Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 473474 OF 2019
[Arising out of SLP (Crl.) Nos. 24532454 of 2016]
Sachin Kumar Singhraha .....Appellant
Versus
State of Madhya Pradesh .....Respondent
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. The First Additional Sessions Judge, Maihar, District
Satna, Madhya Pradesh in Special Sessions Trial No. 41 of 2015
vide judgment dated 06.08.2015 convicted the accused/appellant
for the offences punishable under Sections 363, 376(A), 302 and
201(II) of the Indian Penal Code (in short “the IPC”) and Section
5(i)(m) read with Section 6 of the Protection of Children from
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2019.03.12
16:47:10 IST
Reason:
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Sexual Offences Act, 2012 (in short “the POCSO Act”) and
sentenced him to death.
3. The judgment of the Trial Court was confirmed by the High
Court of Madhya Pradesh at Jabalpur vide its judgment and
order dated 03.03.2016 in Criminal Reference No. 5 of 2015 and
in Criminal Appeal No. 2203 of 2015, except in respect of the
offence under Section 363 IPC which means the accused was
acquitted under Section 363 IPC by the High Court.
These appeals are presented by the convicted accused.
4. The case of the prosecution in brief is that on 23.02.2015,
PW4 (the elder brother of the victim’s father) came over from his
village to drop the victim child to school in a vehicle bearing
Registration No. MP 19 T 2374, owned and driven by the
accused/appellant. PW4, on the assurance of the
accused/appellant that he would go along with the victim child to
her school, as he had to pay his own daughter’s fees, alighted
from the vehicle near the Sabzi Mandi. The child went along with
the accused/appellant towards her school in the vehicle, but did
not return home that day. Despite a frantic search by her
parents, relatives and the villagers, the victim child could not be
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traced. The father of the deceased suspected that the
accused/appellant had left his daughter somewhere else,
however, the first information report (Ext. P1) came to be lodged
against an unknown offender and the accused/appellant was
apprehended after two days. After the trial, as mentioned supra,
the accused/appellant was convicted by the Trial Court and the
order of conviction was confirmed by the High Court.
5. Shri Mrigandra Singh, learned senior Advocate appearing on
behalf of the accused/appellant, took us through the material on
record, and submitted that the case of the prosecution mainly
rests on the last seen circumstance, but the said circumstance
has not been duly proved. This is because grave suspicion arises
against PW4 also, having regard to the evidence of PW5 Ramji
Shukla. He also submits that the evidence that led to the
recovery of the dead body based on the confession of the
accused/appellant is liable to be rejected on the ground that the
panchnama was drawn at the police station and not on the spot
of recovery of the dead body; and that the Investigating Officer
deliberately tried to conceal the main offender and framed the
accused/appellant, and such lapse in the course of investigation
would tilt the balance of justice in favour of the
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accused/appellant. In the alternative, he submits that the case
on hand does not fall under the definition of the rarest of rare
cases and, therefore, the accused/appellant may not be punished
with death.
Per contra, learned counsel for the State argued in support
of the judgments of the Courts.
6. The instant case rests on circumstantial evidence, the
prosecution relying mainly on the following circumstances:
a) PW4 (uncle of the deceased) and the deceased child travelled
from their native place Itma to Maihar in the vehicle owned
and driven by the accused/appellant.
b) PW4 gave the custody of the child to the accused/appellant
upon the assurance of the accused/appellant that he would
take the child to school safely.
c) The deceased was last seen with the accused/appellant by
PW4 and PW5.
d) The school bag and the dead body of the deceased were
recovered at the instance of the accused/appellant
pursuant to the disclosure statement.
e)
The accused/appellant came out with a false explanation in
his statement recorded under Section 313, CrPC.
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7. There cannot be any dispute as to the well settled
proposition that the circumstances from which the conclusion of
guilt is to be drawn must or “should be” and not merely “may be”
fully established. The facts so established should be consistent
only with the guilt of the accused, that is to say, they should not
be explicable through any other hypothesis except that the
accused was guilty. Moreover, the circumstances should be
conclusive in nature. There must be a chain of evidence so
complete so as to not leave any reasonable ground for a
conclusion consistent with the innocence of the accused, and
must show that in all human probability, the offence was
committed by the accused.
8. The records reveal that the distance between Itma (the
village of the deceased) and Maihar (the town where her school
was situated) was approximately 9 km. The deceased was
studying at New Horizon Public School, Maihar in L.K.G. and was
aged about five years and two months at the time of occurrence
of the offence. The accused/appellant was the registered owner of
the vehicle in which he was last seen with the victim, and was
driving the vehicle on the day of the incident. His daughter was
also a student of the same school as the deceased. All the
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aforementioned facts are not in dispute. It is also practically not
disputed before us by the counsel for the defence that it is a clear
case of rape and murder of the child. However, according to the
defence, the accused/appellant is not responsible for the crime.
9. PW1 is the father of the deceased. PW4 is the elder brother
of PW1. Since PW4 was working in Maihar town as an electrician
in an electrical shop, PW1 sent his child (the deceased) with PW4
to drop her to school at Maihar. At about 10.00 a.m., PW4 left
with the deceased from home in the vehicle of the
accused/appellant and went to Maihar.
PW4 has deposed that he was told by the accused/appellant
that he had to go to the victim’s school to deposit his own
daughter’s fees, and believing his words, PW4 requested the
accused/appellant to take the victim child to school. The
accused/appellant assured PW4 that he would drop the victim
child to school. Hence, PW4 got off the vehicle, leaving the victim
child in the custody of the accused/appellant. Thus, PW4 is the
main witness to depose about the last seen circumstance. PW4
also withstood his lengthy crossexamination and no major
variations were brought out in his evidence through the same.
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10. However, learned senior Counsel for the defence contended
that the needle of suspicion also tilts towards PW4, inasmuch as
PW5 has deposed that he saw the accused/appellant, the
deceased and PW4 together in the vehicle of the
accused/appellant, at a point near the Sabzi Mandi. According
to the learned counsel, if PW4 had really alighted from the vehicle
at the Sabzi Mandi, he could not have been seen by PW5 at the
said point. On the said basis, he submits that the evidence of
PW4 cannot be believed, since his statement before the Court
was only meant to shield himself.
We have carefully gone through the evidence of PW5 in
order to satisfy our conscience, and find that the Trial Court and
the High Court have on an evaluation of PW5’s evidence, rightly
concluded that it supported the prosecution’s version. Thus, the
contention as raised above cannot be accepted.
PW5 has deposed that at about 9.30 a.m., he saw the
accused/appellant sitting in the driver’s seat in the vehicle, and
the victim by his side, in her school uniform. There was a
contradiction (Ext. D4) in the evidence of PW5 with respect to the
deceased being seated in the front seat of the vehicle, which
according to us is not material. Unfortunately, the Trial Court,
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instead of marking a specific portion of the statement of PW5,
where he has contradicted his earlier version relating to the
aforesaid version, has marked the entire statement recorded by
the police under Section 161 of the Code of Criminal Procedure
(in short “the CrPC”). Be that as it may, the contradiction thus
marked is to be seen only with regard to the child sitting next to
the seat of the accused/appellant. This contradiction has been
explained by the Trial Court and the High Court by observing
that it may be due to loss of memory, and that it is in any case
not a material contradiction. PW5 has deposed in his cross
examination that he saw the accused/appellant, the deceased
and PW4 together in the vehicle of the accused/appellant. The
defence counsel based on this deposition of PW5 vehemently
argues that PW5 fully contradicts the evidence of PW4 as he has
deposed to seeing PW4 at a point inconsistent with where he
claimed to have got down from the vehicle of the
accused/appellant. However, we do not find any confusion in the
evidence of PW5, inasmuch as he has consistently deposed that
he saw the accused/appellant, deceased and PW4 in the vehicle
of the accused/appellant in the region of the Sabzi Mandi. This
does not conflict with the case of the prosecution that all the
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aforementioned three persons left the village Itma in the vehicle
of the accused/appellant and dropped PW4 near the Sabzi
Mandi. The Court will have to evaluate the evidence before it
keeping in mind the rustic nature of the depositions of the
villagers, who may not depose about exact geographical locations
with mathematical precision. Discrepancies of this nature which
do not go to the root of the matter do not obliterate otherwise
acceptable evidence. It need not be stated that it is by now well
settled that minor variations should not be taken into
consideration while assessing the reliability of witness testimony
and the consistency of the prosecution version as a whole. In
this view of the matter, in our considered opinion, the evidence of
PW5 fully supports the evidence of PW4 and the case of the
prosecution.
11. The case of the prosecution is further supported by PW6,
who is also a resident of village Itma. At about 11.00 a.m., while
he was sitting in his paan shop, he saw the deceased with the
accused/appellant in a vehicle going towards Katni Road.
12. PW2 and PW3 have deposed about the recovery of the dead
body as well as the school bag of the child based on the
disclosure statement made by the accused/appellant. Needless
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to say, only so much of the statement as has led to the recovery
of the dead body and the school bag is admissible in evidence
under Section 27 of the Indian Evidence Act. Both these
witnesses have deposed that after the disclosure statement of the
accused/appellant was recorded, he led the police and the
witnesses (PW2 and PW3) to the spot where the school bag and
the dead body had been disposed of. The dead body was found in
a well situated alongside Paraswara Canal. At this time, only an
underwear was present on the dead body. The police took out
the dead body of the deceased from the well, and after such
recovery, recorded the recovery memo Ext. P7 and took the
signatures of the witnesses. Thereafter, the accused/appellant
led the police and the witnesses to the school at Dubehi, on the
rooftop of which he had hidden the victim’s school bag. The
recovery memo of the school bag (Ext. P8) was prepared at the
spot and the signatures of the witnesses were taken. Though
certain suggestions were made to PW2, the same were denied.
The evidence of PW2, in our considered opinion, has remained
unshaken. The evidence of PW3 is almost similar to the evidence
of PW2. In his crossexamination, PW3 has deposed that the
police had prepared the police papers at several places, such as
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village Paraswara, and at the police station. It is also admitted
by PW3 that the inquest panchnama was prepared at the police
station. However, these admissions of PW3 will not take away the
effect of Ext. P7 and Ext. P8, which are the recovery memos duly
signed by the witnesses. It is clear from the evidence of PW2 and
PW3 that immediately after the dead body was taken out from the
well and after the recovery of the school bag from the rooftop of
the school at Dubehi, the recovery memos Ext. P7 and Ext. P8
were prepared on the spot and the signatures of the witnesses
were taken. As mentioned supra, PW3 has also deposed in his
crossexamination that certain police papers were prepared at the
village Paraswara as well as at the police station and that the
inquest panchnama was prepared subsequently at the police
station. However, on this basis, the entire case of the prosecution
cannot be doubted, inasmuch as neither the death of the
deceased nor the place of death is disputed. The evidence relating
to the recovery is relevant to show that certain incriminating
material has been recovered at the instance of the
accused/appellant, and that the accused/appellant knew about
the place of throwing the dead body and the school bag after the
crime. We find that the evidence of PW2 and PW3 is compatible
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with the prosecution version. Hence, we cannot reject the
evidence merely based on the fault of the Investigating Officer in
not preparing the inquest panchnama on the spot, particularly
keeping in mind Ext. P7 and Ext. P8 which were prepared on the
spot.
At this juncture, we would like to recall that it is wellsettled
that criminal justice should not become a casualty because of the
minor mistakes committed by the Investigating Officer. We may
hasten to add here itself that if the Investigation Officer
suppresses the real incident by creating certain records to make
a new case altogether, the Court would definitely strongly come
against such action of the Investigation Officer. There cannot be
any dispute that the benefit of doubt arising out of major flaws in
the investigation would create suspicion in the mind of the Court
and consequently such inefficient investigation would accrue to
the benefit of the accused. As observed by this Court in the case
of , (2000) (1) SCC 247, a criminal trial
State of H.P. v. Lekh Raj
cannot be equated with a mock scene from a stunt film. Such
trial is conducted to ascertain the guilt or innocence of the
accused arraigned and in arriving at a conclusion about the
truth, the courts are required to adopt a rational approach and
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judge the evidence by its intrinsic worth and the animus of the
witnesses. The courts are not obliged to make efforts either to
give latitude to the prosecution or loosely construe the law in
favour of the accused. The traditional dogmatic hypertechnical
approach has to be replaced by a rational, realistic and genuine
approach for administering justice in a criminal trial.
In this view of the matter, we find no error in the reliance
placed by the Courts upon the circumstance of the recoveries
effected at the instance of the accused/appellant.
13. Looking at the evidence of the doctors, PW10 and PW11, it
is clear that the victim was sexually assaulted. Learned senior
Advocate for the defence, fairly, did not argue contrary to the
evidence of the doctors.
14. The last circumstance, which is actually an additional
circumstance in the chain of circumstances, is that the
accused/appellant has assigned a false explanation about leaving
the company of the victim. The explanation offered by the
accused/appellant is that he parted with the company of the
child by leaving her at school and hence does not know what
happened subsequently. This explanation offered by the
accused/appellant is false, having regard to the evidence of
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Prahlad Patel, PW8, the Manager and teacher of the school and
the records (attendance register) produced by him as Ext. P/15
for the month of February, 2015, which reveal clearly that the
child did not come to school on the day of the incident. Since the
accused/appellant has offered a false explanation regarding the
events of that day, more particularly about the last seen
circumstance, an adverse inference needs to be drawn against
him.
15. Though the defence has also led the evidence of DW1, his
evidence may not be relevant to discard the evidence of the
prosecution witnesses as far as the incident of murder and rape
is concerned, as it mainly pertains to the date and aftermath of
arrest of the accused/appellant. As rightly observed by the
Courts, the evidence of DW1 does not create any sort of doubt in
the mind of the Court and is not relevant to the commission of
the offence in question.
16. Having regard to the totality of the facts and circumstances
of the case, in our considered opinion, the Trial Court as well as
the High Court have rightly concluded that the prosecution has
proved its case beyond reasonable doubt for the offence with
which the accused/appellant was charged. In our considered
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opinion, all the circumstances relied upon by the prosecution are
proved beyond reasonable doubt and consequently the chain of
circumstances is so complete so as to not leave any doubt in the
mind of the Court that it is the accused and accused alone who
committed the offence in question. It is worth reiterating that
though certain discrepancies in the evidence and procedural
lapses have been brought on record, the same would not warrant
giving the benefit of doubt to the accused/appellant. It must be
remembered that justice cannot be made sterile by exaggerated
adherence to the rule of proof, inasmuch as the benefit of doubt
given to an accused must always be reasonable, and not fanciful.
17. However, in our considered opinion, the Courts may not
have been justified in imposing the death sentence on the
accused/appellant.
As has been well settled, life imprisonment is the rule to
which the death penalty is the exception. The death sentence
must be imposed only when life imprisonment appears to be an
altogether inappropriate punishment, having regard to the
relevant facts and circumstances of the crime. As held by this
Court in the case of Santosh Kumar Singh v. State through
, (2010) 9 SCC 747, sentencing is a difficult task and often
C.B.I.
15
vexes the mind of the Court, but where the option is between life
imprisonment and a death sentence, if the Court itself feels some
difficulty in awarding one or the other, it is only appropriate that
the lesser punishment be awarded.
18. We have considered the aggravating and mitigating
circumstances for the imposition of the death sentence on the
accused/appellant. He has committed a heinous offence in a
premeditated manner, as is indicated by the false pretext given to
PW4 to gain custody of the victim. He not only abused the faith
reposed in him by the PW4, but also exploited the innocence and
helplessness of a child as young as five years of age. At the same
time, we are not convinced that the probability of reform of the
accused/appellant is low, in the absence of prior offending
history and keeping in mind his overall conduct.
19. Therefore, with regard to the totality of the facts and
circumstances of the case, we are of the opinion that the crime in
question may not fall under the category of cases where the death
sentence is necessarily to be imposed. However, keeping in mind
the aggravating circumstances of the crime as recounted above,
we feel that the sentence of life imprisonment simpliciter would be
grossly inadequate in the instant case. In this respect, we would
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like to refer to our observations in the recent decision dated
19.02.2019 in Parsuram v. State of M.P. (Criminal Appeal Nos.
314315 of 2013) on the aspect of nonremissible sentencing:
“13. As laid down by this Court in
Swamy
(2008) 13
Shraddananda (2) v. State of Karnataka,
SCC 767, and subsequently affirmed by the
Constitution Bench of this Court in
Union of India v.
, (2016) 7 SCC 1, this Court may validly
V. Sriharan
substitute the death penalty by imprisonment for a
term exceeding 14 years, and put such sentence
beyond remission. Such sentences have been awarded
by this Court on several occasions, and we may
fruitfully refer to some of these decisions by way of
illustrations. In Sebastian alias Chevithiyan v.
State of Kerala , (2010) 1 SCC 58, a case concerning
the rape and murder of a 2yearold girl, this Court
modified the sentence of death to imprisonment for the
rest of the appellant’s life. In
Raj Kumar v. State of
, (2014) 5 SCC 353, a case
Madhya Pradesh
concerning the rape and murder of a 14yearold girl,
this Court directed the appellant therein to serve a
minimum of 35 years in jail without remission. In
Selvam v. State , (2014) 12 SCC 274, this Court
imposed a sentence of 30 years in jail without
remission, in a case concerning the rape of a 9yearold
girl. In ,
Tattu Lodhi v. State of Madhya Pradesh
(2016) 9 SCC 675, where the accused was found guilty
of committing the murder of a minor girl aged 7 years,
the Court imposed the sentence of imprisonment for
life with a direction not to release the accused from
prison till he completed the period of 25 years of
imprisonment.”
20. In the matter on hand as well, we deem it proper to impose a
sentence of life imprisonment with a minimum of 25 years’
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imprisonment (without remission). The imprisonment of about
four years as already undergone by the accused/appellant shall
be set off. We have arrived at this conclusion after giving due
consideration to the age of the accused/appellant, which is
currently around 38 to 40 years.
21. Accordingly, the following order is made:
The judgment and order of the High Court affirming the
conviction of the accused/appellant for the offences punishable
under Sections 376(A), 302 and 201(II) of the IPC and under
Section 5(i)(m) read with Section 6 of the POCSO Act stands
confirmed. However, the sentence is modified. The
accused/appellant is hereby directed to undergo a sentence of 25
years’ imprisonment (without remission). The sentence already
undergone shall be set off. The appeals are disposed of
accordingly.
...........................................J.
(N.V. Ramana)
............................................J.
(Mohan M. Shantanagoudar)
……………………………………..J.
(Indira Banerjee)
New Delhi;
March 12, 2019.
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