove the charge of penetrative sexual assault, i.e. any of the acts
as detailed in Section 3 of the POCSO Act, it is our considered
opinion that the Trial Court and the High Court are not justified in
convicting the accused for the offence under Section 4 of the
POCSO Act. We find from the judgment of the High Court that
absolutely no reason, much less any valid reasons were assigned for
convicting the accused for the offence punishable under the POCSO
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Act. Since no reliable material is available against the accused for
the aforementioned offence of the POCSO Act, the benefit of doubt
would go in the favour of the accused. After scanning through the
entire materials on record in order to satisfy the conscience, and
having regard to the seriousness of the charge, we conclude that
the accused needs to be given the benefit of doubt in so far as the
offence punishable under Section 4 of the POCSO Act is concerned.
12. Since the accused is to be acquitted for offence under Section
4 of the POCSO Act, in our considered opinion, this is not a fit case
to impose the death penalty on him, inasmuch as the appellant
does not have any criminal background, nor is he a habitual
offender. Motive for the offence of murder is not clear and of course
it is generally hidden, known to the accused only. Under such
circumstances, the court will have to see as to whether the case at
hand falls under the ‘rarest of the rare’ case category. The accused
was also young during the relevant point of time. The duty is on the
State to show that there is no possibility of reform or rehabilitation
of the accused. When the offence is not gruesome, not coldblooded
murder, nor is committed in a diabolical manner, the court will
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impose life imprisonment. In the case at hand, the mitigating
factors outweigh the aggravating factors. The only aggravating
factor in the matter is that the accused took advantage of his
position in the victim’s family for committing the murder of the
minor girl inasmuch as the minor girl was treating the accused as
her Mama (uncle).
13. We do not find that the murder has been committed with
extreme brutality or that the same involves exceptional depravity.
On the other hand, as mentioned supra, the accused was young
and the probability that he would commit criminal acts of violence
in the future is not available on record. There is every probability
that the accused can be reformed and rehabilitated. In this context,
the observations made by this Court in the case of Bachan Singh v.
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State of Punjab , is reproduced as follows:
“209. There are numerous other circumstances
justifying the passing of the lighter sentence;
as there are countervailing circumstances of
aggravation. “We cannot obviously feed into a
judicial computer all such situations since they
are astrological imponderables in an imperfect
and undulating society.” Nonetheless, it cannot
1 (1980) 2 SCC 684.
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be overemphasised that the scope and concept
of mitigating factors in the area of death
penalty must receive a liberal and expansive
construction by the courts in accord with the
sentencing policy writ large in section 354 (3).
Judges should never be bloodthirsty. Hanging
of murderers has never been too good for them.
Facts and figures, albeit incomplete, furnished
by the Union of India, show that in the past,
courts have inflicted the extreme penalty with
extreme infrequency a fact which attests to
the caution and compassion which they have
always brought to bear on the exercise of their
sentencing discretion in so grave a matter. It
is, therefore, imperative to voice the concern
that courts, aided by the broad illustrative
guidelines indicated by us, will discharge the
onerous function with evermore scrupulous
care and humane concern, directed along the
highroad of legislative policy outlined in
Section 354 (3), viz., that for persons convicted
of murder, life imprisonment is the rule and
death sentence an exception. A real and
abiding concern for the dignity of the human
life postulates resistance to taking a life
through law’s instrumentality. That ought not
to be done save in the rarest of rare cases
when the alternative option is unquestionably
foreclosed.”
14. Be that as it may, since the offence of rape is not proved and
as the offence of murder is proved beyond reasonable doubt, the
accused is liable to be convicted for the offence under Section 302
IPC. In view of the aforementioned reasons, the judgment of the
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Trial Court as well as the High Court convicting the accused for the
offences under Sections 3 and 4 of the POCSO Act and imposing
capital punishment on him stands set aside. However, for the
offence under Section 302 IPC, the accused is sentenced to undergo
imprisonment for life. Appeals are partly allowed in the aforesaid
terms.
.................................................J.
(N. V. RAMANA)
.................................................J.
(MOHAN M. SHANTANAGOUDAR)
.................................................J.
(MUKESHKUMAR RASIKBHAI SHAH)
New Delhi;
November 14, 2018.
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